R.S. v. D.S., 2019 BCPC 61

Citation: R.S. v. D.S. 2019 BCPC 61 Date: 20190326 File No: 17897 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.S. APPLICANT AND: D.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Appearing in person: R.S. Counsel for the Respondent: S.P. Jodway

Place of Hearing: Abbotsford , B.C. Date of Hearing: February 11-12, 2019 Date of Judgment: March 26, 2019 Introduction [ 1 ] The Applicant, R.S. and the Respondent, D.S. are the parents of three daughters: A.C.S., born [omitted for publication] I.M.S., born [omitted for publication] S.J.S., born [omitted for publication [ 2 ] The parties were married in July of 1997 and separated in January of 2018. The children now reside with the Applicant. There is a difference of opinion as to why this is so.

The Applicant says that it is because the Respondent is an alcoholic, while the Respondent accuses the Applicant of parental alienation. The Applicant is asking for an order that acknowledges both parties to be guardians of the children, but which gives him the deciding role in parental responsibilities.

He also wishes to maintain the status quo, in which he enjoys the majority of the parenting time with the children, and he asks for an order requiring the Respondent to pay him child support. [ 3 ] In her Reply, the Respondent asks for significantly more parenting time with the children, to a level that would require the Applicant to pay her child support. She has also applied for spousal support. [ 4 ] At the trial of this matter both of the parties testified, and the Respondent’s father was also called as a witness.

The children’s point of view was taken in the form of a report from the Family Justice Counsellor under

section 211 of the Family Law Act. Following is a

summary of the evidence in this Application, a

summary of the applicable law, and the reasons for making the order that will be made.

Summary of Evidence [ 5 ] The Applicant and the Respondent began living together in 1995 and were married in 1997. Both of them were employed at the time. The Applicant was working as a project manager for a telecommunications company and the Respondent was working as a property manager for her parents’ rental properties. They were living in Ontario. Their oldest child was born in [omitted for publication] and later that year the family moved to Michigan where the Applicant worked as the project manager for a company that was constructing a wireless communication network.

The Respondent continued to work as a project manager and was able to perform her duties remotely from Michigan. [ 6 ] In 2001 the Applicant and Respondent formed their own wireless construction company. They worked as a team, with the Applicant handling the operations side of the business and the Respondent looking after finance and administration. According to the Respondent, the company had eight employees. They operated the company from 2001 to 2008, and during this time, their two youngest children were born.

Their partnership was such that the Applicant worked outside of the home, working in excess of fifty hours per week, while the Respondent worked in the home. Her duties with the company were less time consuming and so she looked after the majority of the child care responsibilities. [ 7 ] In 2008 the company that the parties had in Michigan was dissolved and the parties moved to British Columbia where the Applicant took up employment as a project manager for a wireless construction company. The Respondent continued to work remotely as manager of her parents’ real estate holdings.

The independent evidence supports the Respondent’s assertion that during this time she was the one who took the children to their dental appointments, their dance classes and their daughter’s riding sessions. [ 8 ] In July of 2016 the Respondent had major heart surgery resulting in a triple bypass. She was in hospital for three weeks and during that time the Applicant looked after the children.

He was able spend more time at home commencing that fall, after his employment ended and he was given a severance package. [ 9 ] By all accounts, the home was not a happy one, although each of the parties has a different explanation for why this was so. The Respondent says that she and the Applicant were constantly arguing and that there was too much stress in the home for someone with a heart condition like herself. The Respondent admits that she likes to drink wine, and that there may have been times when she over imbibed.

But she insists that the accounts of her drinking presented by the Respondent and by the children are exaggerated. She accuses the Applicant of putting the children up to lying about the extent of her drinking. [ 10 ] The Applicant and the children present a different version of events in the home. They describe the Respondent as an alcoholic who was constantly drinking, which contributed significantly to problems in the home.

The Applicant testified that the Respondent had a significant drinking problem and that it was typical throughout the marriage for her to drink one and a half litres of wine per night, except when she was pregnant or was breast feeding. He also disputes the Respondent’s account of his contribution to the household. He says that when he was looking after the children or doing housework, it was usually when the Respondent was drinking or was passed out.

He also testified that for much of the time when the children were young, the couple had nannies and housekeepers. [ 11 ] The Respondent left the family home in January of 2018 and moved to Abbotsford. She testified that she asked the Applicant about a shared parenting regime, but that he was not open to the idea. She describes him as being angry and condescending.

She met with the Family Justice Counsellor in early February and after that meeting she emailed the Applicant and proposed that she pay him $1,120 per month for child support and that the two of them divide the expenses for the children’s extracurricular activities in proportion to their

incomes. The split she proposed was that he pay 60% and she pay 30%, but from the context of the email it appears that she meant for him to pay two-thirds of these expenses and for her to pay a third of them. She testified that she did not pay the Applicant any child support because she received legal advice that any child support which she would be obliged to pay might be offset by spousal support owing to her. [ 12 ] Since the separation the children have shown some reluctance to spend time with the Respondent. She blames the Applicant for thus.

In her words, “he never did anything for them for eighteen years” and she says that she believes that the Applicant told the children to tell lies about her to the Family Justice Counsellor. [ 13 ] The Respondent has also accused the Respondent of alienating the children from her parents. She says that this is because of a dispute over a large sum of money that she says was lent to the couple by her parents. This dispute is now the subject of a civil action in the British Columbia Supreme Court. [ 14 ] The Respondent acknowledges that her relationship with the children is a strained one.

She says that her oldest child is angry with her. She blames the Applicant for the fact that the oldest child did not finish high school. She says that her relationship with her middle child is also strained and she blames the Applicant for this as well. This child has had some issues with depression and has seen a counsellor about her feelings. The parties each testified about an incident in which this child took an excessive amount of Tylenol pills while in the Respondent’s care.

The Applicant sees this as a significant attempt by the child at self-harm, while the Respondent believes that he is blowing the incident out of proportion. [ 15 ] In the Respondent’s opinion it is, to use her words “a no-brainer” that children should be with their mother following a separation and she claims that the children would “jump for joy” if ordered to reside with her. She is convinced in her own mind that the children were coached in what they told the Family Justice Counsellor and that the Applicant is attempting to alienate the children from her.

She maintains that the children are residing with the Applicant because he is manipulating them and because, in her words, “he kept the kids from” her. [ 16 ] In cross-examination, the Respondent was asked about the extent of her drinking. She reluctantly agrees that she drank more than she should have, but claims that reports of her drinking are exaggerated.

She refers to her drinking as “self-medicating” and maintains that she only drank heavily in the evenings and that this did not affect her abilities to care for the children. [ 17 ] The Respondent moved into a house in northeast Abbotsford that her parents selected for her. It is a large six-bedroom home with plenty of room for the children.

She had proposed that her children go to a nearby high school, but she says that they did not want to attend that school because they had entrenched friendships at their current school that they did not wish to lose. [ 18 ] The Respondent has not seen the oldest child since Christmas. At that time she had planned to take the other two children to see her parents, but the youngest child became upset and did not want to go. The child called the Applicant, who decided to record the phone call.

In the call, the Respondent can be heard ranting, using liberal doses of profanity directed towards her child, and blaming the child for “ruining Christmas for everyone.” She accused the child of being part of a plan with the Applicant to make her “look dumb”. She presented herself to the child as a victim, and told the child, “Don’t ask me for money, not one penny.

You stay in Chilliwack so that he doesn’t have to pay child support.” She later told the child “I am actually way better for you than your psychopathic manipulative dad.” Throughout the incident, the middle child remained in the vehicle. [ 19 ] The Respondent sought to explain her actions by placing them in context. She testified that this had occurred on December 27 th and that the plan was for her and her two younger daughters to go to her parents’ home for a late Christmas dinner. Two of her nieces from California had come to visit.

She believes that the incident had been planned by the Applicant, and she feels that she had been “set up” so that the Applicant could record the incident and use it in court against her.

She said that she later apologized to her youngest child for her actions. [ 20 ] In the Respondent’s resume, she describes herself to prospective employers as a “highly motivated professional with over 20 years of business management experience in the wireless communications and real estate industries.” She has some form of certification in civil environmental engineering that was obtained in Toronto in 1999, and management licenses for rental property management and for strata management, both obtained in British Columbia.

For almost two years now she has been employed by a strata management company in Abbotsford. Her resume details over 22 years in the field of property management, as well as 7 years as co-owner of the wireless construction management company that she and the Applicant operated together. [ 21 ] The Applicant left his previous position in December of 2017. He began new employment a few months ago. While it is a good paying job, the Applicant describes his current employment as “fragile”. He testified that he is recovering from the economic fallout of the break-up of his marriage.

Since the Respondent left the home, he has been responsible for caring for the children and meeting their needs without any financial support from the Respondent. Although one solution to the economic pressure he is under might be to share parenting of the children with the Respondent, he does not see this as a solution because of the Respondent’s alcoholism and because of the children’s expressed wish that they don’t want this to happen.

He notes that these are all teenaged children and all have been adversely affected by their mother’s excessive drinking. [ 22 ] One of the issues presenting itself in this family dynamic appears to be the discomfort that the children have with the Respondent’s father. The Applicant alleges that when the family was living in Ontario, he interrupted his father-in-law in the midst of some inappropriate act with the oldest child. Both the Respondent and her father strenuously deny this, and put this down to a fabricated excuse for the Applicant not to repay money that was borrowed from the Respondent’s father.

The Respondent’s father also believes that the Applicant has poisoned the minds of the children against him [ 23 ] The oldest child A. has now reached the age of adulthood and will be 20 years old this summer. She had aspirations of attending university, but because of the marital break-up, the parties were not in a position to assist her financially with her goal. The Respondent blames the Applicant for this. This is not a realistic assessment. With the benefit of hindsight, it is unfortunate that the parties were unable to plan for this with a Registered Education Savings Plan.

Their inability to do so may be because their entrepreneurial efforts

were not as successful as they had hoped, or it may well be that the Respondent’s drinking contributed to poor money management within the home. It is unfair to blame this on any one party, and certainly the evidence does not support the conclusion that Respondent has come to. This child is now working at a minimum wage job in the fast food industry, though the one thing that everyone agrees on is that she has the potential for greater things. She told the Family Justice Counsellor that she would like to go to law school some day. [ 24 ] A. told the author of the

section 211 report that she enjoys living with the Applicant, stating that his home “feels like a real home.” She describes having a good relationship with the Applicant, describing her father as an unselfish person. She said, “He really cares about other people. He does things for everyone else.” Conversely, she does not trust the Respondent and sees her as “part of the problem.” She adds, “There are so many times when I try and count on her and I can’t.” Specifically, she recalls the Respondent being “wasted” at her dance competitions, and wanting to drive her home in that condition.

She also expressed her opinion that the Respondent is much more selfish than the Applicant, telling the report writer that the Respondent “always cares about herself more.” [ 25 ] A. recalls that when her parents lived together, there were a lot of arguments between the two. She considers the Respondent to be an alcoholic and recalls that the Respondent frequently drank and drove. She said that when she visited the Respondent, she would be asked a lot of questions about the Applicant, such as “What is his strategy for court? Is he forcing you to stay there?

Is he kidnapping you?” The Applicant also asks her questions about the Respondent, but these are usually about whether or not the Respondent has been drinking and driving. She later told the report writer that she does not believe that her mother is drinking as much now as she did in the past, but she still does not trust the Respondent. The

Section 211 Report states: A. would like the judge to know that “I think my mom shouldn’t have full parenting time. She is an alcoholic so she shouldn’t drink and drive. We don’t want to see our grandfather and he just pops in.” [ 26 ] The middle child, whom the parties call B., turned sixteen years old last fall. According to the Applicant, B. had been doing poorly in school, but has turned her academic life around and is now a straight “A” student. B. has struggled with depression in the past and has seen a therapist for this issue.

The Applicant referred to an incident when B. had been left alone at home by her mother and had taken a number of Tylenol pills. The Applicant believes that this was an attempt at self-harm. When he learned what had happened, he called Poison Control and was advised that the amount of pills taken was not life-threatening. He took the child to a new therapist and began spending more time with her. He said that she now has a new group of friends and appears to be thriving at her new school. B. is quite proficient at horseback riding, an activity that she enjoys.

She also has aspirations of attending university some day and would like to become a teacher. [ 27 ] B. told the author of the

Section 211 Report that she enjoys living in her father’s home and that she likes the friends she has made at her current school. She told the report writer “everything is really good right now.” She says that she gets along very well with the Applicant and she describes him as “helpful and wise.” She has noticed the stress that he is under because of the family court issues, but says that when the stress gets the better of him, he will usually apologize later if he has been curt.

On the other hand, she describes her relationship with her mother as stressful and told the report writer that she has never left her mother’s home without crying. She describes the time they spend together as follows: “Some days she is nicer and other days she is really bad. We’ll fight a lot.” It is her perception that the Respondent says things to her with the deliberate intention of upsetting her. B. also dislikes the Respondent’s drinking. She recalls that when her parents first separated, the Respondent was drinking heavily, but that her mother’s drinking has lessened over time.

B. told the report writer that she doesn’t think that he mother realizes that she has a problem with alcohol. [ 28 ] B. also told the report writer that if she was required to live with the Respondent, she would probably isolate a lot in her bedroom and would only leave her room for meals. She adds however that she does not hate the Respondent. [ 29 ] S. is the youngest child. She recently turned 15 years of age. According to the Applicant, S. is also a straight “A” student.

The Applicant testified that he spends more time with S. because he does not want “to miss any signs like I did with B.” S. is active in several forms of dance and in acrobatics. Her career aspiration is to someday become a paediatric surgeon. [ 30 ] S. told the

Section 211 Report writer that she gets along well with the Applicant and describes him as someone who “puts his family first and is good with advice.” She also gets along well with the Respondent but adds that they sometimes fight. She believes that the Respondent cares about her, but wishes that the Respondent would not drink so much. S. describes the atmosphere in her parents’ home, when the family lived together, as “really stressful.

They were always fighting.” She says that when she is with the Respondent, she finds herself in a difficult position because her mother disparages her father and that makes S. uncomfortable. She says that her father used to do the same thing, but that he has gotten better in controlling what he says. She also told the report writer that it would be difficult for her to live with the Respondent because all of her friends, her school and her activities are in Chilliwack.

She wishes that her mother would drink less, but she added that she does not feel comfortable in being asked to express a preference for either parent. She told the report writer that she would like the judge to know that she does not want to pick sides in her parents’ conflict, which is exactly the position that she feels like she is in. [ 31 ] The

Section 211 Report concludes with the observation that all of the children “seem deeply concerned about their mother’s drinking. They believe she has an issue with alcohol which has greatly disrupted her relationship with them and they are fearful about her driving while intoxicated.” The report marks the contrasting perceptions that all of the children have between each parent’s home.

As the report writer puts it: “There is a lot of conflict in the home with their mother and peace and calmness in the home with their father.” The report sets out the views of the children as wishing to maintain the status quo, rather than move to the drastic change that the Respondent would like to see. Position of the Parties [ 32 ] The Applicant asks for an order which would allow the children to continue to reside with him in Chilliwack.

He notes how well they have settled into their new home, how much they enjoy their home, and how they feel more comfortable and less stressed in their current home, as opposed to that of the Respondent. He notes that this is corroborated by what the children have reported in the

Section 211 Report. He stresses the danger of requiring the children to live in the Respondent’s home because of her alcoholism, her denial that she has a problem, the conflict that the children experience in her home and their discomfort with the Respondent’s parents. He denies the accusation that he has coached the children to disparage the Respondent, and points out that the evidence suggests the

reverse to be true. Specifically, the conduct of the Respondent in her unguarded conversation with her children present demonstrates that it is the Respondent who is disparaging him, and who speaks inappropriately about him in the presence of the children. [ 33 ] The Applicant asks for retroactive child support from the time of separation. He asks for support for all three children, noting that even though the oldest child is now over the age of 19, she is unable to support herself. He also opposes the Respondent’s application for spousal support.

He argues that for much of their marriage the two worked in partnership in their business ventures, and that any success or failures should be shared between them. He also notes that, like himself, the Respondent is also an experienced professional in her field and that aside from her alcoholism, there is nothing preventing her from supporting herself. He argues that she has not acquired any economic disadvantage from the marriage, and in fact the reverse may be true. [ 34 ] Counsel for the Respondent asks for an order giving each parent equal parenting time.

He notes that child support will follow the result of the application for shared parenting. He also asserts that the Applicant has been guilty of parental alienation and has poisoned the children’s minds against the Respondent and should not benefit from this. He also asks for an order requiring the Applicant to pay spousal support to the Respondent, based on the Spousal Support Advisory Guidelines. Counsel says that the entitlement to spousal support flows from the fact that the Applicant enjoys a higher salary.

He also asks for a finding that the children’s extra- curricular activities such as their dance lessons and the boarding of the middle child’s horse are expenses under

section 7 of the Federal Child Support Guidelines that should be shared in proportion to the parties’ respective incomes, which he calculates at a 65.8% share for the Applicant and a 34.2% share for the Respondent. Applicable Law and Analysis 1. Parenting Time and Parenting Responsibilities [ 35 ]

Section 37 of the Family Law Act requires that in making an order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. Determination of what is in child’s best interests calls for a consideration of all of the child's needs and circumstances. Specifically, the Family Law Act lists a number of considerations that must be considered. [ 36 ] The first consideration listed in

Section 37 is the children's health and emotional well-being. There are a number of considerations under this heading that favour the Applicant as the parent who is better suited to meet the children’s needs in this regard. Firstly, the children themselves have expressed the view that they feel less stressed and more at ease in the Applicant’s home. While both parties accuse the other of disparagement, the evidence presented at trial supports the conclusion that it is more likely that the children will be disparaged in the Respondent’s presence than in the Applicant’s. This is clear both from the

Section 211 Report, as well as from the Respondent’s own words caught on the recording. The Respondent’s contention that she was “set up” shows a poor understanding of why it is harmful to children for a parent to speak to a child in the manner that she did. The children are uncomfortable in the Respondent’s home because of their perception that the Respondent drinks too much and because they feel uncomfortable around her parents.

Despite the Respondent’s denials about the legitimacy of these concerns, they are very real to the children, and it is difficult to justify taking them out of their current position of relative comfort and placing them in the midst of a situation which they perceive to be stressful. [ 37 ] Under this factor, I would also not a difference of opinion between the parties on the children’s health issues. The Applicant has demonstrated real concern about the children’s health issues, such as the oldest child’s peanut allergy, or the middle child’s problems with depression and anxiety.

The Respondent does not express the same level of seriousness about these things that the Applicant does. While it is difficult to assess the significance of this, if an error is to be made, it is best to err on the side of treating a possible health issue as significant, rather than ignoring or minimizing one that may be life-threatening. [ 38 ] The next consideration is the views of the children, something that is appropriate to consider in this case, given their ages. On this front, they have made their views clear: they prefer to remain primarily in the Applicant’s care.

They all believe that the Respondent needs to be called out on her excessive drinking and they are all afraid of how her drinking affects the Respondent. Specifically, they are afraid of her drinking and driving, as well as her mercurial personality. The Respondent says that she does not have a drinking problem, but it is hard to ignore the united voice that the children have on this issue. The Respondent has admitted to excessive drinking, but says that it’s all in the past. One of the major symptoms of alcoholism is denial on the part of the alcoholic.

If the children are correct, it would not be unusual for their allegation to be met with a vehement denial. The weight of the evidence suggests that it is the Applicant and the children who are correct about their assessment of the Respondent’s drinking. [ 39 ] The Respondent has accused the Applicant of parental alienation and of putting the children up to making false accusations against her. The evidence suggests that this is unlikely. Each of the children, when making their comments to the

Section 211 Report writer, were sensitive to the Respondent’s feelings and were concerned about hurting her. They took no pleasure in saying what they had to say, and did not conduct themselves like children who had some destructive agenda. They possess a remarkable level of maturity, given the situation they find themselves in. The claim that the children are being told what to say seems more likely to be rationalization on the part of the Respondent and an unwillingness to look at her own

part in the situation by placing the blame elsewhere. [ 40 ] The next circumstance to be considered is the nature and strength of the relationships between the child and significant persons in the child's life. Although the children’s only grandparents with whom they have contact are on the Respondent’s side, it does not appear that they have a strong bond or affinity with them. This may be so for a variety of reasons. They may feel uncomfortable around their maternal grandfather because of the allegations of what allegedly happened in Ontario, whether the fear is real or imagined.

They may perceive him as being controlling and feel uncomfortable because of it. Or they may simply be aware of the palpable dislike between the Applicant and his father-in-law and feel greater loyalty to the Applicant since the separation. [ 41 ] The children’s stronger ties are to their school in Chilliwack, their activities there and the friends they have made.

The Respondent has failed to demonstrate how it would be in the children’s best interest to disrupt this either by removing them from that environment or by requiring them to make some sort of half-time commute. [ 42 ] The history of the children’s care is the next factor to be taken into consideration. It is clear that when the children were

younger, the parties divided their responsibilities along what were once traditional lines, with the Applicant spending more time outsideof the home and the Respondent taking on more child care responsibilities. What is less clear from the evidence is how that may havechanged as the Respondent’s drinking increased. She maintains that her heavy drinking was done mostly in the evenings, but cannotsatisfactorily reconcile this with the fact that many of the children’s activities took place after school in the evenings.

It is clear howeverthat since the separation, the Applicant has taken on the bulk of the child care responsibilities, doing so without the benefit of any childsupport. [43] The children’s need for stability, given their age and stage of development is the next factor to be taken into account. I note thatthese children are teenagers and are very resilient. But it is unclear how a shared parenting regime would disrupt their lives, or woulddetract from their high school activities. The parties live in different cities, but are only a half an hour apart.

This factor does not appearto be a major impediment to either parent’s ability to meet the children’s best interests. [44] The next factor is the ability of each party to exercise his or her responsibilities. In the past, both parties have demonstrated anability to take on parental responsibilities. The Respondent has been vocally critical of the Applicant’s ability to do so, but this iscontradicted by the reports from the children to the

Section 211 Report writer. They present the Applicant as a very capable parent anddo not support the assertions that the Respondent makes. It is difficult to assess to what extent her point of view might be affected by herperception of what she believed the Applicant was doing during the period of heavy drinking that she admits to. It is the allegations abouther drinking, made by the children as well as the Applicant, that raise questions about the Respondent’s ability to meet herresponsibilities as a parent at the present time. [45] Family violence was not a subject raised in the evidence heard on this matter nor in what the children said in the

Section 211Report. The evidence suggests that the only concern about their safety, security or well-being concerns their reports that the Respondentdrinks and drives. The Respondent denies that such a concern exists and points out that she has never been arrested for impaired driving.Whether the children’s fears in this respect are exaggerated or not, the fear appears to be a real one to them. [46] The Family Law Act requires consideration of the appropriateness of an arrangement that would require the children's guardiansto cooperate on issues affecting them. This is a problematic area in this case.

The parties are in the midst of significant conflict. There areongoing proceedings in the BC Supreme Court between them and between the Applicant and the Respondent’s father. The Respondentadheres to the belief that the Applicant is making the children tell lies about her and that he is using them to “set her up.” This is a verydifficult environment in which to expect the parties to cooperate in making decisions that are in the best interests of these children. [47] Consideration of all of these factors points primarily in one direction.

The best interests of the children call for the status quo tobe maintained and for them to reside primarily with the Applicant. The Respondent has not demonstrated how it would be in their bestinterest to take them out of the home that one child calls “an actual home” and another describes as “calm”.

It is unclear how trading thisfor a home in which one child would feel compelled to remain in her room most of the time would be in the best interests of the children.There is also the elephant in the room, that being the consistent picture that all of the children paint about the Respondent’s drinking.The evidence supports a parenting plan in which the children would continue to reside primarily with the Applicant.

Given the level ofconflict between the parties and the mistrust that the children have expressed about the Respondent, it is in the children’s best interestsfor the Applicant to have all of the parental responsibilities. [48] One of these children is now an adult and the other two are approaching adulthood. They should be encouraged to maintain arelationship with the Respondent, but that relationship should not be forced.

More specifically, the children should not be forced to be inthe Respondent’s care if they are being spoken to in the manner that the Respondent spoke in the recorded message, or if the Respondenthas been drinking. It is preferable that parenting time be flexible, and that it be exercised in a sober condition by the Respondent. 2. Child Support [49] Counsel for the Respondent acknowledged that child support should follow the result of his client’s application for sharedparenting.

She has been unsuccessful in this regard, and should be treated like any other parent in Canada in cases where that parent’schildren reside primarily in the home of the other parent. She will be obliged to pay the Applicant child support calculated in accordancewith the Federal Child Support Guidelines. [50] There is an issue as to when the Respondent’s obligation to pay for the support of the oldest child should end. This childreached the age of 19 in late August of 2018. She would have liked to attend post-secondary education, but the parties did not have themeans to afford this.

Accordingly she is not in school at the present time and has found minimum wage employment at a fast-foodrestaurant. One of the casualties of the breakup of this relationship may be this child’s ability to achieve her potential. [51] The Federal Child Support Guidelines begin with the presumption (in section 3(2)) that, in the case of adult children, unlessotherwise provided under the Guidelines, the amount of the child support order for that child is either (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [52] Under

Part 7 of the Family Law Act, an adult child is entitled to support if that child is unable, because of illness, disability oranother reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians. British Columbia courts,in a number of cases including Farden v. Farden (BC SC), 48 R.F.L. (3d) 60 (B.C.S.C), Darlington v. Darlington (1997) (BC CA), 32 R.F.L. (4th) 406 (B.C.CA), and Rennie v. Rennie 2006 BCSC 992 , 2006 B.C.S.C 992,have considered the following factors in considering whether an adult child is entitled to support from the non-resident parent:

(1) Whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2) Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3) The career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4) The ability of the child to contribute to his own support through part-time employment;

(5) The age of the child;

(6) The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [ 53 ] In this case, the oldest child has been unable to attend post-secondary schooling because of a lack of funding. Regrettably the parties did not plan for this contingency by contributing to any sort of Registered Education Savings Plan during their marriage. This child’s inability to live independently is not because of a current educational plan that she is pursuing nor because of any health-related issue.

Like many other children in Canada, she is living at home for economic reasons, namely because she is prevented from doing so because of the high cost of housing and other costs associated with living independently. The Federal Child Support Guidelines contemplate child support continuing into adulthood where the child is unable to live independently because the child is pursuing an education, for health reasons or for “another reason”. Continuing support for “another reason” contemplates some other unusual circumstance aside from the cost of living independently.

If this were not the case, many parents would be expected to be ordered to support their children financially well into their 30s and 40s. This is not what the guidelines contemplate. [ 54 ] In a perfect world, this child, who has so much potential, would have her education funded for her. In a perfect world, her parents would have made her education a priority ahead of their own entrepreneurial goals.

However given that she is not presently pursuing a legitimate post-secondary educational goal and that her continuing to live at home is not because of a health issue or some other atypical and compelling circumstance, the Respondent’s child support obligation will conclude for this child as of the end of the month that the child reached the age of 19. [ 55 ] For the calendar year of 2018 the Respondent earned $55,008 according to her financial statement and the T4 that she received from her employer.

Under the Federal Child Support Guidelines this income obliges a payment of $854 for two children and $1,123 for three children. For the months of February 2018 to August 2018 both inclusive (seven months) the Respondent will be ordered to pay the Applicant child support of $1,123 per month for all three children. The arrears of child maintenance for this period are $7,861. For the months from September 2018 to March of 2019 (seven months) she will be ordered to pay the Applicant the sum of $854 per month for the support of the two youngest children. The arrears for this period are $5,978.

Total arrears of child support owing to the Applicant by the Respondent are fixed at $13,839.00 The Respondent will be ordered to pay to the Applicant the sum of $854 per month for the support of the two youngest children, commencing on April 1, 2019 and continuing on the first day of the month thereafter until further order of this court. [ 56 ] No order is being made for any of the expenses claimed by the Respondent as

section 7 expenses. They are no childcare or health care expenses and are no educational expenses. It would be nice if the parties could cooperate to find the means to continue these beneficial activities for the children, but they are unreasonable expenses considering the means of the parties. No matter how beneficial they might be, if the parties cannot afford to pay for them, they cannot afford to pay for them. It is not in the best interest of any child to see their parents' finances become so compromised that they find themselves in financial difficulty. 3.

Spousal Support [ 57 ] The Respondent has brought her own application for spousal support. She has testified that the reason she did not pay the Applicant any child support following their separation was because she believed that any payment that she might owe for child support would be offset by what he owed her for spousal support. [ 58 ] The law concerning spousal maintenance has been codified and set out in

Part 7, Division 4 of the Family Law Act .

Section 160 of the Family Law Act directs a consideration of the objectives of spousal support that are set out in

section 161 before determining if one spouse has an entitlement to spousal support and if the other has a duty to provide support for that spouse.

Section 161 reads as follows: 161. In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 59 ]

Section 162 of the Family Law Act requires that the amount and duration of spousal support “must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (

a) the length of time the spouses lived together;

(

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [ 60 ] An entitlement to spousal support should not be presumed, nor is entitlement arrived at on the basis of gender. Historically, the reality of how childbirth works and the traditional gender roles assigned in previous generations have meant that women have been the recipients of spousal support in the vast majority of cases, but this is not an automatic result. In the case of these parties, each came into the marriage with a unique skill set and each was allowed to continue in their field throughout the marriage.

The Applicant has continuously worked in the field of wireless network construction. The Respondent was a property manager when the marriage commenced and she has continued in this line of work throughout the marriage, according to her resume.

Even during the period when the parties jointly operated a business together, each continued in the area in which each had experience: in the Applicant’s case in operations, and in the Respondent’s case in administration and management. [ 61 ] The Respondent has not established that she is presently making less money than the Applicant because of factors related to the marriage. It has not been suggested that if she had not married the Applicant she would be doing anything differently than what she is now doing, working in property management as she had done before.

This is not a case where the Respondent has given up or lost an opportunity so that the Applicant’s career could be advanced in some manner. They are both professionals and are proficient in their respective fields. There is also the question of what extent the Respondent’s career advancement may have been hindered by her drinking problem. Any hindrance in her career resulting from her denial of this issue or of her unwillingness to confront the issue cannot be blamed on the Applicant. [ 62 ] The Respondent has not established grounds for entitlement to spousal support.

She has not established that the breakdown of the marriage has caused her to be in the type of disadvantaged economic position contemplated by the Family Law Act. The Applicant has carried the majority of the load in supporting the children since the marital breakup and if an apportionment of the financial obligations was adjusted in light of how the child care responsibilities have ended up, such an adjustment might well be in the Applicant’s favour based on that factor alone. One of the goals set out in

section 161 of the Family Law Act is to relieve any economic hardship arising from the breakdown of the marriage. The breakdown of this marriage has resulted in significant economic hardship in the Applicant’s home, despite the fact that he enjoys the better income between the two parties. Granting the order for spousal support that the Respondent’s counsel is requesting, even with a corresponding child support order, will essentially continue the current situation in which the home that the children are residing in is experiencing a tightening of the fiscal belt, while the Respondent lives in more comfortable surroundings. Such an order would be contrary to the intent of

section 161. [ 63 ] The obligation for the Applicant to pay the Respondent spousal support has not been established, either on compensatory or non-compensatory basis. For the foregoing reasons, the Respondent’s application for spousal maintenance is dismissed. [ 64 ] For the same reasons that the Respondent is not entitled to spousal support, I also reject the suggestion made by the Applicant in his submissions that he should receive spousal support. Order [ 65 ] A previous interim order was made in this matter on June 5, 2018 by the Honourable Judge E. M.

Ritchie of this court addressing the issues of guardianship and parental responsibilities. Guardianship will remain as ordered by Judge Ritchie, but parental responsibilities will need to be reconsidered in light of the nature of the conflict between the parties, because of some of things said by the Respondent to the youngest child, and the views expressed by the children to the report writer. [ 66 ] Parenting time is difficult to fix for teenage children, whose independence is growing day by day, and who may soon have their drivers’ licenses and who will reach adulthood in a few short years.

Unlike parenting plans for younger children, teenagers have a lot of outside commitments and have relationships outside the home. Setting a parenting time

schedule is especially difficult in this case where there is such a high degree of conflict between the parties. Perhaps this will subside with some of the major issues between the parties now decided. [ 67 ] The parenting time

schedule should be one that maintains the relationship between the Respondent and the children, but that does not force the children into spending an inordinate amount of time in a home that they are very uncomfortable in. It should also be subject to conditions that address the concerns that the children have clearly expressed.

Specifically, the Respondent should be in a sober condition and should not consume alcohol during her parenting time, and the Respondent’s parents should not be present unless the children consent to this. [ 68 ] As for the frequency of the parenting time, I propose to address that by setting a minimum period of parenting time, with the expectation that this time will increase provided that the children’s comfort level increases and the Respondent acts in a more mature fashion towards them than she has at times in the past.

In addition to the minimum parenting time set out, the parties will be ordered to arrange a meeting with the Family Justice Counsellor to set up a more detailed parenting time

schedule that takes into account the children’s concerns and their activities. Under

section 10 of the Family Law Act , the Family Justice Counsellors have a mandate to provide assistance in family law dispute resolution including in the area of parenting arrangements. While the Family Justice Counsellor’s recommendations cannot bind the parties, they can facilitate a reasonable attempt to arrive at a parenting time

schedule that maintains the relationship between the Respondent and the children, while at the same time respecting the children’s concerns. [ 69 ] Finally, much has been said in these reasons about the Respondent’s drinking. This is not done with the intention to embarrass or shame her. The fact is that it is common for persons with an alcohol problem to be in denial about the extent of their problem and about how it affects their loved ones.

Often it is only through an intervention of some sort, or with the help of a professional counsellor or a recovery program that the person with the problem awakens to the true nature of their condition. In this case, based on the comments of the children, as well as some of the things acknowledged by the Respondent herself, there is enough smoke to suggest that there is probably also fire. At a minimum the Respondent should use this as an opportunity to take an honest look at her situation with an objective professional. Doing so may hold the key to repairing damaged relationships with her children.

[ 70 ] For the foregoing reasons, the following is now ordered: Upon the Court being advised that the name and birth date of each child is as follows: A.C.S., born [omitted for publication]; I.M.S., born [omitted for publication], and S.J.S., born [omitted for publication]; The Court is satisfied that R.S. and D.S. are the guardians of the children under section 39(1) of the Family Law Act . Under s. 40(3) (

a) of the Family Law Act, R.S. will have all of the parental responsibilities for the children. D.S. will have reasonable parenting time with the children I.M.S. and S.J.S. at dates and times agreed between the guardians, but at a minimum every second Saturday from 11:00 a.m. until 6:00 p.m. Such parenting time shall be subject to the following conditions:

a) The Respondent shall exercise her parenting time in a sober condition, and shall not consume any alcohol during the parenting time or in the preceding 12 hours;

b) The children shall not be in presence of the Respondent’s parents without their consent;

c) In the event that such parenting time conflict with a previously scheduled school or extra-curricular activity that the children have, such parenting time is to be rescheduled for an equal or greater amount of time on a non-school day acceptable to the Respondent;

d) Nothing in this order shall preclude the Respondent from attending at any of the children’s activities to which parents are invited to attend;

e) The Applicant R.S. will use his best efforts to encourage the children to maintain a healthy relationship with the Respondent D.S.;

f) Unless otherwise agreed, D.S. will be responsible to arrange pick up of the children at the beginning of her parenting time and R.S. will be responsible to arrange pick of the children at the ending of the parenting time. The parties shall contact the Family Justice Counsellor, provide the Family Justice Counsellor with a copy of this order, and arrange to

schedule a counselling session with the Family Justice Counsellor at which the children may be present, to attempt to negotiate a more comprehensive parenting time

schedule that takes into account the children’s concerns and their activities. If the parties are able to arrive at such a schedule, a copy of their agreement is to be filed with this court. The Respondent D.S. is found to be a resident of British Columbia and is found to have a gross annual income of $ 55,008. She is ordered to pay child support to the Applicant R.S. as follows:

a) For the months of February 2018 to August 2018 both inclusive (seven months) the Respondent will be ordered to pay the Applicant child support of $1,123 per month for all three children.

b) For the months from September 2018 to March of 2019 (seven months) she will be ordered to pay the Applicant the sum of $854 per month for the support of the children I.M.S. and S.J.S.

c) D.S. will pay to R.S. the sum of $854 per month for the support of the children I.M.S. and S.J.S., commencing on April 1, 2019 and continuing on the 1 st day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further Court order.

d) The arrears of child support owing from D.S. to R.S. as of March 26, 2019 are $13,839, including principal and interest. D.S. will pay to R.S. a minimum of $400 per month towards the arrears of maintenance, in addition to regular monthly maintenance payments, commencing on April 1, 2019 and continuing on the 1st day of each month thereafter until the arrears are paid in full or until further Court Order. For as long as the children I.M.S. and S.J.S. are eligible to receive child support, D.S. will provide R.S. with: (

a) a copy of her income tax returns for the previous year, including all attachments, not later than June 1 st of each year; and (

b) a copy of any Notice of Assessment or Reassessment provided to her by Canada Revenue Agency, within seven (7) days of receipt. The application requiring the parties to pay their respective shares of any expenses under

section 7 of the Federal Child Support Guidelines is dismissed. The application brought by the Respondent for spousal support is dismissed. No order for spousal support is made for the benefit of either party. Dated at the City of Abbotsford, in the Province of British Columbia, this 26 th day of March, 2019. ______________________________ The Honourable Judge K. D. Skilnick Provincial Court Judge