B.M.M. v. F.W., 2020 BCPC 69

Citation: B.M.M. v. F.W. 2020 BCPC 69 Date: 20200331 File No: 18021 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.M.M. APPLICANT AND: F.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing in person: B.M.M. Counsel for the Respondent: A. Florescu Place of Hearing: Abbotsford , B.C. Date of Hearing: February 18-21, 2020 Date of Judgment: March 31, 2020 Introduction [ 1 ] The Applicant, B.M.M., and the Respondent, F.W., are the parents of a little boy named B.M.M. B. was born on [omitted for publication] and is now five years old. He has been primarily in the Respondent’s care for all of his life.

Up until December of 2018, there were no orders for child support and the Respondent was solely responsible for the cost of caring for the Child, though she did receive some financial help from the Applicant’s family from time to time. [ 2 ] On May 3, 2018, the Applicant filed an Application in which he asks to have the Child placed primarily in his care. In his application, the Applicant alleges that the Respondent is not able to care for the Child, and that the Child had nearly drowned while in the Respondent’s care. [ 3 ] In her Reply, the Respondent opposes the Application.

She points out that she has raised the Child without any financial support from the Applicant, and that up to the time of her Reply, the Applicant’s contact with the Child had been sporadic, with long periods of absence from the Child’s life, and that the Applicant has had issues with alcohol and drug misuse.

She also seeks an order for retroactive child support, adding that the Applicant has only paid “a minimal amount of money” to support the Child. [ 4 ] Interim court orders were made for the Applicant to have parenting time with the child in 2008 and in December of 2018 an order requiring the Applicant to pay child support was made. [ 5 ] At the trial of this matter, each of the parties testified, as well as the Applicant’s spouse, his mother and step-father, and a family friend. Two of the Respondent’s friends also testified.

As someone asking for an order effecting a significant change in the life of this Child, the Applicant bears the burden of showing that such a change is in the best interests of the child. [ 6 ] Applications of this nature often involve children whose lives have been adversely affected by being caught in the middle of a tug of war between two parents unable to agree on anything, and who love their fight as much or more than their child. This is not the case here. By all accounts, B. is a happy, social and well-adjusted child.

His parents, the parties to this action, present themselves as good people who are very reasonable and who go to great lengths to ensure that their child is sheltered from any conflict that the two of them may have with one another. In spite of this, the issue of their child’s future and in particular where he will live and go to school is one that they have been unable to resolve among themselves and leave it to this court to now decide. [ 7 ] Following is a

summary of the evidence presented at trial, the law that applies here, and the reasons for making the order that is being made.

Summary of Evidence [ 8 ] The Applicant is now 30 years of age and the Respondent is 29. According to the Respondent’s recollection, the parties met in October of 2012 and the two of them began living together in either November or December of that year. The Respondent had a son named O. from a previous relationship and he has lived primarily with her since she separated from O.’s father. [ 9 ] The Respondent recalls that she and the Applicant had a very good relationship for about a year, but that they began to have problems in the relationship because of financial stress.

The Respondent was trained to be a care aid and began working in that field in 2012. She had a job looking after two young boys who had cerebral palsy, but she left that work when she became pregnant with B. She recalls that when she learned that she was pregnant in 2014, the Applicant told her that he did not want to have a child. At the time the Applicant was working at a job in Alberta that would have him away from home for months at a time. [ 10 ] The Applicant testified that he and the Respondent lived together for about two years. Previously, he had taken a course to become a personal trainer.

He had worked as a painter and then went to work in Alberta as a sheet metal worker [ 11 ] The parties separated in late 2014, according to the Respondent about a month before B. was born. The Applicant recalls that he had been working in Alberta but that he returned home in July so that he could be present for his Child’s birth. When the Applicant left the home, there was no plan for what his responsibility would be for the Child’s care and support. That was left to the Respondent. The Applicant did not turn his mind to providing financially for the support of the Child that he had played a

part in bringing into the world. [ 12 ] On the day that B. was born, the Respondent recalls that she phoned the Applicant but could not reach him. She says that when he finally arrived at the hospital, he appeared to have been drinking. In her words, “he smelled like booze.” The Applicant denies this account of events. The Child was born healthy. [ 13 ] The Respondent testified that she recalls that when the Child was born, the Applicant told her that he wouldn’t be around much.

She says that he initially had short visits with the Child, but that he would often miss his visits, claiming that he did not have money to travel to [omitted for publication] from [omitted for publication] to see the Child, or that he didn’t have a driver’s licence and could not get a ride. She says that she was breast feeding at the time and that it was not possible for her to leave the Child with the Applicant for long periods of time.

Her main concern however was that her opinion of the Applicant was that he was not a very responsible or reliable person. [ 14 ] The Applicant recalls that after the separation he spent most of his time at his parents’ home. He recalls that he would sometimes watch the Child for the Respondent and that he would travel from [omitted for publication] to [omitted for publication] to have short visits with the Child. The Applicant agrees that initially, his contact with the Child was sporadic. The parties disagree on the

reason for this. According to the Applicant, it was because the Respondent would not allow him to have much contact with the Child. According to the Respondent, the Applicant was not very mature and was not interested in playing much of a role in his Child’s life. [ 15 ] When the Respondent was cross examined by the Applicant, she elaborated on her concerns about the inconsistency that the Applicant initially demonstrated following B.’s birth. She was concerned that the Applicant’s presence in the Child’s life at the time was haphazard.

She told the Applicant “I did not want you in his life without a proper schedule. I did not want you in his life if you were not reliable. I had to arrange visits with your mother because you were not reliable. Your family was there, you were not.” [ 16 ] At no time did the Applicant voluntarily propose the payment of ongoing child support, nor was any application made to the court for any order for guardianship or parenting time.

The unspoken assumption seems to be that since the Respondent was not applying for child support, there was no legal or moral obligation on the part of the Applicant to pay for the support of the Child beyond what he gratuitously chose to. [ 17 ] After the parties had separated, the Applicant went to live at the home of his mother and her husband. They operate a home- based business that makes and distributes kettle corn for sale. They live on an acreage and keep some animals on the property as well.

Since the Applicant has been having parenting time with B., it is usual for him to bring the Child to this location. It was apparent that the Applicant and his parents enjoy a close familial relationship. [ 18 ] The Applicant worked for the family business for about three years. He earned $15 an hour and worked four days a week, between six and eight hours each day, depending on the demands of the business. [ 19 ] After B. was born, the Respondent continued to maintain her ties with the Applicant’s parents, especially with his mother. She would bring B. to the acreage about once a month.

According to the Applicant’s step-father, the Child appeared to be well taken care of. This view was echoed by both of the Child’s grandmothers and by all of the family friends who testified. [ 20 ] In September of 2015 an incident occurred which has caused significant and ongoing stress on the relationship of the parties. The Respondent was at home in her apartment with her two children. B. was not yet a year old. The Respondent left him in the bathtub while she attended to other household chores.

She said that the stopper in the bathtub was not in and she was letting the Child amuse himself by playing with the running water. When she returned about two minutes later, she discovered to her shock that the Child had somehow managed to plug the bathtub, that it had filled with water and that the Child was floating in the water, face down. She recalls that “his body felt strange”. She immediately took him out of the water, performed CPR on the Child and called 9-1-1.

An ambulance attended and the Child was initially taken to [omitted for publication], and later was transported by helicopter to [omitted for publication]. Thankfully the Child recovered from the incident. The Respondent recalls being grateful for the support that she received at the time from the Applicant’s mother. [ 21 ] This incident was understandably very stressful for the parties. It also had the undesired effect of putting a strain on the relationship between the Respondent and the Applicant’s mother.

Previously the two appeared to have a good relationship, with the Respondent viewing her Child’s paternal grandmother as an important part of her support network, and as someone without any intent adverse to her own. [ 22 ] After the bathtub incident however, the paternal grandmother began to express concerns about conditions in the Respondent’s apartment. She began making strong suggestions about how furniture should be arranged and about other things within the home.

For example, on one occasion the Child had opened the refrigerator door and in the space of a short time, had spread the contents of the fridge all over the kitchen floor. The Respondent viewed this as comical and shared a photo she had taken on her cell phone with the grandmother, showing the mess the Child had made. The grandmother did not see the humour in this and instead saw this as more evidence of parental neglect.

The grandmother also continued to harbour suspicions that the Child’s accident in the bathtub was really the result of a wilful act on the part of the Child’s older brother. [ 23 ] There was a second incident that occurred sometime later, when the Child had managed to open the apartment door and wander off in the building. He was discovered by a neighbour. [ 24 ] The Applicant also complained about an incident when the Respondent was suffering from the flu and was too sick to take her older son to school. The school became concerned and phoned that child’s father.

He attended to the apartment and discovered that the children were safe at home with their ailing mother. [ 25 ] The Respondent testified that she had invited the Applicant to attend the Child’s first birthday party at her apartment. She was told by the Applicant’s mother that he did not want to attend because he did not wish to be around her friends. The Applicant’s mother attended the birthday party. She recalls that after that, the Applicant saw the child sporadically. [ 26 ] There was another incident of concern in the Respondent’s household that arose when the family’s pet rabbit died as the result of

an act of intentional cruelty on the part of the older child. The Respondent initially covered up for the child, telling a veterinarian that the rabbit’s injury was accidental. She confided this to the Applicant’s mother. Following this incident, the Respondent asked the older child’s father to help her to get counselling for the child, but he was unable to help her. She persisted in trying to get counselling for the child, and was able to find a counsellor that she was able to afford. [ 27 ] The Respondent has acknowledged her own mental health issues for which she is receiving medical help.

She has not worked since her pregnancy and is receiving disability benefits following a diagnosis of anxiety and depression. There is also a strong possibility that she may be suffering from a post-traumatic stress condition, brought on by the trauma of B.’s near-death experience. The Respondent testified that following that incident, she began to experience nightmares and panic attacks. She is diligent in seeing mental health professionals for regularly scheduled appointments, and in taking any medication that is prescribed for her by her psychiatrist and physician.

She also supplements her mental health with good habits in her physical health. These include a ketogenic diet, limiting her intake of alcohol and abstaining from the use of any recreational drugs. [ 28 ] In September of 2016 the Applicant met K.R., who is now his spouse. The Respondent testified that she would frequently bring

the Child to the home of the Applicant’s parents for holidays such as Thanksgiving and Christmas. This all changed at Easter time in 2017. The Applicant had planned to bring Ms. R. to Easter supper at his parents’ home. He hoped to have Ms. R. attend the family dinner along with B. The Respondent did not agree with this, as she thought it was too early in the Applicant’s new relationship to introduce the Child to a new adult who may or may not become a step-parent. This led to a huge disagreement. [ 29 ] The Applicant and his family urged the Respondent to reconsider her decision.

From their perspective, she was being unreasonable. From her perspective, she felt disrespected over the fact that the Applicant and his family were not showing deference to her position as the Child’s primary caregiver to decide when the time was right to introduce significant adults into the Child’s life. Her decision does not appear to have been based on jealousy on her part. Her concern appears to be rooted in a mistrust of the Applicant’s maturity.

Based on her own experience, she feared that the Applicant would end up leaving this relationship and her son would become attached to another adult only to have that adult make an exit from the Child’s life. [ 30 ] The Applicant, his family and Ms. R. all see what happened through a different lens. It is their collective opinion that the Respondent was cutting off all contact between the Child and the Applicant’s family, doing so out of spite.

The situation was made worse because this incident occurred at a time when the Applicant’s mother was grieving the recent death of her own mother, and it was generally a difficult time for her. From the paternal grandmother’s perspective, the Respondent “blocked her” after the Easter disagreement. From the Respondent’s perspective, she did not “block” the Applicant’s mother, but she did stop reaching out to her for help because she thought that doing so would only attract more argument and more criticism.

In the Respondent’s words, she feels “ganged up on” by the Applicant and his family, especially after members of the extended family brought their own court applications against her for time with B. [ 31 ] At the time of this incident, the Respondent had a “conversation” with the Applicant’s mother by means of text messaging. This is the exchange they had (with the Respondent’s comments being shown as “R” and the paternal grandmother’s comments shown as “G”): R: I’m not invited because I don’t want to be around B.’s girlfriend? G: Hi F. You are welcome here for Easter but K. will be here too.

Please don’t be upset. We all want you included! How about give it a try, she’s a nice person. R: I don’t want B. around her unfortunately until B. has a relationship with his own son first. Has nothing to do with me. I have no problem meeting anyone. I’m sure she is wonderful. G: Then why can’t she be around B.? R: Because I don’t think it is healthy until B. and B. have a relationship of their own first before bringing in another figure. G: Well this is working up to that. It’s just a dinner. He goes home with you. It’s not like he really understands yet. R: He does understand actually!

He doesn’t know why he never gets to see his dad. Seeing him once every 4-5 months on holidays is confusing him. G: Because B. can’t drive. But it’s not like B. would understand that if you try to explain it. Has nothing to do with the new girlfriend. R: His dad offered to drive him whenever, months ago. Unfortunately this is how I feel about it. G: Well then can B. come and pick up B.? R: I’d rather you be present as he’s not comfortable with him yet. And as long as his girlfriend isn’t there. But then, if she isn’t there, why can’t I come too? Doesn’t make sense. G: B. is with another person now.

She is going to be around. You’re going to have to let them meet eventually. R: Listen, it has nothing to do with me. It’s only in the best interest of B. G: If you don’t want to be around when she is here, that’s fine, but please don’t use B. as an excuse. It’s even worse. B. would be fine. It’s a few hours. R: That’s what you think. But it’s not an excuse. It’s not right and it is unhealthy for him. That’s not the point. G: F. there are so many broken up families. And you’re being difficult. R: That’s terrific, but the father actually sees the child on a regular basis. No I’m not actually.

G: B. will be working his way to seeing him on a regular

schedule but we have to start somewhere. R: You can’t see where I’m coming from because you don’t want to see because B. is your child. G: No. R: That’s terrific! It’s been 28 months already so I hope it happens soon. [ 32 ] The conversation continued in that manner and what had previously been a good relationship between the two participants deteriorated. The grandmother suggested that the Respondent had been using her to get money, and the Respondent said that she considered the comment to be hurtful. She told the grandmother that she was being “a terrible person” for not respecting her authority as

B.’s caregiver and for not respecting her boundaries, and the grandmother responded that the Respondent was making this “a big fucking deal”. [ 33 ] Another aspect of this conversation is that at the time, the Applicant’s mother appears to agree with the Respondent’s assertion that the Applicant was not being diligent about being a part of his Child’s life at that time. His mother appears to agree with this assessment, stating that this was something that the Applicant was “working his way” to doing.

This appears to corroborate the Respondent’s perception of how involved the Applicant was in the Child’s life at that time. [ 34 ] On May 3, 2018, the Applicant filed the Application that is now before the court. He says that he did so only after attempting unsuccessfully to work things out, before having to resort to taking court action.

His Application asked not only for time with the Child, but, as he put it, for “custody transferred to father as mother not able to cope or make proper decisions.” He added, “Child drowned in her care, had stiches in his head in her care.” [ 35 ] In her Reply, the Respondent noted that up to that time, she was the one who had been responsible for raising the Child, and had done so with no support from the Applicant. She added, “The Applicant has seen the child sporadically, with long periods of absence since birth, and always in the presence of another person.

He has had alcohol and drug misuse issues in the past and I want to make sure he is sober and able to care for B. before he can have him by himself. The child is healthy and doing well in my care.” [ 36 ] This was followed by a series of court orders which gradually had the Applicant spend more and more time with the Child. The first was an order made on July 10, 2018. Under that order the Applicant attended a breakfast with the Child at the [omitted for publication] program every Saturday morning. He also had a two hour mid-week visit with the Child that was supervised by a friend of the Respondent’s.

This was also the first order that required the Applicant to pay child support for the Child. In the order he was imputed to have a gross annual income of $16,000 and was ordered to pay the Respondent $115 per month for child support. [ 37 ] Some of the Applicant’s visits with the Child were supervised by a friend of the Respondent. That supervisor testified that the visits went very well. She said that the Applicant was always on time for the visits and that he was very attentive to the Child. She said that B. was also very happy to see the Applicant. The Respondent agrees that these visits went well.

She testified that she was happy that the Applicant was back in B.’s life. She said that on the next court appearance she consented to the removal of the need to have the visits supervised. [ 38 ] The following month, that order was amended to provide that the Saturday morning visits, which began at the [omitted for publication] program, would continue until 1:00 p.m. The mid-week visits were no longer required to be supervised.

In October another court order extended the Applicant’s parenting time to provide for weekend parenting time, in addition to the two hour mid-week visits (now fixed to take place on Tuesdays). The weekend parenting time gradually increased from four hours on alternating Saturdays to alternating weekend visits from noon on Saturday to noon on Sunday. [ 39 ] In December of 2018 the Applicant’s parenting time was extended further to alternating weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m., with the weekend expanded if it abutted against a non-instructional or Professional Development day.

There was also an overnight visit from Thursday to Friday on the weeks in between the alternating weekend. At that time the Applicant’s annual income was found to be $21,840.00 and he was ordered to increase his monthly child support payment to $183, retroactive to July 1, 2018. [ 40 ] Sometime in the spring of 2019, the Applicant and the Respondent met and had a discussion about the where the child would go to school in the fall. The Respondent said that she did not feel safe attending the meeting alone, and she asked her friend C.M. to attend. According to Ms.

M., the Applicant wanted the Child to attend a private school in [omitted for publication]. The Respondent and Ms. M. each recall the Applicant describing this as being an “all-white school” although he insists that there was no racist intention in anything he said at that meeting. According to Ms. M., the Respondent ended the meeting at that point and the Applicant became very angry and began yelling and swearing.

The meeting took place at a public park and when the Applicant began to shout and swear, the parent of another child came over and told the Applicant to calm down and act properly. [ 41 ] On June 13, 2019, an order was made fixing specific parenting time for the summer months and for the time after B. went to school in September. It also addressed Christmas parenting time. While the Child is in school, the Applicant’s parenting time follows a four week rotating schedule. The Child is with the Applicant for the first three weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m.

These weekends would be extended to include any statutory holidays. That order also required the Applicant to file a Financial Statement with all attachments, including his 2014 and 2015 Notice of Assessment. The order required the Applicant to file that financial information by June 28, 2019. The Applicant failed to comply with that court order, and at the time of commencement of this trial he had still not done so. [ 42 ] In cross-examination, the Applicant agreed that prior to the separation, he was able to earn considerably more money than he has since that time.

For example, in 2014, he had an annual income of $50,810. He contends that this was because he was working in Alberta, an option not available if he wants to be actively involved in the lives of his children. [ 43 ] The Applicant testified that he felt that his obligation to provide for his Child’s financial support was addressed, in part at least, by the fact that his mother gave the Respondent money from time to time. He saw the contribution that his parents made as constituting his child support. In his evidence he said that his support was given “through my mom”.

In his cross-examination of the Respondent, many of the Applicant’s questions seemed to be premised on the belief that as long as his family members were providing financial assistance for the Child, that satisfied his personal obligation to support his Child and that it was somehow wrong for the Respondent to apply for child support from him.

There was a certain irony that may have been lost on the Applicant, when on the one hand he was critical of the Respondent by suggesting that she did not have enough food in her home, while at the same time also being critical of her for bringing an application for financial support for money that could be used to buy food to fill that fridge. [ 44 ] Since the Applicant has had court ordered parenting time, Ms. R. has spent time with B. and has gotten to know him and build a relationship with him. She helps him with some of his school work. On September 20, 2019, K.R. gave birth to a baby boy.

B. now has a little brother. Ms. R. describes the Applicant as a “very supportive dad” to his new child. She testified that he “exceeded my

expectations.” She describes B. as a “great big brother”. She says that B. is a “very well-behaved child” who is very loving and affectionate. At the time that she gave her evidence, Ms. R. was on a maternity leave from her employment. [ 45 ] The Applicant and Ms. R. now reside in a three bedroom home in [omitted for publication]. The home has a yard and is located near an elementary school and a park. The Applicant would like to enrol B. to attend that school.

The Applicant feels that the routines in his household will be better for B. [ 46 ] Currently B. attends a school in [omitted for publication] that is within the catch basin of his current residence. Generally he is happy at school and enjoys attending school. There have been some issues at school, but it is unclear what to make of these. On one occasion he was disciplined for fighting.

The Respondent attributes this to his being taught martial arts moves by the Applicant, while the Applicant maintains that he has taught the Child to avoid using violence. [ 47 ] The Respondent has a strained relationship with her own mother. In the past, the Applicant and Ms. R. have taken B. to visit his maternal grandmother during the Applicant’s parenting time. The Applicant sees this as a reason for changing the Child’s primary residence.

He contends that the Respondent has no strong bonds with her family members and that since she is not a “family person” this will be detrimental to the Child. [ 48 ] The Respondent’s mother is very hard-working, holding down two jobs, one of which is a night job. She also cares for the Respondent’s 13-year-old sister. She describes her relationship with the Respondent as strained. At one time she used to look after B. three times a week. The Respondent and her mother had a falling out over something the Respondent put on a social media forum.

In the words of the Respondent’s mother, “that ended our relationship”. (In cross-examination, she acknowledged that she may have possibly over-reacted about this.) She says that the Respondent has “blocked” her and that the only times she sees B. is when the Applicant brings him over. She says that the Respondent and her younger sister talk occasionally and that this is something she encourages.

She herself is open to some sort of family mediation that will repair the relationship that she and the Respondent have. [ 49 ] The Respondent describes her relationship with her mother as a tense one and says that it has been this way since her childhood. She testified that her mother had tried to pressure her into dropping her claim against the Applicant for child support. [ 50 ] The Respondent testified that she believes that she now has a good relationship with the father of her older son, though this wasn’t always the case. He has parenting time with that child every weekend.

The Respondent testified that they are flexible in how that parenting time is exercised. [ 51 ] The Applicant believes that it is not in the Child’s best interest to remain primarily in the Respondent’s care because of the Respondent’s struggle with depression and anxiety. [ 52 ] The Respondent’s support network includes some good friends who have children that play with her children. Her friend C.M. is the mother of two girls aged 8 and 9 and has been a very good friend to the Respondent. She describes the Respondent as a “very focused and very devoted mom.” Ms.

M. was a good support to the Respondent when B. was taken to the hospital. She also supervised some of the Applicant’s visits with B. in 2018. [ 53 ] Another member of the Respondent’s support network is her friend A.B. She has two sons, and her younger son is B.’s best friend. The families socialize regularly and she and the Respondent provide one another with emotional support. [ 54 ] The Applicant now works as a painter for a company whose business premises is close to his home. This employment is described as full-time, with flexible hours.

The Applicant testified in cross-examination that he is paid $25 an hour at this job. [ 55 ] The Respondent supports herself by receiving disability payments. These amount to approximately $19,616 per year. She is by all accounts a talented photographer, and does some freelance photography work as well. She has been able to obtain some equipment needed for this with help from her father’s wife. She has not worked outside of her home since her pregnancy, aside from the occasional photography assignment.

Her photography does not provide her with any significant additional income. [ 56 ] The Respondent and her two sons currently live in a two-bedroom apartment in [omitted for publication]. The master bedroom serves as the children’s room and she uses the smaller bedroom for herself. She is in a new relationship that began a year ago, and the man she is seeing sometimes stays over at her home for up to three nights per week. He has two children.

The Respondent believes it to be a good relationship thus far. [ 57 ] Although the Respondent currently lives in [omitted for publication], she testified that she would be open to moving to [omitted for publication] if it was economically feasible for her to do so. For the time being however, her support network is in [omitted for publication]. [ 58 ] The Applicant has never complied with the order of this court made on June 13, 2019 requiring him to file a Financial Statement.

In the course of giving his evidence at this hearing, he did furnish an undated and unsworn financial statement in which he claimed to have an annual income of $20,800. This was supported by a letter from his employer (his mother) estimating this to be his income when he was working for her company. Attached to this Financial Statement was a copy of his Notices of Assessment from the Canada Revenue Agency showing a net income for 2015 of $12,530, for 2016 of $9,092, as well as a copy of his T-4 for 2017, reporting an income of $23,320.82.

He also produced his Notice of Assessment for 2014, showing a net income of $50,500. In cross-examination he testified that he has not filed his income tax returns for 2018 or 2019 yet. [ 59 ] From the evidence heard during the course of the trial, a number of themes emerge. Firstly, the evidence suggests that at the time B. was born, the Applicant lacked much of the maturity and responsibility that he has since acquired. The Respondent has clearly said that this was so, while the Applicant denies it.

The Respondent’s recollection is more consistent with her text message conversations with the Applicant’s mother, who acknowledged that state of affairs at the time. This has become less significant over time, as the Applicant has gained maturity and has demonstrated both a willingness and an ability to be a part of his son’s life.

[ 60 ] The Respondent has recognized these changes in the Applicant. She understands and appreciates the importance of the Applicant in B.’s life. The problem has been the Applicant’s unwillingness to acknowledge his past lack of responsibility, and to understand and appreciate how this must have hurt the Respondent.

Instead he seems to see himself as a victim, clinging to the narrative that he was “cut off” from the child’s life by the Respondent. [ 61 ] It must have been very frightening to the Respondent when the Applicant left the home during the late stage of her pregnancy, rather than stay and try to face the challenges of raising another child together and work through their problems. She had another small child at the time, had little income, and was struggling with depression.

In spite of this, this far along the child’s life she has been able to care for him and today everyone universally agrees that he is a terrific kid. [ 62 ] In pointing this out, the intention isn’t to present one parent as good and the other as bad. The parties are different people now from when B. was born. But what is important is for everyone to end the narrative that the Respondent is some kind of alienating parent intent on keeping the Applicant out of the child’s life. This is inconsistent with the evidence.

The continuance of this, and the Applicant’s unwillingness to admit that in the early stages of B.’s life his contribution was less than it should have been, preventing the rebuilding of the trust between the parties that is needed for them to continue to raise a happy child. The making of amends is something that will be crucially important for good co-parenting in the future. [ 63 ] A second problematic aspect that comes out of the evidence is that the Applicant has not lived up to his responsibility to provide the required level of financial support for B. that the law expects of those in his position.

When parents of a child separate, it is the responsibility of both parents to provide for the financial support of the child. In the case of the parent who is not providing primary care for the child, that parent is expected to contribute to the support of the child he or she has brought into the world, according to his or her income earning capability. This is not

an act of generosity or benevolence on the part of that parent. It is a responsibility that comes with parenting and it is the right of the child. [ 64 ] There are some troubling aspects that emerge from the Applicant’s evidence and from his submissions. First is his failure to agree to any regular ongoing child support payment until he was court ordered to do this. Second is his impression that because his parents made periodic contributions to the Child, this somehow relieves or lessens his responsibility to contribute to his Child’s support.

There is an impression conveyed that the Respondent should be grateful for what the Applicant and his family have given and that she is being greedy in asking for her child to receive the support that the law mandates. Perhaps he will come to see the error in this thinking as he acquires greater maturity. Everyone needs to understand that the Respondent should not have to ask humbly for the Applicant to meet his lawful and moral obligation to provide the appropriate level of support for his Child.

Position of the Parties [ 65 ] At the conclusion of the evidence, both of the parties were asked what order they want from this court and why that order should be made. The Applicant stated that he is asking for “equal rights”. He accuses the Respondent of a “clear pattern of denial and control” and of having an agenda of removing him from B.’s life.

He adds that the Respondent will play “harmful games” unless B. is placed primarily in his care. [ 66 ] His specific criticisms of the Respondent as the primary caregiver of this Child are that she provides an unsafe home for him, that she is isolated from her family, that she is a poor model for social skills, and that her apartment is too small for her family. [ 67 ] On behalf of the Respondent, Mr. Florescu asks for an order recognizing that the parties are joint guardians of the Child.

He asks for the parties to share parental responsibilities, but for the Respondent’s view to prevail if the parties fail to agree on something such as where the Child will reside or attend school. He also asks for the current parenting

schedule to be maintained, but for the parties to divide school holidays and vacation equally. Mr. Florescu also asks that his client be awarded retroactive child support from the Child’s date of birth. [ 68 ] Mr. Florescu points out that the text messages between the Respondent and the Applicant’s mother support the Respondent’s version of events over that of the Applicant, when it comes to showing the Applicant’s lack of engagement with B. when the Child was an infant.

He points to a comment from the Applicant’s mother about how she and her husband were trying to help the Applicant “get his act together” but how that “isn’t gonna happen overnight”. He also points out how, as late as April of 2017, the Respondent’s mother volunteered in a text message that the Applicant was not seeing his Child with any regularity, but that he was “working his way” to doing so. [ 69 ] Mr. Florescu argues that the Applicant has not met the burden of showing how the drastic change in parenting time that he is asking this court to order is in the Child’s best interests.

He argues that the evidence clearly shows that the Respondent has been attentive to the Child’s health. He says that the changes that the Applicant proposes would also be harmful to this Child because it would separate him from his older brother. He notes that on the parenting time

schedule proposed by the Applicant, B. and O. would never be in the Respondent’s home together anymore. He is also concerned because the Respondent has demonstrated an unwillingness to respect court orders, as shown by his refusal to comply with the order to disclose his financial information. But the most compelling reason to maintain the status quo, according to Mr. Florescu, is because there is universal agreement that B.’s upbringing, which has occurred primarily in the care of the Respondent, has resulted in the Child becoming a happy, healthy and loving child. Applicable Law 1.

Best Interests of the Child [ 70 ] There are essentially two parts to the Application now before the court. The first concerns what are known as “parenting arrangements” (parental responsibilities and parenting time). The second concerns child support. Much of what will be ordered in respect of the second aspect may depend on the outcome of the former. The Applicant wants to change the status quo from one in which the Respondent is the Child’s primary caregiver to one in which either he takes over that role, or where there is some kind of shared parenting arrangement.

The latter is difficult in this case because the child is just beginning his schooling and the parties live in different cities.

[ 71 ] Before such changes to the current parenting regime can be made, the Applicant must show that those changes are in the best interests of this Child.

Section 37 of the Family Law Act of British Columbia directs that a court that is considering making an order respecting guardianship, parenting arrangements or contact with a child, must consider the best interests of the child only. To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 72 ] For an order to be in the best interests of a child, the court must consider how best to protect the child's physical, psychological and emotional safety, security and well-being. This

section of the Family Law Act goes on to state that the court making the order may consider a person's conduct only if it substantially affects one of the factors listed above. 2. The Obligation to Pay Child Support [ 73 ] When parents bring a child into the world, they have a joint and ongoing legal obligation to support the child according to their income earning ability. This is not something that the parties can bargain away. It is the child’s right to be supported in this manner.

This is considered such an important obligation that a divorce cannot be granted until parents make satisfactory arrangements for the care of their children.

It is the child, not the parent with primary care of the child, who has the right to maintenance. [ 74 ] The purpose of the Federal Child Support Guidelines is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [ 75 ] The payment of maintenance is based on the ability of the parent that is not providing the day-to-day care of the child (in this case, up to now this has been the Applicant) to pay. Ability to pay is based not only on what that parent earns, but also what the parent can earn.

The law places the responsibility on parents who bring a child into the world to earn as much as they are capable of earning to meet their obligation to support their children. [ 76 ] The obligation to support one’s child takes priority over other financial obligations. A payor parent can’t claim, as an excuse for not paying child support, that “I can’t afford child support because I have too many other bills.” Parents are expected to live within their means and make the obligation to support their children a priority.

Even when the person required to pay has a second family, the law is clear that responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. In this case, the Applicant now has a second family and is the father of another child with his current partner. [ 77 ] Delay in seeking or enforcement of a claim for child support is generally not a relevant factor. A child cannot waive his or her right to maintenance, and a parent cannot give up that right on behalf of a child.

The obligation to pay child support should be enforced in fairness to the parent who has had to bear a disproportionate share of the expenses of raising the child. Both parents are jointly responsible for the cost of raising the child and this responsibility should not be avoided by delay. [ 78 ] The payor parent is not excused from meeting his or her obligation to pay for the support of a child because others have provided assistance. The payor parent is also not excused from paying child support at law because he or she spent money on the child in other ways.

The law is clear that it is up to the parent who is entitled to receive child support to decide how that child support should be spent in the best interests of the children. 3. Retroactive Child Support [ 79 ] Retroactive child support orders are not considered to be exceptional. They are often justified by the fact that the payor parent has chosen not to meet his or her support obligation owed to a child.

Delay in making an application for retroactive child support may be excused if the applicant held reasonable fears that the payor parent would react vindictively to the application to the detriment of the child or to the family, or if the applicant lacked the financial ability to bring the application or experienced emotional impediments to bringing the application.

Since child support is the right of the child and cannot be waived by the recipient parent, delay does not eliminate the payor parent’s obligation. [ 80 ] Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders. If a parent

has an obligation to pay child support but refuses or neglects to do so, that conduct can be considered to be blameworthy if it privileges the payor parent’s own interests over his or her children’s right to an appropriate level of support. Where the payor withholds disclosing his or her financial information, this is a clear example of blameworthy conduct. A court must also consider any hardship that will result from a retroactive award in ordering retroactive support. However hardship for a payor parent is less of a concern if it results from his or her blameworthy conduct. [ 81 ] There are four options for when a retroactive support order can begin: (

a) the date when the application was made; (

b) the date when formal notice was given to the payor parent; (

c) the date when effective notice was given to the payor parent; or (

d) the date when the amount of child support should have increased. [ 82 ] As a general rule, the proper date is the date of effective notice. The first two options should generally not be selected because parents should not be penalized for using an application to court as a last resort. The “effective date” is the date when it was indicated to the payor parent that child support needs to be calculated or recalculated. 4. How Child Support is Calculated [ 83 ] As a general rule, the Guidelines provide (in

section 16) that a payor parent’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [ 84 ] But the Guidelines go on to state that if the court is of the opinion that the determination of a parent’s annual income under

section 16 would not be the fairest determination of that income, the court may use other methods to arrive at a fair number. A court may have regard to the parent’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [ 85 ] In appropriate cases, a court can impute annual income to a spouse. This is allowed under

section 19 of the Guidelines in a number of situations. These include: 1. Where the payor is intentionally under-employed or unemployed, (other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse); 2. If the payor has failed to provide income information when under a legal obligation to do so. 3.

If the payor derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax. [ 86 ] In this case, the Applicant is in breach of a court order to provide the proper financial disclosure to properly assess his financial ability to support his child. He was ordered to file a proper financial statement by June 28, 2019, and has not complied with that order, even as this hearing began. The financial statement he provided to the court was unsigned and unsworn.

He has not filed his income tax returns for 2018 or 2019, information that would be vital in determining what deductions he has made in arriving at his income, in disclosing the sources of his income, and the rate of tax. [ 87 ] Where the payor parent fails to provide information that is required by law to properly assess what a fair level of child support should be, an adverse inference can be drawn against that party. A payor cannot be sheltered from his or her responsibility to the child because of an unwillingness to be provide complete and open financial disclosure.

When the payor does so, the benefit of any doubt may be given to the parent who is in receipt of child support. Applying the Law to These Facts 1. Parenting Arrangements [ 88 ] At the conclusion of the hearing, I mentioned how both of the parties impressed me as genuinely good people and good parents. This is not a case where there is a good parent and a bad parent. Each are capable of providing loving care for this Child and if only one of them was available to care for B., he would be well looked after.

Each has shown strong moments of being able to get past resentments and each genuinely has the intention of putting their children’s needs ahead of their own. [ 89 ] Support of extended family members is generally a good thing, as long as proper boundaries are respected and as long as extended family members avoid taking sides in parental conflict. Often times, family court cases will result in families dividing into “camps” that resemble opposing armies or political parties. That is almost never a good thing as it erodes trust and support that can be beneficial to a child.

It often prevents compromise and inhibits forgiveness. It can also cause the parent that is being supported to be less diligent in meeting his or her responsibilities or in working with the other parent.

In cases where there is genuine dysfunction in the lives of one or both parents, such as where addiction or domestic violence are present, it is reasonable for extended families to take appropriate action to protect a child. [ 90 ] In this case, there was a time in the life of the Applicant when he was not living up to his responsibilities to the Child that he had brought into the world, or to the mother of that Child who was doing the bulk of the heavy lifting that came with the raising of the Child.

Specifically, he was not providing financial support for the Child to the level expected of him by Canadian society. He was not

spending the time required to meet the duties expected of him at the time. He denies that this was so, and his family has supported him in this narrative, despite acknowledging at the time when this was happening that the Applicant need to “get his act together”. [ 91 ] Facing this fact is not done with the intention of punishing the Applicant or shaming him. Maturity arrives for each of us at a different pace. The Applicant is a different person today than he was when this Child was born. Today he is more responsible and more willing and capable of being a good parent.

The point of recognizing his past lack of maturity and responsibility has two purposes. The first is to help him to understand where the Respondent is coming from. She had the challenges of raising their Child without the Applicant’s help when she could have really used it. She deserves to be understood for her reluctance to trust the Applicant. She should also be honoured for all that she has done in raising this Child and should not be vilified for it. [ 92 ] The second purpose is to ensure that the Applicant understands what he should have been doing in the early stages of this Child’s life.

Much of his submissions center on the narrative that since his family stepped up to the plate for him, the Respondent has nothing to complain about. It is no consolation or excuse for the Applicant to say that his lack of support is made okay by the fact that his family threw some money the Respondent’s way every now and then. At this point it is too late to change the past.

What would be helpful however is for the Applicant to acknowledge his prior lack of responsibility to the Respondent as the first step to build a solid foundation for co-parenting in the future. [ 93 ] In considering the best interests of B., the first consideration set out in the Family Law Act is the child's health and emotional well-being. This presents one of the strongest arguments for maintaining the status quo.

It is universally acknowledged that he has been raised, primarily by the Respondent, to be a happy child who is both emotionally and physically healthy. [ 94 ] B.’s near-death experience was a significant event in his life, one that has impacted everyone traumatically. With the benefit of hindsight, it is easy for a critic to blame the Respondent for the consequences of her momentary inattention. But in reality, this incident was an aberration. It does not show a pattern of neglect in her care of the Child. This was not even the catalyst for the commencement of these proceedings.

That was the result of the Respondent’s unwillingness to bring a new person into the Child’s life at Easter that led to this litigation. [ 95 ] Given B.’s age, it would not be appropriate in this case to ask the Child for his opinion. It is clear that he loves both of his parents as well as the other members of his extended family. Both the Applicant and the Respondent deserve high marks for their ability to keep their conflict away from their child.

Other family litigants could learn a lot from these parents when it comes to doing this. [ 96 ] It is clear that B. has very strong relationships with many significant persons in his life and in his extended family. The outcome of this litigation should not result in any party seeking to cut the child off from those others in his life who provide him with an enriched social network. This includes both his older and younger brothers, and his grandparents on both sides.

While initially the Respondent was unsure about how the Applicant’s new partner would fit into her son’s life, she has now acknowledged that she no longer harbours any such reservations. Ms. R. presents as someone who would be a positive influence in B.’s life and she should be acknowledged as such. [ 97 ] Litigation brings unfortunate baggage into the lives of families. One of its casualties is trust. In the past, the Respondent had enjoyed a good relationship with the Applicant’s parents.

She still speaks highly of the Applicant’s stepfather, and remains grateful for the help and support that the Applicant’s mother gave her. That relationship was damaged, first when the Applicant’s mother did not respect her parenting decision about introducing B. to Ms. R. at Easter, and then later when the grandparents all commenced legal proceedings against her. The Respondent felt ganged up on, and it intensified the atmosphere of mistrust and fed her fear that anything she said to them would end up being used against her in an affidavit.

It will be especially important for all of these people to be aware of the consequences of their past action and to decide, going forward, if they wish to continue to take sides between the Applicant and the Respondent or to follow the wiser course of action by not taking a side in the conflict. Instead they should choose to join “team B.”. [ 98 ] Another significant factor in determining what is in the best interests of a child is the history of the child's care, which has thus far been primarily the Respondent’s work.

Despite the past incident of B.’s near-drowning, the childcare he has received has resulted in his becoming a happy, loving and much-loved child. When Mr. Florescu questions the wisdom of exchanging known conditions of childcare that have produced such good results for such a drastic and speculative change, it is hard to argue with his logic. [ 99 ] The Family Law Act also recognizes a child's need for stability, given the child's age and stage of development, in considering what is in the child’s best interests.

The Applicant’s proposed changes in parenting responsibilities would result in B.’s separation from his brother O., a change of school and city, and a drastic reduction of the Child’s time spent with the parent who has been his primary caregiver for all of his life. The Applicant has explained why such a change would be better for him, but has not articulated how a change of this nature would be better for the Child. [ 100 ] Both of the parties are capable of acting as B.’s guardian and of exercising parental responsibilities for him.

They have not had any family violence in their relationship and in that regard, B. has been more fortunate than many children. The difficulty here is in the ability of the parents to work collaboratively because of mistrust between them. Mistrust exists because of the differing recollections they have of how involved a parent the Applicant was early on in B.’s life. There is a huge gap in which the Respondent recalls the Applicant as an absentee parent, while the Applicant has formed the belief that the Respondent is an alienating parent.

There is also the problem of the Applicant and his supporting family members expressing strong disagreement with the Respondent’s parenting decision at Easter of 2017 that led to a strong conflict. It is against this backdrop that the appropriateness of an arrangement that would require the Child's guardians to cooperate on issues affecting the Child must be considered. [ 101 ] One of the most telling points on the hearing was when each of the parties were asked to give their opinion of the other as a parent.

The Respondent did not hesitate to acknowledge that the Applicant was a good and loving father capable of caring for this Child. Conversely, the Applicant was very reluctant and unwilling to acknowledge that the Respondent was a good mother, preferring instead to list what he sees as her faults.

This said much about which parent would be willing to work with the other in an unbiased manner when it comes to making decisions about this Child. [ 102 ] Having considered all of the factors which are required to be reviewed under the Family Law Act , I conclude that it is not in this Child’s best interests to introduce the drastic change in his life circumstances that the Applicant is proposing. The evidence supports the

conclusion that the Child has prospered emotionally in the Respondent’s care. It has not been shown that a change in his circumstances that would separate him from his brother and significantly reduce his time spent with his mother would be in his best interests. It would be exchanging a positive status quo for an unknown situation, and it is hard to understand how this would be in his best interests. [ 103 ] The evidence also supports the conclusion that it is B.’s best interests for him to continue to have significant parenting time with the Applicant.

Because the parties live in different cities and because the Child is of school age, equal parenting time is not feasible under these conditions. However equal parenting time does make good sense during those times of the year when the Child is not in school. [ 104 ] The parties are both capable of being responsible and of putting their Child’s happiness ahead of their own. It is still problematic that each has a residual negative perception of the other.

In the Respondent’s case, she hasn’t forgotten about the Applicant’s lack of responsibility early in the Child’s life as well as his unwillingness to acknowledge this. In the Applicant’s case, he is clinging to the narrative of the Respondent being an alienating parent. It is hoped that these attitudes will dissolve, perhaps with each party making some grudging admission of past mistakes to the other, and perhaps with each party realizing that this litigation is now over and each no longer has a case to build against the other.

With this in mind, the order that will be made will expect the two of them to work together to make decisions maturely in B.’s best interest, but that if they cannot agree on something, the Respondent, as the Child’s primary caregiver, will be the decider. 2. Child Support [ 105 ] One of the disappointing aspects of this matter has been the Applicant’s attitude toward providing financial support for the Child he has brought into the world.

He has justified this in his own mind first by telling himself that it is preferable if the Respondent avoids seeking a child support order so as to avoid court rather than to have a proper court order for his Child’s support, and second by seeing the support provided by his family as constituting his support.

The text messages he submitted into evidence contain marginalized notes highlighting gifts given to the Child by others, perhaps intending to suggest that this means that the Child didn’t need any support from him to the level expected of other parents in Canada, or perhaps thinking that his counted as support from him. [ 106 ] As was stated in the earlier

summary of the law of child support, the Applicant is expected to support his Child in accordance with the Federal Child Support Guidelines. He has sought to evade his responsibilities by not tendering any regular child support until court ordered to do so. He has further to frustrate this process by breaching a court order requiring him to make financial disclosure in accordance with the Family Law Act , the same disclosure as is expected of any other parent in British Columbia. These problems will have to be remedied.

As the law clearly sets out, it is B.’s right to be supported by the parents who brought him into the world. The parents cannot bargain away this right. [ 107 ] Current court orders have required the Applicant to pay child support from July 1, 2018 to the present at the rate of $183 per month.

According to the evidence presented at trial, the Applicant has been current in making these payments and the order which is being made in this case is based on this assumption. (If this is incorrect, the final order can be adjusted accordingly.) Nothing in the evidence leads me to conclude that there should be any adjustment in child maintenance for this period. [ 108 ] There are two issues to be determined concerning the matter of child support. The first is whether a retroactive support order should be made, and if so when that order should begin. The second issue is that of ongoing child support.

An order for ongoing financial disclosure will also be made. [ 109 ] The Respondent first formally notified the Applicant that she would be claiming for retroactive child support in her Reply filed in May of 2018. Her claim for retroactive child support in this case is a reasonable one. As stated earlier, retroactive orders for child support are not considered to be exceptional, and are often justified by the fact that the payor parent has chosen not to meet his or her support obligation due to a child.

Child support is the right of the child and cannot be waived by the recipient parent, and therefore delay does not eliminate the payor parent’s obligation. [ 110 ] If a parent has an obligation to pay child support but refuses or neglects to do so, that conduct can be considered to be blameworthy if it privileges the payor parent’s own interests over the child’s right to an appropriate level of support.

Where the payor withholds disclosing information, as has occurred in this case, this is considered to be blameworthy conduct and strengthens the justification for retroactive support. [ 111 ] In this case, the needs of the Child, the Respondent’s limited income earning ability, the good health of the Applicant, and the Applicant’s concealment of his financial picture all support the Respondent’s claim for retroactive child support for the period from December of 2014 to May of 2018, made according to the Guidelines.

Based on the Applicant’s financial disclosure made in the course of the trial, and the Guidelines as they existed during the relevant periods, retroactive child support in this case is calculated as shown in the table below. These calculations are based on those made by Mr. Florescu. They are more favourable to the Applicant than those I had calculated on my own, and I will therefore give the Applicant the benefit of the doubt and order the lesser sum.

Year Guideline Income Monthly Payment Total Dec. 2014 $50,810 $477 $477 2015 $13,000 $39 $468 2016 $9092 $0 $0 2017 $23,320 $195 $2,340 Jan. to June, 2018 $21,840 $174 $1,044 Less $ received ($1,440) TOTAL OWING $2,889 [ 112 ] The interim order for child support that is now in effect was made on December 8, 2018. It is based on an imputed income of $21,840. The judge who made that order did not have the benefit of the 2017 T1. While income calculation is very imprecise because of the manner in which financial disclosure has been made in this case, the evidence certainly discloses an ability to make that payment.

[ 113 ] For ongoing child support, Mr. Florescu seeks an order imputing annual income to the Applicant in the amount of $52,000. This reflects his fulltime work as a painter at $25 per hour, in accordance with the Applicant’s testimony. This attracts a monthly payment of $488. Mr. Florescu has asked for this to begin as of January 1, 2020. I will differ with Mr. Florescu’s request only to the extent that the increased payment will commence on April 1, 2020. [ 114 ] In making these orders I would note that the Respondent is showing considerable benevolence to the Applicant.

He is being credited with having made payments that were in fact made by his mother, something that he would normally not get the benefit of. I would also note that the calculations are based on reported income, but that the Applicant’s income earning ability was likely considerably greater than this. I am mindful of the need to decrease ongoing divisive issues, not add to them, and accordingly the order will be based on the calculation of Respondent’s counsel, but with the increased payment deferred from January until April. Order [ 115 ] For the foregoing reasons, Mr.

Florescu can prepare and submit the following order, and can do so without having to obtain the Applicant’s signature. [ 116 ] Upon the Court being advised that the name and birth date of each child is as follows: B.M.M., born [omitted for publication]; [ 117 ] THIS COURT ORDERS THAT: 1. The Court is satisfied that F.W. and B.M. are the guardians of the Child under section 39(1) of the Family Law Act (the “FLA”). 2. Guardianship must be exercised as follows: (

a) In the event of the death of a guardian, the surviving guardian will be the only guardian of the Child; (

b) Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the Child; (

c) Each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the Child, including significant decisions about his health (except emergency decisions), education, religious instruction and general welfare; (

d) The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; (

e) In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, F.W. will be entitled to make those decisions and B.M. will have the right to apply for directions on any decision he considers contrary to the best interests of the Child, under s.49 of the FLA; and, (

f) Each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers. 3. B.M. will have parenting time with the Child as follows: (

a) During the school year, on the current four-week rotating

schedule which provides that for the first three weeks from Friday at 7:00 p.m. to Sunday at 7:00 p.m., with this parenting time to be extended to include any statutory holidays or Professional Development Days that immediately precede or follow the weekend. For the last week of this four-week rotation his parenting time with the Child will be from Wednesday after school until Friday after school. (

b) Notwithstanding the schedule, the child shall spend Father’s Day with B.M., and if Father’s Day falls on a weekend other than his regularly scheduled weekend, he shall pick up the Child at 10:00 a.m. on Father’s Day and return the Child that evening at 7:00 p.m. (

c) Notwithstanding the schedule, the Child shall spend Mother’s Day with F.W., and if Mother’s Day falls on a weekend that is part of B.M.’s regularly scheduled parenting time weekend, he shall return the Child to F.W. on Saturday evening of that weekend at 9:00 p.m. (

d) For Christmas, B.M. will have parenting time starting at 7:00 p.m. on the Child’s last school day, and continuing until December 25 at noon. The Child shall then be in F.W.’s care for the remainder of the Child’s Christmas school break. (

e) For the Child’s school spring break, his summer holidays, and when he is not in school for more than three days because of a school holiday or a school closure (including a school closure because of the Coronavirus pandemic), the Child shall spend alternating weeks in the care of each parent. Alternatively, the parents may divide that time equally between them. If they are unable to reach agreement, the first of the alternating weeks will be with B.M. (

f) Nothing shall prevent the parties from adjusting the parenting time set out in this order by agreement, but such agreement shall be either in writing on paper or by some form of preserved electronic record such as email or text message. 4. B.M. is found to be a resident of British Columbia and is imputed to have a gross annual income of $52,000. B.M. will pay to F.W. the sum of $488 per month for the support of the Child, commencing on April 1, 2020, and continuing on the 1st day of each and every month thereafter, for as long as the Child is eligible for support under the FLA or until further Court order. 5.

The arrears of child support owing from B.M. to F.W. as of March 30, 2020 are $2,889, including principal and interest. B.M. will pay to F.W. a minimum of $120 per month towards the arrears of support, in addition to the regular monthly support payments,

commencing on April 1, 2020 and continuing on the 1 st day of each month thereafter until the arrears are paid in full or until further Court Order. 6. For as long as the Child is eligible to receive child support, the parties will exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than July 31 st each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, within seven (7) days of receipt. 7. Under s.222 of the FLA upon exchange of their income tax returns and notices of assessment, the parties are required to discuss any material change in circumstances which warrant a change in the amount of support payable. If the parties are unable to agree on whether the amount of support payable should be changed, the parties must consult with a family justice counsellor before bringing an application to change this order. 8.

Pursuant to s. 213(2)(d)(ii) of the FLA, B.M. must pay to F.W. the sum of $500 as a penalty for any future failure to comply with an order requiring him for disclosure of financial information as required by this or any subsequent court order. _________________________________________ The Honourable Judge K.D. Skilnick Provincial Court of British Columbia