S.G. v. R.O. Date:, 2015 BCPC 102

Citation: S.G. v. R.O. Date: 20150121 2015 BCPC 0102 File No: 19893/03 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S. G. APPLICANT AND: R. O. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Applicant: F. Stevens-Guille Appearing on their own behalf: R. O. Place of Hearing: Prince George , B.C.

Date of Hearing: April 16, 17, 23, 2014 & Jan 12 & 13, 2015 Date of Judgment: January 21, 2015 [ 1 ] The parties, Ms. S. G. and Mr. R. O. came to court concerning changes to their current parenting arrangements for their son, R. K. O. G., born [omitted for publication]. 1. Mr. O. seeks increased parenting time; and 2. Ms. G. seeks an increase in child support. THE FACTS Mr. O. and Ms. G. were in a relationship that ended shortly before R.’s birth. They entered into a Separation Agreement on July 17, 2003.

This document, found at page 22 of Exhibit 2, made provisions for what was then referred to as guardianship, custody, and access. Ms. G. would be the custodial parent and receive payments of child support at $400.00 per month. Mr. O. would have reasonable access. [ 2 ] At that time Mr. O. had commenced working as a firefighter. He was originally employed by Transport Canada and later obtained a position with the fire service in Prince George. He works shifts over a four day period as follows: 1. Two day shifts from 8:00am to 6:00pm 2. Two night shifts from 6:00pm to 8:00am 3. Four days off. [ 3 ] Ms.

G. returned to school shortly after R.’s birth. She is now a nurse and works on a casual basis at public health and also works at a doctor’s office. Her shifts are usually between 8:30 and 12:30 and 12:30 and 4:30. [ 4 ] Seven years ago, she commenced a relationship with M. H. They married two years later and they have two children aged four and two who are R.’s younger brothers. ISSUES [ 5 ] The court has two issues to consider: 1. Has there been a change of circumstances that would be the basis to change the parenting arrangements in the best interests of R.? 2.

What is the proper amount of child support payable by Mr. O. to Ms. G.? THE EVIDENCE [ 6 ] I am satisfied that R. loves both his parents and his parents both love him. [ 7 ] He currently spends two consecutive nights at his father’s home - the first two nights of Mr. O.’s four days off shift. [ 8 ] Sometimes he spends these visits playing with his brother L. who is Mr. O.’s son from another relationship. L. is four years younger than R. and the boys get along well. [ 9 ] On occasion R. will telephone Ms. G. and asked to spend an additional night at Mr. O.’s home. This can depend if L. is visiting Mr.

O. at the same time or if there is some special event. [ 10 ] In one situation R. wanted to spend the next evening with Mr. O. as the pet gecko was going to have babies within the next day or so. The evidence is Ms. G. has always allowed R. to stay the extra time unless there are conflicts with a family activity or R.’s competitive swimming. [ 11 ] Mr. O. called as a witness Mr. Greg Beattie, MSW, who prepared a

section 211 View of the Child Report that was filed in evidence as Exhibit 3. [ 12 ] Mr. Beattie described R. as being outgoing, normally developed and engaging. R. had no difficulty articulating himself and was willing to discuss his relationships with his parents. At no time did Mr. Beattie ask R. to make a choice between his parents. [ 13 ] Mr.

Beattie observed that R. was positive towards both his parents and has a healthy relationship with each. [ 14 ] R. did indicate that sometimes his father is over the top with him meaning his father gets too involved in his life. [ 15 ] He prefers doing his homework at Ms. G.’s home especially when his grandmother helps with his math homework. He did complain to Mr. Beattie about often driving in cars between his parents’ residences. I am advised by counsel this was remedied in part

by a change to the parenting time that resulted in R. spending two consecutive nights with his father as opposed to two single nights overthe four days Mr. O. was off shift. [16] Ms. G. called Ms. C. W., R.’s teacher at [omitted for publication] to discuss R.’s schoolwork. Whenever the homework was notproperly done or projects were late or not complete R. would state he had been at his father’s the night before. This was a theme in theevidence of Ms. G. and her witnesses; that Mr. O. is not effective in helping with his homework.

There is testimony that R. will hidemath homework assignments from his father because he prefers to do this work at Ms. G.’s where he has more assistance. [17] Ms. G. testified that R. is a competitive swimmer with the B. S. C. in Prince George. He thoroughly enjoys the sport. R.’sgrandmother, J. G., testified that on one occasion R. suggested he might like to earn a scholarship by being a competitive swimmer. [18] I conclude from the evidence that swimming is very important to R. [19] The evidence is that Mr. O. has delivered R. late on a number of occasions to swim practice.

This has led to emails from thecoaches to Ms. G. indicating that R. must be at least 15 to 20 minutes early for the practice as opposed to arriving 10 minutes late. [20] Ms. G. testified the R. is embarrassed when he is late and that he becomes upset. THE LAW [21] In addressing the law in this case, I think it is important to discuss two myths regarding the Family Law Act and the FederalChild Support Guidelines. [22] The first is the suggestion that when a child reaches the age of 12 their preference concerning their residence and with whomthey spend parenting time is their decision alone.

The fact that a child is 12 years old is a consideration for the court in doing an analysisin the best interests of the child as set out in s. 37 of the Act. [23] The second myth is that if the noncustodial parent has parenting time more than 40% of the year that parent does not have topay child support.

The Federal Child Support Guidelines, s. 9 indicate there is still an analysis required as to if the child supportpayments will continue based on the financial needs of the child and the respective income of the two parents. [24] Turning to the legal issues at hand, I note s. 47 of the Family Law Act which states: On application a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making ofthe order there’s been a change in the needs or circumstances of the child, including because of a change in the circumstances of anotherperson. [25] The court must also consider the change of circumstances in the context of the best interests of the child as set out in s. 37 of theFamily Law Act.

The relevant criteria set out in s. 37 for consideration in this case are: (1) in making an agreement or order under this part respecting guardianship parenting arrangements or contact with the child the partiesand the court must consider the best interests of the child only. (2) to determine what is in the best interests of the child all the child’s needs and circumstances must be considered including thefollowing: a. the child 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 and development; f. the ability of each person who is Guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parentingtime or contact with the child, to exercise his or her responsibilities; [26] Parenting time is an important concept as noted in Young v.

Young (1993), (SCC), 49 R. F. L. (3d) 117(SCC) -- parental powers should be distributed between custodial and access parents so as to encourage the children of the marriage to develop ameaningful relationship with both parents, provided that it is in the children's best interest. [27] Before the court can consider whether the change being sought is in the best interests of the child, the Applicant, Mr. O., mustestablish a change in circumstances. In Gordon v.

Goertz (1996) (SCC), 2 SCR 27, McLachlin, J. set out the test forestablishing a change in circumstances as follows: The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material changein the circumstances affecting the child. As to what constitutes a material change Madame Justice McLachlin stated: “The principleswhich govern an application for variation of an order relating to custody and access are set out in the Divorce Act. The Act directs a twostage enquiry.

First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must

enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances.” [28] I propose to discuss each stage in turn.

A) The Threshold Condition: Material Change

i) Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change inthe circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody oraccess order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unableto show the existence of a material change, the enquiry can go no farther: Wilson v. Grassick, (1994), (SK CA), 2R.F.L. (4in) 291 (Sask.

C.A.). ii) The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as anindirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the originaljudge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynesv. Baynes (1987), (BC CA), 8 R.F.L. (3d) 139 (B.C.C.A.); Docherty v. Beckett (1989), (ON CA),21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v.

Wesson (1973), (NS SC), 10 R.F.L. 193 (N.S.S.C.), at p. 194. iii) What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change musthave altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v.

Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). iv) It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) achange in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2)which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judgewho made the initial order. [29] The case of Bings v.

Bings, 03-2542, Williams Lake, BC Provincial Court, 2011 is a recent illustration of the application ofthe principle.

i) As the applicant, Mr. Bings had the onus on a preponderance of the evidence to establish that since the original order there hadbeen a material change in the circumstances of the children that had altered the needs of the children or the abilities of parents to meetthese needs in a fundamental way (see Watson v Watson (1991) (BC SC), 35 RFL 3d 169). Further, that fundamentalchange must be one that was either not foreseen or could not have been reasonably contemplated in the original order. ARGUMENTS OF THE PARTIES [30] Mr.

O. has told the court that he believes his increase in parenting time should be based on the fact that R. is going to be 12years old and needs more time with his father for his continued development into a young man. [31] At the time the Separation Agreement was made, R. was quite young. Mr. O. was working as a “flex firefighter” and did nothave a regular work schedule. At that time R.’s best interests were with his mother due to the medical issues R. experienced as a baby. [32] Mr. O. also argues R. is requesting more time with him and his brother L. [33] Ms. G. opposes Mr.

O. having two more additional nights parenting time. Her argument is that there has been no materialchange. 1. R. already sees L. with his father on the swing shift; 2. If R. has asked to spend an additional night at Mr. O.’s home, Ms. G. has allowed R. to stay over even with little notice; 3. Due to the nature of the

schedule for L.’s visits with Mr. O. the boys are not usually at Mr. O.’s residence at the same time; 4. She has made arrangements through L.’s mother directly to have L. spend some time with R. [34] The key points in the evidence that I have noted are as follows: 1. Ms. G.’s flexibility in allowing R. to spend additional time with his father; 2. Ms. W., R.’s teacher, indicated that homework was not often done when R. was at his father’s home; 3. R. thoroughly enjoys competitive swimming.

I accept the evidence that the swim coach has threatened to curtail R.’s participation with the team due to the fact he has been late for practice. This has happened more often than not when Mr. O. has aresponsibility to get R. to practice on time;

4. Being late is very upsetting and embarrassing for R.; 5. A theme in the evidence by Ms. G. and her witnesses is R. returns from visits with his father reporting that his father complains ofpaying money to his mother and that he, Mr. O., may as a result of these payments, be on the streets or homeless. This is upsetting to R. [35] R.’s grandmother, Ms. J. G., has explained the situation to R. to try and calm him down. [36] These comments are inappropriate in the circumstances.

CONCLUSION [37] I am not persuaded, based on the legal test, that the facts support this court concluding there has been a change of circumstancesthat would support an order to increase Mr. O.’s parenting time. I accept the point referred to in the case of Watson v. Watson (1991) (BC SC), BCJ No 2604 that just because a child is older does not in itself create a change of circumstances. [38] Concerning the best interests of the child there is a clear indication in the evidence that R. is content with the currentarrangements.

He is in control of how much time he spends with his father and this provides him with flexibility and stability. Inreaching this conclusion, I rely on Mr. Beattie’s View of the Child Report filed at Exhibit 3. [39] Mr. Beattie stresses that he did not ask R. about any preferences he has between his parents. Conversely, R. did not use theinterviews with Mr. Beattie as an opportunity to express a preference. [40] I note that R. enjoys time with his father, with the exception of trying to complete his homework with his father’s help andarriving to swim practice on time. [41] For that reason Mr.

O.’s Application to increase his parenting time is dismissed. [42] In considering the issue of payment of child support and special expenses, I am prepared to make an interim order. [43] Although Ms. G. raised the issue of child support in her Reply to Mr. O.’s Application, Mr.

O. stated in argument that he wasnot really prepared to address the issue. [44] I intend to make an order to deal with the child support and special expenses but if either party is dissatisfied they are at libertyto make further application to the court for a fulsome exploration of their respective income and expenses. [45] The court file contains Form 7 Financial Statements from both parties. Neither Financial Statement was introduced intoevidence. The evidence before the court as to the parties respective incomes are as follows: 1. Mr. O. earns $83,000.00 a year in Prince George as a firefighter; 2. Ms.

G. earns $24,000.00 working as a nurse; 3. Mr. O. pays $1,900.00 a year in union dues; 4. Mr. O. pays child support to K. M. for his son L. in the amount of $440.00 per month. [46] Ms. G. seeks child support under the Federal Child Support Guidelines of $776.00 a month with a further $163.33 a month tocover expenses for R. to attend [omitted for publication]. [47] Mr. O. is currently paying child support in the amount of $400.00 per month. This was the amount agreed to by the parties intheir Separation Agreement of July 17, 2003. The evidence indicates that Mr. O. was earning $45,000.00 a year at that time.

DECISION CONCERNING PAYMENT OF CHILD SUPPORT [48] Mr. O. is responsible to pay child support for both R. and L. If I were to consider Mr. O.’s income as $81,000.00 a year (afterdeduction of $1,900.00 in union dues) his obligations to pay child support for two children will be $1,223.00 or roughly $624.00 for eachchild. [49] I am prepared to order that commencing February 1, 2015, Mr. O.’s payments of child support to Ms. G. for R. are $624.00 permonth. [50] In addition, I order that Mr. O. pay $163.33 a month in s. 7, special expenses to contribute to the cost of R.’s schooling.

_______________________ R. W. Callan Provincial Court Judge Province of British Columbia