A.L.K. v. M.L.B., 2022 BCPC 100

Citation: A.L.K. v. M.L.B. 2022 BCPC 100 Date: 20220518 File No: 202727 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.K. APPLICANT AND: M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Applicant: F. Lowther Counsel for the Respondent: N. Mills Place of Hearing: Sechelt , B.C. Dates of Hearing: November 23 to 26, 2021; February 1 & 11, March 4, 10, 11 & 24, 2022 Date of Judgment: May 18, 2022 INTRODUCTION

[ 1 ] R.A.K. is the 28 month old daughter of A.L.K. and M.L.B. R.A.K.’s parents separated prior to her birth. Once R.A.K. was born, her parents, for the most part, lived in the same residence with her until October 2020.

Since then, R.A.K. has lived mostly with her mother. [ 2 ] Pursuant to the November 26, 2021 Order, R.A.K. has time with her father on Wednesdays from 7:45 a.m. to 5:00 p.m. and on alternating weekends from 7:45 a.m. on Fridays to 5:00 p.m. on Saturdays or Sundays. [ 3 ] This is an application by A.L.K. for guardianship, equal parenting time and shared parental responsibilities. [ 4 ] Except for guardianship, M.L.B. opposes A.L.K.’s claims.

She filed a counter-claim seeking an order that R.A.K. live primarily with her, that she be allocated final decision making responsibility for R.A.K. and that A.L.K. pay child and spousal support including retroactive support. [ 5 ] The trial of the parties’ applications commenced November 23 to 26, 2021 and continued February 1 and 11, 2022 and March 4, 10, 11 and 24, 2022. R.A.K.’S PARENTS [ 6 ] A.L.K. is 40 years old and works in construction. M.L.B. is 36 years old and is a teacher. R.A.K.’s parents grew up in Ontario and have known each other since 1997.

A.L.K. moved to British Columbia and the parties reconnected in 2011 in Whistler while M.L.B. was there on a ski trip. R.A.K.’s parents started living together in February 2012 in North Vancouver. They married in August 2014 and separated for the first time in November 2018. Their final separation occurred October 1, 2020. POSITIONS OF THE PARTIES [ 7 ] A.L.K. relies on the fact that the parties are married, the principle of maximum contact and the provisions of s. 16(10) of the Divorce Act in support of his submission that the parties should have equal time with R.A.K.

A.L.K. also submits that since he and M.L.B. are guardians, they are entitled to parental responsibilities which should be shared. A.L.K. suggests that the Court lacks the jurisdiction to allocate final decision making power to one of R.A.K.’s parents.

Accordingly, he submits that if they cannot reach an agreement on matters concerning R.A.K., the parties should seek the assistance of a third party to help them reach an agreement. [ 8 ] A.L.K. submits that child support should be based on his 2021 earnings which were approximately $56,000 and that retroactive child support should not be ordered. [ 9 ] A.L.K. further says that based on the Child and Spousal Support Guidelines, no spousal support is required to be paid.

A.L.K. submits the issue of spousal support ought to be adjourned or alternatively a review date should be set. [ 10 ] M.L.B. expressed concerns about A.L.K.’s use of alcohol, his mental health and his refusal to attend for counselling. She submits that in light of these concerns and R.A.K.’s stage of development, R.A.K.’s time with her parents should not be equal and that R.A.K.’s primary residence should be with her. [ 11 ] M.L.B. also says that A.L.K. is unable to co-operate with her and repeatedly challenges her decisions regarding R.A.K.

She believes that she should have final decision making power for decisions affecting R.A.K. if the parties cannot reach agreement. [ 12 ] M.L.B. says that A.L.K. was intentionally under-employed in 2021. She submits that for the purposes of calculating child support, A.L.K. should be imputed an income of $75,152, consistent with his 2020 earnings. She further submits that child support should be retroactive to October 1, 2020. [ 13 ] M.L.B. says that she has proven she is entitled to spousal support with the amount to be determined in accordance with the Spousal Support Advisory Guidelines.

M.L.B. acknowledges that at this time no spousal support may be payable by A.L.K. Accordingly, she says, her application for spousal support should be reviewed in the fall of 2023 when she believes R.A.K.’s time with her father is likely to increase. CREDIBILITY AND RELIABILITY: THE APPLICABLE LEGAL PRINCIPLES [ 14 ] Both parties raised issues respecting the credibility of the other. The parties’ version of the facts differed on a number of issues.

Therefore, I must consider the reliability and credibility of their testimony and the testimony of the witnesses. [ 15 ] Reliability and credibility are related but distinct topics. Credibility is an assessment of the trustworthiness of a witness’ testimony. [ 16 ] Factors to consider in assessing a witness’ credibility include: (

a) the firmness of their memory (

b) the ability to resist the influence of interest to modify their recollection (

c) whether the witness’ evidence harmonizes with evidence that is accepted (

d) whether the witness changes their testimony between direct and cross-examination (

e) whether the witness’ testimony seems unreasonable, impossible or unlikely (

f) whether a witness has a motive to lie

(

g) with caution, their demeanour [ 17 ] The credibility of a witness must be assessed for its “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable.” [ 18 ] Reliability considers the accuracy of the witness’ testimony. This involves the witness’ ability to observe, recall and recount the events in issue. [ 19 ] If a witness’ evidence on a point is not credible, it follows it is unreliable.

A credible witness can make honest mistakes. [ 20 ] There is no requirement that a trier of fact believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier of fact may believe none, part or all of the witness’ evidence and may attach different weight to different parts of a witness’ evidence. See Mancinelli v. Mancinelli , 2021 BCSC 94 at paragraphs 26 to 29 . A REIVEW OF THE WITNESS TESTIMONY [ 21 ] The trial judge is not required to review all of the evidence in the judge’s reasons for judgment. See E.L. v.

M.L. , 2021 BCSC 1012 at paragraph 41 . [ 22 ] Moreover, in preparing reasons in a family law case, a trial judge is expected to consider each of the legislative factors in light of the evidence adduced at trial; however, that is not to say that he or she is obligated to discuss every piece of evidence in detail or at all when explaining his or her reasons. This would be an unreasonable requirement at the end of a very lengthy trial.

As a result, trial judges may sometimes appear to stress one factor over another and in fact it may be said that this is inevitable in family law cases which are heavily dependent on the particular factual circumstances at issue. See Van de Perre v. Edwards , 2001 SCC 60 at paragraph 10 . A BRIEF

SUMMARY OF THE TESTIMONY a. A.L.K. [ 23 ] A.L.K. is 40 years old. He grew up in Orillia Ontario. He has known M.L.B. since he was 17 and she was 13. A.L.K. said that he moved to British Columbia before M.L.B. did and that he and M.L.B. reconnected in Whistler. The parties started living together in February 2012 and were married in August 2014. The parties separated for the first time in November 2018. In March 2019, A.L.K. said that he and M.L.B. went on a ski trip together.

R.A.K. was conceived on that ski trip. [ 24 ] A.L.K. said that prior to R.A.K.’s birth in December 2019, he helped prepare M.L.B.’s home for R.A.K. by painting M.L.B.’s residence and setting up the nursery. When R.A.K. was born, A.L.K. said that he co-parented with M.L.B. at her residence until the end of September 2020 when M.L.B. asked him to move out. From August 2021 to December 2021, R.A.K.’s time with her father was Wednesdays and overnight Friday to Saturday. In January that changed to two nights every other weekend. A.L.K. said that R.A.K. has responded well to that increase in parenting time.

A.L.K. acknowledged that he has expressed concerns to R.A.K.’s doctor and M.L.B. about R.A.K.’s development and that his emails to M.L.B. might have had a bad tone. A.L.K. said that he sympathizes “to a certain extent” with M.L.B. for all of the questions that he has asked. A.L.K. described M.L.B. as incredibly hard working and said that she does a lot of great things for R.A.K. b. D.K. [ 25 ] D.K. is A.L.K.’s older sister. She testified that her brother is patient, thoughtful and is a great uncle.

She said that her brother has suffered a number of concussions and the family has wondered if that has caused A.L.K. to have challenges with respect to finances and organization. She said that she has no concerns regarding R.A.K. She said R.A.K. is a sweet and happy girl. c. M.L.B. [ 26 ] M.L.B. testified that she has known A.L.K. since 1997 and that they reconnected in Whistler in November 2011. M.L.B. said that once R.A.K. was born A.L.K. was with her and R.A.K. almost every day and that he moved into her residence in March 2020. M.L.B. said that in September 2020 she asked A.L.K. to leave her residence.

She said he moved out at the beginning of October 2020. M.L.B. testified that she is concerned that A.L.K.’s alcohol consumption and mental health will affect his ability to care for R.A.K. M.L.B. also said that it has been difficult co-parenting with A.L.K. because he questions and challenges her parental decisions. M.L.B. stated A.L.K. “can offer R.A.K. important things”. She also said she wants R.A.K. to have a good relationship with her father. d. M.B. [ 27 ] M.B. is R.A.K.’s maternal grandmother. M.B. said that she has known A.L.K. since 2004. She said they have had discussions about his alcohol consumption.

M.B. said she stayed with her daughter during the pregnancy and participated in the care of R.A.K. in her first year. [ 28 ] I find all witnesses to be credible. There are conflicts in the testimony. The resolution of those conflicts are described in these reasons. ENTITLEMENT AND MAXIMUM CONTACT [ 29 ] A.L.K. referred the Court to s. 16(10) of the Divorce Act in support of his submission that the principle of maximum contact means each parent should have equal time with R.A.K. A.L.K. submits the onus is on M.L.B. to show why R.A.K. should not spend equal time with each parent. He says she has not met that onus.

A.L.K. also submits that as a guardian he is entitled to an equal allocation of parental responsibilities. [ 30 ] With respect, I disagree with this approach. Children are subjects of the law rather than objects of their parents. R.A.K. is an

individual distinct from her parents. See S.S. v. R.S. 2021 ONSC 2137 at paragraphs 27 and 39. [31] A judge must probe into each child’s lived experience, to meaningfully consider their views and preferences (when appropriate)and to craft an order that promotes a child’s best interests and overall well-being. See S.S. v. R.S. at paragraph 28. [32] In S.S. v. R.S., Justice Mandhane explained at paragraphs 48 and 49: Maximal contact is no longer enumerated as a factor in s. 16(3) in the new Divorce Act.

Instead, the legislation states in s. 16(6) that: “inallocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as isconsistent with the best interests of the child.” Again, this is consistent with a child’s rights in international law.

The [United Nations] Committee [on the Rights of a Child] in GeneralComment 14 at paragraphs 65 to 66 states: When separation becomes necessary, the decision makers shall ensure that the child maintains the linkages and relations with his or herparents and family (siblings, relatives and persons with whom the child has had strong personal relationships) unless it is contrary to thechild’s best interests… The Committee is of the view that shared parental responsibilities are generally in the child’s best interests.

However, in decisionsregarding parental responsibilities the only criterion shall be what is in the best interests of a particular child. It is contrary to thoseinterests if the law automatically gives parental responsibilities to either or both parents.

In assessing the child’s best interests, the judgemust take into consideration the right of the child to preserve his or her relationship with both parents, together with other elementsrelevant to the case. [33] At paragraph 50, Justice Mandhane continues: Clearly, the idea of a presumption in favour of one type of parenting order is anathema to the Court’s unrelenting focus on the child’sbest interests.

The most one can say is, all things being equal, the child deserves to have a relationship with both parents. [34] In summation a guardian is not “entitled” to parental responsibilities nor is a guardian “entitled” to equal time with a child. What,if any, parental responsibilities are allocated to a guardian and how much time a child spends with a guardian will be determined inaccordance with what is in the child’s best interests. R.A.K. has a right to the best possible arrangements in the circumstances of theparties. Finally, it is not A.L.K.’s time with R.A.K. nor is it M.L.B.’s time with R.A.K.

It is R.A.K.’s time with each of her parents. THE BEST INTERESTS OF THE CHILD [35] Section 37(1) of the Family Law Act provides that the only consideration to be taken into account in making an order for the careof a child is a child’s best interests. [36] Under s. 37(2) of the Family Law Act, the court must take into account all of the child’s needs and circumstances including theten factors listed in that subsection. The factors listed in s. 37(2) are non-exhaustive.

A determination of the best interests of a child is tobe based on a consideration of the facts of the case and each of the factors listed in s. 37(2). [37] Section 37(3) of the Family Law Act provides that an order is not in the best interests of a child unless it protects to the greatestextent possible the child’s physical, psychological and emotional safety, security and well-being. [38] Under 40(4) of the Family Law Act, no particular arrangement is presumed to be in the best interests of a child and withoutlimiting that, the following must not be presumed: a. that parental responsibilities should be allocated equally among guardians; b. that parenting time should be shared equally among guardians; c. that decisions among guardians should be made separately or together. [39] A court may make an order that in the event guardians cannot reach an agreement on a significant decision despite their bestefforts, one guardian will be entitled to make those decisions and the other guardian will have the right to apply for directions on anydecision the guardian considers contrary to the best interests of the child.

See Van Kooten v. More, 2013 BCSC 1076 atparagraph 38. [40] In Young v.

Young (SCC), [1993] 4 S.C.R. 3 at paragraphs 71 to 72, Justice L’Heureux-Dubé explained theconsideration of the factors that enter in the best interests of the child: 71 A determination of the best interests of the child encompasses a myriad of considerations, as child custody and access decisions havebeen described as "ones of human relations in their most intense and complex form". … Courts are required to predict the happening offuture events rather than to assess the legal import of past acts and judge the effect of various relationships on the best interests of thechild, all the while weighing innumerable variables without the benefit of a simple formula.

In making a determination as to the best interests of the child, courts must attempt to balance such considerations as the age, physical andemotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. [41] Justice L’Heureux-Dubé continued at paragraph 72: Custody and access decisions are pre-eminently exercises in discretion. Case by case consideration of the unique circumstances of eachchild is the hallmark of this process. The wide latitude under the best interests test permits courts to respond to the spectrum of factors

which can both positively and negatively affect a child.

Such discretion also permits the judge to focus on the needs of the particularchild before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily havethe same effect on another. [42] At paragraphs 80 to 82, Justice Justice L’Heureux-Dubé continued: In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome thelived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured by abstractclaims of parental rights.

This is not to say that the parent's interests may not coincide with the child's interests or that a court may nevervalidly take a parent's interests into consideration. However, to further the best interests of the child, a recognition of the closerelationship between the needs of the child and the needs of the remaining family unit of which he or she is a

part is essential. As AbellaJ.A. held in M. (B.P.) v. M. (B.L.D.E.), (1992), (ON CA), 97 D.L.R. (4th) 437, for the majority, at p. 459: [The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviouslyinextricable, particularly between children and the parent on whom they depend for their day-to-day care, where only one parent has thisprimary responsibility.

The structure of an environment that fits the child's interests would undoubtedly be reinforced if the economicand emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well-being. In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmatic andtake into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only to recognizethat, in some circumstances, the perfect may be the enemy of the good.

Courts must always be mindful that not only the benefit but alsothe real cost and burden of all custody and access arrangements ultimately falls on the children themselves. [43] The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possiblearrangements in the circumstances of the parties. Children have two fundamental rights when their parents separate:

a) the right to socialand psychological support by having the most suitable arrangement possible in the circumstances for their care and upbringing and

b) theright to economic support. See Young v. Young at paragraph 111. THE

SECTION 37 FACTORS a. The child’s health and emotional well-being [44] R.A.K. is a happy child. R.A.K.’s parents are ensuring that any health concerns are appropriately addressed. M.L.B. said thatwhen R.A.K. returns from overnights with her father, R.A.K. is more needy. M.L.B. testified that she learned that this is normal and sheconsulted with professionals who have given her strategies to assist R.A.K. upon her return. M.L.B. also said - and I accept her testimony- that when she and A.L.K. are together, if R.A.K. gives more attention to her or cries for her, A.L.K. walks away from R.A.K.

M.L.B.said that she has had to coax A.L.K. back and explain to A.L.K. that “it’s not that she (R.A.K.) doesn’t love him but she is a baby.” b. The child’s view unless it would be inappropriate to consider them [45] R.A.K. is too young to have her views considered. c. The nature and strength of the relationships between the child and the significant persons in the child’s life [46] M.L.B. has been R.A.K.’s primary caregiver. That said, the parties had a co-parenting arrangement whereby A.L.K. resided withR.A.K. and her mother from January 2020 to September 2020.

A.L.K. continues to play an active role in R.A.K.’s care and upbringing.M.L.B. testified that R.A.K. said she has three homes: her home with her mom, her home with her dad and her home with A.L.K.’s newpartner, S. S. did not testify nor did A.L.K. describe R.A.K.’s relationship with S. d. The history of the child’s care [47] As previously noted, R.A.K.’s parents resided in the same residence between January 2020 and September 2020. M.L.B.’smother also resided with R.A.K. and her parents for some of this time and participated in R.A.K.’s care.

The parties have differing viewsas to who provided what care during this time period. The Court cannot resolve the conflict in the testimony on this point. Since October2020, M.L.B. has been R.A.K.’s primary caregiver. A.L.K. has been actively involved in caring for R.A.K. e. The child’s need for stability given the child’s age and stage of development [48] R.A.K. is young and stability is crucial for her. f.

The ability of each person who is a guardian or seeks guardianship of a child or who has or seeks parental responsibilities,parenting time or contact with the child to exercise his or her responsibilities. [49] A.L.K.’s says that M.L.B. is unwilling to consult with him on decisions respecting R.A.K. and wishes to limit his time withR.A.K. [50] M.L.B. says that she is concerned about A.L.K.’s alcohol consumption and his mental health. She worries that this will causeR.A.K. to be at risk when R.A.K. is with her father.

On the evidence before me, it appears that R.A.K. is appropriately cared for by bothof her parents. I am not satisfied that A.L.K.’s alcohol consumption or mental health has impacted his ability to care for R.A.K. g. The impact of any family violence on a child’s safety, security or well-being, whether the family violence is directed towards thechild or another family member [51] Neither party has suggested that the other has committed acts of family violence.

h. Whether the actions of a person responsible for family violence indicate that person maybe impaired in his or her ability to care for the child and meet the child’s needs [ 52 ] This is not applicable in this case. i. The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child including whether requiring co-operation would increase any risk to the safety, security or well-being of the child or other family members [ 53 ] R.A.K.’s parents in some ways have shown an amazing ability to co-operate.

For example: they were able to co-parent in the same house for approximately 9 months. That said, A.L.K. acknowledged that some of the emails he sent to M.L.B. could have been worded better. He also acknowledged he may have asked M.L.B. too many questions in those emails. M.L.B. has shown that she will attempt to address A.L.K.’s concerns. For example: she did not enrol R.A.K. in day-care with A. because A.L.K. objected to A. As well, when A.L.K. expressed concerns about R.A.K.’s health, M.L.B. contacted a doctor to have those concerns addressed.

Accordingly, it is my judgment that it would be appropriate to make an order that would require R.A.K.’s parents to co-operate. The more co-operation between R.A.K.’s parents, the healthier and happier R.A.K. will be. j. Any civil or criminal proceedings relevant to the child’s safety, security and well-being [ 54 ] There are no such proceedings. GUARDIANSHIP [ 55 ] R.A.K.’s parents agree that they are both guardians of R.A.K. PARENTAL RESPONSIBILITIES [ 56 ] A.L.K. submits that the parties should share parental responsibilities and make best efforts to reach agreements on matters relating to R.A.K.

A.L.K. further submits that if they cannot reach an agreement on a matter concerning R.A.K., then the parties should seek the assistance of a third party who can help them in resolving the impasse. A.L.K. says that if one parent is given final decision making power, there is too great a risk that parent will not engage in meaningful discussions because that parent knows, ultimately, that parent will make the final decision. [ 57 ] M.L.B. submits that the parties should share parental responsibilities and be required to consult each other with respect to decisions relating to R.A.K.

M.L.B. says, however, that if the parties cannot reach an agreement then she should have final decision making power subject to A.L.K.’s ability pursuant to s.49 of the Family Law Act to apply to the court for directions respecting an issue affecting R.A.K. [ 58 ] Guardians are required to make decisions that are in the best interests of the child. There are decisions that must be made without delay. Requiring the assistance of a third party to assist guardians in reaching a decision can also be expensive.

I am satisfied that both of R.A.K.’s parents can exercise their parental responsibilities appropriately. [ 59 ] M.L.B. has shown that she will defer to A.L.K. as exemplified by her decision not to use A. as a child care provider because of A.L.K.’s concerns. Further, A.L.K. expressed concerns and asked for confirmation that the medications that M.L.B. was taking, while breastfeeding R.A.K., would not harm R.A.K. M.L.B. sought medical advice from her doctor and provided a letter to A.L.K. confirming that the medications she was taking would not be harmful to R.A.K.

See: Exhibit 21 Tab 32 Page 482. [ 60 ] In contrast, A.L.K. testified that he and M.L.B. are unlikely to agree on issues concerning R.A.K. without Court orders. [ 61 ] A.L.K. has sometimes inappropriately challenged M.L.B. on issues related to R.A.K. For example, in July 2021 M.L.B. told A.L.K. that R.A.K. had fallen out of bed and had a bump on her head. A.L.K. accused M.L.B. of lying about what had happened. I accept M.L.B.’s evidence on this point. A.L.K. should not have challenged her.

See Exhibit 21 Tab 30 page 479. [ 62 ] In June 2021, A.L.K. scheduled a doctor’s appointment for R.A.K. because he had a number of concerns about R.A.K.’s development. A.L.K. testified the doctor said R.A.K. was fine. Yet, A.L.K. sent M.L.B. an email that he described “might have a bad tone” which clearly questioned M.L.B.’s parenting abilities and suggested that R.A.K. had health issues. See Exhibit 21 Tab 28 page 472. [ 63 ] A.L.K. has also been difficult with respect to child care for R.A.K.

A.L.K. has prioritized his desire for more time with R.A.K. over the reality that both of R.A.K.’s parents must work full time to be able to appropriately support R.A.K. A.L.K. has set standards for third party caregivers that simply cannot be met. As well, A.L.K. has not considered the impact of his plan for time with R.A.K. on the fact that R.A.K. must have child care so M.L.B. can work full time. See Exhibit 22 Tab 50, September 2021 emails. [ 64 ] In March 2022, A.L.K. and M.L.B. were discussing R.A.K. spending more time with A.L.K. during spring break. A.L.K. wanted to take R.A.K. on a trip.

A.L.K. would not tell M.L.B. where he wanted to take R.A.K. The parties could not reach an agreement and A.L.K. made a Court application. It was during the Court application that M.L.B. learned for the first time where A.L.K. wanted to travel with R.A.K.

It makes no sense that he would not tell her. [ 65 ] Considering how challenging A.L.K. has been and M.L.B.’s willingness to address A.L.K.’s concerns, it is my judgment that M.L.B. should have final decision making power subject to A.L.K.’s right of review. [ 66 ] Accordingly, the parties will share parental responsibilities and will be required to consult each other on issues affecting R.A.K. Ultimately, if they cannot reach an agreement on an issue, M.L.B. will have the power to make the decision subject to A.L.K.’s right to seek directions from the court.

[ 67 ] Further, each guardian will have the right to obtain information concerning R.A.K. directly from third parties including but not limited to teachers, counsellors, medical professionals and third party care givers. PARENTING TIME [ 68 ] For R.A.K.’s first 9 months, the parties co-parented R.A.K. in the same residence. Since then, M.L.B. has provided the majority care for R.A.K.

She has demonstrated an ability to meet R.A.K.’s needs over extended time periods. [ 69 ] Currently, R.A.K. has time with her father on Wednesdays from 7:45 a.m. to 5:00 p.m. and alternating Friday to Saturday/Sunday from 7:45 a.m. to 5:00 p.m. A.L.K. submits that R.A.K.’s time with each of her parents should be shared equally on a two-two-three schedule. M.L.B. submits that the current

schedule should be varied so that R.A.K.’s time with her father would increase to two overnights each week. [ 70 ] A.L.K.’s position is that the onus is on M.L.B. to show why R.A.K.’s time with her parents should not be on a two-two-three schedule. A.L.K. submits that she has not done so. This is not the test. [ 71 ] A.L.K. chose not to describe his routine with R.A.K. He said he has overnights at his apartment with R.A.K. and S. does not assist with overnights.

I accept M.L.B.’s testimony that R.A.K. says she has three homes: her mom’s, her dad’s and S.’s. [ 72 ] The Court knows very little about how R.A.K. is cared for when she is with her father. R.A.K. has also not spent extended time with her father. Further, A.L.K. maintains he is “entitled” to or has “a right” to equal time with R.A.K. He chose not to address the best interests criteria.

The lack of information requires the Court to take a more cautious approach with respect to R.A.K.’s time with her father. [ 73 ] R.A.K. shall have time with her father in week one from Sundays at 10:00 a.m. until Tuesdays at 5:00 p.m. and in week two from Saturdays at noon until Tuesdays at 5:00 p.m. This will allow R.A.K. to have time with each parent on the weekend. It will allow A.L.K. to work some Saturdays and will ensure M.L.B. is able to return to work full time. It will also afford A.L.K. the opportunity to demonstrate he can exercise parental responsibilities during the week.

All of this is in R.A.K.’s best interests. [ 74 ] It is likely that M.L.B. will place R.A.K. in child/day-care. Should the child care/day-care provider require R.A.K. to be in day- care from Monday to Friday each week, then A.L.K. shall be responsible for ensuring R.A.K. attends child care/day-care on Mondays and Tuesdays. [ 75 ] M.L.B. will be responsible for driving R.A.K. to her father on either the Saturday or Sunday and A.L.K. will be responsible for ensuring R.A.K.’s return to her mother by 5:00 p.m. on the Tuesday. The exceptions to this

schedule are as follows: a. Mother’s Day – for Mother’s Day, R.A.K.’s time with her father will commence on the Monday at 7:45 a.m. with A.L.K. picking R.A.K. up at M.L.B.’s residence. R.A.K. will not see her father on the Mother’s Day weekend. b. Father’s Day – for Father’s Day, R.A.K.’s time with her father will commence on the day before Father’s Day at noon. c. On each parent’s birthday – R.A.K. shall spend time with her parent on that parent’s birthday. d. Between December 22 and December 29 – the parties will reach an agreement on R.A.K.’s time with her parents during this period. The regular

schedule will resume thereafter, with R.A.K.’s time with her father commencing on Saturday, December 31 st . [ 76 ] During the course of the trial, the issue of a right of first refusal arose. I understand this to mean that if one parent is unable to care for R.A.K. for a certain amount of time that parent would be obligated to contact the other parent to see if the other parent could care for R.A.K. prior to obtaining a third party care provider. It is my judgment that there is no basis for such an order in this case.

That is not to say that one parent cannot contact the other parent and enquire if that parent could care for R.A.K. but on the totality of the evidence I am not satisfied that such an order is in R.A.K.’s best interests. That is a need of the parent and not the child. There is no basis for requiring R.A.K. to travel between her parents’ homes which are in two different communities. CHILD SUPPORT [ 77 ] At the present time there is no child support order. A.L.K. voluntarily paid child support in the amount of $646 for some months in 2021.

In June 2021 A.L.K. paid M.L.B. a lump sum of child support “to make up for under payments earlier in the year”. It is agreed that A.L.K. has paid a total of $7,253.25 in child support. [ 78 ] M.L.B. seeks to impute income to A.L.K. in the amount of $75,152. M.L.B. notes that A.L.K. earned that amount in 2020. In 2021 A.L.K. earned $56,522. M.L.B. submits that A.L.K. was intentionally under-employed in 2021.

She notes that A.L.K. testified that he worked less because of the number of court appearances he had to make and the time that it took for him to initiate and reply to emails regarding R.A.K. [ 79 ] A.L.K. submits that child support should continue to be based on an annual income of $56,000. He submits that he will continue to work less hours than he has previously because he will be spending more time with R.A.K. A.L.K. also submits that child support should not be retroactive to October 1, 2020, the date the parties separated, because he did not receive notice of the claim for child support until March 2021.

He says, as well, that any retroactive award would cause him undue hardship. [ 80 ] Child support is the right of the child. The Family Law Act imposes a duty on each parent to provide child support. See s.147 of the Family Law Act . This fundamental obligation takes priority over a parent’s own interests and choices. See Duffy v. Duffy , 2009 NLCA 48 at paragraph 35 . [ 81 ] A.L.K. said he works approximately 37 hours a week, earns $38 per hour, and works 48 weeks per year. That provides for an

annual income of approximately $67,500. To a limited extent A.L.K.’s job is weather dependant. As a result there may be fluctuations in yearly income. In 2020, A.L.K. earned $75,152; in 2021, A.L.K. earned $56,522. In 2019, A.L.K. was self-employed and earned $18,256. [ 82 ] Pursuant to s. 16 of the Child Support Guidelines, a spouse’s annual income is to be 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 3 of the Guidelines. [ 83 ] Pursuant to s. 17 of the Child Support Guidelines, if the Court is of the opinion that the determination of a spouse’s annual income under s. 16 would not be the fairest determination of that income, the Court may have regard to the spouse’s income over the last 3 years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation or receipt of a non-recurring amount during those years. [ 84 ] For determining what, if any, child support is payable for 2020, in accordance with s. 16 of the Child Support Guidelines, I find A.L.K.’s annual income to be $75,152.

That is the amount he actually earned in 2020. [ 85 ] In determining whether a parent is intentionally under-employed, the Court must determine whether the party is taking reasonable steps to obtain employment considering their age, health, education, skill and work history. See D. L. v. J. L. , 2017 BCSC at paragraph 18. [ 86 ] It should be noted that in 2021, M.L.B. had a reduction of income as a result of only being able to work 4 days a week due to child care commitments.

A.L.K. attributes some of the reduction of his income to child care commitments as well. [ 87 ] A.L.K. says, he has the potential to earn $67,500 per year. Some allowance should be made for inclement weather. The average earnings for A.L.K. in 2020 and 2021 are $65,000. It is not appropriate to consider 2019 because A.L.K. is no longer self-employed. [ 88 ] A reduction in income due to sending and receiving emails is not appropriate especially when one’s work day is 7 hours long.

That provides ample time outside of the work day to send and respond to emails. [ 89 ] Pursuant to s. 17 of the Child Support Guidelines, it is my judgment that relying on the total income in the T1 General Form for 2021 is not the fairest determination of A.L.K.’s income. It is my judgment that what is fair and reasonable in these circumstances is an income of $62,000 for 2021. [ 90 ] M.L.B. seeks child support retroactive to October 1, 2020, the day of the parties’ final separation. A.L.K. opposes this claim.

In the alternative A.L.K. submits that child support should be payable as of April 1, 2021 because the claim for child support was not filed until March 30, 2021 [ 91 ] The Court exercises discretion in making a retroactive child support order. However, such orders are not exceptional. The factors the Court will consider in assessing a claim for retroactive child support are:

a) whether there is a reasonable excuse why support was not sought earlier;

b) conduct of the payor parent;

c) circumstances of the child; and

d) hardship occasioned by a retroactive award. [ 92 ] It is not clear in this case when in 2021 A.L.K. started paying child support. However, by way of email on September 30, 2020 M.L.B. told A.L.K. that he needed to complete his taxes so that child support could be determined. See Exhibit 16. Accordingly, upon separation A.L.K. was aware of his obligation to pay child support. There was no delay in seeking child support. [ 93 ] In this case, a court order for child support has yet to be made.

It is unreasonable for A.L.K. to believe that he was living up to his obligation to support R.A.K. when he was not paying child support. Accordingly, A.L.K.’s failure to start paying child support on October 1, 2020 is blameworthy conduct. [ 94 ] Based on the totality of the evidence in this case, it is clear that R.A.K. would benefit from an award of retroactive child support. [ 95 ] It is my judgment that A.L.K. has not demonstrated that an award of retroactive child support would cause him undue hardship.

Although A.L.K. took that position in final submissions, A.L.K. testified that he chose to stop paying child support in mid-September 2021. He also stated “I will settle up on what I owe”.

There simply is no evidence of undue hardship. [ 96 ] Considering the 4 factors that I have set out, I am satisfied that it is appropriate to make a retroactive award of child support to October 1, 2020. [ 97 ] Accordingly, based on an income of $75,152, the amount of child support payable for the months of October, November and December, 2020 is $717x3 for a total of $2,151. [ 98 ] Commencing January 1, 2021 until June 1, 2022 based on an annual income of $62,000, the amount of child support payable is $587 a month x 18 months for a total of $10,566. [ 99 ] The amount of child support payable between October 1, 2020 and June 1, 2022 is $12,717.

A.L.K. has paid $7,253.25 in child support. Therefore, the arears in child support are $5,463.75. [ 100 ] With respect to child care expenses, as of February 1, 2022 M.L.B. paid $1,600. That expense should be shared between the

parties proportionate to their income. A.L.K.’s annual imputed income for this purpose is $62,000 and M.L.B.’s annual income is $42,592. ($43,690-$1,098 union dues). Accordingly, A.L.K. shall pay 59% of the child care expenses which equals $944. SPOUSAL SUPPORT [ 101 ] Having determined that R.A.K.’s primary residence is with her mother, and considering (

i) the amount of child support payable, and (ii) the Spousal Support Advisory Guidelines, no spousal support is payable by A.L.K. to M.L.B. at this time. That said, I am satisfied on the evidence that M.L.B. is entitled to spousal support on a compensatory basis. At this time I am not deciding whether or not M.L.B. is entitled to spousal support on a non-compensatory basis. The application for spousal support will be adjourned for review no earlier than May 2, 2023. CONDUCT ORDERS [ 102 ] Both parties submitted the form of the conduct orders they wished the Court to impose.

I appreciate that both of R.A.K.’s parents had differing views on matters concerning R.A.K. It is my judgment that both parents know that further conflict will only harm R.A.K. and neither of them wants that. Despite their differences, there has been a good level of co-operation between R.A.K.’s parents. Both of R.A.K.’s parents know they need to treat each other with respect and both recognize that each aspire to act in R.A.K.’s best interests. It is my judgment that conduct orders are not necessary in this case and I decline to order them.

COURT ORDER REVIEW [ 103 ] Either party will be at liberty to file an application for a review of the orders no earlier than May 2, 2023. While neither party will be required to show a material change of circumstance, should either A.L.K. or M.L.B. file an application for a Case Management Order seeking a review, they are required to file an affidavit outlining the reasons for seeking the review and attach as an Exhibit their three most recent pay stubs and their T4 for the previous tax year. THE ORDERS OF THE COURT [ 104 ] For the reasons contained in this judgment, the orders are as follows: 1.

This Court is satisfied that A.L.K. and M.L.B. are the guardians of the child R.A.K. born December 26, 2019. 2. R.A.K.’s primary residence shall be with M.L.B. 3. Pursuant s. 40(2) of the Family Law Act , A.L.K. and M.L.B. will share equally all parental responsibilities for R.A.K. as set out in s. 41 of the Family Law Act . 4. Parental responsibilities must be exercised as follows: a. A.L.K. and M.L.B. will have the obligation to advise each other of any matters of a significant nature affecting R.A.K. b.

A.L.K. and M.L.B. will have the obligation to discuss with each other any significant decisions that have to be made concerning R.A.K. including significant decisions about health (except emergency decisions), education, religious instruction and general welfare and have the obligation to try and reach an agreement on those decisions. c.

In the event that A.L.K. and M.L.B. cannot reach agreement on a significant decision despite their best efforts, M.L.B. will be entitled to make those decisions and A.L.K. will have the right to apply for directions on any decisions he considers to be contrary to the best interests of R.A.K. under s. 49 of the Family Law Act . d. Each guardian will have the right to obtain information concerning R.A.K. directly from third parties including but not limited to teachers, counsellors, medical professionals and third party care givers. 5.

A.L.K. shall have parenting time with R.A.K. as follows: Commencing June 4 and continuing every other weekend thereafter from Saturdays at noon until Tuesdays at 5:00 p.m. and commencing June 12 and continuing every other weekend thereafter from 10:00 a.m. on Sundays until Tuesdays at 5:00 p.m., with exceptions as follows: a. Mother’s Day – for Mother’s Day, R.A.K.’s time with her father will commence on the Monday at 7:45 a.m. with A.L.K. picking R.A.K. up at M.L.B.’s residence. R.A.K. will not see her father on the Mother’s Day weekend. b.

Father’s Day – for Father’s Day, R.A.K.’s time with her father will commence on the day before Father’s Day at noon. c. On each parent’s birthday – R.A.K. shall spend time with her parent on that parent’s birthday. d. Between December 22 and December 29 – the parties will reach an agreement on R.A.K.’s time with her parents during this period. The regular

schedule will resume thereafter, with R.A.K.’s time with her father commencing on Saturday, December 31 st . 6. M.L.B. shall have parenting time with R.A.K.at all other times. 7. M.L.B. shall be responsible for ensuring R.A.K.is taken to her father on the Saturdays and Sundays and A.L.K. shall be responsible for returning R.A.K. to her mother on the Tuesdays as well as ensuring that R.A.K.is taken to day care/child care on Mondays and Tuesdays if R.A.K.is required to be in day care/child care from Monday to Friday. 8. Upon determining that A.L.K. is a resident of British Columbia for the purposes of Child Support Guidelines, and upon

determining his annual income in 2020 was $71,152, he shall pay to M.L.B. the sum of $717 for the support of the child, R.A.K. born [omitted for publication] commencing October 1, 2020 and continuing on November 1, 2020 and December 1, 2020. 9. Upon determining that A.L.K. is a resident of British Columbia for the purposes of Child Support Guidelines, and having an imputed income in 2021of $62,000, he shall pay to M.L.B. the sum of $587 commencing January 1, 2021 and continuing on the first day of each month thereafter until further order of the Court. 10.

The arears of child support up to and including June 1, 2022 are set at $5,463.75. 11. A.L.K. shall pay to M.L.B. his proportional share of R.A.K.’s special or extraordinary expenses. The parties’ respective proportional shares are: A.L.K. 59% and M.L.B. 41%. 12. M.L.B. shall provide A.L.K. with a copy of the receipt or proof of payment for any special or extraordinary expense and A.L.K. shall pay his proportional share of the expense to M.L.B. within 30 days. 13. The arears of special or extraordinary expenses, as of February 1, 2022 are set at $944. 14.

The total outstanding arears of child support and special or extraordinary expenses pursuant to this order are set at $6,407.75. 15. Unless the parties otherwise agree, the total arears are payable at the rate of $267 per month commencing August 15, 2022 and continuing on the 15 th day of each month thereafter until the arears are paid in full. 16. For as long as R.A.K.is eligible to receive child support, the parties shall exchange:

a) copies of their respective income tax returns for the previous year including all attachments not later than May 1 of each year; and

b) copies of any Notice of Assessment or Re-Assessment provided to them by the Canada Revenue Agency immediately upon receipt. 17. Either party may apply to review the Orders of the Court no earlier than May 2, 2023 without the need to show a material change of circumstance but such application must include an affidavit outlining why the review is sought and include their three most recent pay stubs and their T4 for the previous tax year. 18. The application for a conduct order is hereby dismissed. 19.

Pursuant to Rule 168 of the Provincial Court Family Rules, M.L.B.’s counsel must prepare this order in Form 44 and provide it to counsel for A.L.K. within 30 days. ___________________________ The Honourable Judge S. Merrick Provincial Court of British Columbia