J.N.H. v. J.D.P. Date:, 2016 BCPC 432

Citation: J.N.H. v. J.D.P. Date: 20160517 2016 BCPC 432 File No: 20368 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.N.H. APPLICANT AND: J.D.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Applicant: C. Buchan

Counsel for the Respondent: R. Faber Place of Hearing: Victoria , B.C. Dates of Hearing: April 25 - 29, 2016 Date of Judgment: May 17, 2016 Introduction [ 1 ] J.N.H. and J.D.P. are the parents of E.H.P., born [deleted for publication]. J.N.H. and J.D.P. separated in October, 2012 after a relatively brief and tumultuous relationship. Since then, they have struggled to reach agreement on a parenting arrangement for E.H.P. At present, J.D.P. will not agree to J.N.H. parenting E.H.P. overnight except rarely and under strict conditions.

J.N.H. argues that J.D.P. is unjustifiably denying him the opportunity to parent his son. He seeks an order in this court for equal parenting time. Brief Background [ 2 ] J.N.H. and J.D.P. met in the spring of 2008 and began living together soon after. Four years later, following the birth of their son, the couple separated. Since then, E.H.P. has resided primarily with J.D.P., her common law spouse, J.G., and the couple’s now one year old child, F. [ 3 ] J.N.H. has had very little parenting time with E.H.P. over these last several years though not for want of trying.

Since June, 2014, with a few brief exceptions, J.N.H.’s parenting time with E.H.P. has been restricted to four Saturdays each month from 9:30 a.m. to 7:00 p.m. [ 4 ] At the core of the dispute in this case, and the reason the parties are unable to agree on parenting time, is that J.D.P. is concerned J.N.H. will consume alcohol when E.H.P. is in his care. She therefore has no trust in his ability to parent E.H.P. J.D.P. submits this concern is based on J.N.H.’s pattern of alcohol abuse while they lived together. [ 5 ] J.N.H. does not deny having engaged in binge drinking while he lived with J.D.P.

Nor does he resile from her allegations that he drank beer on more than one occasion while E.H.P. was in his care, and that he once gave thought to driving E.H.P.to day care while recovering from a night of drinking. J.N.H. attributes some of this drinking to age, and some to simply his means of coping with an unhappy relationship. [ 6 ] At this point, J.N.H. submits he is no more than a social drinker. Still, he has committed to abstaining from the consumption of alcohol while E.H.P. is in his care to assuage J.D.P.’s concerns.

He has, since the separation, submitted to drug and alcohol testing but not on a random basis because of the potential impact on his work. These efforts have not resolved J.D.P.’s suspicions. [ 7 ] The difficulty in this case is that the two cannot agree on a mechanism whereby J.D.P. can be absolutely certain J.N.H. will not consume alcohol while E.H.P. is in his care. Until she is, J.D.P. will not let J.N.H. parent his son other than during the day, and even then largely on weekends. Issues and Orders [ 8 ] J.N.H. has brought this application for guardianship as well as for parenting time.

In turn, J.D.P. seeks an order for child support in accordance with J.N.H.’s income. The parties have agreed to share special and extraordinary expenses equally given their nearly equal incomes. [ 9 ] At the conclusion of the trial, I made an order firstly that J.N.H. is a guardian of his son, E.H.P. I also made a child support order based on J.N.H.’s annual income, commencing May 1, 2016. Both orders went by consent. [ 10 ] The remaining issues in dispute are parenting time, parental responsibilities, and dispute resolution.

Specifically, and taking into consideration the factors governing the best interests of the child set out in s. 37 of the Family Law Act S.B.C. 2011, c. 25 (“ FLA ”), it must be determined whether it is in E.H.P.’s best interests to order equal parenting time, or something less.

It must also be determined whether granting each party all the parenting responsibilities under s. 41 of FLA is in E.H.P.’s best interest and, finally, what dispute resolution mechanism might further his best interests given the orders this court is called upon to make. [ 11 ] In considering E.H.P.’s best interests, I have considered the factors set out in ss. 37(2) , (3) and (4) of the FLA which provide as follows:

(2) 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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [ 12 ] The conduct I am asked to take into account here is J.N.H.’s drinking. It is J.D.P.’s view that his drinking, as she experienced it while they lived together, would impair his ability to parent E.H.P.

J.D.P. submits that no order allowing J.N.H. equal or near equal parenting time is in E.H.P.’s interests unless it contains a mechanism whereby she can be absolutely certain he does not consume any alcohol immediately before or while E.H.P. is in his care. [ 13 ] Before exploring this issue, I must note that J.N.H. is not, at this stage, seeking an order granting him immediate equal parenting time. He recognizes that the status quo over the past two years has seen E.H.P. reside primarily at his mother’s residence.

Any order granting him parenting time would have to be gradually invoked so as to ease E.H.P. into a new parenting arrangement. [ 14 ] Still, bearing in mind the factors set out under s. 37(2) , it is not the case that E.H.P. is a stranger to his father or to his father’s immediate and extended family. [ 15 ] E.H.P. is fortunate to come from a large family on his father’s side and smaller but close and supportive family on his mother’s side.

He has many cousins, his half-brother F., whom he clearly loves, and a friend in D., J.N.H.’s partner’s eight year old son. [ 16 ] I find it clear on the evidence that E.H.P. is closely bonded with members of both sides of his family.

Though he lives primarily with his mother, he was cared for by his father early in life and that care has continued as best as J.N.H. can to this day. [ 17 ] If J.N.H. were granted additional parenting time, his proposal would not affect E.H.P.’s day care arrangements, or even the arrangement J.D.P. has made for E.H.P.’s attendance at kindergarten this fall. [ 18 ] If successful, J.N.H.’s application would not affect E.H.P.’s relationship with his maternal grandparents who, in any event, live in the Vancouver area. [ 19 ] It would, depending on the extent of his parenting time, lessen the time he now spends with F. and, it follows, the time he now spends at his mother’s home with her and J.G. [ 20 ] More parenting time for J.N.H. would do nothing to undermine E.H.P.’s stability.

It would have no adverse effect on his health or emotional well-being if, as J.N.H. maintains, there is no issue with his drinking while E.H.P. is in his care. Naturally, J.D.P. maintains that if there is a chance J.N.H. will drink while E.H.P. is in his care, then she is convinced that E.H.P.’s well-being would be compromised. [ 21 ] That then brings me to the evidence underlying J.D.P.’s stated concerns over J.N.H.’s parenting. J.N.H.’s Ability to Parent E.H.P. [ 22 ] Both before and after the parties’ separation, J.N.H. parented E.H.P. There was considerable evidence at the trial regarding his parenting.

Virtually all of his family members who gave evidence at trial testified that J.N.H. is a loving father and an attendant and caring parent. Only one of his siblings took any real note of his drinking while he and J.D.P. lived together and that sibling reported her concerns to J.D.P. [ 23 ] After the parties separated, J.D.P., though reluctant, agreed to a parenting

schedule whereby J.N.H. was able to parent his son at least several nights a week and on a weekend day. J.N.H. also took his share of responsibility for transporting E.H.P. to day-care. [ 24 ] J.D.P. testified that although she was reluctant to let J.N.H. parent his son after the separation, she felt comfortable doing so as he was living at his parent’s home, albeit in his own suite in the basement.

During this period, J.N.H. was working two jobs as well as parenting E.H.P. whenever he could. [ 25 ] By all accounts, J.N.H.’s drinking following the separation up to the point J.D.P. cut off his parenting time, was not given the focus it was at this trial. Still J.N.H.’s drinking was the cause of the couple’s separation. [ 26 ] To put matters in perspective, after a number of trial separations, the parties ended their relationship in 2012 following an incident in which J.D.P. stopped J.N.H. from driving their son to day care one morning because she felt he was still drunk from the evening before.

[ 27 ] J.N.H. denies being in an intoxicated condition but agreed it would have been wrong to have driven his son to day care that morning. The incident was especially frustrating for J.D.P. who had reconciled with J.N.H. several times and hoped he would follow through on his commitment if not to sobriety at least to putting their family ahead of his personal life. That particular morning, J.D.P. had to be at work early and was counting on J.N.H. to get his son up and ready for day care. Still she stopped him from doing so because she perceived he was not fit to drive.

J.N.H., who disagreed with her assessment, left the house angry and the parties have not lived together since. [ 28 ] That incident was but one of a number in which J.D.P. had to negotiate the adverse effects of J.N.H.’s drinking on their family life. Both agreed J.N.H. drank to excess on occasion, and that his drinking constituted a danger to himself if not to the family. J.N.H. acknowledged consuming alcohol both with J.D.P. and in her absence while E.H.P. was in their care.

When they separated for the last time, he confided to his father that he was unhappy and that he was using alcohol and recreational drugs as coping mechanisms. [ 29 ] J.N.H. did seek counselling with respect to his drinking and occasional drug use after the separation, first through a member of his family’s church and ultimately through other counsellors, one of whom he sees to this day. [ 30 ] However, I agree with J.N.H.’s observation during cross examination that it was not until he commenced this litigation that J.D.P. seriously began to press the issue of his seeking treatment for alcohol addiction.

J.D.P. testified that after the day she and J.N.H. finally separated in 2012, she did not remember talking to anyone in J.N.H.’s family for some time. What the parties did do was work out a parenting schedule.

J.D.P. experienced some of the usual frustrations of parenting after separation, including J.N.H.’s occasional lateness during pick-ups and drop offs, but otherwise things proceeded reasonably well for some time though the parties were not always entirely amicable with one another. [ 31 ] Sometime in 2013, J.D.P. began a romantic relationship with J.G. who had been a friend and supporter while she lived with J.N.H. By September, 2013, she was pregnant with F., the child she shares with J.G.

J.D.P. recalled that her relations with J.N.H., already somewhat strained, became worse when she advised him of her pregnancy. Sometime during this period, J.D.P. also became concerned about E.H.P.’s sleeping and some of his behaviours. She queried J.N.H. about E.H.P.’s activities while in his care. J.N.H. felt this was another example of J.D.P. attempting to control him and declined to share any details of his parenting time. J.D.P. referred to J.N.H. as her “only parenting blind spot.” [ 32 ] In early 2014, matters escalated.

First, J.N.H., who had been abstaining from recreational drugs, admittedly relapsed by using cocaine on New Year’s Eve. A while later J.N.H. advised J.D.P. that E.H.P. may have watched some inappropriate movies for his age with his cousins, including such titles as “Cowboys and Aliens”. J.N.H. suggested the movies might have been a source of his nightmares. Finally, in the spring of 2014, J.D.P. learned through E.H.P. that when he was in J.N.H.’s care, he was sharing a bedroom with D., the eight year old son of J.N.H.’s fiancée, S.A.

J.D.P. thought J.N.H. was still living in the basement suite of his parents’ home. [ 33 ] Upon hearing this news, J.D.P. threatened to end E.H.P.’s overnight visits with his father and pressed for a meeting with S.A. When her requests were rebuffed, J.D.P. made good on her threat. [ 34 ] It was around this period that J.D.P. recommenced her communication with M.H., J.N.H.’s father. She testified she told M.H. her only concerns lay with J.N.H.’s drinking and drug use and that she wanted to meet S.A.

With the assistance of J.N.H., the parties made various attempts to mediate a parenting arrangement with little or no success. For her part, J.D.P. insisted on a meeting with S.A. on her terms in order to assure herself of S.A.’s qualities as a parent, including that she shared her concerns over J.N.H.’s drinking. For his part, J.N.H. saw J.D.P.’s conduct as controlling and entirely unjustified. [ 35 ] As is often the case in such trying circumstances, many of the parties involved did not help matters by their conduct.

M.H. deeply hurt J.D.P. when he personally served her with J.N.H.’s application for equal parenting. S.A., urged on by M.H., acted imprudently when she attended at J.D.P.’s home, uninvited, to force a meeting. J.D.P. acted unreasonably, I find, and not in E.H.P.’s best interests, when she effectively ended J.N.H.’s plan to enrol E.H.P. in a soccer league near his home to coincide with his Saturday parenting time. She further exacerbated matters by unilaterally enrolling E.H.P. in school and dance class without any fair consultation with J.N.H.

Whether or not J.D.P. had concerns about J.N.H.’s drinking while parenting E.H.P., it did not justify her making these decisions alone particularly while in the middle of this parenting dispute. [ 36 ] J.N.H. must also bear responsibility for failing to assuage J.D.P.’s reasonable curiosity about S.A. early in 2014. I agree that J.D.P. need not approve of S.A., but her request to meet with the person who would be co-parenting her child was not unreasonable in the circumstances: those being a gnawing concern in early 2014, possibly pushed to the background, about J.N.H.’s drinking.

Discussion [ 37 ] At this stage nothing can be gained by a face to face meeting between S.A. and J.D.P. J.D.P.’s concerns are well known to all the parties: to the extent she wants S.A. to be aware of them, and of the precise details of J.N.H.’s history, that has been accomplished by this litigation. [ 38 ] The only issue is how J.N.H. can satisfy J.D.P. that he can entirely abstain from the consumption of alcohol immediately before and while parenting E.H.P. No meeting between S.A. and J.D.P. can resolve that. [ 39 ] J.N.H. has agreed to alcohol and drug testing, but not on a random basis.

I find his position on this point entirely reasonable. There is, firstly, no basis in the evidence to justify an order for random testing. Whatever his past use, there is no basis in the evidence on which I can find current alcohol abuse. J.N.H. is drinking to be sure. He describes himself as a social drinker and he is almost certainly a consistent drinker judging by his debit accounts. But there is no basis to conclude that he cannot stop drinking or that he cannot maintain his commitment to abstinence while E.H.P. is in his care.

Secondly, I accept that an order for random drug and alcohol testing could adversely affect J.N.H.’s employment. As someone who has not missed a day of work in four years, and who has no record for alcohol related offences including a driving record, such an order would be unfair and unwarranted. [ 40 ] If J.N.H. were to drink while E.H.P. was in his care, it would be easy enough at this stage for J.D.P. to find out. If nothing else,

I suspect E.H.P. would tell her. This is not to encourage J.D.P. to mine E.H.P. for details of his time with his father, but at this stage, it beggars the imagination to think that J.N.H. could become intoxicated while E.H.P. is in his care and J.D.P. not find out. [ 41 ] J.N.H. has committed to an order that he abstain from the consumption of alcohol and/or non-prescription drugs while parenting E.H.P. I find that is sufficient to meet J.D.P.’s concerns. Still, J.N.H. has agreed to provide breath samples to J.D.P. to allay her concerns.

His counsel advises that instruments to measure consumption of alcohol are available on the Island for a cost. J.N.H. agrees that if J.D.P. pays for this device, he will accommodate her request for a breath sample. Naturally upon failing such a test, J.N.H. would be obligated to pay the cost of the device. [ 42 ] J.D.P.’s counsel asks for an order that any parenting time, exercisable by J.N.H. as a result of this litigation, be terminated upon proof that J.N.H. has consumed alcohol while E.H.P. is in his care.

So long as J.N.H. has agreed to an abstention clause while parenting E.H.P., such an order makes good sense. J.N.H.’s Parenting Time [ 43 ] As I am satisfied that J.D.P.’s concerns can be addressed, it is appropriate at this point that J.N.H. begin exercising parenting time with E.H.P. As a function of the inability of the parties to reach their own parenting arrangement, E.H.P. has spent considerable time at his mother’s home. He is also closely bonded with his half-brother F. As such, it would not be appropriate to order equal parenting time at this juncture.

E.H.P. must have some time to adjust to life at his father’s home, away from the home of his mother, half-brother and step-father. Still he is not a stranger to the many family members on J.N.H.’s side, including S.A. and her son D. [ 44 ] J.N.H. has suggested a parenting

schedule that would see him parent E.H.P. three of every four weekends each month on weekends agreed to by the parties. That would constitute an extension of his current parenting time on four Saturdays each month by allowing J.N.H. two nights with his son for several months with a proposed extension sometime in July to three nights each weekend. J.N.H. proposes that by September of this year, the parties share parenting time on a 3,3,4,4 rotation; a common shared parenting scheduling routine. [ 45 ] J.N.H. proposes to transport E.H.P. to the school J.D.P. has enrolled him in for kindergarten in the fall of 2016.

His plan would not see E.H.P.’s school change or his primary residence to any significant degree for some time. The plan proposes a gradual evolution of the parties’ parenting time so that shared parenting would not occur until September of this year. [ 46 ] J.D.P. did not propose a schedule. Rather, her position was that she did not see J.N.H. getting any more parenting time until she had proof he had dealt with his alcohol problem. As such, I have no sense as to whether the proposed 3,3,4,4

schedule this fall would pose significant adverse issues. On its face, I find the

schedule proposed by J.N.H. to be fair and in E.H.P.’s best interest since it is graduated and provides ample time for him to adjust to the change. Nothing in the evidence suggests E.H.P. would have any difficulty with the proposed

schedule even though it will reduce to some extent the time he spends with his half-brother, F. [ 47 ] J.N.H.’s application for an order for parenting time to commence on a graduated basis as outline above is granted. Parenting Responsibilities [ 48 ] The next question is whether J.N.H. may, when exercising his parenting time, exercise all of the parenting responsibilities set out under s. 41 of the FLA . Even so, that still leaves the question of dispute resolution. [ 49 ] Given the way in which matters have evolved since their separation, the parties have had little opportunity to co-parent.

To date they have been unable to agree on important decisions and each has, to a greater or lesser extent, made decisions concerning E.H.P. without consulting the other. Examples include J.D.P. enrolling E.H.P. in school near her residence while J.N.H. indicated a preference for E.H.P.’s enrolment in a French immersion program. Other examples include J.N.H. enrolling E.H.P. in soccer near his residence at a time when E.H.P.’s primary residence was in another district. The school enrolment has resolved itself so that J.N.H. is not challenging J.D.P.’s decision at present.

The same goes, it seems, for her unilateral decision to enrol E.H.P. in dance class. [ 50 ] J.D.P.’s counsel asks for an order that J.D.P. have the final say on any disputes regarding E.H.P.’s parenting until further order of the court. Alternatively, it is suggested that some decisions, such as those concerning E.H.P.’s extracurricular activities for example, can be divided between the parties thus avoiding potential conflict. [ 51 ] I have concerns given the circumstances of this case with giving J.D.P. much in the way of a veto power.

Still, I accept her counsel’s position that until a dispute is resolved in court, E.H.P. is not served well if he is deprived of the opportunity to engage in an activity or to attend at a particular school simply because his parents cannot reach an accord. It also makes sense, given the acrimony between the parties, to structure a parenting arrangement that limits the potential for conflict. [ 52 ] E.H.P. is now of an age where the parties must make decisions concerning his school and his extracurricular activities.

Many of the other responsibilities under s. 41 are of such a nature that they can be exercised by either parent while the child is in their care with little or no impact on the other parent though in some cases s. 41 (

e) might present issues. In this instance, it is agreed that E.H.P. will attend kindergarten at [deleted for publication]. There is time yet for the parties to discuss the possibility of his attending a French immersion school in the area once he starts first grade. Rather than giving either party a veto over this important decision, I order that the parties have until May, 2017 to decide on a school after which either can return to court to seek an order.

The school must, however, be within E.H.P.’s present school district unless the parties otherwise agree. [ 53 ] As for extracurricular activities, I will accede to the submissions of J.D.P.’s counsel that the parties may choose E.H.P.’s extracurricular activities on an equal basis so long as neither’s choice interferes with the other’s parenting time. [ 54 ] The parties may each exercise the remainder of the parenting responsibilities under s. 41 of the FLA while exercising their parenting time.

Other Orders [ 55 ] With respect to parenting time for the parties other than that already ordered, I see no reason why holidays cannot be shared as they are in the normal course of a co-parenting arrangement.

The parties are free to determine how they wish to share the school holidays so long as the holidays are divided equally and in a manner that best ensures E.H.P. does not miss out on holiday time with F. [ 56 ] Communication between the parties should be appropriate and by email or other electronic means unless the parties otherwise agree. [ 57 ] J.N.H. will not consume alcohol or possess or consume any controlled substance as defined by s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a medical physician, during or within 24 hours prior to the exercise of his parenting time with E.H.P. [ 58 ] The parties will co-operate with one another as may be necessary to allow E.H.P. to travel, including not unreasonably withholding consent for travel or the application by one or the other of a passport for E.H.P. [ 59 ] The parties will refrain from, and will encourage their families to refrain from, voicing any negative comments concerning the other or the other’s family members in the presence of E.H.P. [ 60 ] Finally, for as long as E.H.P. remains eligible for child support, the parties will exchange their income tax returns, including all attachments and any notices of assessment or reassessment by no later than June 30 of each year.

The Honourable Judge L Mrozinski Provincial Court of British Columbia