J.C.P. v. J.F.P., 2017 BCSC 1652

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.C.P. v. J.F.P., 2017 BCSC 1652 Date: 20170919 Docket: E27065 Registry: Cranbrook Between: J.C.P. Claimant And J.F.P. Respondent Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for Claimant: J. Lalonde Counsel for Respondent: D.F. Collins Place and Date of Hearing: Cranbrook, B.C. July 11, 2017 Place and Date of Judgment: Cranbrook, B.C.

September 19, 2017 [ 1 ] These are reasons with respect to applications brought by the respondent J.F.P. against the claimant J.C.P. in relation to the exercise of parenting responsibilities and parenting time with children. The respondent seeks an order for equal parenting time for the children. [ 2 ] The claimant, respondent in this application, J.C.P. advised at the outset that she consented to an order: 1. A declaration that the parties are each guardians of the children of the marriage namely M.P. and O.P. 4.

That the respondent shall be responsible for the pickup of the children at the claimant's residence at the commencement of his parenting time and to deliver the children to the claimant's residence at the conclusion of his parenting time. 6. The parties shall share parenting time with the children equally for the school Christmas holidays and spring break holidays. 7. The parties shall each have the children in their care on their respective Father's days Mother's days.

As those matters are by consent, those orders are now made. [ 3 ] Counsel for the respondent raised an issue with respect to the late filing of an affidavit of M.V.C., the father of the claimant. I will deal with that matter later in these reasons. Facts [ 4 ] According to J.F.P. The parties commenced living in a common-law relationship in 2004 and were married on March 26, 2006 in Puerto Vallarta, Mexico.

They separated on or about August 1, 2016. [ 5 ] At the beginning of the relationship the parties were living in Calgary and eventually moved to Fernie, British Columbia to follow a job opportunity with a major mechanical firm in Sparwood, British Columbia. [ 6 ] The claimant was able to transfer her credentials to British Columbia and began working for Interior health as a registered nurse. [ 7 ] Shortly after that move however the first child was born. The first residence occupied by the parties in Fernie was sold and another home was purchased.

After the birth of the second child in 2013 and following the maternity leave expiry the claimant returned to work.

[ 8 ] The parties have factual differences about significant dates in their relationship and where they resided at certain times. Consideration of these matters is made more difficult as J.F.P.’s affidavit frequently contains inadmissible material where the source of the information of which he clearly has no first-hand knowledge is not stated. The source of information is required by the Supreme Court Family Rules, in particular, Rules 10-4(12) and (13). J.F.P.’s affidavits also repeatedly stray into argument.

Arguments are not statements of facts but recitations, in this case of positions or criticisms which have no place in an affidavit according to the Rules cited above. [ 9 ] According to J.C.P. the parties began a common-law relationship in or around the fall of 2005. The parties agree their marriage took place in 2006 however J.C.P. notes it was March 30 not the date related by J.F.P. In a second affidavit, J.F.P. agreed with J.C.P. They separated on or about August 1, 2016. There were two children of the marriage, M.P. born August 27, 2010 and O.P. born on January 21, 2013.

The primary caregiver of the children from their birth has been the mother. Their father has been an active parent but his work

schedule and place of residence has placed some restrictions on his parenting time. [ 10 ] The parties originally lived in Castlegar (him) and Burnaby (her), where she was enrolled in nursing school. In 2002 they moved into a single apartment in Calgary. They separated for a period of time there and then reunited. Later in 2010, the couple moved to Fernie while J.C.P. continued a maternity leave from the Calgary Health Services. The first child was born August 27, 2010. [ 11 ] In October 2011, J.C.P. obtained employment as a registered nurse in BC.

After the birth of the second child in 2013, she returned to work on a casual basis working not more than 20 hours a week. According to her Affidavit #2, she picked most shifts on weekends to allow her to a provide weekday childcare and to allow J.F.P. to have parenting time when he was not working on weekends. He was paid at a much higher rate of pay than was J.C.P. so this was an appropriate choice. [ 12 ] When working shifts of the parties did overlap the children's care was provided by Tania Rodrigo, who operated a day home.

The individual named Javiera Guzman did not provide care of the children until the summer of 2014. The parties are not in agreement that they shared parenting duties or any event did not share them equally. J.F.P. worked full time and J.C.P. worked on a part-time basis. Again this was as he had far greater earning potential than she did.

But in these circumstances, she was the primary caregiver. [ 13 ] When M.P. began to attend kindergarten in 2014, J.F.P. continued to work Monday to Friday with J.C.P. working on a casual basis to arrange shifts based on family priorities and minimal time in day care for the children. [ 14 ] In the fall of 2015, the employer of J.F.P. closed its Sparwood location.

Although many other employees were laid off J.F.P. continued as a major product support representative in the Cranbrook location. [ 15 ] In December 2015, the matrimonial home of the parties in Fernie was sold and the smaller home was purchased so that the mortgage payments would be less onerous, given employment uncertainty. [ 16 ] In or about February 2016, the parties discussed the potential for J.F.P. moving to Cranbrook to retain a position with his employer.

J.C.P. did not feel it was an appropriate time to move because they had recently obtained a new house where the children were settled and the school for M.P. was well-organized. Despite an agreement that he would not move to Cranbrook; on April 25, 2016, he commenced a new job in Cranbrook where he stayed during weekdays at his mother's house. Effectively the parties separated; one living in Cranbrook and the other Fernie. That is the origin of the parenting

schedule discussed in the emails between the parties. [ 17 ] In October 2016, J.C.P. decided to relocate with the children to Kimberly, a location closer than Fernie to Cranbrook. J.C.P. preferred “the smaller town vibe" that the children had become used to. J.C.P. wished to maintain a similar

schedule following separation to that the children have become used to prior to separation and there is email support for the acceptance of that proposal by J.F.P. (Exhibit C). [ 18 ] On or about August 30, 2016 the parties met at the elementary school in Kimberly where M.P. was registered and J.F.P. signed the forms necessary to enroll O.P. in preschool in Kimberly. [ 19 ] The principal issue in this case is whether the applicant respondent has established sufficient reason for the court to change the parenting arrangement put in place by the parties.

J.F.P. says in his affidavit and parenting arrangements which he now seeks were forced or imposed upon him by J.C.P. [ 20 ] The language used by J.F.P. in emails attached to Affidavit #2 of J.C.P. dated June 30, 2017 as Exhibit E does not support that proposition. The proposed parenting

schedule is referred to as “a good starting point” and J.F.P. states that “he is not totally set on Kimberly but that is workable". [ 21 ] The proposition that parenting arrangements were forced on J.F.P. is not supported by this evidence, and any fair reading of his emails [ 22 ] J.C.P. has been the primary caregiver of the children since birth. She has arranged to provide parenting time for J.F.P., mostly on weekends, as his employment is substantially on weekdays. J.F.P. expressed an interest in establishing a

schedule for “facetime” with the children during the week. I would urge the parties to establish a regular

schedule during week days to allow for “facetime” or similar contacts with the children. [ 23 ] These parties have chosen to live in different cities. The cities are not far apart but even a short distance will create some restrictions on parenting time; particularly as children become older and their individual schedules begin to take priority. [ 24 ] While the parties do not agree on the exact timing of parenting time, they have adopted a pattern at present. [ 25 ] Given that a trial date has been set in the near future, I do not believe it would be in the children's best interest to have their

schedule disturbed on an interim basis. Therefore I dismiss the application of J.F.P. to change the present arrangements between the parties for parenting time.

[ 26 ] The costs of this application are reserved for the trial judge. “Ball J.”