N.E.B. v. J.B.M., 2022 BCPC 274

Citation: N.E.B. v. J.B.M. 2022 BCPC 274 Date: 20221130 File No: 29707 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT, S.B.C. 2011 c. 25 BETWEEN: N.E.B. APPLICANT AND: J.B.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: N.E.B. Counsel for the Respondent: R. S. Miles Place of Hearing: Cranbrook , B.C. Date of Hearing: October 6, 25, November 1, 22, 2022 Date of Judgment: November 30, 2022

Introduction [ 1 ] The Applicant N.E.B. and the Respondent J.B.M. are the parents of a little boy named B.G.B., who was born on [omitted for publication]. [ 2 ] Under an order of this court made by the Honourable Judge W. G.

Sheard on May 30, 2022, the Applicant is supposed to have parenting time with the child each weekend from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. and on Thursday evenings from 5:00 p.m. (and at such other times as the parties agreed to.) The order gave the Applicant the option to change the days for his parenting time if it conflicted with his work schedule, provided he gave prior notice to the Respondent.

There was no provision in the order giving the Respondent the discretion to change the parenting times. [ 3 ] Almost from the time the order was made, the Respondent has not followed the order and has denied the Applicant his parenting time at many of the times that it was scheduled. She has also mocked the Applicant for showing up to exercise his parenting at times when it was scheduled, creating the false narrative that he is the one doing something wrong, simply because she has unilaterally decided the change the parenting time

schedule in defiance of Judge Sheard’s order. [ 4 ] Generally speaking, when an order for parenting time is made, and a party wants it changed, the change is made in one of three ways: (

a) the parties agree to a change, (

b) the party who wants the change applies to the court for the change, or (

c) the dissatisfied party appeals the order and asks for it to be changed. The Respondent did not do any of these things before unilaterally deciding that the Applicant was not going to get to have parenting time with the child at many of the times that Judge Sheard had ordered. [ 5 ] The Applicant asks for an order that his parenting time be secured by police enforcement if the Respondent decides to keep ignoring the order. He also asks for an increase in his court ordered parenting time and proposes that the child’s time be shared equally between the Respondent and him.

He also complains that the Respondent is making decisions about the child without any input from himself and asks that parental responsibilities for the child be shared equally. He is also asking for other changes concerning the pick-up and return of the child following parenting time visits and a change to how the parties communicate with one another. [ 6 ] The Applicant has not been blameless in his conduct. More specifically he has been asked on numerous occasions to provide full financial disclosure in order that this court can determine what his proper obligations are for the support of his child.

The Applicant has disingenuously pretended that he did not realize he was supposed to do this, but it is clear from the evidence that he is not being honest about this. To date he has only provided minimally for the financial support of his child and he has been extremely evasive in allowing anyone to properly determine what his true income is. He has been dishonest in filing false (and possibly fraudulent) income tax returns claiming that he lives in Saskatchewan when this is untrue.

Buying and selling expensive bicycles and other recreational equipment seems to be a greater priority for him than providing for the support of his son at the same level as any other parent in Canada. [ 7 ] The Respondent asks for an order that she have primary care of the child and seeks to reduce the Applicant’s parenting time from what Judge Sheard ordered to every second weekend. She wants the Applicant to be responsible for pick-up and return of the child, and wants changes to the way in which the parties communicate.

She also asks for an order imputing an annual income to the Applicant of between $45,000 and $65,000 per year, retroactive to the time of the child’s birth, while acknowledging that he has paid $7,034 in child support since that time. [ 8 ] The Respondent is also asking for a sharing of expenses under

section 7 of the Federal Child Support Guidelines, and for an order requiring the Applicant to make ongoing financial disclosure. She also seeks an order for spousal support for the six month period following the birth of the child. [ 9 ] The Respondent wants to take the child to Mexico for the coming Christmas holidays and asks for an order permitting her to obtain a passport for the child. The Applicant doesn’t oppose this, but wants a similar amount of time allotted to him for vacation time with the child. [ 10 ] The following is a

summary of the evidence presented at the trial of this matter, a

summary of the applicable law, and the reasons for making the order that will follow.

Summary of Evidence [ 11 ] The Applicant is 34 years old and the Respondent is 38 years old. The Respondent is the mother of two older children from a previous relationship. These children reside primarily with her. Their father lives in the United States and sees these children from time to time and provides for their support as required by law. The Respondent has a Grade 12 education, as well as a two-year diploma in natural nutrition. She also has a certification as a child development assistant.

In the past she has worked as a snowboard instructor, a server in a restaurant, a nutritionist and as a heavy equipment operator. She is now self-employed and has her own excavating business. Her work is seasonal and it shuts down over the winter. She testified that her business now has a subcontract from which she expects to be busy working on for the next five years during her work season. [ 12 ] The parties lived together from the fall of 2018 until the spring of 2019. When they broke up and the Applicant moved out, the Respondent was pregnant.

Even before the child was born, the Applicant expressed a desire to be in the child’s life. He had a lawyer prepare a separation agreement that provided for spousal and child support, parenting time and shared parental responsibilities. The agreement was tipped in favour of the Applicant and it was never signed by the Respondent. When the child was born, the Applicant wanted to be present, but the Respondent would not allow this. [ 13 ] B.G.B., the child who is the subject of these proceedings, was born on [omitted for publication].

The Respondent stayed home with the child until August 1 of 2020 when she returned to work. In his brief lifetime, his parents have spent a lot of time in Court and the

court file that concerns him has become quite thick.

Both parties have acted immaturely at times, and both have video and audio recorded one another for some purpose, even though none of these recordings were tendered in evidence at the hearing of this matter. [ 14 ] On February 20, 2020, the Honourable Judge Doerksen of this Court made an order recognizing that the Applicant was B.G.B.’s guardian. [ 15 ] On July 8, 2020, when the child was less than a year old, the Honourable Judge Sheard of this Court made an Order setting out the Applicant’s parenting time with the child for two hour blocks on Friday and Saturday, with provision for increasing it as the child got older. [ 16 ] In October of 2020, the Respondent moved from Kimberley to Cranbrook, where she was able to purchase the same home that she was raised in.

Her father has passed away, and her mother is living in a mobile home on the same property and since March of this year, the maternal grandmother provides a significant amount of childcare for B.G.B. and his two older sisters. [ 17 ] On [omitted for publication], [omitted for publication] before the child’s second birthday, Judge Doerksen of this Court made an order giving the Respondent primary care of the child, and all parental responsibilities for the child.

The Applicant was given the right to request and receive health and education information about the child directly from third parties and the right to apply to this Court if he disagreed with any parenting decision made by the Respondent. [ 18 ] In March of 2022, the parties became involved in a dispute over whether or not B.G.B. would be immunized. The Applicant asserts that the Respondent is opposed to vaccination. He points to some of her social media posts and says that she is what is known as an “anti-vaxxer.” One of her social media posts cites an internet

article that claims that certain vaccines have a low efficiency rate of less than 1.5%. Another post mocks vaccination by suggesting that people be allowed to “self-identify” as vaccinated even if they are not. Despite these posts, the Respondent denies that she is against vaccination. She says that she disagreed with the decision to have B.G.B. vaccinated because one of her daughters had a bad reaction once after being vaccinated. In cross-examination she added, “I don’t believe that vaccinations are the only way to be healthy.

It’s my choice not to be vaccinated.” She added, “We caught Covid, we survived and no vaccines were needed.” She said that she does not take her children to see a doctor unless there is a reason to. She said that when B.G.B. contracted Covid, she called the doctor but did not take him into see a doctor, because she felt that his symptoms were not that severe. [ 19 ] The Applicant was concerned because he says that the Respondent was never taking the child for check-ups and instead was relying on her own knowledge.

On March 3, 2022, the Applicant obtained an order from Judge Doerksen giving him the sole parental responsibility for making decisions for B.G.B. concerning the child’s immunization or vaccination, and he was also given the authority to provide consent for the child on such matters. Specifically, the Applicant was given the authority to make medical appointments to have B.G.B. vaccinated or immunized. [ 20 ] The parties attempted to resolve their differences through mediation, but this was unsuccessful. The Applicant blames the Respondent for terminating the counselling.

The Respondent agrees that she did so, but says it was because the Applicant kept promising to make financial disclosure but kept failing to do so. In light of how the Applicant has acted when it comes to laying his financial cards on the table, her version is the more credible on this issue.

The Respondent added, in cross-examination, that she stopped going to counselling because she felt that it was not focussed on the child. [ 21 ] Both of the parties have testified as to what they say occurred in this Court on May 30, 2022 before the Honourable Judge Sheard, but for the sake of accuracy I have gone to the source and have listened to the audio recording of the proceedings that day. Judge Sheard had a number of matters on his court list that day and this matter was called at 9:48 a.m. when Judge Sheard explained to the parties that the court list that day had multiple matters scheduled to proceed.

In Cranbrook, because of the collapse rate of trials and because there is generally only one court operating on most days, the Judicial Case Manager has been directed to

schedule matters for four times the actual time available in court that day. Sometimes this works out and other days, there is insufficient court time for all of the matters scheduled. May 30 th was in the second category. [ 22 ] After speaking with the Applicant, Judge Sheard stated that he was satisfied that there was some urgency to this matter, but first dealt with some other matters on his list. The matter was stood down until the afternoon at 2:30 p.m. Judge Sheard informed the parties that Court Orders take effect on the day that they are pronounced in court, not on the day they are filed.

Judge Sheard reviewed the pleadings with the parties and also discussed how much time each side would require for the trial of this matter. [ 23 ] When asked about an interim parenting schedule, the Respondent proposed that the Applicant have parenting time with the child in June for one overnight each weekend so that she could spend time with her daughters and give them “some special time.” She then proposed that for July this should change to full weekends every second weekend. Judge Sheard stated that because of the age of the child, he was not inclined to order shared parenting of the child at this time.

Judge Sheard indicated that he thought that appropriate parenting time would be one overnight visit per week and another visit during the week. [ 24 ] The Applicant asked Judge Sheard if he could have his overnight parenting time with the child in Monday and Tuesday because at the time he expected that he would be working at a bike shop and weekend were a busy time for bike shops. He had just began renting a two-bedroom house in Kimberley. He told Judge Sheard that he was living off of his savings at the time. His Employment Insurance benefits had expired and he was job hunting.

The existing order called for the exchange of the child at the Respondent’s address in Kimberley. Since then however she had moved to Cranbrook. The Applicant was also asking for an additional four day parenting time visit in August so he could take B.G.B. to a family gathering in Saskatoon. Judge Sheard noted that the drive to Saskatoon would take 10 hours each way, so that a four day visit was really only a two day visit.

The Applicant said that his preference was for a six day visit, but that he did not want to be unreasonable. [ 25 ] In response, the Respondent told Judge Sheard that she wanted an interim order that would continue the use of the App-Close app for their communication, in order to avoid confusion that might arise from conflicts in messages sent on different platforms. The App- Close app records not only the messages that are sent, but also when they are read by the other party. The Respondent felt that this was an important feature, as it demonstrated how the Applicant has ignored her communication in the past.

She told Judge Sheard that she

had made multiple requests for the Applicant’s work

schedule so that she can

schedule parenting time that works for both of them, but that he has refused to provide that to her. [ 26 ] The Respondent also complained that the Applicant had not made any financial disclosure despite numerous requests that he do so. She also alleged that he often failed to attend for parenting time visits or was late for them. She told Judge Sheard, “I don’t see why we can’t just do an overnight every week, on the weekends, until he does have employment.

If he can inform me of which days work best for him once he is employed, that would be great and if he wanted to come to my residence at 9:00 a.m. to pick up and I could pick up at his residence on 4:00 p.m. on the Sunday night.” She was not willing to agree to the four day visit in Saskatchewan because she was concerned about the child’s separation anxiety. [ 27 ] Judge Sheard asked the Applicant about the proposed times on the weekend that the Respondent had proposed, and the Applicant replied, “I’m definitely open to that.” [ 28 ] After standing down to consider his decision, Judge Sheard made an order.

He noted that the Respondent had asked for the Applicant to have his parenting time on weekends so that she could spend that time with her two older children. Judge Sheard noted that the Applicant had been exercising parenting time with the child since July of 2020, he had been having overnight parenting time with the child since November of 2021, and that the Applicant was not a stranger to the child. Judge Sheard specifically stated that he believed the modifications that he was making to the Applicant’s parenting time to be in the child’s best interests.

He added that he was not satisfied that it was in the child’s best interests to make any further changes, other than those he was now making. [ 29 ] Judge Sheard ordered that the Applicant was to have parenting time with B.G.B. each weekend from Saturday at 9:00 a.m. to Sunday at 6:00 p.m., on Thursday evenings from 5:00 p.m. to 7:00 p.m. and at such other times as the parties may agree to from time to time.

He specified that in the event that the Applicant’s parenting time on the weekends interferes with his work, he could change that from Mondays to Tuesdays from 9:00 a.m. to 6:00 p.m. on not less than one week of notice to the mother. It is important to note that Judge Sheard did not similarly order that the Respondent had any flexibility in changing the parenting time

schedule to accommodate her work schedule, nor did she mention that she was anticipating any changes to her schedule. [ 30 ] Judge Sheard also ordered that the Applicant was to pick up the child for his parenting time at the Respondent’s residence in Cranbrook and to return the child back to that residence at the end of his parenting time.

He also ordered that the parties were to communicate by way of the computer application “App-Close.” [ 31 ] Judge Sheard ordered that the Applicant was to have parenting time with the child for four continuous days in August 2022 to travel with the child to Saskatchewan and that the Applicant was to give the Respondent notice of what those days would be at least two weeks prior to these times.

The Applicant was ordered to allow the Respondent to communicate with the child by telephone and/or by “face-time” or a similar audio/video computer application during those four days. [ 32 ] The Respondent wasted little time in breaching Judge Sheard’s order by denying the Applicant his scheduled parenting time on many of the weekends. [ 33 ] The Applicant was not blameless in how he interacted with the Respondent. For example, in an App-Close entry on June 6, 2022, the Respondent asked the Applicant some very reasonable questions about how the child had slept, and about his potty training.

A reasonable, mature and concerned parent would have answered those questions. Instead, the Applicant replied petulantly and in an immature manner and never did answer the question. The parties had this exchange: Respondent: Why must you make things so difficult? Please, can you give detail as to when B.G.B. slept and what he ate? Applicant: Please consult a lawyer and the order. All communications will be done via App-Close except for emergencies.

Then it will be via text message not email. [ 34 ] The Respondent reminded him that she was using App-Close and was consulting him about matters pertaining to the child. But, after his comment quoted above, he did not even read the Respondent’s comments on App-Close for at least a week. He continued not to read any of the Respondent’s comments until June 13 th . The Applicant’s actions are not those of someone possessing a sincere desire to co-parent a child.

They are the actions of someone who appears to put conflict ahead of the interests of the child. [ 35 ] According to the App-Close records, the first denial of parenting time by the Respondent under Judge Sheard’s order occurred on Thursday, June 9, 2022. In her entry she said that she was refusing to give the Applicant his parenting time because he was unwilling to “follow up, discuss and address” the child’s health issues. The child had recently been experiencing a problem with hair loss.

The Respondent acknowledges that she “made the call” to unilaterally deny the Applicant his parenting time, in part because of the Applicant’s “unwillingness to respond and use the communications book” (something that he was not required to do under Judge Sheard’s order.) [ 36 ] The Applicant has had scheduled parenting time with the child on the weekend of June 11-12, 2022, but he continued to ignore messages about the child’s health sent to him via App-Close.

The Respondent was also complaining that when the Applicant came to pick up the child, he did not remain in his vehicle and instead chose to snoop around her property. On June 18, 2022, the Applicant proposed that this problem could be alleviated by changing the location of the exchanges of the child to a neutral site, but the Respondent refused to agree to this. [ 37 ] On June 23, 2022, the Respondent once again unilaterally cancelled the Applicant’s parenting time. The reason she gave for doing so, as recorded in her App-Close comment, were: “My work week has been very busy.

And B.G.B. is needing some mom time.” Her reasons for doing so were quite outrageous, and she acknowledged, in answer to my question, that if the Applicant had done the same thing to her (for example if he had refused to return the child at the end of his parenting time because he believed that the child needed more “dad time,”) this would have been unacceptable behaviour on his part. She was unable to articulate a convincing reason why this was okay for her to do, but not for him, and why it justified her blatant breach of Judge Sheard’s order.

[ 38 ] The Respondent proposed that overnight visits change from Monday to Tuesday, and that the following Thursday visit change to a Wednesday. The Applicant refused to agree to this and said that he intended to follow the parenting time

schedule as ordered by Judge Sheard. The parties argued about this in their App-Close communication. [ 39 ] The Respondent denied the Applicant his parenting time on the weekend of June 25. From her comments on App-Close, it is clear that she felt that she could unilaterally change the days of the Applicant’s parenting time without his agreement and she was now telling him to pick the child up on Monday nights instead of Saturday nights. He had not agreed to this and the Respondent had not taken any steps to change the court order. [ 40 ] The Applicant was also denied his parenting time on June 30, 2022.

In the previous days the Respondent has been complaining that the child was sick, but he was apparently not too sick for the Respondent to take the child camping that weekend with her friend J. When the Applicant tried to pick up the child for his court-ordered parenting time, the Respondent refused to follow the order once again, and her friend J. took it upon himself to butt into these parents’ business and initiate a confrontation with the Applicant. The Applicant wisely removed himself from the situation.

The Respondent continued to refuse to follow the order and from her comments on App-Close, she once again acted as if she had the power to unilaterally change the days for the Applicant’s parenting time from what had been ordered, to the days that she preferred (Monday to Tuesday). [ 41 ] The Applicant informed the Respondent that he intended to exercise his parenting time on the July 2 nd weekend. Once again, the Respondent said that she was not going to obey the court order. Adding insult to injury, she told the Applicant that if he attempted to follow the court, she would consider this to be trespassing.

The Applicant was understandably galled by this. Here it was clear that the Respondent was the law-breaker, and she was disingenuously trying to turn this on him as if it was his fault. The Respondent compounded her dishonesty by stating in an App-Close comment that what she was doing in unilaterally changing the order was “acceptable” under “Family Law.” [ 42 ] On July 1, the Respondent doubled down on her intention not to follow by the court order, the terms of which were what she had requested from Judge Sheard. She said “No one is home this weekend and you are not allowed on my property.

Due to my heavy workload and B.G.B.s health, a temporary change in dates is required,” adding, “A judge does not need to be a part of that.” The Respondent had in effect declared that she was a law unto herself. In cross-examination, the Respondent said “I thought it would be viable to change the order if my

schedule changed” even though there is no such provision in the order. She added that she thought that his complaining about her refusal to follow the court order was something that was being “thrown in my face.” [ 43 ] In the following week, the child had developed a rash, and the Respondent blamed the Applicant for this, even though he had been denied much of his parenting time with the child. The Respondent was allowed his parenting time with the child on July 7, but the Respondent withheld the child until he first read a report that she had obtained concerning the child’s allergies.

Her comments in App- Close suggest that she did not believe that the Applicant had actually read the report. [ 44 ] On July 18, 2022, the Respondent once again took it upon herself to unilaterally change the Applicant’s parenting time, in contravention of Judge Sheard’s order. She decided that she would only allow the Applicant his scheduled parenting time on alternate weekends, in addition to the Thursday evening parenting time that Judge Sheard had ordered. She informed the Applicant that she was refusing to follow Judge Sheard’s order on the coming weekend (July 23-24).

When the Applicant reminded the Respondent that there was a court order in place and it should be followed, on July 19, 2022 she replied “You can take it back to court if you wish and do not agree.” [ 45 ] On July 27, 2022, the Applicant tried to negotiate a change to the terms of the court order. His mother was coming into town and he wanted to change his Thursday visit to a Friday visit so that B.G.B. could spend more time with his grandmother. Rather than practice what she had been preaching to the Applicant, this time it was the Respondent’s turn to refuse to be flexible. She stated “No,

schedule stays as it is and we will continue for alternate weekends and Thursdays.” [ 46 ] The immaturity shown by these parents was not one-sided. For example, on July 28, when the Respondent messaged the Applicant that she would be 10 to 15 minutes late for an exchange of the child, he was unforgiving and used this as an excuse to start an argument about the court order not being respected. [ 47 ] In August of this year, the Respondent continued to deny the Applicant his parenting time as set out in the court order and continued to follow her own self-imposed

schedule instead. Judge Sheard had ordered that the Applicant would be allowed to take the child to Saskatchewan for four days for his family reunion. Under Judge Sheard’s order, the Applicant was required to give the Respondent two weeks’ notice of when he would be going to Saskatchewan. It appears at first blush from the App-Close exchange that the parties were finally able to co-operate by agreeing to an adjustment of parenting time by making this a six day visit instead.

They had the following exchange (with typographical errors corrected): Applicant: I will be picking up B.G.B. on August 23 at 9 a.m. and will be returning him on the 28 th at 6:00 p.m. You will be able to video chat on the 25 th . Respondent: Those dates will work. But video chat on the 24 th and 25 th at 6:00 p.m. please.

Please confirm and all is well. [ 48 ] The Respondent made several requests for the Applicant to confirm, and typical of him, he did not read these requests for two days, but on August 11, 2022, he said in an App-Close comment, “I confirm those dates and will send you a Google Meet invitation 24 hours prior to the calls.” By the use of the word “calls,” it can reasonably be assumed that he was agreeing to the Respondent’s request for two video calls. [ 49 ] One might have hoped that reason and cooperation was beginning to replace conflict with these parties, but that was too much to hope for.

The Respondent once again denied the Applicant his parenting time on the weekend of August 20 th . Although she was the one violating the court order, the Respondent continued to paint herself as the aggrieved party, telling the Applicant “You showing up anyway goes to show the difficulties I face. Why can’t you understand?” The Respondent called the police to complain about the

Applicant showing up to exercise the parenting time that he was entitled to under the court order. According to the Applicant, he also spoke to the police, and showed them Judge Sheard’s order.

He testified that he was advised to continue to follow the order, but that the police could not require the Respondent to comply with the order because it did not contain a provision for police enforcement. [ 50 ] The Applicant was able to pick up the child on August 23 rd as had been agreed upon by the parties, but on August 25 th , the Respondent complained that a six day trip to Saskatchewan was too much for B.G.B. and she demanded that the Applicant bring him back on the 26 th . The Applicant reminded her that he had told her that B.G.B. was coming back on the 28 th and that she had agreed to this.

Somewhat ironically, the Respondent tried to argue that this was not what Judge Sheard had ordered (conveniently forgetting that she was not paying much attention to what Judge Sheard had ordered.) While it was true that Judge Sheard had ordered that the Saskatchewan visit was to be for four days, he had also ordered that the Applicant would have such other parenting time as agreed to by the parties, and the Respondent had clearly agreed to this parenting time. [ 51 ] B.G.B. was returned to the Respondent at the agreed time (almost an hour earlier in fact), and the Respondent thanked the Applicant for this.

On the parenting time visit scheduled for September 1 st , the Applicant was having car trouble, and the Respondent agreed to reschedule this visit for the following Monday, but once again reiterated that she intended to deny him his parenting time for the coming weekend. The Applicant was unable to exercise his parenting time visit on September 8, 2022 because he was ill. It is at this point that the App-Close records tendered as part of an exhibit at trial conclude. [ 52 ] The Respondent continued to follow her own self-ordered parenting time

schedule for B.G.B., rather than the one that Judge Sheard had ordered. On the first day of the trial of this matter, I reminded the parties that I had not changed Judge Sheard’s order and that it was still in force. This had no effect on the Respondent and up to the present, she has continued to deny the Applicant his parenting time in accordance with what Judge Sheard had ordered, following her own “self-ordered”

schedule instead. [ 53 ] At one point in her evidence, the Respondent was asked why she was not following Judge Sheard’s order and in part of her answer, she suggested that this was on the advice of her lawyer. The Respondent was represented by counsel who is very experienced and very well-respected, and it was obvious that he had not advised her to breach a court order.

Counsel acknowledged as much in his final submissions, and I have no hesitation in believing that the Respondent’s attempt to throw her lawyer under the bus to excuse her own contempt for Judge Sheard’s order was disingenuous. [ 54 ] The Respondent also attempted to justify her sense of entitlement to change Judge Sheard’s order because of a sudden and unexpected change to her work situation. She says that she had started her own excavation company, and it became much busier than she had expected.

This sudden surge in her work hours during the week happened to occur almost right after Judge Sheard’s order was made, and right after she expressed her anger over the Applicant’s unwillingness to “follow up, discuss and address” the child’s health issues. There are several problems with this justification. Firstly, she never gives this as the reason for wanting to change the order in the App- Close comments, except obliquely in one comment that she has had a busy week at work.

Secondly, according to the evidence of the Respondent and of her mother, the Respondent was very familiar with the seasonal nature of her work, both from her own experience and from her late father’s experience in the same field. Despite knowing that things in her industry might pick up over the summer, she was the one who opposed the Applicant’s original proposal that his overnight parenting time start on Monday and instead start on Saturday. [ 55 ] The Applicant had obtained an Order of this Court in March of 2022 giving him parental responsibilities for having the child vaccinated.

For some reason the Applicant did not decide to act on this Order until late October of this year, in between scheduled trial continuation dates. He testified in cross-examination that he waited so long because he wanted to do some sort of research first. His timing may well have been selected to frustrate and annoy the Respondent, as her counsel suggests. Nevertheless, it provided these parties with further opportunity to escalate their conflict and for the Respondent to show what she thinks of court orders.

Judge Doerksen had granted the Applicant full parental responsibilities in this area, and while his order did not prevent the Respondent from being present at any vaccinations or inoculations, the evidence suggests that she did much more than that. [ 56 ] The parties differ in what took place when the Applicant went to get the child vaccinated, although the uncontroverted evidence is that the Respondent took it upon herself to cancel the first scheduled appointment for vaccination.

The Applicant says that the Respondent was disruptive at the office when the vaccination was scheduled, while the Respondent says that she behaved civilly. The records kept by the Interior Health Authority offer an independent account of what took place and are likely the most reliable.

In an email dated October 24, 2022, the author states that the Applicant attended with B.G.B. in mid-October for his vaccination, “however the mother was here as well, and is against vaccinations” The email goes on to state, “Immunizations were not administered when client was here last week as nurses were not comfortable immunizing with mom present, as mom repeatedly stated she does not want the child immunized.” [ 57 ] A further report provided by the Interior Health Authority describes an incident that occurred on October 20, 2022.

The report is redacted in parts to omit certain names, including the Respondent’s name. The Applicant is referred to in the report as “N.” It reads as follows: Late entry for Oct. 20/22: Client [the child] came in for catch-up imms. appt. with dad (N.). [Redacted portion.] Dad has court-ordered rights over immunization decisions for client (see uploaded document). Family brought into writer’s office with writer and Jessica B., R.N. present. Security outside room as a precaution. [Redacted portion] client is on day 4 of a cold and reports client has been having lethargy among other symptoms.

On presentation, client not coughing, no runny nose, and skin pink in colour. Client clinging and hugging [redacted] during entire interaction, burying face into [redacted] shoulder. Client had been to pre-school earlier that day. Writer explained to [redacted] that vaccinating would not harm his immune system and that these symptoms, especially being on day 4 of the cold, will not affect the decision to vaccinate. Private discussions with dad and [redacted] separately by Jessica B., R.N. Decision made to defer vaccines, keeping in mind the child’s mental wellbeing as child was present during conversations.

Plan: N. to make appt. for vaccines when he has B.G.B. next. If N. has B.G.B. unexpectedly, N. to call Joyce F.’s (CICC) work cell to arrange vaccines that day, even if it is after office hours. [Redacted.] [ 58 ] The Respondent agrees that she was video-recording her interaction with the nurses on that occasion, though the recording was not tendered in evidence. She testified in cross-examination that she feels that she was being attacked by the nurses, but acknowledges

that the nurses told her that she was being hostile. She also admits that she had called to cancel the first appointment for the child’s vaccination, but says that she called later to rescind the cancellation. Once again, it is puzzling why she would do this, in light of Judge Doerksen’s order. She added, “I would like to be there for the next appointment.” That is probably not a good idea.

It will likely only add to the child’s anxiety. [ 59 ] Despite the differing versions of what took place that day, it is reasonable to conclude that the Respondent attended at the scheduled vaccination with the intention of interfering with the Applicant’s ability to exercise the parental authority that he had been granted by Judge Doerksen. [ 60 ] The parties have other disagreements concerning the child. The Respondent has enrolled the child in a Christian Academy.

The Applicant says that he doesn’t mind the child being in a Christian school, but says that the Respondent’s choice of school is one that teaches creationism over evolution and he is concerned about the close-mindedness of the education system that the Respondent has chosen for the child. [ 61 ] The Applicant wants an order dividing the time that the child is with each parent equally. He has rented a two bedroom home for the child and says that if equal parenting time is ordered, he can provide a good living accommodation for the child.

He has a friend who is willing to provide childcare when he is at work until a local day-care vacancy opens up. He proposes that the child’s time be split with B.G.B. spending a week with each parent on an alternating basis, or alternatively an alternating but equal

schedule of more frequent exchanges. He argues that this is in the child’s best interests because it allows B.G.B. to build a meaningful relationship with both of his parents and prevents the Respondent from using the child as a weapon by withholding him and denying the Applicant his parenting time, as she has done in the past. [ 62 ] In cross-examination, the Applicant was asked how he could reconcile his claim that he could care for the child equally with the Respondent, when he has not paid his proper level of child support or his share of expenses under

section 7 of the Federal Child Support Guidelines . He said that he refuses to pay for day-care costs unless the Respondent first determines if he is able to look after B.G.B. during those times. But he offered no other good reason for his shortfall in providing proper financial support for the child, or in his refusal to provide her with his work schedule. [ 63 ] The Applicant points out that there have been no allegations of violence between the parties, and this does not seem to be in dispute.

Even when the Respondent’s friend chose to insert himself into this couple’s business, the Applicant withdrew from the situation rather than cause an incident. No suggestion has been made that the Applicant is not a capable parent, and the only complaints about his parenting have been about his refusal to agree with the Respondent’s diagnoses of the child’s health issues or even to discuss them in a reasonable manner. [ 64 ] One area of concern in this regard is about the Applicant’s unwillingness to consider a report that the Respondent had prepared by Rocky Mountain Analytical, a division of Life Labs.

The report lists a number of foods for which the child may be at an elevated risk of allergy. The Applicant is being unreasonable when he describes this report as “a recommendation and not science.” He also testified as to having a convenient memory lapse concerning a severe rash that the child had, which is clearly shown in a picture taken by the Respondent.

When asked about this in cross-examination, the Applicant said “I don’t recall that incident.” This is troubling because it demonstrates that it is more important for the Applicant to be right and for the Respondent to be wrong, even if this means ignoring an obvious medical problem that the child is having. [ 65 ] The Applicant has also acted immaturely in make a complaint against the Respondent to the Ministry of Children and Family Development (which must not have been very important because in cross-examination he said that he recalls making the complaint, but could not remember what it was about) and also by making a petty complaint about the Respondent’s lawyer to the Law Society of British Columbia that was rapidly dismissed.

The Respondent testified that the Applicant has reported her to MCFD for having unsafe guns in the house (she is a hunter, and practices safe gun storage procedures, using a gun safe) and on another occasion complained to MCFD about the car seat she was using. She says that when she missed a FaceTime call because the battery on her cell phone died, he also called the RCMP and asked them to do a wellness check on her. [ 66 ] The Respondent also voiced some petty complaints against the Applicant.

These included her being upset because he pets her dogs, and her calling the RCMP because he had the audacity to show up at her home to exercise the court-ordered parenting time that she was choosing to deny him. [ 67 ] The Respondent complains that the child has been regressing in how he reacts to the Applicant at the beginning and ending of parenting time visits. This overlooks the fact that this regression has occurred since the Respondent took it upon herself to refuse to follow Judge Sheard’s order and to cut down the time the Applicant spends with the child.

The Respondent’s mother also confirms this regression, but fairly concedes that this could be alleviated if the child has a greater familiarity with the Applicant. [ 68 ] Much of the animosity between the parties stems from the fact that when the parties were living together, the Applicant was unfaithful to the Respondent and had an affair with a friend of hers. It was apparent that this is still very much on the Respondent’s mind, as she volunteered this information at least twice during her testimony, even though it did not pertain to the questions she was being asked.

It appears that this may be influencing how the Respondent is relating to the Applicant and it has spilled over and is adversely affecting their inability to co-parent. There is a breakdown of trust between the parties. She cannot trust him because of his past infidelity and he cannot trust her because she refuses to follow court orders. It is the elephant in the room that impairs the chances of healthy co- parenting and it will present problems for the child as he grows up. [ 69 ] Both parties accuse one another of having problems with anger.

From the independent evidence, this appears to be more of a problem for the Respondent, but this is not to suggest that the Applicant is perfect in this regard. As the Respondent’s mother stated to him, “You have a temper.” The Applicant provided text messages containing angry and profane rants on the part of the Respondent containing name-calling, as well as accusing her own mother of living off of sleeping pills and anxiety medication. It appears from the evidence however that the Respondent and her mother now have a good relationship.

It is likely that things in the parties’ past relationship have left the Respondent more prone to angry outbursts at times that blind her from seeing when she is being unreasonable.

[ 70 ] The Applicant appears to be better able to control his anger, for example as shown by his walking away from a conflict with the Respondent’s male friend. But the evidence also shows that he knows how to push the Respondent’s buttons. For example, he took much longer than was necessary on his cross-examination of the Respondent, taking long pauses to think up more questions when he had run out of the ones he had prepared. It appeared that he did so for no other reason than because it added to the Respondent’s discomfort.

When he was being cross-examined, he gave lengthy but unresponsive answers, rather than addressing what he was asked, not unlike a politician during question period. In a conflict the Applicant is more likely to deal with it by ignoring the Respondent or by refusing to communicate with her about the issue, than by discussing the issue in a rational manner. [ 71 ] The Respondent’s mother testified and said that she felt like she had a good relationship with the Applicant, until he swore an affidavit, which stated some things about her, which were untrue.

She has heard the Applicant praise the Respondent’s abilities as a mother. She described some signs of stress exhibited by the child before and after parenting time with the Applicant, but she encourages the child to spend time with the Applicant. She conceded in cross-examination that she felt that the child’s anxiety could be addressed by his having more familiarity and more positive interaction with the Applicant. [ 72 ] The maternal grandmother added that she and the Respondent disagree on a number of health issues.

She said that now that the child is attending pre-school, she picks him up and drops him off from school. When asked by the Applicant if she thought that he was a bad father, the Respondent’s mother defined the problem as being selfishness and self-centeredness on the part of the Applicant.

She said “You think about yourself more than you think about the child.” At the conclusion of his cross-examination, the Applicant apologized to the Respondent’s mother for involving her in this litigation, telling her “I’m sorry about all of this.” [ 73 ] It should be noted that all who testified describe the child as happy, healthy, sweet, outgoing and loveable. His grandmother describes him as sweet, sensitive to the feelings of others, and very mechanically inclined. Both parents have little complaint about the other’s parenting, other than in their response to certain health matters.

But both also are reluctant to openly praise the other for fear that that making this admission will somehow advance the other side’s case or injure theirs. Both sides have accused one another of using the child as a weapon to hurt the other with, and there is some truth to this, such as when the Respondent breaches the court order so as to decrease the frequency with which the Applicant sees the child (injuring his ability to form a stronger bond with the child) or when the Applicant fails to seriously consider the child’s nutritional needs, likely causing his child to experience rashes and other health issues.

Both parents need to grow up and stop using the child this way as a means of hurting one another. [ 74 ] The Applicant has been playing games and been disingenuous when it comes to disclosing his financial information. Much of this information was never disclosed until shortly before the trial began and his income tax return for the calendar year 2020 was not disclosed until during his final submissions, even though he claims to have had this for several weeks.

At one point in cross-examination, he disingenuously stated that he did not consider a request for financial disclosure to be valid if it was not sent to his address for service. Then he filed a change of address removing his email address as a means of service of documents. He simply cannot be believed when he tries to convince everyone that his lack of diligent disclosure is the product either of misunderstanding or forgetfulness. I find that the Applicant has embarked on a deliberate pattern of being evasive in laying his financial cards on the table.

This is especially troubling because it shows an unwillingness to accept the financial responsibility expected of every parent in Canada to support the children that they have brought into the world. [ 75 ] When a parent is unwilling to face up to this responsibility, it strongly calls into question that parent’s ability to take on a larger role in looking after the child, especially when that parent has left the responsibility for bulk of the childcare (what I often refer to as “the heavy lifting”) on the shoulders of the other parent, without adequate child support.

The Applicant’s evasiveness in making open financial disclosure also lends support to the theory posed by the Respondent’s counsel that the Applicant’s stated desire for equal parenting time is really motivated by his desire to avoid paying what he is supposed to pay rather than putting the child’s best interests first. It gives credence to the grandmother’s assessment that the Applicant is being selfish. [ 76 ] On July 26, 2022, it appears from the App-Close communication that the Respondent discovered that the Applicant was no longer unemployed.

Rather than be honest and up front about his employment situation, the Applicant somehow considered this to be something for him to call the police about, and this was just one more thing for the parties to fight about. It is another example of one of these parties putting a love of conflict ahead of responsibility for the child. [ 77 ] From the evidence presented at trial, here are some of the times when the Applicant was reminded that he had an obligation to fully disclose his financial position: 1. He was reminded of this at the hearing before Judge Sheard on May 30, 2022. 2.

The Respondent reminded him of this in an App-Close entry on May 31, 2022. 3. The Respondent once again asked for financial information (specifically proof of employment) in an App-Close comment made n June 23, 2022. 4. On June 30, 2022 the Respondent once again asked the Applicant for his tax returns in an App-Close comment. 5. On July 18, 2022, the Respondent reminded the Applicant that he had still not provided his last two tax returns. 6. On July 26, 2022, the Respondent asked the Applicant to provide his pay stubs in an App-Close message. 7.

On July 28, 2022, the Respondent asked the Applicant in an App-Close message, “Why are you still not providing financials and unpaid support?” 8. The Respondent’s counsel sent the Applicant an email on October 14, 2022 which states “I am still waiting for you to provide me with your T-4s from all sources and copies of your pay slips from all sources for both 2020 and 2021, given you have yet to file and produce your tax returns for those two years.”

9. He was asked for financial disclosure during the second day of the hearing of this matter during cross-examination. (When the Applicant was asked about this in cross-examination during the third day of this hearing, a long pause followed, after which he stated, “I wasn’t aware it was necessary.”) 10. He was reminded of this at the end of each day of this hearing. [ 78 ] In the course of his evidence, the Applicant said that he is now working for a construction company.

This appeared to come as news to the Respondent and her counsel, who say that they have been demanding that the Applicant make full and honest financial disclosure in order that a fair order for child support can be arrived at. The Applicant says that he works from 7:00 a.m. to 3:00 p.m., Monday to Friday. He is paid $28 per hour. [ 79 ] Since the child was born, the Respondent has kept a record of the payments made by the Applicant for support.

In 2019, he paid a total of $1,300; in 2020, he paid a total of $2,308; in 2021, he paid a total of $2,371; and in 2022 up to the time of trial, he paid a total of $844, all as child support. He has also paid a total of $600 for spousal support. The Applicant says that he is living from payday to payday and yet the Respondent has produced social media posts in which the Applicant is buying and selling expensive bikes and related equipment worth thousands of dollars. It seems clear that child support is not a priority for the Applicant. [ 80 ] At present, the Respondent is self-employed.

She operates her own excavation business using the same name as the company that her father used to operate. She owns a miniature 303½ Cat excavator and a truck and trailer. She describes her business as being very successful this year, and the job she is now working on looks as if she will have work there for the next five years or so. Her work is seasonal and she is able to work essentially when there is no snow.

From the financial records that the Respondent has provided, the following is the income she has declared: 2019: $16,587; 2020: $39,641.08; and 2021: $52,748. [ 81 ] The Respondent had been paying a caregiver to look after her children at a cost of $750 per month. Recently her mother has been providing these services at a cost of $800 per month. This sounds like a bargain rate because when calculating the hours that the grandmother provides child care for, it works out at a rate well below minimum wage. [ 82 ] The Applicant’s financial position has been harder to nail down.

The 2020 income tax return that he produced at the last minute during the course of his submissions shows a net income of $42,649.64. This was not supported by a T-4, and the Respondent’s counsel was never given the opportunity to see it or cross-examine on it. In cross-examination, it became apparent that he has filed income tax returns in the past, which have contained false information. For example, some of his tax returns filed from 2006 to 2018 claim that he was living in Saskatchewan, even though he hasn’t lived there since 2014.

On one of his returns he claimed B.G.B. as a dependent in order to receive the Saskatchewan child tax credit even though he has never been B.G.B.’s primary caregiver. He has not filed his 2021 tax return yet. [ 83 ] The Applicant’s record of employment from his last employer shows that he worked at that job from March 27, 2020 until May 9, 2021, when he was dismissed. During that time, he earned $21,015.72 and received a severance payment of $2,000. A T4E statement for 2020 shows that he earned $9,146 in benefits that year, and his T4E for 2021 shows that he earned another $13,524 in benefits.

The Applicant also produced a single paystub from his current employer that shows year-to-date earnings of $16,896.88 and that he was paid $28 per hour and that he worked 135.5 hours of overtime so far in 2022. Analysis 1. Best Interests of this Child [ 84 ] There are a number of issues that need to be addressed in making an order concerning this child: 1. parental responsibilities; 2. parenting time; 3. enforcement of court orders; 4. child support; 5. spousal support; and 6. expenses under

section 7 of the Federal Child Support Guidelines. [ 85 ] Before addressing each of these issues directly, it must be noted that the Family Law Act directs that such orders are to be made, not with the best interests of the parents in mind, but with the best interests of the child as the paramount concern.

Section 37 of the Act requires that this Court must consider the best interests of the child as its only consideration. Subsection (2) of that

section directs that in deciding what is in a child’s best interests, all of a 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. [ 86 ] Subsection (4) cautions that, in making an order of this nature, a court may consider a person's conduct only if it substantially affects one of the factors listed above, and only to the extent that it affects that factor. [ 87 ] What adds difficulty to crafting an appropriate order for this child is the animosity that exists between these two parents. Both parents appear to be strongly driven by their antipathy for the other parent, to the detriment of their child.

Both have acted contrary to the best interests of their child, and in a manner that hurts their child, whether or not they realize it, and whether or not they mean to. Both have acted immaturely.

I point this out not with the intention of looking to place blame on one side or the other, or to shame them, but in the hope that they will each come to take an honest look at their own conduct and resolve to change their behaviour in order to become better parents and to give their child a happier and healthier life. [ 88 ] Both have very strong resentments against one another and no doubt both feel that these resentments are justified. In truth, resentment is a loser’s game. Someone once said that holding a resentment against someone is like taking poison and expecting the other person to get sick.

It is letting the other person live in one’s head rent-free. It is also something that children pick up on. Young children are sponges, and they model the parenting that they see. If a child sees one parent hating or disparaging the other parent, it is often how they imagine that their own adult relationships are supposed to be. It is selfish and dishonest for a parent to claim to be showing love for their child, while fostering an atmosphere of conflict with that child’s other parents. [ 89 ] Both of these parties have to own up and admit to where they have been behaving contrary to their child’s best interests.

In the case of the Applicant, he must admit that he has been wrong in the following past behaviour: 1. His secrecy about his employment, his work schedule, his income and his true financial ability to provide for the support of the child he has brought into the world; 2. His unwillingness to discuss changes to the existing court order after both his and the Respondent’s circumstances changed; 3. His unwillingness to respond to concerns raised by the Respondent in App-Close. He was wrong to ignore her messages and to refuse to even read them for several days; 4.

His making petty and false complaints to police, the Ministry of Children and Family Development and other authorities. It was wrong for him to call the police and complain about the Respondent when he was in the wrong for keeping his employment secret from her; 5. His refusal to consider that the Respondent’s nutritional concerns for the child may be valid ones, especially when the child was displaying rashes and experiencing hair loss.

Is the satisfaction gained from ignoring the Respondent worth the cost of having the child suffer? [ 90 ] The Respondent must admit that she had been wrong in things that she has done such as: 1. Refusing to follow the court order that she herself had asked for, especially when doing so meant denied her child the ability to know his other parent and become comfortable with him, causing distress to her child; 2.

Believing that she was justified in unilaterally changing the terms of a court order, severely damaging any trust or reliance that the Applicant or this Court can ever place on her promise that she will follow such orders in future and requiring a need for police intervention; 3. Blaming the Applicant for taking the child to Saskatchewan for six days instead of four, when she had expressly agreed to this, and had voiced no complaint about it until the child was already there; 4.

Blaming the Applicant for attending at her residence at the times that he was entitled to exercise parenting time under the terms of an order of this Court, and calling police to complain against him, when she was the one in the wrong by breaching the order in the first place; 5. Refusing to follow the advice of medically trained professionals such as doctors and public health nurses. A certificate in natural nutrition is no substitute for proper medical advice, and it is wrong to think that it is, at the risk of a child’s health. [ 91 ] Neither party should gloat or feel vindicated by these lists.

The correct response is to learn from this and not continue to put their child in the position that they have put him in, in the middle of a conflict, rather than letting him grow up in a healthy co-parenting

relationship. According to the Federal Department of Justice in its report entitled “Studies of High Conflict and Its Effect on Children” (found at https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2004_1/p3.html ): “Parental conflict had a highly significant negative impact on child anxiety and depression.” If these parents are incapable of setting aside their conflict and of co-parenting in a respectful manner, this will be B.G.B.’s inheritance from them. 2. Parental Responsibilities [ 92 ] At present, an order requiring these parties to co-parent and share parental responsibilities will not work.

The parties should be judged on their actions rather than their promises. Based on their past behaviour, the Applicant is likely to ignore or refuse to directly address anything that he disagrees with. His past behaviour of not even looking at what the Respondent has to say in App-Close for several days is a factor that speaks against shared decision making at this time. The evidence in this case is that the decision making for B.G.B. thus far has served him well for the most part.

The lone exception to this seems to be the Respondent’s hostility towards medical professionals. [ 93 ] I find it to be in B.G.B’s best interests to maintain the status quo when it comes to parental responsibilities, with a few tweaks. The Respondent will continue to have the majority of the parental responsibilities. This will be enhanced to specifically include decisions concerning nutritional matters. This may sound like micromanaging, but it is necessary because of the Applicant’s demonstrated refusal to seriously consider the nutritional report, notwithstanding the symptoms that the child demonstrated.

However, the Applicant will continue to have parental responsibility for scheduling the child’s appointments with his family doctor and his appointments for vaccinations and inoculations as recommended by the family doctor. The Respondent will not be entitled to be present at such appointments without the consent of the Applicant. The Applicant is advised not to exercise this authority in a petty fashion, insisting that the child see a doctor every time he scrapes his knee or has a cough. Once again, this may seem like micromanaging.

Once again, it is because the parties are being judged by their actions, not by their words. [ 94 ] The hope is that with litigation behind them, and confronted by their own past mistakes, maturity will set in and the parties will come to realize that conflict spells an unhealthy future for their child. Maybe this is a faint hope, maybe not.

But if the parties disagree on something and one party is not able to convince the other to see their point of view through calm, logical and respectful dialogue (which should be the first resort of parents who sincerely wish to co-parent), the Family Justice Counsellor offers a free service and one of their mandates is to help parents in coming to an agreement about parenting arrangements. [ 95 ] Before rushing off to the court house to file an application, it is in the best interests of this child if the parties first listen to what the other parent is proposing, and if they disagree, set out a good reason why they disagree.

A good reason is one that centres on the child, not the parent. If an agreement still cannot be reached, then the parents should seek the advice of a neutral third party such as the Family Justice Counsellor, or a mutually trusted friend or professional. That is how responsible co-parenting is supposed to work. 3. Parenting Time [ 96 ] Recently, the child has demonstrated anxiety before and after his parenting time visits. No specific cause has been shown for this, but it is clear that this was not a problem until the Applicant’s parenting time was drastically cut.

The decrease in familiarity and the increased conflict that arose from this both likely contributed to the child’s stress, and that can’t continue. It must be rectified by more frequent contact between father and child, but not to the extent of shared parenting time. [ 97 ] The father’s request for equal parenting time is not in B.G.B.’s best interests at this time.

It would be a drastic shock to the child, especially given his closeness to his sisters and his grandmother and I am satisfied that such a change would be harmful to B.G.B. [ 98 ] The evidence also convinces me that there is something to the contention that the proposed change is really motivated by factors that the Applicant sees in his best interest rather than that of the child. The submission that this is really about the Applicant not wanting to pay child support finds some support from the Applicant’s secrecy about his employment and his lack of financial disclosure.

Parenting time and child support are separate issues and one should not be tied to the other. On the other hand, it is valid to question how a parent can provide a child with a stable and secure home, if that parent shows unwillingness to meet the same standards as any other parent in Canada who is in the same position.

The Applicant’s refusal to be up front about his true financial picture, and his unwillingness to pay a fair level of support for B.G.B. (including his refusal to pay any child support for the past number of months) raises concerns about whether or not the child would be properly supported if a shared parenting arrangement was put in place.

The Applicant has failed to meet the burden of showing that a shared parenting arrangement is in B.G.B.’s best interests. [ 99 ] The Respondent makes a valid point that since the employment situation for both parties has changed, it is unfair, while both parties work during weekdays for B.G.B. to spend all weekends with the Applicant. For now, reverting back to the parenting time that Judge Sheard ordered will not be a problem, because the snow has come to the East Kootenays, and the Respondent has more time during the week to spend with B.G.B.

But once spring arrives and the snow is gone, weekends should be split, with the Applicant given more frequent parenting time during the week. [ 100 ] The Respondent would like to take the child for a vacation to Mexico sometime over the Christmas holidays, but she has not said when that will be or for how long it will be. The Applicant is in agreement with this, as long as the child spends a period of similar duration with him over the Christmas holidays.

The parenting time ordered will accommodate a fair division of time so that the Applicant and the Respondent both get to spend a period of six days during the Christmas holiday. Both parents have said that it is not their intention to hinder the relationship that B.G.B. has with the other parents.

If both were sincere about this, then neither of them should object to B.G.B. having a FaceTime call with the other parent every day when he is away from the Cranbrook-Kimberley area, whether that is in Mexico with the Respondent or Saskatchewan with the Applicant. [ 101 ] Equal shared parenting time on a full-time basis will likely not be appropriate for B.G.B. for a number of years, probably not until he has been in elementary school for three or four years, maybe longer.

However some form of shared parting time can be undertaken during the non-school months, for July and August, on short shifts of three days each, with the child being in the care of his usual caregiver if both parents are at work on those days. (The Applicant will still be required to pay his full child support payments for those months however because support for the child is a year-round obligation.) Whether or not B.G.B. finds this stressful will depend on how

he sees the parties acting towards one another, and if they genuinely are concerned about what is best for the child, then they will showkindness towards one another in his presence and when they are alone with him. 4. Enforcement of Court Orders [102] Counsel for the Respondent is correct that the remedy of police enforcement of parenting time orders under

section 231 of theFamily Law Act is a drastic remedy and is only to be used in very limited circumstances. I would be very hesitant to even consider theremedy in this case, if it were not for a combination of two factors: 1) The Respondent has shown that she cannot be trusted to follow orders of this Court. She refused to follow Judge Sheard’s order forparenting time even though it matched what she had asked him for. She agrees that if the Applicant had refused to follow the orderbecause he felt the child needed more time with him, it would be outrageous, but yet she did the same thing to him.

She told, in her App-Close communication, that she did not need the authority of a court or a judge to change the order. She mocked the Applicant because hefollowed the order, even accusing him of trespassing and calling the police when he was following it. She either enlisted her friend J. tohelp her breach the order and intimidate the Applicant, or at least did nothing to discourage him from doing so. Even after the trial beganand she was reminded that Judge Sheard’s order had not been changed and was still in force, she still continued to ignore it and deny theApplicant much of his scheduled parenting time.

She also interfered with Judge Doerksen’s order concerning immunization byattempting to cancel the appointment and by behaving in a manner that made the nurses uncomfortable and have to call security. Nowshe promises that she will follow any order that I make. She is to be judged by her actions rather than by her words. She has lost the trustof this Court. I don’t believe that she will do as she says, unless she knows that there is an immediate consequence for non-compliance. 2) The East Kootenay region has limited resources when it comes to scheduling court time, as these parties well know.

It took monthsof denial of parenting time before this matter could be heard, and an earlier trial was adjourned because of insufficient court time. TheJudicial Case Manager has been directed to quadruple book court time each day because of collapse rates, and when criminal trialsproceed, they are usually given priority over family matters. Because parties have to wait so long to be heard in family matters, ordersunder

section 231 are likely more common this region than in other parts of the province where parties can have their family mattersheard in court sooner. [103] I am aware of those cases cited by the Respondent’s counsel, which stand for the proposition that an order under

section 231should not be made unless the court is satisfied that there is no other order sufficient to secure the offending party’s compliance. (Thisprinciple is set out in D.J.S. v. J.M.D. 2014 BCSC 1143 , 2014 B.C.S.C. 1143, and followed in D.A.B. v. C.A.S. 2020 BCSC 807, 2020 B.C.S.C. 807; Wilson v. Garbella 2017 BCSC 748 , 2017 B.C.S.C. 748; L.T. v. S.M. 2016 BCSC 124 ,2016 B.C.S.C. 124.) I have considered the other options available, including those set out in

section 61 of the Family Law Act. I don’tbelieve that any of these would have any stronger effect on the Respondent than a trial judge telling her, mid-trial, that there is a courtorder in effect and she should follow it. [104] When the remedy of police enforcement has to be used, there is no doubt that it is not a good thing for a child, and it makesparents look pretty foolish as well. It is also unfair to police officers, whose resources are already stretched thin. No one wants to see thisremedy used, and I would hope that would include B.G.B.’s parents.

If they don’t want this to happen, there is an easy solution: actcivilly towards one another and follow court orders unless both agree to some modification. The remedy of police enforcement will beavailable, but should not be used unless absolutely necessary. A parent being late for an exchange is not a reason to call police. If thisremedy is used at all, it will almost certainly mean that someone is acting very unreasonably, something that the person may come toregret. 5.

Child Support [105] In Canada, when a child’s parents are separated and one parent has primary care of the child (as the Respondent does in thiscase), the other parent is expected to support the child that he or she has brought into the world at the same level as any other parent inCanada in the same circumstances. The Federal Child Support Guidelines set out what a fair level of support is. A parent who isrequired to make such payments must do so as his or her primary obligation.

Supporting the child must come first, and it must be placedahead of living in a better home, driving a nicer car, running up credit card debt, having a better lifestyle, and even ahead of buyingexpensive biking equipment. [106] Parents are required to fully disclose their financial position so that a fair child support order can be made. It doesn’t matter if theother parent is in a better financial position than the parent who is paying child support, because it is the child who is entitled to supportfrom both parents, to the extent of that parent’s ability to support the child.

A parent who avoids this responsibility is cheating the child. [107] Where a parent does not make full disclosure, as has occurred in this case, section 19(1)(

f) of the Federal Child SupportGuidelines empowers a court to impute what that parent’s income level should be for the purposes of arriving at a fair child supportpayment, in cases where that parent has failed to provide proper income information when under a legal obligation to do so. In this case, Ihave no hesitation in coming to the conclusion that the Applicant has intentionally refused to make full financial disclosure of his truefinancial position.

I do not believe him when he says that he has not made full financial disclosure prior to two scheduled trials eitherbecause he “forgot”, was too busy, or didn’t realize that he was lawfully required to do so.

It is fair to conclude that he has beendeliberately avoiding providing this information because he incorrectly believed that this would get him out of having to pay the childsupport that his son is entitled to. [108] To attempt to rectify this problem, I will impute an income to the Applicant at the level requested by the Respondent’s counsel.This leaves the Applicant significantly in arrears of child support.

The arrears are calculated in accordance with the following table: Year Imputed Income Monthly Payment Total Owing Total Paid Arrears2019 $30,000 $279 $837 $1,300 ($463)2020 $65,140 $617 $7,404 $2,308 $5,096 2021 $47,000 $442 $5,304 $2,371 $2,933

2022 $47,000 $442 $4,862 $844 $4,018 Totals $18,407 $6,823 $11,584 [ 109 ] I will fix the arrears of child support owing by the Applicant to the Respondent at $11,584. This sum can be paid off the next four years (2023 to 2026) by his making an extra $250 monthly payment on top of his regular monthly child support payment which will be set at $442 per month, commencing on December 15, 2022 and continuing on the 15 th day of each month (including for the months of July and August) until further order of this court.

I will also make an order for ongoing financial disclosure, with the parties being required to exchange an up-to-date financial statement by July 1 st of each year. (The Respondent will also have to make financial disclosure because she is seeking an order for payment of the Applicant’s share of Special or Extraordinary Expenses under

section 7 of the Guidelines .) 6. Spousal Support [ 110 ] Under

section 3 of the Family Law Act, these parties are considered to be “spouses” as that term is used in relation to the payment of spousal support, because they lived in a marriage-like relationship (regardless of the duration) and had a child together.

Spousal support can be owing on three grounds: (1) compensatory (compensating a spouse for a sacrifice that he or she has made as a result of the relationship), (2) non-compensatory (based on need, arising from the break-up of the relationship), or (3) agreement. [ 111 ] In this case, both of the parties are capable of their own self-support and neither is claiming for ongoing spousal support. The Respondent is making a modest claim for spousal support for the six months following the child’s birth, when she was unable to work because of having to care for a new-born child.

She is making claiming for only six months, at a level of $300 per month, for a total of $1,800. [ 112 ] When the parties separated in the summer of 2019, prior to the child’s birth, the Applicant had his lawyer prepare a separation agreement which proposed that he pay the Respondent spousal support of $150 per month for two years. That agreement was never signed, but in proposing the agreement, it can reasonably be concluded that the Applicant acknowledged the Respondent’s entitlement to some spousal support.

Further support for this conclusion can be drawn from the fact that the Applicant did voluntarily pay a modest amount of spousal support totalling $600. [ 113 ] Because of the difficulty in prying accurate financial information from the Applicant in a timely manner, it is difficult to determine what a fair level of child support might be for this period. However, I can safely conclude that the amount claimed by the Respondent is not unreasonable, and if anything is likely on the low side.

Accordingly, I have no hesitation in finding that the Respondent is entitled to spousal support in the amount that she has claimed and that the Applicant in in arrears of this amount in the total sum of $1,200. This can be paid to the Respondent by payment of the sum of an additional $50 per month to the Respondent on the 15th day of each month, commencing on December 15, 2022, until the arrears have been paid in full.

Section 7 Expenses [ 114 ]

Section 7 of the Federal Child Support Guidelines requires parents to share certain expenses for a child in proportion to their incomes or their ability to pay those expenses. Expenses specifically covered under

section 7 are set out, and specifically include expenses for childcare, as well as medical expenses. [ 115 ] The Respondent has provided evidence showing that she has paid a number of incidental expenses for the child, most of which are properly included under the heading of

section 7 expenses. These include a $27 charge for the child’s birth registration and $126.29 for prescriptions. She also claims a $57 charge for the child’s passport, and while I have some difficulty fitting this in as a

section 7 expense, the Applicant has said that he

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