P.W.C. v. E.S.C. Date:, 2012 BCPC 77

Citation: P.W.C. v. E.S.C. Date: 20120314 2012 BCPC 0077 File No: 30547 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: P. W. C. APPLICANT AND: E. S. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Applicant: M. Brandon Counsel for the Respondent: S. Robinson Place of Hearing: Surrey , B.C.

Dates of Hearing: February 27, 28, and 29, 2012 Date of Judgment: March 14, 2012 [ 1 ] This is an Application by the Father seeking joint custody, joint guardianship with final decision-making ability, primary residence of the Child with the Child residing with him each week with weekend access to the Mother or alternatively, week on and week off. The Application is opposed by the Mother.

The Mother is seeking joint custody, joint guardianship with final decision- making ability, primary residence of the Child with the Child residing with her weekdays and the Father to have weekend access for three weekends in a row and the Mother to have one full weekend access. This is opposed by the Father. In the midst of the trial, with the assistance of the Court, the parties were able to come to a resolution on statutory holidays, school holidays, and summer access in the form of a Consent Order which was spoken to.

Those terms of that Consent Order will be incorporated into the Order herein in order that there will be one full Order for ease of the parties. Counsel consented to such. Background [ 2 ] The parties met in 2002 and commenced cohabitation. There is one child of the marriage, that being: B.B.C., born [DOB] (hereinafter referred to as “the Child”). The parties married in July 2008 and separated in or about October 2008. [ 3 ] Since the date of separation, the Mother is now residing common law with her boyfriend, who has two children from a previous relationship to whom he has access.

Both the Mother and her common law boyfriend are hearing impaired. The Father is residing common law with his girlfriend, who has five children from a previous relationship of which all five children reside with them, along with a new child from his current relationship. [ 4 ] There is the Interim Order of the Honourable Judge A. Rounthwaite dated August 6, 2010, of what amounts to an equal access

schedule wherein over a two week rotating period, the Mother and the Father have equal access time to the Child, with a series of

frequent exchange dates, which at the time took into consideration the tender age of the Child. The parties both concur that while the spirit of the Order is positive, the frequent access pick ups and drop offs between the parties is exhausting for both the parents and the Child and thus, both seek to change such with their positions set out at the beginning herein. EVIDENCE P. W.

C. [ 5 ] The Father testified that he resides in Langley, British Columbia, with his common law girlfriend, her five children, and a new child from his current relationship. [ 6 ] He first met the Mother when she was employed as a massage person in a strip club, however, she then trained to become a veterinary assistant. However, because there was no employment at the time, she then became a cashier, a traffic control person, and most currently, the Mother is employed seasonally as a landscaper. The parties commenced living together in 2002.

At such time the Father was employed as a tow truck driver until 2005, and then worked in road construction until 2009, and then on tunnel construction and most recently is employed in road construction. His hours of employment are Monday to Friday, 7:30 a.m. to 3:30 p.m. [ 7 ] The marriage broke down in October 2008 and quickly thereafter he commenced the action herein in October 2008, seeking custody and guardianship of the Child.

The Mother filed a Reply in December 2008 agreeing with the relief sought, however, later filed an Amended Reply in 2010. [ 8 ] Court ordered release of the Ministry of Children and Family Development (hereinafter referred to as “MCFD”) files show that on October 29, 2008, MCFD received a report about domestic violence between the Mother and the Father with the Mother being the aggressor and the children being present (the Mother has two children from a previous relationship who were residing in the home at the time).

MCFD noted that both the Mother and the Father advised MCFD that if they reconcile they will agree to attend anger management and marriage counselling. The two children of the Mother reported to the Social Worker no fear and felt safe. The file was closed. The Father testified that on such day the Mother became angry and alleged that the Father was having an affair, escalating to the Mother hitting the Father and the police attending.

The Father did not wish to press charges and he left the home. [ 9 ] Under the current August 2010 Order, the parties essentially share almost equal access to the Child on a rotating basis. The Father resides in a home in Langley with acreage, which are five bedrooms.

The Father testified that he had discussed the matter of daycare/preschool with the Mother, including providing her with literature, about the programme at [name of preschool] and that the Father had enrolled the Child in such programme in 2010, however, shortly thereafter the Mother withdrew the Child and enrolled him in the [name] programme closer to her own home. Both parties allege against one another that neither consulted one another and that each unilaterally enrolled and withdrew the Child without consultation.

The Father further alleges that although he placed the Mother as the second contact after himself for the Child on the enrolment documentation, the Mother has never done so on her enrolment forms for the Child, which was confirmed during these proceedings and rectified by the Court during these proceedings. The Father wishes to have the Child commence kindergarten in September 2012 at [name of preschool] in his own catchment area so that the Child can attend the same school as the Father’s common law’s five children.

This is a 10-minute drive from the Mother’s home of which the Mother opposes and seeks to have the Child attend [name of elementary school] in September 2012 which is a 5-minute drive from her home and is where his current daycare/preschool is a feeder into that particular elementary school. [ 10 ] To the credit of the parents, in large part, they have been adhering to the Interim access Order of August, 2010. There have been, however, some minor deviations that have not gone smoothly and have required counsel and/or court intervention.

In December 2010, the Father emailed the Mother late one evening (purportedly following up from prior conversations), asking to change access the following evening in order that he may attend a work Christmas party. The Mother communicated directly with her counsel and in the end, was in agreement to deviate slightly the return time of the Child. Further, under the current August 2010 Order, in 2011, the Mother had access to the Child on a large number of statutory holidays and would also have Christmas, so the Father sought to have a portion of Christmas for his own family celebrations.

In the end, it was resolved by a Court Order in December 2011 that the Father had one day of Christmas access. The pick up and drop off locations for the access regime have not gone smoothly between the parties, with allegations that the common law girlfriend of the Father is acrimonious with the Mother and in turn, the boyfriend of the Mother is also acrimonious including an allegation that he allegedly hit the van of the Father during one access exchange and thus, the access exchange is by Court Order at a location other than their respective homes. [ 11 ] The August 2010 Order also included a term that a

Section 15 Custody and Access Report be prepared and it was prepared and completed by Karen Fenton on April 24, 2011 (hereinafter referred to as “the Report”). [ 12 ] The Report recommended that the primary residence of the Child be with the Mother. The Father questioned and challenged the contents of the Report in his testimony, including advancing that he furnished to Ms. Fenton the entire contents of the MCFD report that was released by Court Order, including pointing out to her that the October 2008 domestic violence incident reported the Mother as being the aggressor and advised Ms.

Fenton that the Mother does not have custody or guardianship of her two older children from another relationship, that the mother of the Mother (maternal grandmother) by Court Order has sole custody, sole guardianship of the two children and that the Mother’s access to those two children is determined by the maternal grandmother. By and large, such access since that 2009 Order out of the Port Coquitlam Registry has been supervised by the grandmother. The Father testified that at the time the Report was written, Ms.

Fenton noted that the Father and his common law had to transport the two adults and all of the children in two vehicles, but since the report they have now purchased a 12 passenger van. [ 13 ] On cross-examination, the Father when asked why he left the Child with the Mother at the time of separation, he testified that he did so because the Mother pleaded for a second chance and he was receiving unlimited access.

This seems contrary to the best interest of the Child if the Father continued to allege that the Mother was the aggressor and that the Mother was having a custody dispute involving her other children with her own mother. When asked about concerns in the past about corporal punishment with the two children of the Mother, the Father testified that the Mother asked him to ensure that he was responsible for disciplining the children. When asked about the [name of preschool], the Father stated that he had “discussions” with the Mother about such and that the Mother did not agree with

such daycare/preschool. KAREN FENTON [ 14 ] The Court heard from Karen Fenton, the writer of the Report who has been so employed for the past 22 years of which she has been writing reports for approximately 20 years, has attended the Justice Institute completing conflict resolution and custody and access training/courses. [ 15 ] She first contacted both the Mother and the Father in February, 2011, and the last contact was March 28, 2011. She met with both the Mother and the Father separately for approximately 1.5 hours. In the Report, Ms.

Fenton comments: “E.S.C. exercises access to them (meaning the two children from her prior relationship) primarily in her mother’s environment when she has B.B.C. in her care.” Ms. Fenton acknowledged that she makes no mention of Provincial Court proceedings involving the two older children, that she makes no mention of a Court Order after a full hearing that the maternal grandmother has sole custody and sole guardianship of these two children, that the Mother has access at the discretion of the maternal grandmother, and that the Mother’s applications were dismissed. Ms.

Fenton testified that she did not know about such court proceedings, however, and then commented that because those two children are not the subject of this hearing, that it was not relevant for her. She acknowledged that although the Father gave her such information about the court proceedings, she talked to the maternal grandmother who advised Ms.Fenton that she did not have concerns about the Mother having access. Ms.

Fenton, when asked, acknowledged that the Father had furnished her with the RCMP report and the MCFD contents but that she simply assumed that she did not have full disclosure despite both the Mother and the Father telling her that they obtained a Court Order for MCFD disclosure, that the Father furnished to her selective portions, and believed that both the Mother and the Father were violent. [ 16 ] On Page 3 of the Report, Ms.

Fenton makes specific note that the Father expressed concern that the Child does not eat foods with texture or protein, but that the Mother disagreed that he only eats soft foods and noted in her testimony that she saw the Child eat fruit. That comment in the Report leaves one with the distinct perception that she dismissed the comments of the Father. Ms. Fenton acknowledged that she allegedly was not aware or did not take into consideration that the children of the Father’s common law all attend [name of preschool] and noted that they were not in the same programme, but in fact, had been in the same location.

The Report comments that the Mother was allegedly not consulted when the Father enrolled the Child in [name of preschool] and she makes specific note of such to the detriment of the Father, however, she fails to note that the Mother unilaterally removed the Child from [name of preschool] without consultation to the Father and enrolled the Child elsewhere, also without consultation to the Father. Ms. Fenton commented that there had been MCFD involvement with both the Mother and the Father, which was incorrect in her Report. R.

W. [ 17 ] The Court heard from the common law girlfriend of the Father, R.W., who is presently the mother of five children from a prior relationship and the mother of a child with her current relationship with the Father. She is employed as a traffic control person working Monday to Friday, from approximately 7:00 a.m. to 4:00 p.m. with some periodic on-call evening shifts. She testified that their home is a five bedroom, two bathroom home with acreages and a large yard, pool, trampoline and swing set. She testified that all of the children get along well and all respect one another’s privacy.

There is no corporal punishment in the home. When speaking to the Child, she stated that she repeats her sentences frequently to ensure that he understands her. All of her children attend [name of preschool] including one with special needs who receives one on one assistance. In the morning, the children go to a sitter, who then walks them to school, and after school the children are in a Boys’ and Girls’ Club programme until they are picked up.

When asked about access exchanges, she testified that the Mother is hostile, that the Mother does not wish to talk to her, and a minimal amount of interaction is done. [ 18 ] On cross-examination, Ms. R.W. became a very hostile witness, often evading answers to questions, refusing to answer questions asked of her, and at one point, even counsel for the Father stood up and interjected and simply directed her to answer the questions posed of her, despite Ms. R.W. testifying “I avoid confrontation. I’m not into it”, which was contrary to her demeanour on cross-examination.

When asked about any aggression between the parties, she testified “I don’t know” and “I don’t remember”, concluding when referring to the Mother, “I do not speak with her in the best interest of the Child”, which is very troubling. Ms. R.W.’s testimony added little weights in a positive nature for the Father. E. S. C. [ 19 ] The Court heard from the Mother who is 34 years of age, has two children from a previous relationship, and also the Child who is the subject of these proceedings.

She testified that the relationship with the father of her two eldest children had Ministry involvement because she was involved in a physically violent and abusive relationship, being beaten up. [ 20 ] The Mother and the Father first met in 2002 and she testified that the marriage was good until the Father had an affair and that it was never the same thereafter.

During the course of the marriage, she testified that while the Father would assist, she was the primary caregiver for the Child. [ 21 ] Her eldest two children moved in with the Mother and the Father in 2004 and that she asked the Father to be the disciplining party in the marriage, stating that the Father would hit her two children and put the children in cold showers, resulting in the children being fearful of the Father and her mother (maternal grandmother) expressed concern about the well being of the children.

She testified that the children moved back to the care and home of the maternal grandmother in 2008, alleging that they had a close bond with the maternal grandmother. She acknowledged that in April 2009, after her separation with the Father, there was a hearing and that the Court ordered that the maternal grandmother have sole custody and guardianship of the children, that the Mother was to have access at the discretion of the maternal grandmother, and that the Application of the Mother was dismissed.

This in and of itself seems contrary to the testimony of the Mother wherein she stated that the children returned to the maternal grandmother because they feared the Father (even though he had vacated the home in October 2008) and that they had a closer bond to the maternal grandmother (but a contested hearing was held). [ 22 ] The Mother and the Father communicate with one another via emails and the Mother relies upon texting due to her hearing impairment. The Father, in his testimony, stated that he is willing to communicate via text and emails; however, it is noted in Exhibit 1

an email from the Father to the Mother stating that he can go weeks without checking his emails. That is not acceptable, particularly given that parent has a hearing impairment and thus restricts traditional forms of communication between parties. The Father needs and is required to be more diligent in checking his emails and texts for communication.

This was further evidenced by testimony from the Mother who stated that she does text the Father about medical appointments and dental appointments and results, including most recently that the Child requires a second filling, but that she did not receive any response from the Father. This was not challenged at all on cross -examination or by the Father in his testimony. [ 23 ] The Mother reported two incidents about the care of the Child when he was with the Father and his girlfriend, including scratches from a trampoline and an allegation that the Child (who is very young) fell from the top of a bunk bed.

Scratches sometimes occur from time to time in the everyday life of a Child, however, the Father and any party responsible for the Child must be more diligent in not permitting a young child unsupervised at a top bunk. [ 24 ] On cross-examination, the Mother testified that the parties initially separated in July 2008 and the final separation occurred with the police attendance of October 2008. She testified that when the parties were living together, the Father would use corporal punishment daily when her children were residing with her.

When asked why she filed a Reply in December 2008 agreeing initially to the relief being sought by the Father, she testified that she was threatened by the Father to do so, however, it is also noted that the Father left the matrimonial home in October 2008 with the Child remaining in the care of the Mother, despite the report that the Mother was the aggressor in the October 2008 fight between the parties. [ 25 ] The Mother is employed as a landscaper, with seasonal full time employment from March to November each year and the balance of the time she remains at home.

Her boyfriend is employed as a spray painter working Monday to Friday, 7:30 a.m. – 3:30 p.m. When asked, the Mother testified that [name of preschool] is a ten-minute walk from her home, but her preference and desire is for the Child to attend [name of elementary school] which is a five-minute walk from her home and the daycare/preschool that the Child currently attends is a feeder school to the elementary school, so his friends would be in attendance with him when he starts elementary school in September, 2012.

When asked about why she withdrew the Child from the [name of preschool] daycare/preschool, she testified that she did attend and saw broken toys and a small space for the children, so she withdrew the Child, unilaterally enrolled him in the [name] programme without consulting the Father stating it was a mother-child programme, and thereafter as of May 2011, enrolled him in the [name] programme, which feeds into [name of elementary school]. DECISION [ 26 ] The Mother seeks the primary residence of the Child, Monday to Friday to have the Child with her, and three of four weekends access to the Father.

She also seeks final decision-making ability as it pertains to the joint guardianship matters. The Father seeks primary residence of the Child, Monday to Friday to be with the Child or alternatively, week on and week off access and seeks the final decision-making ability as it pertains to the joint guardianship matters. [ 27 ] The

Section 15 Report as to statements contained therein and conclusions by Ms. Fenton are very troubling and I find biased in its content. Counsel for the Mother relies upon Gupta v Gupta, 2001 BCSC 649 (hereinafter referred to as “ Gupta” ), to support the conclusion and recommendations of the Report that the primary residence of the Child be with the Mother. In Gupta , at Paragraph 18 , the Court stated, “It is to assist the Court in determining the issues before it, including the paramount issues of what is in the best interests of the children. The

section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. The parties have no say in the matter, other than to consent to a particular investigator if they are both satisfied with him. The investigation is carried out for the purposes of the Court, and in the best interests of the children and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least”. [ 28 ] It is trite to say but a

Section 15 Report is invaluable when Ordered for the Hearing Judge, as the writer of such Report is often the eyes and ears of the children and their support network to assist the Judge in making a balanced decision in the best interests of the child or children and that information is fairly and accurately contained in the Report for the Court and perhaps to assist parties to resolve matters. Judges rely upon the writers of such Reports to ensure that the children are heard and/or that their support networks on both sides of the mother and father are heard and recommendations are made.

In doing so, Judges entrust the writers of such Reports to ensure that all information is fairly and accurately presented in a clear and unbiased manner. [ 29 ] The Report before me fails to do so and contains a number of misleading or inaccurate or partial statements that draw the reader of the Report to make conclusions that are faulty or not impartial in how a conclusion or finding was made for the Court to rely upon. For example, the Father testified that he furnished to Ms.

Fenton an entire copy of the MCFD file that was obtained by Court Order, including evidence of police attendance in October 2008 noting the Mother as the aggressor; however, Ms. Fenton testified that she simply “assumed” to the contrary, that it was obtained only in part through a Freedom of Information request and that parts of the file were missing. She was very incorrect. In the Report, Ms. Fenton notes (as in her testimony) that the Father advised her that the Mother lost custody to her two children from her first relationship, however, Ms.

Fenton chooses not to note (despite being advised) that the Mother lost custody of those two children by a contested Court hearing and that she impartially relied upon the maternal grandmother advising her that she had concerns about the Father’s parenting, despite the Mother losing custody and guardianship and despite the continued access that the Mother has to the two elder children being at the discretion of the maternal grandmother and under her terms and conditions by a Court Order. [ 30 ] To not give such careful consideration, equal balancing and comment and note such in the Report is an impartial bias on the part of Ms.

Fenton and clearly there was independent documentation to support what the Father had advised Ms. Fenton, however, she did not take such into consideration, which defies the very heart and soul of a

Section 15 Report which is to be impartial and weigh and consider all, particularly when there is independent documentation to correlate what one party may or may not be saying. [ 31 ] The Court was further troubled when asked in her testimony if she did not believe such information to be relevant, she testified

that such Court Order pertained to two children not the subject of this proceeding, so she did not deem it to be relevant. However, she did consider the statements of the maternal grandmother, thus conflicting with her own testimony in Court and the conduct of a parent is indeed very relevant and Ms. Fenton should have taken such independent documentation into consideration in her Report. I am troubled that Ms.

Fenton testified that she wished to take the “least intrusive” path, however, when there is MCFD documentation given to her and when she is advised that there is a Court Order in place, all of this documentation is extremely relevant. Further, Ms. Fenton testified and acknowledged that the Father provided to her the MCFD documentation, wherein the October 2008 incident reports the Mother as the aggressor, however, concludes that both parents were violent. There is no evidence to support such a finding in her Report. [ 32 ] The Father reported to Ms.

Fenton that the Child does not always eat properly including lacking in textured or harder foods, the Mother reported to the contrary. Ms. Fenton writes that she saw the Child eat fruit and thus concludes in her Report that the statements made by the Father had no foundation. Again, her comment is not impartial and troubling. Ms. Fenton testified that a portion of her findings and comments did include that the Father resides with his common law spouse and six children (not including the subject Child of these proceedings), so that travelling with two vehicles and that household is very busy and active.

However, she makes no effort to comment in her Report that the Mother is hearing impaired and that the boyfriend of the Mother is hearing impaired, so that when the Child spends time in her home, it is quiet. One extreme opposite to the other in each home, however, Ms. Fenton makes a point of writing about the active home of the Father but makes no such contrary notation about the home of the Mother. [ 33 ] Ms.

Fenton acknowledged that the Father provided her with emails about enrolling the Child in the [name of preschool] preschool/daycare wherein the Mother told her that she was not consulted and so she makes a notation of such in her Report; however, she makes no equal comment that the Mother failed to consult or advise the Father that she enrolled the Child thereafter in the [name] programme. The Report is biased in its preparation, in statements that are purposefully inserted and omitted in the Report, and thus it gives this Court limited weight in which to utilize, which is very unfortunate. Ms.

Fenton testified that she had no intention to be biased and while I do not find any purposeful bias in the evidence before me, I am troubled significantly that the manner in which information was collected and selected to be inserted or purposefully omitted in the Report gives the

Section 15 Report limited weight. [ 34 ] The role of the

Section 15 writer of a Report is to be the eyes and ears of the Court and to do so in a fair, unbiased and even- handed approach. I cannot conclude that this Report satisfies that requirement. It was biased in its contents and not impartial. The Report failed to present information in an even-handed approach. I am mindful of M.A.H.L. v K.M.L. , 2002 BCSC 1808 (hereinafter referred to as “ MAHL”), wherein Mr.

Justice Parrett notes the requirements and expectations that the Courts have upon the preparers of these Reports at Paragraph 79: The standards referred to in this passage are the Custody and Access Assessments Standard adopted by the College of Psychologists of British Columbia, but the principles referenced in the highlighted passages are not dependent on the Standards in question, for they are inherent in a person carrying out this type of investigation under order of the court, especially when that person can and should be viewed as an officer of the court.

As in MAHL , the Court similarly expressed concern about a Report written by the same writer and at Paragraph 81 noted: Nowhere within the report is there found a list of the documents reviewed by Ms. Fenton. The fact is that the statement quoted above is misleading for reasons that will become apparent. I, too, in the matter before me had similar concerns. The collection and dissemination of information for a

Section 15 Report is key and when a writer or preparer of such a Report receives documentation, it must be considered as a whole with all of the other information gathering processes undertaken for the Report. That was not done in this Report for my hearing. In MAHL, at Paragraph 82, the Court notes: The author of a

Section 15 report is writing for two difficult audiences; she or he is reporting to the court which appointed him or her; and, to the parties whom she or he has assessed on the court’s behalf. It is for this reason that the authors conduct must scrupulously maintain an approach that is balanced, fair and impartial. I am concerned that the writer of the Report did not act in a fair, even-handed and unbiased approach and thus the Report lacks the appropriate balance and fairness that a Court relies upon when receiving a

Section 15 Report to make a determination amongst all of the evidence presented. The bias in the Report comes from a weighing of evidence that was not neutral, a choice to not consider MCFD court released documentation, to not consider a Court Order after a contested hearing involving two other children, and a suppression of factual evidence which then tips the Report in favour of one party over the other in an unfair manner. [ 35 ] I am also mindful and guided by

Section 24 of the Family Relations Act , R.S.B.C. 1996 and amendments thereto (hereinafter referred to as the “ FRA”), wherein the Court must be mindful, consider and balance the best interests of the child, including the health and emotional well being of the child including any special needs, the love, affection and ties that exist between the child and others, the education for the child, and capacity of the party seeking such rights. [ 36 ] The Mother and the Father agree to joint custody and joint guardianship. Where they differ is upon who shall have the primary residence and who shall have the final decision-making ability as it pertains to guardianship. As flawed as the

Section 15 Report is, in coming to a conclusion that is not supported by all of the evidence submitted to the writer of the Report, what the Court can discern is that this Child is happy, healthy, and has the significant benefit of both an active home with his Father and that step-family and a more calming home with his Mother and that step-family. He has the best of both worlds. There was no evidence that he is not well loved by either parent or their family. There was no evidence that he is not cared for responsibly.

There was no evidence before me as to why the Mother’s access to her two older children remains determined by her own mother, save and except the Order in place. The home of the Mother offers to this Child a calm environment where he receives her undivided, one on one attention. The Mother’s common law boyfriend has his own children and this Child has the benefit of interacting with those children from time to time. The Mother’s home offers the Child his own room. All of this is in the best interest of the Child. The Father offers a home with acreage, a step-sibling, and five other children from Ms.

R.W.’s prior relationship. That allows the Child to actively interact with a number of children while in the home. All of this, too, is in the best interest of the Child. This Child derives the best of both worlds with homes that offer to him the

complete benefits of different spectrums of care by each parent. For that, the Child has benefitted as no where in the Report or in the trial was there any evidence of the Child suffering or not adjusting. What is key, however, is that by allowing the Child to remain in the daycare/preschool that his Mother has registered him in, that daycare/preschool for September 2012 becomes a “feeder” to the [name of elementary school]. By allowing the Child to remain in his existing daycare/preschool is a key factor for the best interest of this Child. His Mother’s home offers him one on one care.

His Father’s home offers him the interaction with siblings. What is key to remember, however, is that this Child also has his very own friends and network of friends to whom he interacts being his very own person, outside of both the Mother and Father, which is also very beneficial to the Child. Those networks of friends are in the same daycare/preschool as the Child. That daycare/preschool will feed into [name of elementary school] for kindergarten. It is in the best interest of the Child to allow him to continue with that network of friends now and for when he commences school in September, 2012.

The Mother offers a number of things in the best interest of the Child. So, too, the Father offers a number of things in the best interest of the Child. The key is that the Child also offers a number of things that being his own personal network of friends that is in his best interest and should be preserved. My Judgment allows the Child to retain his own network of friends to allow him to transition seamlessly. [ 37 ] Accordingly, the following Final Order is made:

a) The parties shall have joint custody of the Child, B.B.C., born August 12, 2007, by consent;

b) The Mother, E.S.C, shall have the primary residence of the Child;

c) The parties shall have joint guardianship of the Child which means: i. The parents are the joint guardians of the Child and of his estate; ii. If either parent dies, the remaining parent will be the sole guardian of the Child and of his estate; iii. The Mother, with whom shall have the primary residence designation, must advise the Father of any matters of a significant nature affecting the Child; iv.

The Mother, with whom shall have the primary residence designation, must consult with the Father about any important decisions that must be made concerning health (except emergency decisions), education, religious instruction, and general welfare of the Child; v. Both parents must try to reach agreement concerning these important decisions. The Father will have the obligation to discuss the foregoing issues with the Mother and each parent shall have the obligation to try to reach an agreement; vi.

In the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the Mother shall have the right to make such decision; vii. The Father may, under

Section 32 of the Family Relations Act, R.S.B.C. 1996 and amendments thereto, seek a review of any decision made by the Mother that is contrary to the best interest of the Child; and viii. Each parent will have the right to obtain information concerning the Child directly from third parties, including teachers, counselors, medical professionals, and third party care givers;

d) The Child shall reside each with the Mother and the Father for a rotating one week on and one week off basis, with such exchange to be each and every Sunday at 4:00 p.m. commencing March 18, 2012, at 4:00 p.m. Effective March 18, 2012, at 4:00 p.m., the Child shall reside with the Mother for a one week period. Effective March 24, 2012, at 4:00 p.m., the Child shall reside with the Father. This access rotates weekly thereafter;

e) The Father shall be responsible for picking up the Child from the residence of the Mother;

f) The Mother shall be responsible for pick up the Child from the residence of the Father;

g) Each of the parents will: − Put the best interests of the Child before their own interests; − Do everything necessary to ensure that the Child is disrupted as little as possible; and − Exchange information about the well-being of the Child, including progress in school, extracurricular activities, and any illnesses or injuries of the Child while in the care of the other parent;

h) Outside of the regular access schedule, the following access shall occur BY CONSENT: i. The Mother and the Father shall equally divide the school Spring Break such that commencing in 2012, the Mother shall have the Child during school Spring Break and in 2013, the Father shall have the Child during school Spring Break and such shall continue alternating thereafter; ii. Commencing 2012, the Father shall have Easter access to the Child commencing on Good Friday and returning the Child to the Mother on Easter Monday (if it is her regular access week).

Commencing in 2012, the Mother shall have Easter access to the Child commencing on Good Friday and returning the Child to the Father on Easter Monday (if it is his regular access week). This alternates each year thereafter; iii. The Mother shall have access to the Child every Mother’s Day from 10:00 a.m. to 7:00 p.m.;

iv. The Father shall have access to the Child every Father’s Day from 10:00 a.m. to 7:00 p.m.; v. The parties shall divide the summer access time such that commencing in 2012, the Mother shall have access to the Child for all of July and the Father shall have access to the Child for all of August. This alternates each year thereafter. The commencement date of the July Summer access shall include and commence when school breaks for the summer and the return for the August Summer access shall include up to the Tuesday morning when school recommences in September; vi.

Commencing in 2012, the Father shall have access to the Child each Thanksgiving from Friday after school until Monday and the Mother shall have access to the Child each Thanksgiving commencing in 2013 from Friday after school until Monday. This alternates each year thereafter; vii. For Family Day (February), commencing in 2013, the Mother has access to the Child and alternating years thereafter commencing on the Friday after school until the Monday; viii.

For the May/Victoria Day weekend, commencing in 2012, the Father has access to the Child and even years thereafter commencing on the Friday after school until the Monday; ix. Such further and other access as may be agreed upon between the Parties and such access not to be unreasonably withheld;

i) Both parents will work cooperatively and make a concerted effort to maintain respectful, collaborative and polite communications between themselves in the best interests of the Child and will refrain from any and all destructive, negative, or hostile communications, criticisms or arguments in front of the Child;

j) Both parents agree not to interrogate or badger the Child regarding the time spent with or information regarding the other parent beyond normal questions, and will not discuss with the Child any inappropriate adult or court/legal matters, and will agree on how any court related or difficult questions are to be discussed with the Child; and

k) Both parents will always speak to the Child about the other parent in a positive, respectful, honourable and constructive manner and will not denigrate, demean, blame, criticize or disparage the other parent to the Child in any manner regardless of their concerns; and

l) Both parents shall communicate with one another promptly both in email and text form.

m) Both parents shall place one another’s full name, address, and contact information on all medical, daycare/preschool, activity, and academic contact forms as the second contact person after the other party. [ 38 ] These are my Reasons. __________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia