R.W. v. B.A. Date:, 2015 BCPC 58

Citation: R.W. v. B.A. Date: 20150117 2015 BCPC 0058 File No: 3401 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R. W. APPLICANT AND: B. A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: D. Kavka Counsel for the Respondent: M. Reed Place of Hearing: Burns Lake , B.C.

Date of Hearing: December 12, 2014 Date of Judgment: January 17, 2015 Background [ 1 ] This interim application was brought by R.W. for an order concerning parenting time, parenting responsibilities, who shall be the primary care-giver, police assistance to enforce the court’s orders and a protection order. [ 2 ] The parties have one child J.G.M.W., born December 17 th , 2004. [ 3 ] The parties physically separated in June 2014. There was an informal sharing of parenting time. In July 2014 the situation changed when R.W. started a new relationship with C.H.

Since then he has had infrequent and irregular time with J.G.M.W. [ 4 ] This court file was commenced in July 2014.

There was a Family Case Conference on August 29 th , 2014 that resulted in a consent order that RW have parenting time with J.G.M.W. “to include 10:00 AM to 4:30 PM at the Native Development Corporation in Burns Lake Mondays through Thursdays and such other locations and times as may be agreed to between the parties.” There were other conditions aimed at minimizing the exposure of J.G.M.W. to open hostility of his parents. [ 5 ] The August 29 th order was not complied with and R.W. brought another application for equal parenting time in September.

Due to a lack of court time that application was not heard until October 29 th , 2014. [ 6 ] On October 29 th , 2014, the earlier order for parenting time was varied to specify times for the following two weeks and then granting R.W. parenting time each weekend from Friday at 3:00 PM until Sunday at 7:00 PM commencing November 14 th , 2014. [ 7 ] B.A. frustrated the ordered parenting time on October 31 st through November 2 nd , 2014.

R.W. did exercise the ordered parenting time November 7 th , through November 9 th 2014. [ 8 ] R.W. and C.H. allege that B.A. assaulted R.W. when he attempted to collect J.G.M.W. from her residence. She denies this. The RCMP placed B.A. on an undertaking with a condition that she “abstain from communicating directly or indirectly with R.W. and C.H. or from going to any place they may reside, work or be except in accordance with the following conditions: neutral third party for exchange of custody with J.G.M.W.” That charge assessment is still with the Crown Counsel.

Since that date, R.W. has had no parenting time arranged through a third party as none could be agreed upon. He has had parenting time after collecting J.G.M.W. directly from school on December 5 th , 2014. [ 9 ] C.H. also alleges that she was assaulted by B.A. on October 31 st , 2014 at a Halloween party.

That is also denied by B.A. [ 10 ] R.W. also alleges that J.G.M.W. has told him that B.A. has told him that he does not have to listen to his father. [ 11 ] R.W. also alleges that in one particular incident B.A. told J.G.M.W. to call 911 because he was denied use of a laptop while with his father on the weekend of Nov 7 th , 2014.

Counsel for B.A. suggests that J.G.M.W. phoned 911, not because of the laptop but because he felt unsafe. [ 12 ] B.A. alleges that R.W. is a violent person, often consumes large amounts of beer and smokes marijuana in the presence of J.G.M.W. [ 13 ] B.A. denies that R.W. has ever been an active and equal parent to J.G.M.W.

Issues [ 14 ] The first issue is whether R.W. and C.H. have established the need for protection orders under s183 of the Family Law Act . [ 15 ] The second issue is whether R.W. has established whether a change in the “primary-caregiver” and the resultant change in parenting time and parenting responsibilities are in the best interests of J.G.M.W. [ 16 ] The third issue is whether the evidence before the court requires some consequences for B.A.’s non-compliance with earlier orders. [ 17 ] These three issues must be considered together in determining the best interests of the child J.G.M.W. Analysis [ 18 ]

Section 37 of the Family Law Act requires the court to consider only the best interests of the child. Reasonable contact with both parents is in the best interests of the child. Exposure to conflict and in particular violence between the parents is not in the best interests of the child. Stability is in the best interests of the child. [ 19 ] It is obvious that communication between the parents has broken down. While the facts are in dispute, it is clear that the exchange of J.G.M.W. has the potential to devolve into argument and possibly violence. [ 20 ] R.W. suggested in the alternative that he should have compensatory parenting time with J.G.M.W. to make up for the time he

has missed since August 29 th , 2014. [ 21 ] In court during the application the parties were able to agree that F.B. could act as the neutral third party. They also agreed that they could comply with the October 29 th order concerning the exchange of J.G.M.W. for his birthday on December 17 th and the equal sharing of the Christmas school break and the resultant exchanges of J.G.M.W. [ 22 ] After the hearing but before this decision was rendered R.W. and C.H. each filed an affidavit on December 15 th , 2014. On December 17 th , 2014 they each filed a drug screen report from the hospital.

As B.A. and her counsel who was out of country had no opportunity to respond after a telephone appearance with Ms. Kavka and Mr. Reed, this court ordered that B.A. had until January 16 th , 2015 to file an answering affidavit. B.A. did file a short affidavit on January 16ht, 2016. This court has considered all this material in addition to the material and submissions made on December 12 th , 2014. [ 23 ] The affidavits of R.W. and C.H. indicate that they were unable to reach F.B. who was the agreed third party.

Further the affidavits state that other people in the community to who were contacted to assist as third parties advised that they had heard rumours that R.W. was under house arrest and not allowed to be in the presence of J.G.M.W. In addition, those affidavits indicated that the school now refuses to allow R.W. to collect J.G.M.W. from school on Fridays.

The filed drug screens show no drugs were detected for a number of different drugs including THC the active ingredient in marijuana. [ 24 ] B.A.’s affidavit simply states that R.W. smokes marijuana after work and during weekends and that J.G.M.W. had bedbug bites which she implies occurred at R.W.’s residence. [ 25 ] In order to make a protection order under s183 of the Family Law Act the court must determine on the balance of probabilities that family violence is likely to occur and the other family member is at risk. I am satisfied that the applicants have met that test.

Accordingly I will grant a protection order in favour of R.W. and C.H. [ 26 ] I do not agree that to only vary the parenting time is tantamount to condonation as suggested by Ms. Kavka. Both counsel referred to a misunderstanding between the parties involving an extract from Mr. Reed’s notes in possession of RW. Accordingly, I am going to vary paragraph 1(

g) of the order of October 29 th as it concerns future parenting time. The balance of that order and the August 29 th , 2014 order remain in effect. The division of parenting time I have determined reflects a consideration of both best interests of the child J.G.M.W. and some compensation for the parenting time missed by R.W. The following order also attempts to minimize contact between the parties by having each parent collect J.G.M.W. from school after class.

Decision [ 27 ] As this matter is set for a hearing in February 2015, all of this order is on an interim without prejudice basis. [ 28 ] R.W. shall have parenting time from 3:00 PM each Friday until 3:00 PM each Monday. B.A. shall have all other parenting time.

For clarity, R.W. shall collect J.G.M.W. from school after class on Friday afternoon and B.A. shall collect J.G.M.W. from school after class on Monday afternoon. [ 29 ] Both parents shall have the right to contact and obtain information from J.G.M.W.’s school, teachers, and doctors. [ 30 ] F.B. shall act as the independent third party to facilitate any communication between the parties concerning the exercise of parenting time and if necessary to supervise any such exchange of J.G.M.W. [ 31 ] If F.B. is unable to supervise any exchange of J.G.M.W. not occurring at school then J.G.M.W. shall be exchanged between the parties in the parking lot of the RCMP detachment in Burns Lake, B.C. [ 32 ] The RCMP shall assist R.W. to exercise his parenting time if B.A. fails to comply with this order. [ 33 ] There shall be a separate protection order under s183 of the Family Law Act .

It shall have the following conditions:

a) Under s183 (3)(

a) B.A. shall not have contact or communicate directly or indirectly with R.W. except through an independent third party to facilitate parenting time with their son J.G.M.W.

b) Under s183 (3)(

a) B.A. shall not have contact or communicate directly or indirectly with C.H.