L.W. v. E.W. and also E.W. v. K.M. and L.W. Date:, 2011 BCPC 420

Citation: L.W. v. E.W. and also E.W. v. K.M. and L.W. Date: 20110504 2011 BCPC 0420 File Nos: 99-861, 10-1949 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 File 99-861 L.W. AND E.W. File 10-1949 E.W. AND K.M. and L.W. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. M. MERRICK Counsel for L.W. and K.M.: D. Fairweather Appearing for E.W.: E.W. appeared on his own behalf Place of Hearing: Sechelt , B.C.

Date of Judgment: May 4, 2011 [ 1 ] THE COURT: This is my ruling. [ 2 ] S.C.W., who is 17 years old, and K.D.W., who is 13 years old, are the sons of L.W. and E.W. Mr. and Mrs. W. were married in 1990 and separated in 1999. When they separated in 1999, the parties entered into a separation agreement that provided that Ms. W. would have sole custody of the children, the parties would have joint guardianship, and Mr. W. would have reasonable and generous access as agreed between the parties. [ 3 ] In 2003, the parties agreed to vary that agreement.

The variation agreement remains in force and provides: the parties have joint custody of the children, S.C.W. and K.D.W.; that S.C.W. will be primarily resident with Mr. W. and that K.D.W. will be primarily resident with Ms. W.; each party is entitled to reasonable and generous access to the child not primarily resident with them. [ 4 ] I am cognizant of the fact that there are provisions with respect to maintenance, but in my introduction, it is not necessary for me to review that. [ 5 ] In 2008, Mr. W. suffered an injury and was off work almost three years.

During this time period, the children spent significant time together with both parents, and the variation agreement of 2003 was not followed. [ 6 ] After the separation between Mr. and Mrs. W., Ms. W. started a relationship with K.M. Ultimately, they started living together, and Mr. M. has shared in the parenting responsibilities of S.C.W. and K.D.W. when the children are at Ms. W.'s and Mr. M.'s residence. [ 7 ] In June 2005, Ms. W. and Mr. M.'s son M. was born. M. has resided with his parents since birth, and Mr. W. has had some limited contact with M. [ 8 ] Ms.

W. seeks to vary the 2003 agreement and seeks sole custody and guardianship of S.C.W. and K.D.W. She seeks to specify Mr. W.'s access and seeks maintenance for both children in accordance with the Child Support Guidelines, including a requirement that Mr. W. pay a share of the extraordinary expenses.

[9] Mr. W. seeks joint custody and guardianship of S.C.W. and K.D.W. That is, he wishes the custodial and guardianshiparrangement that is in place to continue. Mr. W. seeks at least a shared parenting plan or, in the alternative, primary residence of bothchildren with him. Mr. W. also seeks an order for access to M. That application is opposed by Ms. W. and Mr. M. [10] The outstanding questions for me to resolve are as follows: 1. What is the appropriate custody and guardianship arrangement for S.C.W. and K.D.W.? 2.

If joint custody and joint guardianship are appropriate, then is a shared parenting arrangement appropriate or should primaryresidence be with one of the parents? 3. If there is not a joint custody and joint guardianship arrangement, then I must resolve what is the appropriate access. 4. I must also resolve the issues of maintenance, including extraordinary expenses. 5. Finally, I must answer the question with respect to whether it is appropriate for Mr.

W. to have an order for access to M. [11] Prior to answering these questions, I will review the legal principles that guide me and make my findings with respect tocredibility. [12] In my review of the guiding principles, I have relied on two publications: first, the Annotated Family Practice 2010-2011published by the Continuing Legal Education Society of British Columbia, and the Family Law Sourcebook for British Columbia, againa publication from the Continuing Legal Education Society of British Columbia. [13] The guiding principles are as follows. [14]

Section 24 of the Family Relations Act guides me by stating that:

(1) When making, varying or rescinding an order . . . a court must give paramount consideration to the best interests of the child and, inassessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs andcircumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately. Subparagraph (1.1) of paragraph 24 of the Family Relations Act also guides me that: The references to "other persons" in subsection (1)(

c) and to "each person" in subsection (1)(

e) include parents, grandparents, otherrelatives of the child and persons who are not relatives of the child. 24(3) directs that: If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct ina proceeding respecting an order under this Part. And finally, subparagraph (4): If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent thatthe conduct affects a factor set out in subsection (1) or (2). [15] As Ms.

W. is seeking a variation of an existing agreement, I must also consider the following. [16] The leading case on variation of custody and access orders is Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. Inthat case, which involved a proposed move by the custodial parent, Justice McLachlin for the majority summarized the law as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. [Importantly] The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent'sviews are entitled to great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances ofthe case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. [17] With respect to the wishes of the child, I remind myself of the following. For a custody order relating to a teenager to bepractical, it must reasonably conform to the wishes of the child. When a child approaches adult years, the child must be deemed to beable to settle his or her future.

It is not fair to push a child to the point of rebellion. [18] With respect to the conduct of the parties, I remind myself that in blended families the conduct of the new partner may berelevant when considering the best interests of the child. I also remind myself that when the custodial parent has persistently attemptedto destroy the relationship between the child and the access parent or has tried to poison the child's mind about the access parent, it maybe in the child's best interests to change custody.

And finally, the court will take into account the personality, character, stability, andconduct of the parent, if appropriate: see Bell v. Kirk (1986), (BC CA), 3 R.F.L. (3d) 377 (B.C.C.A.). [19] I also take into account and remind myself of what is contained in the Family Law Sourcebook which I believe accuratelysummarizes the law or provides a

summary, an accurate

summary, with respect to joint custody. Starting from page 2-19 of thatpublication: Earlier cases that applied a more cautious approach, in which joint custody would not be awarded if the parents could not co-operate andcommunicate, were specifically disapproved of by the Court of Appeal in Robinson v. Filyk. The court stated that legal and factualpresumptions have no place in an inquiry into the best interests of a child, however much predictive value they may have.

Suchpresumptions, including the presumption that joint custody is appropriate only where there is co-operation between the parents, "detractfrom the individual justice to which every child is entitled." Since Robinson v. Filyk, the courts have imposed joint custody where one party opposes it and the co-operation between the parents isless than ideal. The fundamental issue is the best interests of the children. The willingness or unwillingness of parents to co-operate ismerely a factor to be considered by the court.

When joint custody is the status quo, the court's focus should be not on the parties'willingness to co-operate but on their real capacity to co-operate in order for the court to conclude that continued co-operation under jointcustody is no longer workable. In Massaar v. Klotild-Houser, [1999] B.C.J. No. 196, the court interpreted the decision in Robinson v. Filyk as holding that there is nopresumption against joint custody in cases of non-co-operative or non-communicative parties, but that the parties' inability to co-operateor communicate is still a relevant factor to be considered by the court.

Where a parent's conduct and actions toward the other parent are calculated to erode the relationship with the child, joint custody mayeven be awarded to balance and preserve the child's relationship with both parents. There may be cases in which joint decision-making is not appropriate, but neither parent should be preferred over the other. [20] So I take that into consideration in considering the outstanding questions to be resolved. [21] With respect to status quo, I remind myself that the court should not change the status quo if the children are happy in a stable,secure setting.

The need of young children to feel secure cannot be overemphasized: see Spencer v. Spencer (1980), (BC CA), 20 R.F.L. (2d) 91 (B.C.C.A.). [22] All of those legal principles and summaries guide me in my decisions that follow.

It is also necessary for me to resolve issueswith respect to credibility as there are conflicts in the evidence that I have heard. [23] With respect to credibility and with respect to the issue of credibility, my findings and determinations with respect to credibilityapply to each and every question that I am to answer, and to the extent that there are findings of facts made in that assessment, thosefindings of fact apply to each and every question that I must answer. [24] With respect to the issue of credibility, I determine as follows. [25] Ms. W. I found to be a candid and forthright witness.

I found that she was trying to be honest in her recitation of her evidence andthat she was attempting to be as accurate as possible.

[ 26 ] With respect to Mr. W.'s evidence, I found his evidence confusing and contradictory. It is also significant to note, and this is a factor both with respect to credibility and throughout my reasons, I have determined that Mr. W. has made to some extent a sacrifice, or as he described it, he has chosen to live his life with his kids. What I have determined with that as well, Mr. W., as he says, has chosen to live his life with his kids. He has lost his focus.

He has made it his primary focus to maintain his lifestyle with the children, and if there is a conflict between maintaining his lifestyle with the children and the best interests of the children, he chooses the option that maintains his lifestyle over the best interests of the children, and I find that that affects his ability to recall and relate his evidence and his accuracy. [ 27 ] Accordingly, I accept the evidence of Ms. W.; I reject the evidence of Mr. W. unless confirmed by other evidence; and where there is a conflict in the evidence between Ms. W. and Mr. W., I prefer the evidence of Ms.

W. [ 28 ] With the guiding principles that I have stated and my determination regarding credibility, I will now answer the outstanding questions. Question Number 1 [ 29 ] Has Ms. W. demonstrated that there has been a material change in circumstances affecting S.C.W. and K.D.W.? [ 30 ] I find that she has. My reasons are as follows. [ 31 ] With respect to S.C.W. and the issue of S.C.W.'s broken wrist and the disagreement that followed and the living situation that resulted, I accept Ms. W.'s assessment of that in that I agree that what follows from that is that Mr. W. made a determined attempt to undermine Ms.

W.'s parental authority. [ 32 ] I further find with regard to that that Mr. W.'s view regarding the pit bull dog and that Ms. W. should simply accept that S.C.W. has a pit bull and that S.C.W. and the pit bull should come over to the residence and to the effect that Mr. W. said that that should occur, I find that that was an inappropriate parenting decision on the part of Mr. W. I find that he was not serving S.C.W.'s best interests in trying to maintain the relationship with his mother, and that it is an example of Mr.

W. and his focus being on what is best for him in maintaining his lifestyle with the children, in this case S.C.W., rather than what is in S.C.W.'s best interests. [ 33 ] As well, I accept Ms. W.'s evidence supported by Mr. M.'s evidence and, to some extent, demonstrated in the courtroom by Mr. W., that Mr. W. has engaged over the past number of years in a behaviour in which he tries to intimidate Ms. W., bully Ms.

W., and try to coerce arrangements that are best for him, not the children, and I make those findings based on the body of evidence before me having regard to the determinations I made with respect to credibility. [ 34 ] With respect to K.D.W., despite Mr. W.'s attack on the

section 15 report, and I must add that I think it was appropriate for Mr. W. to apply and obtain the order to cross-examine Ms. Mussellam, the report's author, I do not agree, however, with Mr. W.'s argument that there are weaknesses or frailties with the report such that I should give it little or no weight. [ 35 ] Based on the evidence I have heard regarding the preparation of the

section 15 report, I find that I can give it weight, and I do, and to that extent I accept what it says with respect to K.D.W. and the difficulties and his wishes with respect to his father. As well, I take into account my findings as previously mentioned with respect to credibility and Mr. W.'s focus of putting his interests before the children. Question Number 2 [ 36 ] Having determined that the threshold has been met by Ms.

W., what is in the best interests of S.C.W. and K.D.W. having regard to all relevant circumstances relating to each child's needs and the ability of the respective parents to satisfy them? [ 37 ] I have determined that it is in each child's best interests that Ms. W. have sole custody and sole guardianship of S.C.W. and K.D.W. My reasons for that are as follows: 1. what I have determined as the undermining by Mr. W. of the children's relationship, in this case, the child's relationship S.C.W., with respect to his mother; 2. what I have found on the body of evidence as the lack of regard that Mr.

W. demonstrates for Ms. W.; 3. the bullying and intimidation by Mr. W.; 4. what I have found, placing his interests paramount to the children; 5. the

section 15 report; and 6. with respect to the issue of whether K.D.W. has a learning disability. While I am not necessarily satisfied on the evidence that K.D.W. has one, although I accept what Ms. W. has been told about that, I have found that Mr. W. has an absolute refusal to even consider the possibility that K.D.W. may have a learning disability. While Mr. W. may not agree, and it may be that K.D.W. does not, what I am taking from Mr.

W.'s position is his absolute refusal to even consider that as a possibility to the extent where he seems to be of the view - and I have made this finding - that if K.D.W. has a learning disability, in Mr. W.'s view, that means K.D.W. has a defect and Mr. W. is not prepared to accept at any level that his child has a defect. As I say, that is not my characterization of it, but that is my finding of Mr. W.'s characterization of the situation. [ 38 ] I also take into account what is contained in the

section 15 report that K.D.W. suffers when he spends longer periods of time with

his father and that K.D.W. does not want to do that, and Mr. W., I find on the evidence, does not seem to accept that or consider that. [39] I appreciate that S.C.W. is 17 years old. I appreciate that it is unusual for a court to make a custody and guardianship order withrespect to a 17-year-old. I appreciate that there may be some challenges in ensuring compliance with the order, but in my view, I thinkthe exceptional nature of this case requires that the order be made, because I have found that Mr. W. has made a determined effort toundermine S.C.W.'s relationship with his mother.

He has allowed a situation to exist with respect to S.C.W.'s living situation which, inmy view, is not a good parenting decision and is certainly not in S.C.W.'s best interests. [40] In my view, S.C.W. needs to be told of the order. He also needs to be told of the power of the court to impose a police assistclause with respect to custody. That is, S.C.W., I think, needs to be made aware that I can order the RCMP to attend at Mr. W.'sresidence to ensure compliance with this court order, and I say to you, Mr. W., you have an obligation to speak with S.C.W.

You need totry and help persuade S.C.W. that he must return to his mother's residence and be primarily resident with his mother. [41] So with respect to my order as it pertains to custody and guardianship, I order that Ms. W. shall have sole custody and soleguardianship of the children, S.C.W. and K.D.W., and that they shall be primarily resident with Ms. W. Question Number 3 [42] Having made the determination I have with respect to custody and guardianship, what is appropriate access for Mr. W.? [43] With respect to S.C.W., it is complicated somewhat by the actions of Mr.

W., and I also am cognizant of S.C.W.'s age being 17. [44] With respect to access as it pertains to K.D.W., I accept as appropriate and in the best interests of what is largely proposed by Ms.W. The following access provision applies both to S.C.W. and K.D.W. [45] Commencing May 1, 2011, Mr. W. shall have access to S.C.W. and K.D.W. for not more than three consecutive overnights inany eight-day period.

Access is to commence at 4:00 p.m. on the first day and end on the last day, if it is a school day, at the timeappointed for school to start, and if it is not a school day, then it is to end at 6:00 p.m. [46] With respect to Mr. W.'s holiday access, recognizing S.C.W.'s age and S.C.W.'s current situation, the following holiday accessorder applies only to K.D.W.: one week in the summer; one half of the school spring break except if Ms. W. will be on a holiday duringschool spring break, in which case Mr. W. shall not have access that year but that Ms.

W. shall not take holidays on two consecutivespring breaks. [47] With respect to Christmas access, the parties shall share equally Christmas school break except that Ms. W. may take K.D.W. ona Christmas holiday for no more than one week every other year commencing Christmas 2012, and if she does so, in the following yearMr. W. shall have access for one half of the school Christmas break commencing 4:00 p.m. on Christmas Day and continuing for notmore than one week. [48] I further order that Mr. W. shall sign any and all documents necessary for Ms.

W. to obtain a passport for S.C.W. and K.D.W. [49] With respect to the issue of maintenance, I have determined that Mr. W. is a resident of British Columbia for the purposes of theChild Support Guidelines. Based on the pay stubs Mr. W. filed and that have been marked as an exhibit, I have determined his Guidelineincome as follows. [50] I have taken his year-to-date income up to March 26. I have multiplied it by four. I have subtracted from that the total uniondues for that time period multiplied by four, and I have therefore determined that Mr.

W. has a Guideline income of $74,600. [51] Commencing June 1, 2011, and continuing on the 1st day of each month thereafter, Mr. W. shall pay to Ms. W. for themaintenance and support of both children, that is, S.C.W. and K.D.W., the sum of $1,115 per month so long as each is a child as definedin the Family Relations Act. [52] With respect to the issue of extraordinary expenses, I am only prepared to make an order of extraordinary expenses for K.D.W. Iam not prepared to make an order for S.C.W. based on his age and the fact that he is working.

With respect to extraordinary expenses,based on the financial statement filed by Ms. W., I am setting extraordinary expenses at the amount of $1,200 per year. I have calculatedMr. W.'s proportionate share at 60 percent. That is based on taking the income sworn to by Ms. W. in her financial statement. TheGuideline income that I have found, I have determined that Mr. W.'s proportionate share is 60 percent. [53] So with respect to extraordinary expenses, commencing June 1, 2011, and continuing on the 1st day of each month thereafter,Mr. W. shall pay to Ms.

W. for extraordinary expenses the sum of $60.00 continuing on the 1st day of each month thereafter until furtherorder of the court. [54] The final question to be answered is with respect to whether there should be an order for access to M. That is, should I grant anorder requiring specified access to M. for Mr. W.? [55] With respect to that, I am guided by the following: see Chapman v. Chapman, (BC SC), [1993] B.C.J. No.316. Access to third parties in the context of the child's best interests I must consider the following: 1. The onus is on the applicant, in this case, Mr.

W., to demonstrate that the proposed access is in the child's best interests. 2. The courts should be reluctant to interfere with the custodial parent's decision on access and should do so only if satisfied it is in thechild's best interests.

[ 56 ] In considering what I have determined based on my findings with respect to credibility and the evidence before me; the limited contact Mr. W. has had with M.; M.'s custodial parents' decision, that is, that they do not support an order for specified access; and the factors that I have relied on with respect to S.C.W. and K.D.W. and custody to the extent that those are general principles that can be applied to M., I have determined that it is not in M.'s best interests that there be an order for custody, and I dismiss Mr. W.'s application for access to M. There will be no order of access to M. [ 57 ] As Ms.

W. is represented by counsel and she is the successful party in this matter, Mr. Fairweather will draft the order for the court's review, approval, and signing, and I further order that Mr. W.'s signature to the form of the order that I have made today is hereby dispensed with. (REASONS CONCLUDED)