M.P. v. L.S. Date:, 2014 BCPC 355

Citation: M.P. v. L.S. Date: 20140516 2014 BCPC 0355 File No: 988 Registry: Valemont IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M. P. APPLICANT AND: L. S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Applicant: M. Chiu, articled student

Counsel for the Respondent: G. Petrisor Place of Hearing: Prince George , B.C. Date of Hearing: April 14, April 30, 2014 Date of Judgment: May 16, 2014 [ 1 ] The applicant, Mr. M. P., comes to court seeking an interim order for parenting time with his son K. M. P., born (d.o.b). [ 2 ] Mr. P. first came before the court on March 6, 2014 in Valemount. At that time his counsel told the court that Mr. P. had not had access to K. since November of 2013. The matter was adjourned to Prince George for a hearing on an expedited basis. FACTS [ 3 ] Mr. P. had a relationship with K.’s mother L. S. that began in 2010 when Ms.

S. was in grade 12 and finishing high school. They later cohabited together from October 2012 until September 2013. [ 4 ] Mr. P. works in the Fort MacKay area of Alberta. He works one week at the job site beginning on a Wednesday and ending the next Tuesday. At the end of work on Tuesday he commutes back to Valemount to see his son. He usually arrives back in Valemount at around 2:00 am on the Wednesday morning. [ 5 ] I note from submissions that Mr. P. travels on Tuesday to go to Fort MacKay. He must be at work by 0900 Wednesday morning.

He then works until the end of shift the next Tuesday and drives from Edmonton to Valemount. [ 6 ] The respondent, L. S., opposes any increased parenting time for Mr. P., save and except on a 42 day cycle based upon Mr. P.’s time in Valemount and with parenting time that works around her work

schedule at M.’s T. S. [ 7 ] I note there are mutual accusations of acts of violence by both parties. The violence that has arisen has mainly been in the form of threats and related to Mr. P.’s frustration in trying to arrange parenting time. Still, this behaviour is not to be tolerated. From what I can infer from the evidence, these behaviours relate more to the parents’ level of maturity than anything else. [ 8 ] In addition, Ms. S. testifies that Mr. P. is too often intoxicated because he drinks too much beer and moonshine. Ms. S. admits, however, that she smokes marijuana even when she is with K.

She has also admitted to using the drug while she was pregnant, and to driving with K. in the vehicle after smoking a joint. [ 9 ] It is clear that neither parent has much trust in the other. [ 10 ] Ms. S. argues that Mr. P.’s application is a ruse to achieve a 50-50 share of parenting time so as to not have to pay child support. [ 11 ] Ms. S. has a new relationship and obviously feels that the Mr. P.’s demands to be informed as to K.’s constant whereabouts, is an effort to keep tabs on her activities. [ 12 ] That being said, Ms. S.’s mother, Ms. S. S(2), testified that K. is always happy and excited when Mr.

P. picks up his son at her home. [ 13 ] Mr. P.’s mother, Ms. G. P. testified that Ms. S. is a good mother and that Mr. P. and Ms. S. are both good parents - “they are ordinary people with their own issues” LEGAL AUTHORITIES [ 14 ] In citing the decision of H.N.M. v. S.C.J.K. , 2014 BCSC 231 , a decision of the Hon. Mr. Justice Rogers, Mr. P.’s counsel argues the respective tempers of the parents are an important factor in deciding parenting time and that the more even-tempered parent is more equipped to handle parenting responsibilities; as Mr.

Justice Rogers states at paragraphs 51 and 52: [51] I find that of the two parties, Ms. M is the one that is better able to deal with setbacks, challenging behavior or situations, and the vicissitudes of life. For that reason I find that KK is less likely to be subjected to temper tantrums, yelling, shouting, door slamming, and stomping out of the house if she is primarily in the care of her mother. [52] The real conundrum in this case is not, therefore, with whom KK should primarily reside.

Her mother is best able to carry out parenting responsibilities and is less likely to expose KK to negative acting out behaviors. KK should be primarily in Ms. M’s care. The difficultly in this case is whether KK, and by necessary extension Ms. M, should be ordered to live in Chetwynd. [ 15 ] It is argued I should conclude that Mr. P. is the more the emotionally temperate of the parents. Mr. P.’s past behaviour mitigates against this argument. [ 16 ] Ms. S. does not have the above described temperament either. I note from the evidence she has been physically assertive in her dealings with Mr. P.

At one point while she was being cross examined on her behaviour, her response was that Mr. P. “called off” relationship. From that I infer she felt justified dictating to Mr. P. the parameters of his parenting time with his son. In other words, she often puts her interests before the best interests of K.

[17] I believe I have to consider the broader legal principles in determining this issue. [18] The case of N.C.R. v. K.D.C., 2014 BCPC 9 , 2014 BCPC 0009, a decision of the Hon. Regional Administrative JudgeM. J. Brecknell, also concerns parenting time between parents. In reviewing the factors Judge Brecknell notes at paragraph 111:

e) the child's need for stability, given the child's age and stage of development - the tender years doctrine is now a discredited legalconcept. Parents are, in general, considered to be equally capable of providing appropriate and nurturing care to a child.

However, asdescribed in section 40 (4) of the FLA no particular arrangement for parenting time or responsibilities is to be presumed in determiningthe best interests of the child. [19] As Judge Brecknell further notes at paragraph 125, and I believe that this is applicable to the case before me: The proposals made by N.C.R. and K.D.C. concerning parenting time speak more their animosity towards each other and perhaps theirdesire to outdo the other that it does to address A.D.R.’s best interests. [20] Based on those comments, I find the 42 day

schedule to be unwieldy and prejudicial to K.’s rights to have meaningful parentingtime with his father. [21] At the same time, I find that K.’s parenting time with his father should be just that - time with his father. I do not accept thesuggestion made by Mr. P. that K. should be in the care of a third party while Mr.

P. travels to and from Fort MacKay in order to affect aseven day/six night parenting time. [22] I have looked at this case as considering K.’s best interests, and not those of his parents and their mutual recriminations. [23] Again from Judge Brecknell: Children are not property to be shared in a fashion that best suits one parent or the other. They must be cared for in circumstances thatenhance their stability and comfort and meet their best interests DECISION [24] My order is interim and without prejudice. Mr.

P., who currently has parenting time three nights a week, shall immediatelyhave parenting time with K. four nights a week during his time in Valemount, which will increase to five nights a week on June 1, 2014. [25] Neither Mr. P. nor Ms. S. will consume drugs or alcohol during their parenting time with the K. [26] If Mr. P. or Ms. S. remove K. from a 100 km radius of Valemount, they will inform the other parent. [27] Ms. S. will file a financial statement in Form 4 by May 30, 2014. I note that there is already an order in place for Mr.

P. toprovide a financial statement. [28] All these matters are adjourned to the family case conference set for July 10, 2014. R. W. Callan, PCJ