D.N.D. v. W.S.C., 2013 BCSC 336

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.N.D. v. W.S.C., 2013 BCSC 336 Date: 20130125 Docket: E20550 Registry: Cranbrook Between: D.N.D. Claimant And W.S.C. Respondent Before: The Honourable Mr. Justice Barrow Oral Reasons for Judgment In Chambers Counsel for the Claimant: S.G.L. Label Counsel for the Respondent: A.S.K. Wormeli Place and Date of Trial/Hearing: Kelowna, B.C. January 24, 2013 Place and Date of Judgment: Kelowna, B.C. January 25, 2013 [ 1 ] THE COURT: The respondent has applied to vary the order of Pearlman J. pronounced December 13, 2010. That order was made on consent.

It grants the claimant sole custody and sole guardianship of the parties' only son, L.D. [“L”]. L was born on March 19, 2010. He was nine months old when the consent order was granted. He is now almost three. The order provides that the respondent was to have access to L for six hours on either Saturday or Sunday every second weekend. It also provides that his access "shall gradually increase and shall include telephone and computer/Internet access as [L] grows older".

Further, the order provides that the respondent's access is to be exercised in Cranbrook where L and his mother live. [ 2 ] The respondent seeks to vary that order by having the court substitute a shared custody and guardianship regime. In particular, he seeks joint custody and joint guardianship with L spending equal time with each of his parents on a two-week rotating basis. That is to say, he would reside with his mother for two weeks in Cranbrook and then reside with his father for two weeks in Camrose, Alberta, where the respondent lives and works.

His alternative position is that he have access from Thursday evening to Monday morning every second weekend with that access taking place in Camrose. [ 3 ] The claimant opposes any change to L's parenting, custody and guardianship. She argues that there has not been a material change in circumstance sufficient to trigger the court's jurisdiction or authority to vary a comprehensive final order the parties agreed to just two years ago.

Further, she argues that if there has been a material change, no change should be made because neither change proposed by the respondent is in L's best interest. [ 4 ] There is a procedural order that the respondent seeks and to which the claimant does not object. This file originated in Cranbrook. The application at hand was spoken to in Kelowna because the parties were unable to secure court time in Cranbrook until much later this spring.

The inability to secure court time is due partly to the limited sittings available in Cranbrook and partly to the fact that the resident judge in Cranbrook has indicated that he should not hear this case. It may be that this position is due to the fact that the claimant's father is a lawyer, who has long practiced in Cranbrook and may still be practicing there. Whatever the reason, the upshot is that court time is difficult to arrange.

The order the respondent seeks is that if the parties cannot obtain a court date for a non-urgent matter in Cranbrook sooner than three weeks after they could obtain a date in New Westminster or Vancouver, then either party be at liberty to set such an application for a hearing in either of those two registries. Counsel for both parties practice in the Lower Mainland. Ms. Label, on behalf of the claimant, agrees that such an order is sensible in these circumstances and the order is granted. [ 5 ] Before turning to the contentious issues, I will set out some of the background.

I will do that in more detail than at first blush might seem necessary. I do so, however, because it is the claimant's position that the respondent's application is motivated not because he thinks it is in L's best interest, but rather as a step in a broader strategy he has to secure custody of L or, failing that, to punish the claimant by pursuing costly applications. Whatever the respondent's motives, the background is telling on what is and what is not in L's best interest and whether there has been a material change of circumstance.

Background [ 6 ] The respondent is 47 years old and a veterinarian by profession. The claimant is 28 years old. She has a Bachelor's degree and is presently working towards a Master's degree in Adult Education through St. Francis Xavier University in Nova Scotia. She is taking this program remotely, that is to say, by distance education. The parties were never married. In fact, they only resided together from April 2009 to July 2009 in the respondent's home in Airdrie. During that time, the claimant became pregnant and L was born the following spring.

Upon their separation, the claimant moved back to Cranbrook, her hometown. She lives there today with L. The respondent purchased a veterinary practice in Camrose where he now lives. He is in a common-law relationship with TS, and together they have a son, J, who was born May 10, 2012. [ 7 ] To describe the parties' relationship following their separation as acrimonious would be to understate the level of hostility that the respondent displayed towards the claimant. Upon learning that the claimant was pregnant, he wanted her to end the pregnancy.

He was concerned about what he regarded as the "Draconian child support laws" and considered the claimant to be "a fucking glacier on top of him". By the fall of 2009, he no longer wanted her to end the pregnancy, but hoped that the birth process would be as painful as possible for her. In a vile e-mail sent December 9, 2009, he expressed his heartfelt desire that she suffer during the birth. He wrote that she was, in his view, "a foul insane bitch", and "the single most disgusting creature" he had ever met. He said that: I will have my son.

Neither you nor your daddy or anybody else will stop it. [ 8 ] This was not an isolated communication. Ten days earlier on November 30, 2009, he wrote that: If it's a fight you want and your family wants, then you will now get it. I will never stop. I will never forgive. If [L] is mine, then you are about to enter two decades of hell. Nor were his communications limited to the claimant. On March 5, 2010, he wrote to her father that he was not prepared to have his son "solely in the hands of persons of questionable mental status".

He said that if he and the claimant were unable to agree, then he promised a "lengthy battle that will drain your retirement savings". He wrote that he was talking about "years of distress" and said: I don't quit and I do not stop. I will not give up my son to you people. [ 9 ] It is the claimant's contention that the present application and the four that have preceded it are simply the fulfillment of his threat and have little to do with the pursuit of L's best interest. [ 10 ] This action was commenced in April 2010. Shortly after, the respondent applied for a s. 15 report.

His application was heard by Sewell J. in July. It was dismissed with costs. In doing so, Sewell J. said that he was: …very concerned about the content of emails that [the respondent] had sent to the plaintiff in late 2009. [ 11 ] Within two months of Mr. Justice Sewell's remarks, the respondent was again sending hostile and disrespectful e-mail communications. There was a problem with access in early September 2010. The parties were trying to work it out through an exchange of e-mails. The claimant's computer malfunctioned and she, therefore, used her father's computer at his law office.

The claimant's e-mail was entirely civil, and in it, she explained why she was using her father's e-mail. The respondent replied writing: I have made it very, very clear that I wish no correspondence in any way with [P.D.] [the claimant’s father]. I will not be communicating in any further way with this address. [ 12 ] He then wrote that he thought the claimant's father had interfered in the matter and that that had to stop. The access problem had arisen, in part, because of the fact that the respondent had a cold and he did not want to expose L to that condition.

The claimant's last e- mail to him was to the effect that perhaps the access should simply take place the following weekend, some four days hence. The respondent replied with the above e-mail and that e-mail was sent at 9:30 p.m. When he did not receive a response that evening, he reported the matter to the police. Precisely what he told the police is not in evidence, but whatever it was, it prompted the police to call the claimant’s residence at six o'clock the next morning inquiring about the wellbeing of L. [ 13 ] It is as against this background that the consent order of December 13, 2010, came about.

It was made just before the matter was set to proceed to trial. The respondent was represented by counsel. In addition to the provisions dealing with custody and access, the order restrains the respondent from molesting, annoying or harassing the claimant. When the order was pronounced, the respondent was living and working in Camrose and the claimant was living in Cranbrook with L. There is no evidence of further inappropriate communication in 2011. The respondent did, however, apply to reduce the amount of child support he was paying.

His application was dismissed by McEwan J. on October 18, 2011. [ 14 ] In 2012, matters deteriorated. In June of that year, Ms. Mallard, a retired teacher who lives on a rural property next to the claimant's parents' home, had an encounter with the respondent. She has deposed that she was approached by a man she did not know, who had a child with him. Because Ms. Mallard was on her way out, she told the man to come back the next day if he wished to speak to her. The respondent returned the next day again with L. He told Ms.

Mallard that he had hired a private detective and wanted permission for the detective to videotape the claimant’s residence from a vantage point on her property. According to Ms. Mallard, the respondent said he was collecting evidence so that he could obtain custody of his son from the boy's mother, who he described as unfit. Ms. Mallard said she preferred not to get involved and refused permission. The respondent persisted and Ms. Mallard continued to refuse. She thought him rude "in his demeanour". Ultimately, he "left in a huff". All of this took place in L's presence.

The respondent acknowledges that he went to Ms. Mallard's residence and made the request. He denies that he said that the claimant was unfit. [ 15 ] By the terms of the consent order, the respondent is entitled to obtain: …information about [L] directly from third parties including doctors, dentists, counsellors, caregivers, and teachers to a reasonable

extent. Pursuant to this authority, the respondent asked L's general practitioner for his medical records. This request was first advanced in April2011. According to the message taken by Dr. Ingram's assistant, the respondent was advised that no records would be produced until heprovided a copy of the court order. He had his lawyer fax a copy of the order. He spoke to Dr. Ingram later that day seeking a copy of L'sentire medical file, including material relating to the C-section by which L was delivered into this world. Dr. Ingram spoke with theclaimant and her parents. She learned two things.

First, there was a restraining order, and thus the records would have to be redacted toprotect any information from being disclosed which ought not to be disclosed. Second, she was told by the claimant not to provide therecords. She honoured that request. She did not respond to the respondent's further inquiries, which included several letters from hislawyer. [16] By the summer of 2012, the respondent's requests had become increasingly strident. On July 30, 2012, he called to adviseDr. Ingram that she had better "get her ass in gear and get the records sent".

On August 8, 2012, he called to advise that he would "haulher ass up to the Medical Board". It is unfortunate that Dr. Ingram and her staff were put in this position. I accept her evidence that shefound the respondent's behaviour threatening and offensive. For his part, the respondent has deposed he did not intend offence, but howhe can assert that given the language he used is difficult to understand.

All of that said, he was owed at least the courtesy of a reply, evenif that reply was to say no because of the instructions her patient had given her. [17] The respondent's response to a fall that L had in March 2012 is also telling. L fell and chipped a tooth and sustained a minor cutto his gum. The claimant reported this to the respondent in one of the weekly reports she is providing to him. She told him that she wasarranging a dental appointment. She took L to the appointment and informed the respondent that the dentist said L was fine, and theinjury was nothing to be concerned about.

The respondent wrote demanding to know the name of the dentist, and wanted to know thenames of any witnesses to the mishap. He wanted to know the claimant's address and who was living at her residence. The respondentsaw L on an access visit shortly after the mishap. In his opinion, L had sustained: …at a minimum, a major deforming injury which may or may not be permanent to his three lower teeth. There may be dental bony injurywhich I could not appreciate without proper dental instrumentation.

He wanted the name of the dentist and wanted it "before any restorative attempts are made" so that he, as the child's father, could"properly evaluate avenues of treatment". [18] This event is consistent with the respondent's overall approach to L's healthcare. In August 2010, L had a temperature. Theclaimant advised the respondent of this. His response was that L should be put on antibiotics and that the claimant should not let some"undereducated wet behind the ears GP" suggest otherwise. In July 2012, L had a problem with one of his ears.

The claimant informedthe respondent of this and this, too, triggered a cavalcade of e-mails demanding to know the names of the doctors involved, who hisdentist was and, oddly, who was teaching him music. [19] In July 2012, the condition of the respondent's mother, who was ill, deteriorated. The respondent wanted to take L to Manitobato see his grandmother and asked that the access regime be altered to accommodate that. He wanted to take L on two successiveweekends.

The claimant responded that she was willing to accommodate the request for one of the weekends, but that she had a pre-existing engagement on the other. The respondent replied that he would hold her "personally responsible" if his mother died, presumably,before L had a chance to visit her. [20] Mrs. D, the claimant's mother, sometimes accompanies her daughter when the parties meet to exchange L either before or afteraccess visits. The respondent has taken to videotaping these exchanges. He continues to do this notwithstanding the claimant's requestthat he stop.

She has asked him in writing and told him that she has no objection to him audio taping the events, but she does object tohaving her son witness his father carrying on in this way. She has also pointed out to him that she objects to the way he videotapes,finding it aggressive or intimidating. In May 2012, he was doing so in what Mrs. D thought was an aggressive manner and she, too, askedhim to stop. He simply pointed the camera closer to her face. [21] On an earlier access exchange in the presence of L, the respondent had raised his middle finger to Mrs. D. This was not anisolated event.

During an access exchange in December 2012, just last month, he directed the same gesture towards L's mother. Therespondent has deposed that he was careful when he did it, so as to shield it from L's view. L was present at the time. [22] In March of 2012, the respondent was walking around the claimant's house at seven o'clock in the morning with a camera. Shesaw him and was upset. She was upset because she had tried to keep her address secret. She had done that because she feared preciselywhat was taking place that very morning.

She was also upset simply by the fact that he was doing what he was doing at that time of day. [23] In September of 2012, the respondent brought a second application to have his child support reduced. That application was alsodismissed. The present application followed two months later. Discussion [24] With this background in mind, I turn to the issues. The first issue is whether it is necessary for the respondent to show amaterial change in circumstance, as that phrase is explained in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27.

In thatcase, McLachlin J. (as she then was), writing for the majority at paras. 10 and 12 said this: [10] Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change inthe circumstances of the child since the last custody order was made... [11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as anindirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original

judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued... [12] What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way...Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

"What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place"... [ 25 ] Although Gordon v. Goertz involved a mobility application under the Divorce Act , the court's conclusions on the question of what constitutes a material change in circumstances apply to the variation of any final custody order, whether made under the Divorce Act or the Family Relations Act . [ 26 ] The first issue is whether it is necessary for the respondent to show a material change in circumstances touching on the care of L.

There is no question that his first choice of relief, namely, a change from sole to shared custody and guardianship and from exclusive to shared parenting, is a variation that can only be considered if there has been a material change. The issue is less clear in relation to his second alternative, which might properly be characterized as an expansion of the access he is now exercising. [ 27 ] As to the application for shared custody, I am not satisfied that the respondent has established a material change in circumstance.

If I am wrong on that determination, I would not make the change he seeks, in any event, based on the merits. The changes to which the respondent points are these. L is now almost three, and when the order was made, he was just short of his first birthday and was being breastfed. Second, the respondent has now had two-and-a-half years of experience caring for L. Third, he is now in a new relationship and has a son who is L's half-brother.

Finally, he has now settled into a veterinary practice in Camrose; whereas in December 2010, while he was working there as a locum, his circumstances had not settled. [ 28 ] None of these changes meet the definition of a material change as explained in Gordon v. Goertz . The respondent was regarded as a suitable parent at the time of the order. He remains a suitable parent today. The child's needs have changed, perhaps in a fundamental way given that L is now a toddler and not being breastfed, but that change was within the reasonable contemplation of the parties at the time the order was made.

I recognize that the fact that children mature and grow up is necessarily anticipated and thus, strictly speaking, might never be said to be a material change. I do not subscribe to that view, nor does it accord with the underlying policy driving the legislation. In the matter at hand, however, the parties expressly turned their minds to what would happen as L matured. The order provides in paragraph 5(

h) that access will increase "as [L] grows older and as may be in [L]'s best interests". It cannot be said that L's development and his present situation were not within the contemplation of the court at the time the order was made. Clearly, it was and the order addressed how that was to be dealt with. [ 29 ] As to the respondent's new relationship, that, too, was in existence at the time of the order. He describes it as a relationship of some nine years. [ 30 ] The fact that he has another child is not a material change either.

Generally, the birth of half-siblings is not a material change in the conditions, means and circumstances of the child at whose home the siblings do not reside. Counsel argues that this point was made by Saunders J.A. in Rasaiah v. Rose , 2004 BCCA 250 . In that case, the court was concerned with children who were born in Maryland and had moved to British Columbia with their mother. Subsequent to the move, their mother had given birth to two more children. It was the birth of those children that the mother argued amounted to a material change.

The variation being sought in that case was to an order which conferred jurisdiction over the dispute on the Maryland court. It was in that context that Saunders J.A. wrote at paragraph 17 that the birth of two siblings was not a material change in circumstances: vis-à-vis, the Maryland-born children. I do not take that case as finding as a matter of law that the addition of siblings into a family mix can never amount to a change sufficient to engage the court's jurisdiction.

In any case, the birth of L's half-brother in this case is not a material change in L's circumstances or his needs, nor does it affect his father's ability to care for L or to exercise access. [ 31 ] Turning to the alternative relief the respondent seeks, I am not satisfied that it is necessary to show a material change in circumstance before this change can be addressed on its merits. As noted above, the order contemplates access increasing over time as L grows up, assuming increased access is in his best interest.

If the claimant simply refused to increase the respondent's access on the basis that she did not consider it to be in L's interest, the respondent would be at the mercy of her determination of that issue if he were required to first prove a material change in circumstance before he could seek to have a court pass judgment on the matter.

While the order does not expressly provide for a review, I am of the view that that is what the parties had in mind by including a term which permitted an application to the court to increase access as L matured. [ 32 ] Before dealing with the proposed change, I will set out what has been happening to this point. The claimant has increased the respondent's access to L. First, she expanded the access from five hours every other Saturday or Sunday to overnight visits every other week from Saturday morning until Sunday at 4:30 p.m.

Then she allowed access to include statutory holidays if those holidays fell on either a Friday or a Monday following a regular access visit. In addition, she agreed to extend access five days in the summer of 2012 and this past Christmas. Those visits, she agreed, could take place at the respondent's home whereas the other visits have all taken place in Cranbrook in accordance with the order. All of these changes were agreed to by the claimant without the necessity of the respondent applying to the court.

In view of the above, therefore, the issue is whether it is in L's best interests to make the change that the respondent proposes. [ 33 ] I digress at this point to deal with the two-week rotating parenting regime that the respondent proposed. While not legally necessary, shared parenting regimes are almost always ordered in the context of shared custody and guardianship. I would not order shared custody or guardianship in this case.

There is a long history, a history that predates L’s birth, of aggressive and entirely inappropriate communication and other behaviour by the respondent directed toward the claimant and her family. I acknowledge that he has apologized for his behaviour, but nevertheless it continues. I have in mind the fingering incident last month. I also recognize that joint custody and guardianship can be appropriate notwithstanding that the parents do not get along or are involved in conflict.

In this case, however, to make such an order would serve only to increase the domineering and overbearing approach that the respondent chooses to adopt, and that is not in L's best interests. It is not in his best interests because it would only add to the conflict to which he is exposed.

[ 34 ] On this latter point, I note that the respondent has deposed that he was careful not to allow L to see his fingering gesture that was directed towards L's mother. That assertion belies a serious misunderstanding of what children are aware of and what they are not aware of. It is likely that if L saw the gesture, it would have had no significance on his two-year-old mind. What is and was significant and what he would, I have no doubt, been aware of was the emotion behind the gesture and the tension that accompanies the videotaping of exchanges between his parents.

He does not know why that is happening and is too young to appreciate or digest the information, but I have no doubt he is aware of it at some level, and either now or eventually, it will cause him distress. [ 35 ] Second, the shared parenting regime the respondent proposes would necessarily be short-lived. L will be starting school in two years. If the regime were to be put in place, the predictable consequence of that will be a custody trial.

That is not in L's best interest, nor is such a dramatic change for a necessarily short period of time. [ 36 ] Turning to the suggestion for expanded weekend access, the respondent proposes that the access begin Thursday morning and extend until Monday morning every other weekend, and that it take place at his residence in Camrose. Camrose is 65 kilometres southwest of Edmonton. The respondent proposes that L fly with him from Cranbrook to Calgary. They would then drive to Camrose. Camrose is about 250 kilometres from Calgary. The trip would take about six hours.

His mother would drive him to the Cranbrook airport an hour before the flight is set to depart. The respondent seems to think this is unnecessary, although it is not clear to me why he thinks that. The flight itself takes about 35 minutes. Once in Calgary, it would be necessary to clear the airport. It would then take two- and-a-half hours to drive to Camrose. Flying to Edmonton would only increase the length of the trip. All of this assumes that everything works seamlessly and that is rarely the case. L would then repeat this exercise at the end of the visit. He would do this twice a month.

In the winter, travelling times would necessarily be longer. It is not in the best interests of a two-year-old, or a three-year-old for that matter, to be regularly spending that much time travelling. I note that all of that travelling may not appreciably increase the time that L actually spends with his father, unless the respondent chooses not to work on Friday and to not take emergency calls on Saturday.

In addition, it would require him to take off Mondays and Thursdays to accommodate this proposal. [ 37 ] I appreciate the value of frequent visits with non-custodial parents, especially when the children are young. I also recognize the awkward and artificial situation that the respondent and L experience on access visits that take place in Cranbrook. Those visits typically take place in a motel. I also accept that the respondent is a devoted father, who is well capable of looking after L. The respondent's application for joint custody and joint guardianship is, however, for the reasons noted above dismissed.

His application for increased access of the sort that I have just described is similarly dismissed. [ 38 ] The parties made submissions on whether the respondent might be able to exercise access via Skype or some similar Internet- based service. The claimant is prepared to agree to that occurring once a week for 10 minutes.

She says that she is worried that a longer time may be beyond L's attention span, and she fears the reaction of the respondent should L not be able to engage for more than 10 minutes. [ 39 ] There will be an order that the claimant is to arrange to have L meet with his father over Skype for a period of 10 minutes on Thursday evening following the weekend access that the respondent has with his son, and again on Monday evening following that Thursday evening. These times are intended to break up the long period of time between personal visits.

The claimant is to increase the length of these visits if, in her sole discretion, she considers that L is able to tolerate it. I will set the precise time of these visits after hearing from the parties. [ 40 ] Next, there will be an order that the respondent's access to L on alternate weekends he is now seeing him may begin on Friday afternoons, if the respondent can arrange to be in Cranbrook on Fridays. If the respondent is able to take advantage of that extension, the visits will begin at 5 p.m., Friday.

He is to give the claimant seven days' notice by e-mail if he wishes to take up that option, and each time he wishes to take up that option. [ 41 ] Finally, the respondent is entitled to longer access in the summer of 2013. More specifically, he is entitled to a week-long access visit in July and another week-long access visit in August. Those two visits are to be at least three weeks apart. They will commence on a Saturday at nine o'clock in the morning and end the following Sunday at 4:30 p.m. [ 42 ] I will say two things in closing.

The respondent's behaviour has consequences that have both pragmatic implications for him and more serious implications for his son. As to the former, treating people in the manner that he has and continues to treat the claimant and her family will only lead to less co-operation and more dysfunction. Others have suggested that this behaviour is serious and something that should be addressed. I am not so naïve as to think that simply adding my voice to that chorus will change anything, but I do it anyway. Further, the consequences do not go away with an apology, although an apology may help.

The behaviour leaves serious scars which may or may not heal with time. [ 43 ] Next and far more importantly, the behaviour has serious implications for L. He is aware of the animosity. His awareness will only increase as he matures. If, as the respondent asserts, he really does care deeply for his son, then he would spare no time and no energy to address this very disturbing behaviour. He would do something about it rather than continue to expose his son to it. [ 44 ] Those are my reasons. From your perspective, Ms. Label, do you have any questions? [ 45 ] MS.

LABEL: I do about the Skype -- [ 46 ] THE COURT: Yes. [ 47 ] MS. LABEL: -- and then I want to address costs at the end. The Skype, you are saying, does he have to be on Skype for 10 minutes? Is it up to 10 minutes or – I am not sure whether it is up to 10 minutes -- [ 48 ] THE COURT: It is 10 minutes. [ 49 ] MS. LABEL: Okay, but if the child goes away from the -- if the child walks away or does not want to do it, then that ends, I take it?

[ 50 ] THE COURT: Well, what I expect the claimant to do is speak to L and tell him that he is going to visit with his dad on the computer, and he is going to be there for 10 minutes. If L has a temper tantrum or something, then obviously that will need to be addressed, and I would expect her to reschedule the arrangement. I cannot imagine that 10 minutes is beyond a three-year-old's attention span, provided he is appropriately prepared for it. [ 51 ] W.S.C.: May I ask a question? [ 52 ] MS. LABEL: Oh, just a moment -- [ 53 ] W.S.C.: I am Dr. [C]. [ 54 ] MS.

LABEL: -- sorry, sorry, sorry, just before you ask the question, so it is 10 minutes on the Thursday evening following the weekend access -- and then -- [ 55 ] THE COURT: Ten minutes on the next Monday evening before -- [ 56 ] MS. LABEL: So four days later? [ 57 ] THE COURT: Yes, that is right. [ 58 ] MS. LABEL: And so they will have to agree on an appropriate time. [ 59 ] THE COURT: I am going to ask you what your suggestion is for that now. [ 60 ] MS. LABEL: I do not know.

My client was not able to be on the conference call, so I am going to have to find out from her what the appropriate time would be. [ 61 ] THE COURT: All right. I will come back to that in a moment. [ 62 ] MS.

LABEL: Okay. [ 63 ] THE COURT: Did you want to say something about costs? [SUBMISSIONS RE COSTS] [ 64 ] THE COURT: Thank you. [ 65 ] W.S.C.: May I ask one question? [ 66 ] THE COURT: Yes, is this Dr. [C]? [ 67 ] W.S.C.: Yes, this is -- [ 68 ] THE COURT: -- go ahead. [ 69 ] W.S.C.: Sorry to interrupt. [ 70 ] THE COURT: No, that is fine, go ahead. [ 71 ] W.S.C.: In terms of the logistics, my clinic is open one evening a week and it is Thursday evening.

Is there a -- and perhaps I have misunderstood and I am sorry if I have, is there any way to do it other than a Thursday evening on -- [ 72 ] THE COURT: No, no, I am happy to do that. We will make it -- [ 73 ] W.S.C.: Okay. [ 74 ] THE COURT: We will make it Wednesday. [ 75 ] W.S.C.: Okay, that is fine. [ 76 ] THE COURT: I am just going to suggest seven o'clock. It will be seven o'clock, unless that is obviously inappropriate for some reason that I am not aware of, and if that is the case, you can simply -- I am sure you can agree to an alternative time, but if you cannot -- [ 77 ] MS.

LABEL: So, I have said that you are suggesting seven o'clock -- [ 78 ] THE COURT: Right. [ 79 ] MS. LABEL: -- at night. [ 80 ] THE COURT: Yes, 7 p.m., yes, and I am going to -- I recognize -- first of all, I am not going to grant special costs. I understand the basis for making that request, but I am not persuaded that, in this situation, the application was motivated entirely by a desire to put into play or put into place the plan that the respondent previously expressed. Having said that, I am also satisfied that there was no reason to litigate the issue of a rotating residence for L.

I understand that the respondent wants that. I simply say that, on most reasonable assessments of the material, it is simply not a realistic suggestion and never was. For that reason, I am going to order that the claimant recover her costs at Scale B --

[ 81 ] MS. LABEL: Scale B? [ 82 ] THE COURT: Yes, it is the middle one, B. [ 83 ] MS. LABEL: Okay, so if I could just -- I am still waiting to hear back from her, but -- so the order stays and is that access may begin on Friday afternoon at 5 p.m., provided he provides seven days' notice by e-mail each time he wants that? [ 84 ] THE COURT: Right. [ 85 ] MS. LABEL: And that for the summer of 2013, he will have one week of access in July, one week of access in August, access to commence Saturday at 9 o’clock, ends Sunday at 4:30.

I take it that means he picks them up at 9 o’clock and he has them back by 4:30 on the Sunday -- [ 86 ] THE COURT: Right. [ 87 ] MS. LABEL: -- the following Sunday? [ 88 ] THE COURT: Right. [ 89 ] W.S.C.: Sorry, Dr. [C] again. Do I still have access at Christmas? [ 90 ] THE COURT: I did not address that, but that would be my intention. So just hang on for a second, we will come back to that. [ 91 ] Sorry, go ahead, Ms. Label? [ 92 ] MS. LABEL: And when you said those access times in the summer to be at least three weeks apart -- [ 93 ] THE COURT: Right. [ 94 ] MS.

LABEL: -- I take it means three weeks from the end of the access ending? [ 95 ] THE COURT: Three weeks from the end of one until the beginning of another. [ 96 ] MS. LABEL: Yes. [ 97 ] THE COURT: Yes, that is right. [ 98 ] MS. LABEL: End of one -- [ 99 ] THE COURT: Yes. [ 100 ] MS.

LABEL: -- to the beginning of the other. [ 101 ] THE COURT: I mean my rationale for that is probably obvious, but L will be three-and-a-half years old, seven days is a fairly long time for a fellow that age, but not -- I am satisfied that he is well able to manage it, but allowing him to resettle with his mom after the first visit is a reasonable thing, and that is the reason for the interposition of that timeframe. [ 102 ] MS. LABEL: All right. [ 103 ] THE COURT: Anything else, Ms. Label? [ 104 ] MS.

LABEL: I do not have any instructions about Christmas, except that obviously there is going to be an extended access visit next Christmas just as there was this Christmas. This Christmas was five days -- [ 105 ] THE COURT: Yes. Well, my suggestion is this. I understand the respondent's request. My suggestion is that the claimant favourably consider an access visit over Christmas of the same duration as the week of summer access -- [ 106 ] MS. LABEL: Yes. [ 107 ] THE COURT: -- and I will not say more about it than that.

If it comes to the point where the parties are close to resolving it, but they need some assistance, I am happy to provide that assistance in a most cost-effective way as possible: in other words, to hear an application by telephone based on an exchange of correspondence if the parties agree that they can put their positions in that form, and they agree that it is appropriate for me to decide it in that form. [ 108 ] MS. LABEL: Do you mean about next Christmas whether it is five days or seven days? [ 109 ] THE COURT: About next Christmas period, yes, when it happens, from when to when, all that kind of thing.

In fact, I am happy to assist in any other respect, but I doubt whether that is necessary. So, if it appears that an agreement -- or that you are too far apart on that issue, then you are left to your remedies -- [ 110 ] MS. LABEL: What if -- I mean we have said Wednesday and Monday for the Skype. What if she is not available Wednesday evening or Monday evenings? [ 111 ] THE COURT: Then what you should do is this.

Write a letter to the court registry in Kelowna to my attention saying, "Here is my proposal..." Send a copy to your friend, and your friend will write a letter saying, "Here is my proposal," and I will simply make an order based on those two competing suggestions. Okay?

[ 112 ] MS. LABEL: So I should not draft the order, then, until -- [ 113 ] THE COURT: Yes, just wait -- wait until you hear from her. Draft the order. If it appears that those days are not suitable, then proceed in the fashion I have just described. Otherwise -- [ 114 ] MS. LABEL: Otherwise, just put it 7 p.m. Wednesdays and Mondays following the access visit? [ 115 ] THE COURT: Right, that is right. [ 116 ] MS. LABEL: Okay. [ 117 ] THE COURT: Okay, thank you very much, Ms. Label. [ 118 ] MS. LABEL: Thank you, My Lord. [ 119 ] THE COURT: Thank you, Mr. Wormeli and Dr. [C]. [ 120 ] MR.

WORMELI: Sorry, one more point just before we go. [ 121 ] THE COURT: Yes. [ 122 ] MR. WORMELI: With respect to notice each and every time, well, I think it is unlikely that Dr. [C] will be able to avail himself of that access given the clinic being open and whatnot Thursday. I am assuming that if he were to plan something in advance, it would be sufficient notice to, say, inform that he would be exercising that access on several occasions in one e-mail providing it was, you know, seven days in advance of the first day? [ 123 ] THE COURT: Yes.

The point is I do not want her sitting around waiting for an access visit that is not going to happen. [ 124 ] MR. WORMELI: It is understood, My Lord -- [ 125 ] THE COURT: Yes. So, yes, you can do it -- [ 126 ] MR. WORMELI: -- I just wanted to clarify that. [ 127 ] THE COURT: If you can plan that far in advance, by all means, that is fine; just extend it. [ 128 ] MS. LABEL: I have one more question -- [ 129 ] THE COURT: Yes. [ 130 ] MS. LABEL: -- if I may?

I have a note here, you said it is within her sole discretion to increase the length of these visits, you are talking about the alternate -- [ 131 ] THE COURT: No, no, that is -- [ 132 ] MS. LABEL: Oh, no, you [indiscernible] Skype. [ 133 ] MR. WORMELI: No, no. [ 134 ] THE COURT: -- the Skype. [ 135 ] MS. LABEL: Skype. [ 136 ] THE COURT: Yes, yes. [ 137 ] MS. LABEL: And so that should form part of the order as well? [ 138 ] THE COURT: Yes, please. [ 139 ] MS.

LABEL: Okay, all right, and I do not have to put anything in the order about she is going to talk to him, and if he throws a temper tantrum, reschedule, just 10 minutes -- [ 140 ] THE COURT: Thank you. Thank you, Ms. Label. Thank you, Mr. Wormeli and Dr. [C]. We will adjourn. “G.M. Barrow, J.” Barrow J.