L.W. v. K.R. Date:, 2016 BCPC 361

Citation: L.W. v. K.R. Date: 20160902 2016 BCPC 361 File No: F11541 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.W APPLICANT AND: K.R RESPONDENT ORAL RULING OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Applicant: J. Shukla

Counsel for the Respondent: J. Recalma Place of Hearing: Duncan , B.C. Date of Hearing: June 2 & 3, August 8 & 23, 2016 Date of Judgment: September 2, 2016 [ 1 ] THE COURT : I will state at the outset that this is an oral ruling prepared in some haste due to time constraints, and as such I reserve the right to edit these reasons if in the future any transcript of same is required. [ 2 ] The parties before the court are in a co-parenting relationship of a seven-year-old boy.

Each party now has a new partner and is engaged in what appears to be a stable relationship. [ 3 ] There has been a certain amount of strife between the parties, particularly with respect to parenting issues.

Through the efforts of counsel, mediation, and the parties, many of the issues have been resolved and a memorandum of understanding has been entered into by the parties, which will be attached as an addendum to the court order resulting from this hearing. [ 4 ] The hearing was necessary as the parties were unable to resolve three parenting issues: (1) the school the child should attend; (2) parenting time at Easter and on professional development days; and (3) determining appropriate transition persons to facilitate the exchange of the child to ensure parenting time schedules are maintained. 1) The school the child should attend [ 5 ] The central issue which preoccupied much of the hearing was where the child should attend school.

He is currently enrolled in a private Catholic school and has attended the school for the past two years. We are now at the end of summer and he is set to commence Grade 2. [ 6 ] After hearing numerous days of evidence and receiving extensive written submissions, as well as hearing oral replies last week, I made an order at that time for the child to be immediately enrolled in a local public school to afford the parties as much time as possible to proceed with the school transfer.

It was agreed by all that I would provide my reasons orally on today's date. [ 7 ] By way of brief background, some two years ago, despite the parties having agreed that the child would attend a local public school, the mother unilaterally, with minimal consultation, decided to enrol the child in a private school, and did so.

This lack of consultation was contrary to a final consent order of this court, dated November 15, 2011, and contrary to the mother's obligation as a joint guardian and as a parent sharing parental responsibilities. [ 8 ] While the father has on numerous occasions indicated his lack of consent and displeasure with the child attending the private school, the mother has stood by her decision, resulting in the matter coming before the court. [ 9 ] The parties have, without success, attempted a negotiated resolution of this issue as part of resolving other issues between the parties.

The father continues to object to the child attending the private school. [ 10 ] The father has significant concerns both with what he views as the child's religious indoctrination in Catholicism while the child attends the school, and that the teachings may undermine the child's paternal Métis heritage and distance the child from his father and his father's family. [ 11 ] The mother is not Catholic. She does not attend church. She testified that she is Christian and has a personal relationship with Jesus.

She is pleased with the child's current schooling and believes he should continue at the private school. [ 12 ] In determining the appropriate school for the child to attend, I must state at the outset that this is not a contest between schools. By most accounts the schools are comparable, with the most distinguishing feature being the religious teachings of the private school. [ 13 ] The task for the court is not to choose the better school but to determine which school would be in the best interests of the child to attend.

The exercise is not focused so much on the attributes of the schools but on which setting will allow this specific child the best opportunity to fully prosper. This is obviously an individualized exercise and each case requires the court to carefully consider the parties' and child's unique situation, and the family dynamics engaged. [ 14 ] The governing statute sets out various areas for the court's consideration to determine the best interests of the child.

However, before addressing these considerations, I believe it will be of assistance at the outset to provide an overview of the current family dynamics based on my assessment of the evidence presented. This context is essential to inform the analysis required to determine the best interests of the child. [ 15 ] In order to better understand my conclusions, it will be of assistance to address three central themes arising from the evidence:

i) the repeated efforts of the mother to minimize the father's involvement with the child; ii) the father's and mother's religious and spiritual views and their perspective of the father's Métis heritage; and iii) the shallow attachment of the mother to the religious teachings of the private school.

i) The repeated efforts of the mother to minimalize the father's involvement with the child

[ 16 ] I am satisfied based on all the evidence that the mother has repeatedly attempted to alienate the father and minimize, if not deny, his engagement with the child. She has repeatedly made significant decisions affecting the child without appropriate consultation with the father. [ 17 ] The evidence reveals a pattern of the mother failing to adequately consult the father and ignoring the father's concerns with respect to significant decisions affecting the child.

As well, she has not been particularly accommodating in facilitating the father's parenting time. [ 18 ] Despite the mother's claims that she has always wanted the father to be fully engaged in the child's life, her actions do not support her contention. The father has often been kept in the dark on numerous issues impacting the child. The mother acknowledges that she has in the past acted inadequately in advising or consulting the father with respect to significant issues involving the child.

As well, there have been a number of occasions when the mother failed to provide agencies assisting the child, including the private school, with the father's contact information. [ 19 ] On cross-examination, the mother was challenged on numerous occasions with assertions that she had failed to respect the father's parenting rights. She would initially deny or indicate she did not remember the incident. Then, upon being shown documents confirming her obstructionist conduct, she would attempt to provide an explanation for same.

Ultimately, perhaps upon realizing the explanations lacked merit, she would adopt the position that while she may have acted inappropriately in the past, she has improved her conduct with respect to the treatment of the father and his parenting interests. [ 20 ] The decision to enrol the child in the private religious school is but one example of the mother making a unilateral decision with minimal consultation with the father. The mother asked the father what he thought about a private school and, without further consultation, had within days enrolled the child in the school.

Indeed, the father first learned that the enrolment and attendance was a fait accompli from the child, who advised the father of the purchase of a school uniform and his enrolment at the private school. [ 21 ] This is particularly troubling given that, only a few months earlier, the parties had agreed that the child would enrol in a public school.

For the mother to make such a significant decision affecting the child without adequate consultation is troubling, particularly given the religious faith taught at the school and the father's Métis heritage, an issue which will be discussed below. [ 22 ] It is disturbing to the court that this is not the only time the mother has acted with disregard for the father's views.

Perhaps most emblematic of the mother's bad faith and lack of goodwill with regard to the father's parenting rights were her actions earlier this year with respect to arranging immunization for the child. [ 23 ] While there had been a disagreement between the parties on this issue in the past, the father had approached the mother to indicate that, as a result of discussions with medical personnel, he believed the decision of the child's immunization needed to be made and he was in favour of immunization for various potential afflictions. [ 24 ] The mother indicated she needed time to consider her position.

The father quite properly allowed the mother time to consider the issue. Shortly thereafter, the mother made arrangements with a doctor for immunization of the child. Despite the father's request to be informed of any plans for immunization and his indicated desire to attend, the mother failed to advise the father of her arrangements. The child was vaccinated without the father being present. More vexing was that the mother decided to forgo one of the vaccinations and did not consult the father.

This conduct was improper and disrespectful of the father. [ 25 ] Another significant decision affecting the child was to enrol the child in counselling. Again the mother did this unilaterally, without any notice to the father. The father only learned of this counselling after it had begun, and not from the mother. [ 26 ] As well, both the father and his current partner testified to difficulties obtaining medical and educational information from the mother. [ 27 ] Further, the mother has not been helpful ensuring the father has parenting time with the child.

She has set up barriers for individuals whom the father has arranged to assist in ensuring his parenting responsibilities are fulfilled and, on several occasions, improperly denied the father parenting time for her own personal reasons. [ 28 ] As well, her reasons for resisting the sharing of driving to transfer the child between the parties as being too costly are simply not supported by the evidence of her financial situation. ii) The father's and mother's religious and spiritual views and their perspectives of the father's Métis heritage [ 29 ] The father's Métis heritage and the parties' perspective of same is of significance when addressing the issue of the schooling of the child. [ 30 ] The father has considerable misgivings with his child attending a Catholic school.

He is of Métis heritage and members of his family were victimized and tormented by the now well-documented atrocities of the residential school system. [ 31 ] While it would be unfair and improper to condemn present-day Catholic schools for the atrocities of the past, it is perfectly understandable that someone in the father's position would have a lack of trust and be suspicious of religious schooling.

Not surprisingly, he is reluctant to fully engage with the child's school and has strong concerns relating to the religious teachings which the child is exposed to each day in his school. [ 32 ] The mother acknowledged in her evidence that she has in the past been insensitive, if not offensive, with respect to comments she has made regarding the father's Métis heritage. She confesses to an ignorance of the Métis cultural history, although she claims she is now making efforts to inform herself. iii) The shallow attachment of the mother to the religious teachings of the private school

[ 33 ] Lastly, the court observes that the mother has a poor grasp of the religious teachings at the private school. [ 34 ] Information provided by the school indicates its aim is to integrate the Catholic faith in all subject areas, and the school takes seriously the Six Formational Tasks of Catechists with the aim of forming the students to become themselves, committed citizens, and dedicated disciples of God. [ 35 ] The mother was unable to explain the Six Formational Tasks that, according to the school, are fundamental to the child's everyday experience at his current school. [ 36 ] Given she does not share the same faith, one would not expect her to be fully immersed in Catholicism; however, it is disconcerting that she possesses such a limited understanding of the religious teachings the child is currently receiving, yet maintains an insensitive and dismissive attitude with regard to the father's concerns for the child's spiritual upbringing. [ 37 ] It is in this context that the court must review the applicable considerations in determining the best interests of the child.

As stated earlier, this is not a dispute between schools or spiritual or religious faiths. The issue must be resolved by viewing the child's situation in its entirety and determining which school will best allow for the child, with the assistance of his parents and their families, to prosper while minimizing risks and potential turmoil. [ 38 ] The parties have addressed a number of the considerations the court must assess pursuant to s. 37 of the Family Law Act , S.B.C. 2011 c.25. The parties agree that a number of the considerations have no application in this case, including ss. 37(2) (b), (g), (h), (

i) and (j). [ 39 ] With respect to the other considerations set out in the statute, I see most of them as close to neutral, if not neutral, with the exception of ss. 32(

c) and (f): the nature and strength of the relationships between the child and significant persons in the child's life; and the ability of each person who is guardian of the child or who has parental responsibilities and parenting time with the child to exercise his or her responsibilities. [ 40 ] With respect to the child's health and emotional well-being, as well as his stability, I have been provided no evidence to suggest that a change of school will jeopardize the child's well-being or stability.

The evidence indicates the child is a well-adjusted, sociable child, who is outgoing and popular, and has no difficulty making friends. Academically he is for the most part meeting expectations at his current school, and I see no reason why he will not be able to at least maintain that standard at the local public school. [ 41 ] I do not accept that there should be a presumption that a change of school for a young child will adversely impact the child's well-being.

A change of school can be for the better, for the worse, or neutral. [ 42 ] Based on the evidence I have heard with respect to the child's disposition, I see no reason why he should not be able to thrive at the local public school. [ 43 ] In contrast to the decision in Friedlander v.

Claman , 2014 BCSC 2587 , where the court felt based on the evidence it had heard that the school provided the one place where the child did not have to think about the conflicts between her parents and how she would negotiate between them, I believe that continued enrolment at the private school will lead to further strife between the parents and confusion, if not conflict, for the child as the school continues in its formational task with a view to leading the child to becoming a dedicated disciple of God. [ 44 ] On the whole, I believe a public school provides a more stable environment for the child, with less strife and confusion in the child's life.

I do not believe a school transfer will adversely impact the child's health or emotional well-being, and may even provide a benefit in that regard. [ 45 ] I see the history of the child's care as a neutral consideration, except to say that the father's influence and input on issues affecting the child's care have been restricted to a certain degree as a result of acts and decisions of the mother.

The significance and the impact of this history are better addressed in the context of the relationship of the father and the child, and the father's ability to exercise his responsibilities with respect to the child. [ 46 ] As indicated earlier, I believe the critical considerations in determining in this case which school the child should attend are those set out in s. 37(2)(

c) and (

f) of the Act : (

c) the nature and strength of the relationships between the child and significant persons in the child's life; and (

f) the ability of each person who is a guardian of the child and who has parental responsibilities and parental time with the child to exercise his or her responsibilities. [ 47 ] The father's concerns with respect to his relationship with the child being compromised, if not undermined, by attendance at the religious school were clearly set out. He has misgivings with respect to the religious teachings of the school, and his child's exposure to same on a daily basis.

As well, because of his family history and his mistrust of religious schools, he is understandably reluctant to fully engage in the child's school activities. [ 48 ] He has, in my view, a realistic fear that, as a result of the dynamics discussed in these reasons, he will be excluded from participating in a very important aspect of his son's life.

This will likely have a negative impact on his relationship with the child and his ability to perform his parental responsibilities. [ 49 ] A further concern for the child's relationships with significant persons in his life is that continued enrolment at the private school needlessly engages the risk of undermining relationships with the paternal side of his family.

The court heard evidence that, aside from the father's objections to the child's attendance at the private school, the father's family and current partner, who is also Métis, have considerable discomfort with the teachings of the school. [ 50 ] Given the formational teachings of the school, the father and his family have legitimate concerns that the current schooling may undermine the child's relationship with his father and the paternal side of the child's family, and may cause the child to adopt a negative

view to his Métis heritage, smudging and non-Christian Métis ceremonies. [ 51 ] The fact that the mother has thrust this situation on the father illustrates her lack of respect and insensitivity for the father, his family and their heritage, and that of the child.

The mother's insensitivity towards the father's spiritual beliefs and the unilateral decision to enrol the child in a Catholic school is further compounded by the fact the mother does not follow the teachings and faith of the Catholic Church. [ 52 ] Most cases coming before the court in which the parents are disputing the child's attendance at a religious school involve at least one parent who practices the same faith as that taught in the school.

While that is by no means a prerequisite to the court approving enrolment at a religious school, it is disconcerting that the mother would make a unilateral decision to enrol the child in a religious school which causes the father such angst when she not only does not practice the same faith as the school but is ill-informed with the religious principles and teachings of the school and what the child is being taught in a religious context each day at school. [ 53 ] It is a forceful argument that where a school has a strong religious philosophy and one parent does not belong to that religion, and objects to enrolment, it is preferable that the child attend a non-religious public school. [ 54 ] This case is quite unique and presents in my view an even more compelling argument in that, not only does one parent not follow the faith of the religious school and disagrees with the religious teachings, the other parent does not belong to the faith and has a poor understanding of its teachings. [ 55 ] Enrolling the child in a religious school over the objections of the father while not being fully aware of the school's religious teachings strikes me as not only dismissive of the father's concerns, his role as a parent, and his relationship with the child, but neglectful of the child's interests. [ 56 ] This, coupled with a history of a relationship, where the mother consistently makes unilateral decisions which reduce the father's role and involvement in the child's life, leads me to conclude the court must prevent the situation from continuing or risk the deterioration of the relationship between the father and the child. [ 57 ] With respect to positive relationships the child has developed with his classmates and teachers over the past two years, I do not see that as particularly unique for a child attending school in Grade 1.

Nor do I believe it will be difficult for the child to both maintain friendships with classmates he is currently close to and create new ones at the new school. [ 58 ] After assessing all of the evidence, I have concluded that the mother has continuously made efforts to control, if not dictate, the child's upbringing while marginalizing the father's views and undermining the relationship the child has with his father. [ 59 ] I found the mother's evidence disingenuous with respect to her insistence that she is accommodating in her efforts to strengthen the child's relationship with his father.

Her conduct and the positions she has adopted reveal a person who is not accommodating, and prefers to minimize the father's engagement with the child. [ 60 ] The child must not be placed in a position that would facilitate the mother's efforts to marginalize the influence the father has in the child's life and hinder the fostering of a strong, healthy relationship between the father and the child. [ 61 ] The court must not afford the mother the opportunity to employ the private school as a vehicle to alienate the father and the child from one another, and adversely impact their relationship. [ 62 ] I am satisfied the child's continuing enrolment at the private school will further enable the mother to limit the father's influence over and involvement with the child.

There is considerable risk of a negative impact on the relationship between the child and the father and the father's family if the child continues to attend the private school. [ 63 ] Due to the father's background, the teachings at the school, and the mother's efforts to minimize the father's involvement with the child, I believe continued enrolment at the private school will significantly limit the father's ability to exercise his parental responsibilities. [ 64 ] I am satisfied that enrolment in a public school in this case will facilitate the ability of both parents to be engaged in the child's schooling and activities, which I believe is very much in the best interests of the child given the benefits for the child of having both parents share in this important part of his life. [ 65 ] After reviewing all the applicable considerations, I am satisfied that it is not in the child's best interests to continue to be enrolled at the private school.

Accordingly he is to be enrolled forthwith to commence Grade 2 at the [omitted for publication], or any other school that the parents agree in writing would be preferable. 2) Parenting time at Easter and on professional development days [ 66 ] A contested issue that the parties have been unable to resolve is how to share parenting time over the Easter weekend and on professional development days each year. [ 67 ] As the mother views Easter as a significant religious holiday each year, she would like to have the child on Easter Sunday each year in order to share that special time with him.

While the father does not share the mother's religious perspective with respect to Easter, he does value the Easter long weekend as an opportunity to take the child off Vancouver Island to visit members of the paternal side of the family. [ 68 ] I believe that a fair compromise which will assist in addressing both the Easter long weekend issue and parenting time on professional development days is for the child to share the religious experience of Easter with his mother each year while the father is given a few more days of parenting time and a greater opportunity to take the child off Vancouver Island on weekends when professional

development days fall on a Friday or Monday. [ 69 ] Accordingly, I am ordering that the child will be with the father each Easter weekend from Thursday at 3:00 p.m. to Saturday at 3:00 p.m., at which time the mother will have parenting time with the child commencing at 3:00 p.m.

Saturday through to Easter Monday. [ 70 ] When professional development days fall on a Friday or on a Monday of a weekend in which the father, pursuant to the agreement arranged by the parties, is to have parenting time, the father will have parenting time at the end of school on Thursday when the professional development day falls on a Friday through to the start of school the following Monday; and where the professional development day falls on a Monday, the father will have parenting time from after school on Friday of that weekend through to the start of school Tuesday morning. [ 71 ] Where the father is unable to exercise his parenting time on a professional development day, he must advise the mother of same no later than 14 days before the particular professional development day. 3) Determining appropriate transition persons to facilitate the exchange of the child to ensure parenting time schedules are maintained [ 72 ] An issue has arisen with respect to whether the father's father, W.R., ought to be able to act as a transition person when picking up or dropping off the child. [ 73 ] It is clear from the mother's evidence that she and W.R. have a history of conflict, and she feels uncomfortable having him attend at her home. [ 74 ] The parties have indicated that there are numerous people who are able to act as transition persons and attend at the mother's home for that purpose.

These people are D.H., A.R., J.H., A.Y., C.W., D.W., M and D.H., C.Y. and M.W. [ 75 ] The parties have agreed that each of these individuals, and any other person agreed to by the parties, may act as transition persons to facilitate the exchange of the child between the child's parents. The order will indicate this agreement. [ 76 ] Accordingly, I see no need to compel the mother to participate in an interaction with W.R., which causes considerable discomfort for her, at her home and in the presence of the child.

Accordingly, I am ordering that W.R. may only act as a transition person when the child is being picked up at the child's school. [ 77 ] I would be remiss if I did not commend counsel for their very able presentation of the evidence and submissions, and the most professional approach they both adopted throughout these difficult proceedings. I commend both of you. [ 78 ] I am not sure who to leave to draft the order. I assume it will be you, Ms. Recalma. [ 79 ] Hopefully this will act as a watershed so the parties can start moving forward with a proper shared approach to parenting of the child.

I wish the parties the best of luck. [REASONS FOR JUDGMENT CONCLUDED]