T.I.R. v. M.W.P., 2020 BCPC 170

Citation: T.I.R. v. M.W.P. 2020 BCPC 170 Date: 20200914 File No: F12119 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.I.R APPLICANT AND: M.W.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Appearing on their own behalf: T.I.R Counsel for the Respondent: W. L. Scott, Q.C. Place of Hearing: Abbotsford , B.C. Date of Hearing: September 10, 2020 Date of Judgment: September 14, 2020

Background [ 1 ] The Applicant T.I.R and the Respondent M.W.P. are the parents of the child who is the subject of this Application, D.M.P., who was born on [omitted for publication]. Circumstances have conspired to present this Court with a very difficult decision concerning D.’s future, namely in whose home he will reside pending the trial of this matter.

What makes that decision more difficult is that since starting this action, both parties have moved from British Columbia to other provinces, and no matter where D. is ordered to reside, he will be almost 3000 kilometres (by air) away from his other parent. [ 2 ] These parties have been in litigation since March of 2012, when both were British Columbia residents. On December 4, 2014, the parties signed a written agreement with the assistance of the Family Justice Counsellor concerning parenting arrangements. That agreement was filed in this Court on January 8, 2015.

It provided that the parties were each guardians of the children and shared parental responsibilities. It addressed parenting time, and also contained the following provision: 36. That neither party will move the children from Chilliwack, British Columbia, without the written consent of the other party or a court order. [ 3 ] Under an Order made in December of 2016, the parties were operating under a shared parenting arrangement of D. and his older brother, on a two week rotation. The parenting time

schedule was adjusted by an Order made on May 9, 2017 that continued with a shared parenting schedule. In November of 2017, the Family Justice Counsellor was ordered to prepare a Views of the Child Report to consider how shared parenting was working. [ 4 ] On June 19, 2019, the Applicant brought an Application to adjust the parenting time schedule, and for permission to relocate D.’s residence to Edmonton. The Respondent was opposed to this and made his own Application to adjust the parenting time to have the child reside with him. The Respondent also applied for an Order for an updated Views of the Child Report.

The Applicant filed a Reply in which she said that she was opposed to this. She was agreeable to having the Family Justice Counsellor prepare an updated report at no cost, but she said that she was unable to afford sharing the cost to the much more expensive report that the Respondent was requesting. [ 5 ] In October of 2019, the Applicant went ahead and moved D. to Alberta, in contravention of the agreement of December 4, 2014, which was filed as an order of this Court.

In an Application filed by the Respondent on November 15, 2019, it is asserted that this was a wrongful removal and that the Applicant was told on two occasions by Judges of this Court not to relocate the children to Alberta: once by the Honourable Judge Mundstock on June 26, 2019, and once by the Honourable Judge Silverman on August 14, 2019. [ 6 ] I have reviewed the record of proceedings from both of these court appearances, and while this direction may have been made, no such formal order was made on either occasion.

More specifically, on June 26, 2019, Judge Mundstock told the Applicant “If you relocate to Edmonton at some time in the summer, you’re still bound by the order [section 36 of the agreement of December 4, 2014].” The Applicant said that she understood that.

Later at this appearance, Judge Mundstock said “What that means is that you can’t change the location of the children’s residence outside of Chilliwack, BC until there’s an order that allows you to do so.” [ 7 ] Judge Silverman was less direct, but on more than one occasion he simply stated “the Orders that are in effect remain in effect.” Both Judge Mundstock and Judge Silverman expressed that they were having difficulty discerning which orders were in effect and which were not. I can understand their difficulty.

The court file is extremely thick and it would be very difficult to become familiar with the entire file in the course of a busy remand list. Even having had a weekend to do go through the court file, I found this a very difficult file to navigate because of the very large number of applications filed by these parties. [ 8 ] The parties have a concurrent action in the BC Supreme Court, file E7866.

In November of 2019 the Respondent applied in that court for an ex parte order and in the supporting material, his counsel referred to an Order made in that Court in January of 2009 which provided that “neither party shall remove the children from the Fraser Valley Region without the written consent of both parties.” I have not seen the Supreme Court file and it is difficult to know what to make of the 2009 order, given that both parties have moved out of British Columbia.

The Applicant moved to [omitted for publication], Alberta last October and the Respondent has now filed a Change of Address listing his residence as [omitted for publication], Ontario. In that sense, it might be said that both parties have now consented, through their actions, to a change of residence for the Child outside of the Fraser Valley. They disagree on where that residence should be. [ 9 ] The Respondent’s point is that when the Applicant moved to Alberta, she was in breach of

section 36 of the agreement that was filed as an Order of this Court. The Applicant says that she only moved her residence, with the Child’s residence still to be determined by this court. This is a somewhat disingenuous argument, because attempts were made to register D. in school in Alberta, and he did attend some school there after the move. [ 10 ] The issue of relocation was before this court and had been scheduled for trial from March 23rd to 25th of this year. Regrettably, those trial dates were struck because of the court closure which resulted from the Coronavirus pandemic.

The Respondent applied to have the trial proceed on an urgent basis. That Application was denied by the Honourable Judge Mundstock of this Court on March 20, 2020. In her written reasons, Judge Mundstock wrote: I appreciate Mr. P.’s position that the matter is urgent from his perspective. However, D. is a 13 year old boy who is not in any physical danger and resides with his mother. As I understand the material before me, and based on my review of the Court file, it appears that D. has been in Alberta with Ms. R. since October of 2019. Mr.

P. is concerned that he is losing parenting time with D. and that their relationship is suffering. While I understand Mr. P.’s concerns, I do not see this matter as urgent in the sense that in the midst of a public health state of emergency, the trial must proceed. Further, I note it is unlikely the trial could proceed as scheduled given that the Court in Chilliwack is closed and the courts within the

Province are operating in a limited capacity effective March 25, 2020. I also note that on September 11, 2019, the Court ordered a report be prepared on the views of the child concerning relocation. Upon my review of the file, the report does not appear to be completed. This report is necessary given D.’s age and the issues to be determined at trial. For these reasons, I decline Mr. P.’s application for a declaration that the application is urgent and should proceed as scheduled. The hearing is adjourned and it will be rescheduled to a later date. [ 11 ] An updated

Section 211 Views of the Child Report was completed in late April of 2020 by Family Justice Counsellor Karen Fenton. In the report, the writer describes D.’s desire to stay in Alberta with his mother, and states: D. notes he felt pressured by his father and overwhelmed after receiving text messages from him and his stepmother C., “Why are you doing this? What have we done to you?” He reports his father called the police to do a welfare check to ensure he was okay.

D. answered the police officers questions and assured them he wanted to remain with his mother. [ 12 ] The writer concluded her report as follows: D. is a bright, engaging teenager with a clear sense of what he wants. He values his relationship with each of his parents but would like to remain with his mother full time and see his father during a portion of the annual school breaks. D. is close to his brother B. and anticipates that they will continue to communicate and spend time together both in Alberta and British Columbia.

He is aware of his father’s suggestion to alternate school years between the two homes, but he prefers the idea of staying in Alberta and attending one school. D. is hopeful that his father will listen to what he is saying and focus on their father/son relationship. He values his experiences with his father and looks forward to opportunities to spend time together. [ 13 ] On June 25, 2020, the parties appeared before the Honourable Judge Ferriss of this court to determine a

schedule of ongoing parenting time, given that the parties were now living in different provinces. Judge Ferriss ordered that the Respondent was to have parenting time with D. from July 20 to August 24, 2020. The Respondent wilfully breached that order. He did not return D. at the end of his parenting time. He felt justified in doing so for two reasons. Firstly, he pointed out that the Applicant had moved D. to Alberta in defiance of the directions made by Judges Mundstock and Silverman of this Court.

Secondly, he said that it was D.’s decision not to return to Alberta and that D. wanted to remain living in Ontario with the Respondent. [ 14 ] The Applicant applied to enforce the Order of Judge Ferriss and have D. returned. This Application was heard in Chilliwack on September 1, 2020. At the conclusion of the hearing, the Respondent was directed to comply with the Order of Judge Ferriss and return D. to the Applicant over the long weekend.

The matter was adjourned to ensure his compliance and the Respondent was warned that if he failed to do so, he risked the loss of his parenting responsibilities and possibly even his guardianship of the Child. The latter measure was considered in order to address the difficulty of enforcing the Order in Ontario if he refused to comply. The loss of his status as a guardian would then place him in a position where his would more easily be subject to the provisions of

Part VIII of the Criminal Code . [ 15 ] The Respondent has still not complied with the Order of Judge Ferriss. He continues to justify his action by stating that he is merely following D.’s wishes. [ 16 ] At the hearing on September 1, 2020, it was also ordered that the Respondent could obtain a private “Views of the Child Report” at his expense. It was not suggested that a report favourable to him would justify further breaches of Orders of this Court on his part. The Respondent was able to arrange for Dr. Michael Elterman to prepare an expedited Views of the Child Report dated September 7, 2020.

In the report Dr. Elterman concludes that D.’s preference is to reside with the Respondent, but he adds that he does not have a recommendation or opinion on where D. should reside. [ 17 ] Dr. Elterman describes D. as “an early teen who finds himself caught up in a strongly felt and fought dispute between two parents.” The accuracy of this statement is evidenced by the fact that the Court file in this matter fills an entire banker’s box, and that doesn’t include whatever was filed in Supreme Court.

At one point an order was made in this file prohibiting the parties from making any more applications without leave of the court. [ 18 ] Dr. Elterman goes on to write, “Like most children, he wants to please both parents, but finds himself in a position where he can’t do that.” This is of course a concern, because in the updated Views of the Child Report, D. complained about being pressured by the Respondent.

In less than five months, he has changed his view about which parent he wishes to reside with, and it is difficult to discern if this is a genuine sentiment or if his desire to please causes him to prefer the parent he is in closest proximity to. [ 19 ] It is clear from Dr. Elterman’s report that D. now expresses a clear preference to remain in Ontario, and the Applicant acknowledges that this is the case. He has also indicated that he will reside wherever he is ordered to go, and the Respondent acknowledges this to be the case. [ 20 ] D. told Dr. Elterman that he views the Applicant as the stricter parent.

He added that he was unhappy that the Applicant would not respect his decision to want to live in Ontario. In the report, he describes how both parents used indirect means to influence his decision. He said that the Applicant had tried to “guilt” him by telling him that his younger brothers miss him very much, and that she would also do her best to impede his enrolment in a school in [omitted for publication]. The Respondent had done this to him in [omitted for publication], refusing to consent to his enrolment in school there.

While he was at the Respondent’s for his summer vacation, he was told by the Respondent to “think about” where he wanted to live. The Respondent also told D., prior to his interview with Dr. Elterman, that he should “make sure you know what you’re going to say.” [ 21 ] Dr. Elterman notes that the conflict in the two reports “makes this case problematic” and I would concur whole-heartedly with this. He adds that there is a need to consider D.’s maturity to make this decision, and the question of the influences he has been subject to.

He adds, “Some of the reasons he gives [for wanting to reside in Ontario] would seem to be expected to the extent that having been away from his father, he missed him and I would expect that being away from his mother, he would miss her too.” Other reasons given by D.

to Dr. Elterman for his present choice are: (1) a preference for living in a home where there are other teenagers, as opposed to youngerchildren; (2) disappointment that his older brother from Chilliwack has not moved to Alberta as he had expected, and (3) the fact that hisfather works from home, while his mother does not, making his father more accessible. [22] Despite the direction D. was given by the Respondent to “make sure you know what you are going to say”, Dr. Elterman writesthat D. told him that he was not told by either parent what to say in his interview.

Because the narrative given by the Respondent and byD. are consistent about how D. came to change his mind, Dr. Elterman considers this to be a factor supporting the conclusion that D.’sstatements are likely not the product of coaching. [23] It should be noted that despite being assigned the role of the rope in a very tenacious game of tug-of-war, D. presents as aremarkably well-adjusted and poised young man. In the updated Views of the Child Report, he is described as “a bright, engagingteenager with a clear sense of what he wants.” He is described in Dr.

Elterman’s report as quiet and appropriate, not moody, with a goodattention span. Both parents agree that he is adversely affected emotionally because of the conflict between his parents. Each blames theother parent for causing that. [24] I am told that D. is now in Chilliwack with the Respondent awaiting the outcome of this Application. It was recommended thatthe Applicant should travel to Chilliwack this weekend, in order to return D. home if she was successful in this application, and forparenting time with him if she was not.

Analysis [25] Much has been said about D.’s preference of residence, but it should be clearly understood that this is not the determining factorin this application. It is only one factor to be taken into account in determining what is in D.’s best interests. [26]

Section 37 of the Family Law Act requires that when a Court makes an Order respecting guardianship, parenting arrangementsor contact with a child “the court must consider the best interests of the child only.” In determining what is in the best interests of a child,all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

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

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parentingtime or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward thechild or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to carefor the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [27]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person'sconduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” [28] While the views of a child do not determine decisions as to what is in that child’s best interest, the Courts of this province haveheld that the degree to which the wishes of a child will be considered is dependent on the age and maturity level of the child. Thisprinciple was stated by the British Columbia Court of Appeal in S.M.M. v.

J.P.H., 2016 BCCA 284, where Savage J.A. wrote: [22] While a child’s views and wishes are not determinative, courts should give considerable weight to the views of an older child,proportionate to their age and level of maturity: O’Connell v. McIndoe (1998), (BC CA), 56 B.C.L.R. (3d) 292(C.A.), leave to appeal ref’d (1999), [1998] S.C.C.A. No. 576; T.(T.) v. H.(J.M.), 2014 BCSC 451 at para. 54. A child’s newly formedviews may constitute a material change in circumstances: Rashtian v. Baraghoush, 2013 BCSC 2023 at paras. 16-17. [29] For example, in Alexander v.

Alexander (BC CA), [1988] BCJ No 1570 (QL); 11 ACWS (3d) 384 (BCCA),in a case with some similarities to this one, Locke J.A. wrote: [12] This court is now faced with the decision as to what is best for this boy [aged 14] who has been in the middle of a protractedcustody battle between two parents who are both equally well qualified to parent and who would each offer him a good home. What thechild wishes is not necessarily best for the child, but there does come a point when at near adult years a child capable of responsiblethought must now be deemed to be able to settle his own future in this important matter.

Concomitant with that he must take theresponsibility for his own actions. I think that that point has now been reached. [30] This principle has been applied in a number of other decisions of the Courts of this province. In McGowan v. McGowan 2001BCSC 1070, Tysoe J. held that a child who was almost 13 and entering high school, was sufficiently mature such that his desire to live

with his mother should be the decisive factor in determining the child’s residence. [ 31 ] However in Alexander v. Alexander , supra, the BC Court of Appeal also held that the preference of a child, even an older child, should not be the determining factor in deciding issues of guardianship and parenting time when the best interests of the child appear to lie in ruling in favour of the parent that is not the child’s preferred choice. Analysis [ 32 ] Here, just as in the BC Court of Appeal decision in Alexander v.

Alexander , supra, both the Applicant and the Respondent are well-qualified to parent D. and to offer him a good home. D. loves both of his parents and has strong ties to both homes and to the siblings in each home. At present, the Respondent’s

schedule allows him to spend more time directly with D., although this is not significant enough to be a determining factor in this case. [ 33 ] D.’s need for stability at his current age can be met in either home, given his age and stage of development. But what is needed is a decision that will give him the stability of knowing where he will live in the immediate future.

Regrettably, the partial closure of the courts during the early stages of the pandemic postponed that from happening. [ 34 ] There is concern here over the ability of each of the parties to exercise his or her parental responsibilities properly. Both have used self-help remedies and have refused to follow court orders. If this case came down to a competition of the most tenacious litigant, it would be difficult to decide who to award first place to. A child like D. deserves co-operative parenting. Instead he has received competitive parenting.

Each of the parties recognize this, but each sees it as a problem caused by the other. Neither is willing to compromise for fear of giving up ground in their battle to the other side. They have either interfered with D.’s schooling or have threatened to do so in future. Fortunately in their battle, the parties appear to have stopped short of any family violence affecting the child's safety, security or well-being. If there has been any, it was not referred to as a factor in this application by either party or by D. [ 35 ] Of the factors listed in

section 37 of the Family Law Act, the two factors meriting the most careful consideration in this case are the child's health and emotional well-being, (specifically the latter) and the child's views. D. presents himself to the professionals who have interviewed him with considerable resilience, but he has also consistently expressed a strong dislike of the pressure and guilt that has been placed on him. He told the Family Justice Counsellor that he finds the pressure put on him by the Respondent to be overwhelming. He has told Dr. Elterman that he resents the Applicant’s attempt to “guilt” him.

He has, in each report, expressed his distress over how each parent has been unwilling to listen to him. Making an order that is in the best interests of D.’s emotional health is best effected not by granting either of the parties their wishes, but by listening to what D. has to say. [ 36 ] Both of the parties agree that D.’s wishes at present are to remain in [omitted for publication]. His change of mind from just a few months ago is suspicious for the fact that it has occurred while in the home of the Respondent, someone that he has previously stated that he feels pressured by. Notwithstanding this, Dr.

Elterman has pointed to several reasons which support the change of heart being genuine, namely the consistency in the explanations of father and son as to how the change of heart came about, D.’s ability to articulate reasons for the change, and the absence of any indicators that would suggest coaching on the part of either parent. The Applicant herself acknowledges that this is now D.’s expressed wish. [ 37 ] The law is clear that the wishes of a child of D.’s age and maturity level should be respected on this issue, unless there are other reasons why doing so is not in his best interests.

In this case, the parenting abilities and other considerations listed in

section 37 are relatively balanced, both good and bad. The determining factors are D.’s expressed wishes, and the fact that it would be beneficial for his emotional well-being if he felt that someone was actually listening to him. He has now been heard and his wishes will be listened to and respected. But he must also take responsibility for the choice he has made. [ 38 ] For the foregoing reasons, I find that a change of the child’s residence from the Applicant’s home to the Respondent’s is in his best interests and an order will now be made to accommodate this.

There will be further adjustments to the parenting responsibilities to prevent further interference with D.’s schooling because of ongoing animosity between his parents. The Respondent should resist the urge to gloat over this result. As D. gets older, even more deference will be shown to his wishes, and he may easily change his mind yet again. [ 39 ] This is an interim order, pending the full hearing of this matter when the trial is rescheduled.

How the parties conduct themselves under the terms of this order will be relevant at trial, and further breaches may support an adverse inference against the party in breach or may be used to support a finding of parental alienation. Order [ 40 ] For the foregoing reasons, the following order is now made: Upon the Court being advised that the name and birth date of the Child is D.M.P., born [omitted for publication]; 1.

Notwithstanding the Variation Written Agreement made between the parties on December 4, 2014, the Respondent, M.W.P., shall exclusively have the following parental responsibilities until further court order: (

a) Making decisions where the child will reside; (

b) Making decisions respecting the child’s education The Applicant, T.I.R., will be entitled to information from the child’s school, including his report cards and any other information provided to parents. She shall not take any action to impede his enrolment in school. 2. In all other respects, the parties shall continue to share all parental responsibilities for the child.

3. The Order made by the Honourable Judge K. J. Ferriss on June 25, 2020 is cancelled. The Applicant, T.I.R, shall have parenting time with the child during all long weekends, school breaks and school holidays that she requests. She may arrange for the child’s flights, with the costs of such flight to be shared equally between the parties. The Respondent, M.W.P., shall be responsible to ensure that the child is on the outbound flights arranged by the Applicant and the Applicant shall be responsible to ensure that the child is on the return flight to the Applicant.

If either party fails to meet this responsibility, he or she shall be responsible for the entire cost of the flight. _________________________________ The Honourable Judge K.D. Skilnick Provincial Court of British Columbia