D.D.R. v. T.J.R. Date:, 2012 BCPC 277

Citation: D.D.R. v. T.J.R. Date: 20120808 2012 BCPC 0277 File No: F14877 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: D.D.R. APPLICANT AND: T.J.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant: Karol W. Wince Counsel for the Respondent: Janneke P. Lewis Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: February 21, March 27 and May 10, 2012 Applicant’s Written Submissions Filed: May 10, 2012 Respondent’s Written Submissions Filed: May 28, 2012 Date of Judgment: August 8, 2012 INTRODUCTION [ 1 ] These family law proceedings are principally concerned with the future primary residence arrangements regarding two boys, 12-year-old A.R. (“Child A”) and 10-year-old K.R. (“Child K”) (collectively, the “Children”).

Ancillary issues for determination are child support, responsibility for special and extraordinary expenses and, unusually, responsibility for bridge toll expenses incurred in connection with the use of a vehicle that formerly was a family asset. [ 2 ] Child A and Child K currently reside in Langley, B.C., with the respondent mother, T.J.R. (“Ms. R”). The applicant D.D.R. (“Mr. R”) lives in Port Coquitlam with his parents, G.R. (“Grandfather R”) and B.R. (“Grandmother B”) (collectively, the “Paternal Grandparents”). The parties separated in August 2010 and both are in new relationships. Mr.

R currently has specified access to the Children on Monday, Tuesday and Thursday evenings and on alternating weekends. [ 3 ] Specifically, while Mr. R wishes to preserve the present joint guardianship and joint custody arrangement (in place by reason of an interim consent order), he seeks to have his residence (which in fact is the Paternal Grandparents’ residence) become the primary residence for the Children with specified access to Ms. R on five out of every six weekends. Although he has not expressly sought a child support order, Mr. R submits that Ms.

R should be given an opportunity to consent to such an order in the event that the primary residence ruling goes in his favour. [ 4 ] Ms. R, as respondent, also wishes to preserve the joint guardianship and joint custody arrangement that has been ordered on an interim basis. She opposes Mr. R’s application to redefine his residence with the Paternal Grandparents as the Children’s primary residence. She wishes to see Mr. R continue to pay Guideline child support to her for the Children with adjustments to be made each year, based upon fluctuations in his annual gross income.

With respect to special and ordinary expenses, Ms. R asserts both retrospective and prospective claims for contribution, by Mr. R, toward the cost of the Children’s daycare. Lastly, as noted, Ms. R seeks payment of some bridge toll charges recorded over a six month period to an account, registered in her name, that is associated with a transponder- equipped vehicle that both parties used when they were together and that only Mr. R has used since separation. BACKGROUND FACTS [ 5 ] The evidence adduced at trial has established the facts recounted below.

Interspersed with the outline of those facts is discussion of the evidence relating to them and of the various arguments advanced by the parties based upon that evidence. [ 6 ] Mr. R and Ms. R were married in 1999. He is 40 years of age and works as a healthcare worker at the Forensic Psychiatric Services facility in Port Coquitlam. She is 39 and is a registry officer with the Federal Court of Canada in Vancouver. As I have noted, Mr. R and Ms.

R reside in Port Coquitlam and Langley, respectively. [ 7 ] The parties lived much of their married life together in Port Coquitlam, in relatively close proximity to the Paternal Grandparents. However, in about March of 2010, they bought a house in Langley and moved there together with the Children. Only a few months later, in August, 2010, Mr. R assaulted Child K. This led to a criminal charge being laid against Mr. R which culminated, ultimately, in a guilty plea and the imposition upon him of a suspended sentence coupled with a year of probation. The assault incident resulted in Mr.

R’s forced departure from the family home and, thus, the commencement of the parties’ separation. They have not yet divorced. [ 8 ] The assault figured prominently in the evidence heard at the trial of these proceedings and so I shall take some time with it in my reasons. [ 9 ] Undoubtedly, the assault upon Child K was a serious matter—sufficiently so to give rise to a criminal charge and, eventually, a guilty plea and a suspended sentence. In essence, in a moment of parental frustration and anger arising from Child K’s failure to tidy up his toys and respond satisfactorily to guidance in that regard, Mr.

R applied non-consensual force to Child K. Evidence was led of a recorded interview of Child K by police. The boy referred, inter alia , to being grabbed by the neck, lifted 12 inches off the ground and then being dropped or tossed to the floor. He reported as well that Mr. R threw a toy boat at him once he was on the floor, narrowly missing him. This incident was plainly distressing to the child, although he was not left with any injuries or bodily markings from it. [ 10 ] As assaults committed by parents against their children at moments of frustration and anger go, the assault committed by Mr.

R against Child K falls toward the lower end of the spectrum. But that does not mean that it was trivial or inconsequential. Unquestionably the incident was a psychologically traumatic one for the boy, even though it did not leave him with physical injuries. The fact that Child K did not sustain physical injuries is, to some degree, a matter of good fortune for all concerned. The particular form that the assault took could is alarming and could easily have yielded a more serious outcome. [ 11 ] Understandably, Ms.

R devoted considerable time to the assault of Child K in her testimony, as did her counsel in closing submissions. The assault furnishes Ms. R with an advantageous fact to raise against Mr. R’s application to change the status quo and place the Children in his care as their primary caregiver. But I did not find that Ms. R overemphasised the assault or attempted to give it prominence in the evidence before me beyond the considerable prominence that it justly deserves. [ 12 ] By contrast, I found that Mr. R worked assiduously to downplay the significance of the assault he committed in August, 2010,

against his then eight-year-old son. [ 13 ] Mr. R’s counsel wisely anticipated that the issue of the assault would arise in this case and so he took his client to it in his direct examination in an effort to get the evidence “out there” and deal with it—that is, to confront it and not appear to be declining to take responsibility for it.

However, that kind of commendable strategy (which at best can only lessen the impact upon a party’s interests of an admittedly serious, adverse event) can backfire if the portrayal given by the assailant of his own culpable conduct understates the seriousness of that conduct. [ 14 ] The strategy backfired badly here. [ 15 ] Mr. R was disappointingly dismissive in his characterisation of the assault he committed against Child K. He strove to make it appear trifling and relatively unimportant.

That evidence was plainly contradicted by the mere fact that the matter was proceeded with criminally following a police investigation; moreover, when other evidence regarding the assault ultimately came before the court (including the very poignant content of Child K’s police interview), the contrast between Mr. R’s presentation and the facts later proven was palpable and striking. [ 16 ] By seeking to diminish the seriousness of his own mistake in disciplining his eight-year-old the way he did, Mr.

R called into question the level of his insight into his own criminal offending; he also left the impression that he carries less remorse for his actions than the court would wish to see. Beyond that, he did damage to his own credibility and, into the bargain, he undermined his contention in these proceedings that he is better suited than Ms. R to be the Children’s primary caregiver. [ 17 ] I stress again that the assault that Mr. R committed against Child K was not a gravely serious assault by any means. However, Mr.

R’s way of handling it in his testimony had the effect of elevating its significance by revealing a tendency on his part to place his interests in the present litigation ahead of giving a fair, truthful and contrite account of what few would disagree was a singularly low moment in his performance as a parent. [ 18 ] Sadly, Mr. R’s loss of self-control at the time he assaulted Child K fits into a broader picture of difficulties in anger management. The evidence led at trial, some of it during cross-examination of Mr. R and his witnesses, persuaded me that Mr.

R has a somewhat chronic, difficult-to-manage, hair-trigger temper. I offer one example. (There were others.) Mr. R admitted that when dealing with a credit card company regarding some irregularities that had arisen with his account, he lost his temper with the company representative he had called by telephone. The conversation went so badly that the credit card company refused to take further calls from him. Plainly, Mr. R has some hard work to do so that he can learn to deal with anger and frustration in a better way than he has in the past. [ 19 ] I will make only brief mention of an incident about which Mr.

R testified regarding the alleged mistreatment of Child A by Ms. R’s new boyfriend. It came up in Mr. R’s testimony in what I interpreted as an attempt to show that there are comparable family violence concerns in Ms. R’s household and, in particular, to persuade the court that Ms. R’s new boyfriend had physically mistreated Child A. I reject that evidence. Paragraph 15 of Ms. R’s counsel’s submission on this subject—which I adopt and reproduce below— fairly contrasts the incident upon which Mr.

R sought to rely with the assault he committed against Child K. “It is concerning that even in the Applicant’s Submissions, there is a tendency to deflect from the extent and seriousness of the assault by focusing on a Christmas Eve party where the Mother’s boyfriend asked [Child A] to move out of a doorway. There is absolutely no comparison between the two incidents.

One is whee a child was obstinate, perhaps overtired and not listening and was asked to move along because he was blocking the path, and the other is where an adult is out of control to the point that he lifts the child off the ground by the neck, drops him on the ground and throws a toy at him.” [ 20 ] Moving on past the assault now, I find that—in the face of no-contact terms imposed when the assault against Child K first came to police attention—Ms. R took some initiative in negotiating a relaxation of those terms to permit Mr. R to have supervised access to the Children.

While this stands as some confirmation of the fact that the assault committed by Mr. R falls toward the lower end of the spectrum of parent/child assaults, it also shows that Ms. R recognises that, wherever it is possible and safe, it is important for children to maintain some degree of contact with both of their parents, even where one parent has made a terrible mistake. Her actions in clearing the way for continued contact between Mr. R and the Children were selfless.

I credit her with good judgment, humanity and an ability (all too rarely seen in family cases like this one) to look beyond the adversarial relationship that has developed between her and Mr. R and focus on the best interests of the Children. [ 21 ] That said, Ms. R is not without her faults. For example, in the wake of the assault incident and the breakdown of her marriage, she went through a period where she decompensated to some extent and was not easily accessible or locatable at times by a relative who was then assisting in caring for the Children.

That same relative sometimes felt that she was being “taken advantage of” by Ms. R. However, these lapses on Ms. R’s part were, by comparison to those noted regarding Mr. R, relatively minor and (in my judgment) explained in

part if not excused by the trying circumstances that existed in the wake of the breakdown of the marriage and, in particular, the event that precipitated Mr. R’s forced removal from the family home. [ 22 ] The Children are involved in French Immersion schooling in Langley. Before the family (while still intact) moved there from Port Coquitlam in March of 2010, both had been French Immersion students in that community as well. Although Mr. R speaks no French, and Ms.

R speaks the language fluently, both parents see the benefits and advantages of continued high level exposure of the boys to French language and culture as part of their schooling. Those opportunities exist in both the Langley/Surrey and Port Coquitlam areas; however, only Ms. R is able, by reason of her own fluency as a French speaker, to lend direct assistance to Child A and Child K with their studies. [ 23 ] In order to maintain her position with the Federal Court registry, Ms. R must rise very early in the morning to make her long, daily commute from Langley into Vancouver.

Since the parties’ separation she has had to rely upon a new, early morning daycare provider to look after the Children before school and, for some time, after school. (Before separation, morning daycare was also needed but only on days when both Mr. R and Ms. R were working. Then, the boys’ starting time at morning daycare was later than it is now.) Ms. R’s need to leave early for work without anyone at home to assist has meant that, since separation, the boys have had to get up at

4:30 a.m. to start their day when school is in session. Their bedtimes, similarly, have had to be adjusted to an earlier time than usual to enable them to get a proper night’s sleep. [ 24 ] Fortunately, after considerable effort, Ms. R has recently been able to negotiate a later start to her work day at the Federal Court, thus making it possible for her now to get the Children up at 5:30 a.m. instead of 4:30 a.m. [ 25 ] Ms. R does not shrink from acknowledging that, even as recently modified, this is a less-than-ideal arrangement.

Not surprisingly, she would prefer to have Child A and Child K keep more typical hours. However, without someone at home to look after the boys (as Mr. R used to do on some days when the parties were still a couple), when she leaves for her long commute into Vancouver now, Ms. R has limited options. As can be seen, she has ameliorated the situation somewhat by recently securing a start time at her job that is an hour later than the one she had until recently.

But, beyond that, it appears that if she is to continue with her career as a registry officer with the Federal Court—which career generates the income that enables her to provide for her daily needs and those of the boys, augmented by child support payments made by Mr. R—early starts will remain an unavoidable burden. [ 26 ] Mr. R made much of the early starting hours when he testified in support of his contention that the Paternal Grandparents’ home, where he now resides, should become the Children’s primary residence.

He gave colourful and emphatic testimony about the deleterious effects that he believes their timetable must be having upon their overall well-being. The burden of his evidence was that the boys seem tired and that they complain about having to get up early. He sought to contrast this with what would obtain should the boys begin residing primarily with him at the Paternal Grandparents’ home. One or the other of Grandmother R and Grandfather R would, in those circumstances, care for the Children before and after school on days when Mr. R could not do so himself for work reasons, he said.

Amongst the three of them, the boys would be transported to and from school in Port Coquitlam on a timetable that would be a great deal more “normal”. Moreover, Mr. R emphasised, the added time that would be spent by the boys with the Paternal Grandparents would not only eliminate the need for very early morning starts but also provide enhanced contact for them with loving members of their extended family. [ 27 ] While no one could doubt that the Children’s early morning starts during the school year are regrettable, they have become a regrettable necessity. I find that Ms.

R has done all she reasonably could to blunt the negative impact of those early starts by successfully negotiating (recently) a later start to her work day. She also testified that she is currenly attempting to find work closer to home. This all shows that she is not unmindful of the early morning starts problem; neither is she without resources or imagination when considering how it might be moderated if not eliminated. [ 28 ] I say the early morning starts “have become” a regrettable necessity because it is the separation, and the concomitant loss of Mr.

R’s assistance in the mornings, that more than anything have triggered Ms. R’s need to find continuous early morning daycare for Child A and Child K. The separation, in turn, is rooted in, inter alia , the triggering event of the assault that Mr. R committed against Child K in August of 2011. [ 29 ] While the parties were still functioning as a couple, Mr. R was quite willing to have the family endure the added complications that arose from their move from Port Coquitlam to Langley. Then, Ms. R was contributing her salary to the joint family income. Mr. R and she had bought a new house together.

It was understood by both that she would have to put up with a much longer commute than she had before. It was also recognised by both that, in relocating to Langley, the Children were not going to have nearly as much time in the company of Grandfather R and Grandmother R as they had had before. On days when Mr. R and Ms. R were both working, the boys needed and received morning daycare in Langley although admittedly the time they were deposited there was later because it was dictated by the time of commencement of Mr. R’s short commute to work and not Ms. R’s long one. [ 30 ] These were the life changes that Mr.

R (and Ms.

R) were both prepared to tolerate in order to own their own home in Langley when they still foresaw a future together. [ 31 ] The fact that the family relocated voluntarily to Langley in these circumstances in order to enjoy the benefits of home ownership there undercuts the arguments that Mr. R raises so forcefully now regarding the downside aspects of the Children being in Langley. Some morning daycare was part of the equation that he willingly accepted upon making the move. Diminished time with the Paternal Grandparents was another part of the equation that he willingly accepted.

It does not therefore lie in Mr. R’s mouth now to lash out at Ms. R, citing features of her situation in Langley and its ancillary requirements that can be traced in part to a decision that he made with her jointly to buy a house in Langley and relocate the family to there. [ 32 ] Beyond that, the evidence at trial has persuaded me that Mr. R did little, following separation, to assist Ms. R in dealing with the new stresses and challenges of maintaining the new Langley home on one income. He also did little to assist with the added expenses (like daycare expenses) that flowed from her newly single status.

Indeed, Mr. R stopped payment on the one $200 cheque he gave her for daycare expenses, post-separation. I find on the evidence that it was Ms. R who took the lion’s share of the initiative to get the family home onto the real estate market so as to unburden both parties of a mortgage liability that, in their changed circumstances, exceeded their means. [ 33 ] Seen in this light, Mr. R’s attempts to castigate Ms. R for what has flowed naturally from (

a) a decision to live in Langley that he made with her; and (

b) the separation that followed on the heels of the assault he committed against Child K and the no-contact terms imposed upon him by police in the wake of criminal charges being laid against him, appear unfair, unreasonable and largely tactical. [ 34 ] Considerable time at trial was devoted to testimony by and about the Paternal Grandparents and their role in the lives of the Children, both past and future. I have no doubt that Grandfather R and Grandmother R are loving people who wish the best for Child A and Child R.

I also have no doubt that, overall, they have been a positive force in the lives of the Children. (While Ms. R gave some evidence regarding what she considered to be excessive drinking on Grandfather R’s part at times, the fact that while she and Mr. R were together they both called upon the Paternal Grandparents to look after the Children regularly persuades me that those concerns were not very serious ones.) [ 35 ] Particularly before Mr. R and Ms. R moved to Langley, the Paternal Grandparents were called upon by them often as a resource for child minding, given the hectic schedules that Mr. R and Ms.

R maintained as busy, working parents. During the time the Children

have been their responsibility, the Paternal Grandparents have provided them with loving and high quality care. While undoubtedly they have had a tendency to “spoil” the boys, the evidence persuades me that that tendency has not exceeded what is seen in many families in which the children have the benefit of ongoing contact with their grandparents. [ 36 ] Unfortunately, with the breakup of the marriage between Mr. R and Ms. R, the Paternal Grandparents have been driven to choose sides. Nor surprisingly, they have aligned themselves with Mr. R. He is, after all, their son. The Paternal Grandparents and Mr.

R have, for that reason, tended to inflate in their testimony the importance and significance of their role in the Children’s lives. Ms. R, for her part, has correspondingly tended in her testimony to understate the importance and significance of their role in the Children’s lives. The truth is somewhere in between. Such is the effect of litigation, in which what is remembered and said is often influenced by the interests the witness is advancing. [ 37 ] The Paternal Grandparents have selflessly opened up their home to Mr.

R as a place for him to live again following the parties’ separation and it seems he is welcome to stay there as long as he wishes. The Paternal Grandparents also testified that they would be pleased to resume playing a larger daily role looking after the boys, both before and after school when Mr. R is working, should their residence become the one where the boys reside primarily. That, of course, would have the effect of regularising the Children’s hours and eliminating most of the need for daycare. [ 38 ] Grandfather R is on the brink of retirement and, he said, if it would assist Mr.

R in securing the result in this case that he is seeking, he (Grandfather

R) would retire straightaway. [ 39 ] These are all commendable gestures of support. It must however be said again that the evidence I heard at trial by and about the Paternal Grandparents was shaped, to a significant degree, by their alignment with their son as a litigant who is locked in an adversarial contest with Ms. R. Meaning them no disrespect, I observe that as grandparents, the Paternal Grandparents are secondary players in that contest. It is to be expected that, in the fullness of time, 40-year-old Mr. R will move back out of his parents’ home and into a home of his own.

It is to be expected that he will eventually resume leading a more conventional life, perhaps with a new partner. [ 40 ] The Paternal Grandparents have been and remain a critically important support to Mr. R (as, indeed, they were in a different way to Mr. R and Ms. R when they were together) in making provision for the Children. But foreseeable future life changes for Mr. R will in all likelihood eventually re-draw the map and with it the extent of the Paternal Grandparents’ involvement in making day-to-day provision for Child A and Child K.

That must not be overlooked. [ 41 ] Although they have not brought applications of their own, the Paternal Grandparents have their own desire to remain centrally involved in the upbringing of the Children. They testified passionately about that desire at trial. But, once again, I am bound to say that the long term planning for Child A and Child K cannot be predicated mainly or even significantly upon either the wishes or the present supportive involvement of aging members of the Children’s extended family—a supportive involvement that, at least in its present form, may be only temporary.

The Paternal Grandparents’ aspirations can certainly be taken into account, as they have been, but they must not become the mainspring or even a significant driver of how the long term primary residence question concerning the Children is ultimately resolved. [ 42 ] A helpful Views of the Child Report was ordered and prepared by Robert M. Finlay, M.A., to assist the court in its decision- making regarding long term primary residence arrangements for Child A and Child K.

The report was needed to enable the court to gain some insight into the Children’s own perspectives on alternative arrangements without putting them through the traumatic experience of giving testimony at the trial of their parents’ dispute. Experts like Mr. Finlay are skilled at drawing out of children in these circumstances the views they hold and at distinguishing, where necessary, what are genuine preferences from preferences that they may have been urged or encouraged to express by one or both of their warring parents. [ 43 ] Mr.

Finlay found, in this case, that indeed the Children had come under some pressure from Mr. R and the Paternal Grandparents to express a preference for residing primarily with Mr. R. In particular he stated, at p. 8 of his report, the following: “There was some evidence that the children’s views have been influenced by [Mr. R] and his parents in that the children reported that they had been told the benefits of staying primarily in their father’s care, specifically not having to go to their current daycare and being taken care of by [Mr. R’s] parents. Some of their responses mirrored what [Mr.

R] had reported as his concerns …” [ 44 ] Here again we see distressing evidence of the undesirable artefacts of the litigation process. Mr. R and the Paternal Grandparents have yielded to an unworthy impulse to recruit the Children as footsoldiers in Mr. R’s battle against Ms. R. Children should never be put in the position where they are expected to align themselves with one side or the other in parental disputes or advocate for the outcome that one or the other parent is seeking to achieve against the other in such disputes. It reflects poorly on both Mr.

R and the Paternal Grandparents that they were prepared to put Mr. R’s interests as a litigant ahead of the interests of Child A and Child K in having as little exposure to, and suffering as little collateral damage as possible from, the litigation of their parents’ marital breakdown. [ 45 ] Mr. Finlay found that the Children were “equally and positively attached to their parents and they enjoy their time in both homes”. He also noted, by contrast, that both boys expressed mild preferences for spending more time in Mr. R’s care (Child A more strongly than Child K).

These are, of course, irreconcilable observations. To the extent of the divergence, like Mr. Finlay I discount the latter-mentioned expressions of mild preferences to spend more time with Mr. R, given the fact that both boys had been coached by Mr. R and the Paternal Grandparents regarding what they believe to be the benefits of primary residency with them. [ 46 ] I find on the evidence led at trial that since January of 2011, Ms. R has been paying for daycare services for the Children in order to permit her to maintain her employment.

The cost of that daycare was $550 per month from January to June, 2011, inclusive, and $800 per month from July 2011 and thereafter. Mr. R did provide Ms. R with one $200 contribution toward daycare early on but he stopped payment on that cheque and, thus, he has not actually contributed any amount toward the Children’s daycare expenses. [ 47 ] Charges of $722.17 have been incurred over a six-month period in a bridge toll account registered in Ms. R’s name based on the use, by Mr. R since separation, of a former family vehicle equipped with a transponder that logs all trips taken by that vehicle across the

Golden Ears Bridge. Ms. R has sought unsuccessfully to persuade Mr. R to reimburse her for those charges (which must be paid before Ms. R can renew her auto insurance). More than half of the trips Mr. R has made across the Golden Ears Bridge during the subject period relate to access visits. There are toll-free alternative routes that Mr. R could use to travel from Port Coquitlam to Langley that do not require him to cross the Golden Ears Bridge PRIMARY RESIDENCE AND ACCESS The

Section 24 Factors [ 48 ] The primary residence and access decisions I must make in this case are, like those in all such cases, governed by the imperative that the Children’s best interests must be served by the arrangement ultimately prescribed. Subsection 24(1) of the Family Relations Act , R.S.B.C. 1996, c. 128 sets out the factors that I must consider. They are: (

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

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

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

d) education and training for the Children; and (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. [ 49 ] Subsections 24(3) and (4) further provide that conduct of a person that does not substantially affect a factor set out in (among others) subsection (1) must not be considered for present purposes and, to the extent that such conduct is considered, it is to be considered only to the extent that it does affect such a factor. (

a) Health and emotional well being [ 50 ] The facts established by the evidence led at the trial of these proceedings persuades me that the health and emotional well-being interests of Child A and Child K will be best served if Ms. R’s home remains their primary residence. [ 51 ] Mr. Finlay’s Views of the Child Report confirms that the Children are “equally and positively attached” to both parents and that they “enjoy their time in both homes”. However—notwithstanding the logistical challenges with which Ms.

R struggles in order both to retain her employment and make provision for the boys—the evidence persuades me that her home provides them with a more calm, stable and secure environment within which to develop and mature. [ 52 ] Ms. R impressed me as a person who, despite the occasional lapse, has not allowed her litigant’s persona to overtake her maternal one. She has remained focused upon creating the best and most nurturing environment she can for the Children, and she seems to have succeeded for the most

part in preventing the litigious conflict in which she is engaged with Mr. R to infiltrate the way life is lived in her home. She seems, by disposition, to be naturally calm and balanced. She is also resourceful and imaginative and those attributes have enabled her to fashion arrangements for the boys, against considerable odds, that have allowed her to maintain the employment and the income stream upon which she and the boys depend. [ 53 ] Ms. R is the first to concede that those arrangements are less than ideal; but they are the best attainable at present.

Notwithstanding the fact that the Children’s days begin and end earlier than those of most of their contemporaries, I find that Ms. R and the caregivers she has engaged to assist her do in fact provide a happy and healthy setting for Child A and Child K and I consider that it would be best if they continue to reside primarily with Ms. R. [ 54 ] Much of value for the Children unfolds in the Paternal Grandparents home where Mr. R resides. Ms. R readily concedes that. But Mr. R has failed to persuade me that a credible case can be made that the present arrangement, in which Ms.

R serves as the Children’s primary caregiver, should be altered. His arguments rest largely on the role that the Paternal Grandparents would play in providing, on a day-to-day basis, for the Children. But as I have stated, the court’s main preoccupation in cases of this kind is to serve children’s interests in striking the right balance of parenting time between children’s parents . Grandparents are necessarily an ancillary consideration. Mr.

R does not greatly advance his case that he should be the primary caregiver for Child A and Child K by pointing to the benefits that would accrue to them should they spend more time with his parents. [ 55 ] I regret to say that, unlike Ms. R, Mr. R has allowed his role as a combatant on the family law battlefield to overtake some of his better instincts and qualities. His criticisms of the arrangements that exist for the Children at Ms. R’s home were largely tactical, unreasonable and insensitive to some obvious realities. Mr. R showed no willingness to acknowledge the practical challenges that Ms.

R now faces, as a single parent, in maintaining employment in Vancouver from a home base in Langley— a home base that he had a direct hand in selecting . Mr. R’s criminal behaviour toward Child K deprived him of his former right to be present in the Langley house that he and Ms. R bought together. His parents, kindly and generously, opened their doors to him and have allowed him to stay with them indefinitely. As a result, he faces no comparable logistical challenges. Mr.

R’s parents live a short distance from his workplace and they continue to give him all the child-minding assistance he could ever wish for, removing any need for him to go out into the community and find daycare that permits him to meet his daily work obligations. I find it perverse that Mr. R should disparage Ms. R’s efforts to make the best of a situation—that is, living in a community that is at a great distance from her workplace— that is to some degree a situation of his own making . I find it perverse that he should criticise Ms.

R for relying on daycare providers to deal with that situation when he, in some respects, does the very same but has the advantage of having extended family to take that responsibility on at no apparent cost to him when nothing comparable is available to Ms. R. [ 56 ] Many of Mr. R’s arguments, as I have noted, ring hollow given the fact that he was quite prepared to have the Children attend early morning daycare as needed, and forego a good deal of their time with the Paternal Grandparents, in order to move into a house for

the family in Langley and continue to enjoy Ms. R’s contribution to overall family income. The complaints he raises, as I have said, cannot be genuinely rooted in concerns about what is best for the Children. If they were, he would never have agreed to relocate to Langley when the family was still intact. The complaints he raises are quite plainly tactical and they show that, when giving his testimony, Mr. R was thinking more like a litigant and less like a father.

It should not surprise him that having left that impression with the court, he has undermined his argument that primary residency for the Children should shift to him. [ 57 ] The fact that Mr. R assaulted Child K in the way he did and was charged criminally for doing so is obviously a relevant consideration as a health and emotional well-being factor for the purposes of s. 24(1) , (3) and (4) of the Family Relations Act , as are the facts that he pleaded guilty to the assault and was given a suspended sentence and a year of probation. Mr.

R’s quick temper and his difficulty in controlling it have not been a positive force in the lives of Child A and Child K (or Ms. R for that matter). I am concerned, having heard his dismissive testimony about the assault, that Mr. R may progress less swiftly in getting his temper under control than would someone else who shows contrition and insight after having acquired a criminal record for having picked his child up off the ground by the neck, dropped or tossed him to the floor and then thrown a toy at him. The evidence I heard at trial of the assault against Child K and of the difficulties Mr.

R has in managing anger cuts against the change in primary residence order in his favour that he seeks. (

b) Views of the Children [ 58 ] As I have already noted, to the extent that they appeared to express mild preferences to reside more with Mr. R than with Ms. R, I have had to approach what the Children told Mr. Finlay as author of the Views of the Child Report warily (as, indeed, did he). Mr. Finlay was persuaded, as am I, that both Child A and Child K were coached to some degree by Mr. R and the Paternal Grandparents to say things to him that favoured their interests in this litigation. For that reason, I do not consider those expressions of mild preferences to be reliable and accordingly I disregard them.

Something that I do take away from the Views of the Child Report is Mr. Finlay’s conclusion, based on his interviews with Child A and Child K that the Children are “equally and positively attached to their parents and they enjoy there time in both homes”. This fortifies me in my belief that they will continue to grow and develop in a positive direction if they continue to reside primarily with Ms. R and, as well, continue to enjoy quality access time with Mr. R and the Paternal Grandparents.

I would add that the benefits of that ongoing arrangement will be amplified for them if, in the wake of the conclusion of these proceedings, Mr. R can step out of uniform as a litigant and refocus his attentions on fatherly concerns and on taming his unruly temper. (

c) Love, affection and similar ties to other persons [ 59 ] The only relevant “other persons” for the purposes of this part of the s. 24 analysis are the Paternal Grandparents. I have no doubt whatsoever that there is a strong bond of love and affection flowing in both directions between the Children and the Paternal Grandparents. I also have no doubt that, even though there will be no change of primary residence, the access that will remain in place for Mr. R on weekdays and alternating weekends (which automatically brings with it substantial contact with the Paternal Grandparents) will ensure that the Children continue to derive significant benefits from that important relationship. (

d) Education and training [ 60 ] Child A and Child K are well on their way within the French immersion schooling stream. The decision to school them that way was taken by Mr. R and Ms. R together when their relationship was intact. Both still recognise the considerable advantages to the boys that can result from entering adulthood in Canada being fully fluent in both of Canada’s official languages. [ 61 ] Ms. R is a fluent French speaker; Mr. R does not speak French.

He rightly points to the fact that there are resources (homework clubs, for example) that can provide supplementary input and assistance to the boys with their schooling. Nevertheless, it having been determined early on that they will take their schooling in French, it cannot be seriously disputed that being in the primary care of a fluent French speaker would work to the Children’s advantage, educationally. (

e) Parental capacity [ 62 ] While both Mr. R and Ms. R have considerable talent and ability as parents, there is an undeniable parental capacity gradient between them. It is revealed most obviously in the assault that Mr. R committed against Child K, in the difficulties he has in managing anger generally and in the self-serving and dismissive view he has tended to take of these important matters. There is no comparable history of concerns regarding Ms. R. The evidence in these areas favours the preservation of the present arrangement under which Ms.

R serves as the Children’s primary caregiver. [ 63 ] I heard evidence that Mr. R completed his probation to his probation officer’s satisfaction, including the aspects of it that involved counselling. I commend him for that. But his performance at trial clearly showed that there is more work to be done. It is to be hoped that once this case is ended and he is finally off the battlefield, Mr.

C will adopt a more introspective, apologetic and self- critical perspective on some of his more serious, past lapses and that he will continue the hard work of acquiring the insight and the skills that will assist him in avoiding making the same mistakes again. Determination of Primary Residence and Access [ 64 ] For all of the foregoing reasons, Mr. R’s application seeking an order making his residence (which is the Paternal Grandparents’ residence) the Children’s primary residence must be dismissed.

Custody, Guardianship and Access [ 65 ] The parties previously consented to interim orders granting them joint custody and guardianship of the Children as well as specified access (including holiday access). They have been functioning in accordance with those orders for some time. Those matters were, technically, not before me at the trial of these proceedings and so I cannot make orders about them. Nonetheless, I urge the parties, given the interests the Children have in there being certainty and stability regarding their custody/guardianship/access regime, to

move swiftly to consent to final orders in the same terms as the interim orders that are currently in force. CHILD SUPPORT [ 66 ] Mr. R currently pays Guideline child support of $650 per month to Ms. R for the benefit of the Children on the premise that she is their primary caregiver. That figure is based upon a declared income for Mr. R of $42,700 per annum . Inasmuch as Mr. R’s application to change primary residence has been unsuccessful, the premise for the payment of child support by Mr. R to Ms. R remains and, with it, Mr.

R’s continuing obligation to pay child support. [ 67 ] It will be necessary for the parties to exchange updated financial information annually so that the amounts payable for child support and special and extraordinary expenses can be calculated using current income figures. [ 68 ] Mr. R and Ms. R must exchange copies of their filed Income Tax Returns and their Notices of Assessment on August 31, 2012, and on the 31 st day of August of each year thereafter for so long as the Children remain entitled to child support under the Family Relations Act and the Federal Child Support Guidelines , SOR/97-175 (as amended).

Child support payable by Mr. R to Ms. R from and after September 1 st , payable on the 1 st day of each month, must be adjusted to the table amount that corresponds to Mr. R’s gross annual income as revealed in his Notices of Assessment each year. SPECIAL AND EXTRAORDINARY EXPENSES Retrospective [ 69 ] The expenses that Ms. R has incurred to date for the Children’s daycare were incurred so that she could continue working as a registry officer with the Federal Court. As such they are properly claimable as special and extraordinary expenses under s. 7(1) (

a) of the Federal Child Support Guidelines . Those expenses are as follows: (

a) January to June, 2011 at $550 per month: $3,300 (

b) July 2011 to August 2012 at $800 per month: $11,200 TOTAL: $14,500 [ 70 ] The parties have been and remain responsible for daycare costs, as special and extraordinary expenses, in proportion to their respective contributions to their combined annual incomes. Mr. R’s declared annual income is $42,754.79. Ms. R’s declared annual income is $61,453. The parties’ combined annual income is, accordingly, $104,207.79. [ 71 ] Mr. R’s contribution represents 41% of the parties’ combined annual income. Ms.

R’s contribution represents 59% of the parties’ combined annual income. [ 72 ] As regards the retrospective aspect of her daycare-related special and extraordinary expenses claim, Ms. R is entitled to recover from Mr. R in respect of daycare expenses already incurred by her from January 2011 to August 2012, inclusive, 41% of $14,500 or, $5,945. Prospective [ 73 ] As regards the prospective aspect of her daycare-related special and extraordinary expenses claim, Ms. R is entitled to be reimbursed by Mr.

R for his percentage share of the monthly daycare charges from and after September 2012 within seven days of being provided true copies of receipts for those charges. [ 74 ] The parties’ respective shares of daycare expenses going forward will be determined based upon their respective proportional contributions to their combined annual income as revealed in their Notices of Assessment when they exchange Income Tax Returns and Notices of Assessment on August 31, 2012, and on August 31 st of each year thereafter for so long as the Children remain entitled to child support under the Family Relations Act and Federal Child Support Guidelines . [ 75 ] No claims were asserted by either party for coverage of other expenses they incurred for the Children on the basis that they constitute special and extraordinary expenses under s. 7 of the Federal Child Support Guidelines .

However, it is foreseeable that such expenses will be incurred in the future. Provided they can reach agreement regarding the characterisation of the expenses as falling within or outside s. 7, and regarding the reasonableness of those expenses, then Mr. R and Ms. R should be able to deal with them according to the cost-sharing mechanism described above without involving the court further in this aspect of their situation. BRIDGE TOLL CHARGES [ 76 ] Ms. R seeks in these proceedings to recover from Mr.

R some $722.17 that has been charged to a bridge toll account in her name for crossings of the Golden Ears Bridge made over a six-month period by Mr. R in a vehicle that once belonged to both parties. Her evidence was, and I find, that she asked Mr. R several times to have the transponder that tracks Mr. R’s crossings and charges Ms. R for them transferred to his name. He declined to do so. [ 77 ] While the parties agreed in their testimony that over half of the subject bridge crossings relate to Mr.

R’s access visits (he, according to their arrangement, being responsible for the transportation), that does not make them a special and extraordinary expense under s. 7 of the Federal Child Support Guidelines . Neither did I hear any argument to suggest that they can otherwise be so characterised. [ 78 ] I do not consider that I have jurisdiction to adjudicate this aspect of Ms. R’s claim. It is arguable is that it fits into the broader question of how debt is allocated when family property is divided in the wake of a marriage breakdown: see, on that question, the recent

decision of Punnett J. in Salminen v. Garvie , 2012 BCSC 407 . In that event the claim lies exclusively within the jurisdiction of the Supreme Court of British Columbia. It is also arguable that it is a simple debt claim, in which case Provincial Court jurisdiction over it would be sourced in the Small Claims Act , R.S.B.C 1996, c. 430. In that event Ms. R would need to commence a small claims action against Mr. R in order to recover it. [ 79 ] What I do not see before me is any basis upon which, as a provincial court judge, I can assert jurisdiction over Ms.

R’s bridge toll charges claim within the context of the current Family Relations Act proceedings. While it is true, as Ms. R’s counsel argues, that Rule 1(1) of the Provincial Court (Family) Court Rules provides that the purpose of those rules is “to allow people to obtain just, speedy, inexpensive and simple resolution of matters arising under the Family Relations Act and certain matters under the Family Maintenance Enforcement Act ,” that provision—like all of the provisions in the Provincial Court (Family) Rules —is concerned with procedural matters.

Rule 1(1) does not confer upon me substantive jurisdiction to consider and adjudicate claims not otherwise within my purview by reason of other jurisdiction-conferring provisions of the Family Relations Act or some other statute or statutes. [ 80 ] Mr. R’s counsel submits in his written argument that “this [$722.17] expense should be addressed in Supreme Court”. I suppose that it could be if, indeed, divorce proceedings have been (or sometime will be) set on foot in Supreme Court and property division orders, inter alia , are being sought. (I sincerely hope and trust that it is not being suggested that Ms.

R commence a separate action in the Supreme Court of British Columbia to recover $722.17). But surely it is not too much to expect that two intelligent, generally well-meaning people like Ms. R and Mr. R would and could negotiate a reasonable, consensual resolution to the nagging and relatively minor matter of the bridge toll charges without the need of further intervention by any court. I could have arraigned several accused on serious criminal charges and conducted a couple of contested bail hearings in the time that it has taken me to consider and decide the bridge toll aspect of the case at bar.

OMNIBUS FINAL ORDER [ 81 ] Based upon all of the foregoing I make final orders set out in the omnibus final order that is attached as

Schedule “A” and forms part of these reasons. ______________________ Thomas S. Woods, P.C.J.

SCHEDULE “A” OMNIBUS FINAL ORDER Primary Residence 1. [Mr. R]’s application for an order making his residence the primary residence of [the Children] is dismissed. [The Children] shall continue to reside primarily with [Ms. R]; Financial Disclosure and Prospective Child Support 2. On August 31, 2012, and on the 31 st day of August of each year thereafter for so long as one or both of [the Children] remain entitled to child support under the Family Relations Act and the Federal Child Support Guidelines , [Mr. R] and [Ms. R] shall exchange copies of their filed Income Tax Returns and Notices of Assessment.

Child support is payable by [Mr. R] to [Ms. R] on September 1, 2012, and on the first day of each month thereafter, in accordance with the table amount for two children corresponding to [Mr. R’s] gross annual income revealed in his Notices of Assessment exchanged from year to year on August 31 st ; Special and Extraordinary Expenses (Retrospective) 3. Daycare expenses for [the Children] incurred from time to time by [Ms. R] to permit her to maintain her employment are special and extraordinary expenses for the purposes of s. 7 of the Federal Child Support Guidelines ; 4. Based upon [Ms.

R] having incurred daycare-related special and extraordinary expenses of $14,500 between January 2011 and August 2012, inclusive without any contribution by [Mr. R], and based further upon [Mr. R]’s required proportional contribution being 41% given that his contribution to the parties’ combined annual income for the relevant period equals 41% of the same, [Mr. R] shall pay to [Ms. R] $5,945 as arrears of daycare-related special and extraordinary expenses; Special and Extraordinary Expenses (Prospective) 5. [Mr. R] shall pay to [Ms.

R] his percentage share of monthly daycare-related special and extraordinary expenses incurred from and after September, 2012, within seven days of being provided true copies of the receipts for those expenses; 6.

The parties’ respective shares of daycare-related extraordinary expenses going forward shall be determined based upon their respective proportional contributions to their combined annual income as revealed in their Notices of Assessment when they exchange filed Income Tax Returns and Notices of Assessment on August 31, 2012, and on August 31 st of each year thereafter for so long as the Children remain entitled to child support under the Family Relations Act and the Federal Child Support Guidelines.

Bridge Toll Charges 7. [Ms. R]’s application for payment of bridge toll charges incurred by [Mr. R] on her account is dismissed for want of jurisdiction.