C.C.F. v. C.L.P. Date:, 2017 BCPC 434

Citation: C.C.F. v. C.L.P. Date: 20171107 2017 BCPC 434 File No: F16304 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.C.F. APPLICANT AND: C.L.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant: R. Chambers

Counsel for the Respondent: M. Milau Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 7, 2017 Date of Judgment: November 7, 2017 [ 1 ] THE COURT (ORALLY): Before the court today for decision is a Notice of Motion filed on September 5th, 2017, by C.C.F. ("Ms. F") against C.L.P. ("Mr. P"). It has been before the court before. [ 2 ] A number of orders have been made respecting the subject matter of that Notice of Motion and the residue of what needs to be decided surrounds the question of Christmas parenting time for the child, L.P. ("Child L").

Child L was born on [d.o.b.] so he is five years and a few months of age. [ 3 ] I have heard evidence in viva voce form from Ms. F. and Mr. P. I have also read and considered the affidavits filed by both Ms. F. and Mr. P. in respect of this motion. [ 4 ] Before getting into the substance of my reasons, I am going to read a little bit from an account of a speech given by an Ontario family court judge called Harvey Brownstone.

Harvey Brownstone is an Ontario Family Court judge who, some years ago, wrote a book called Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. I commend it to the parties and their counsel as a very insightful, valuable resource for anyone wishing to understand better the adverse implications of family law litigation for children and for the parties.

Judge Brownstone is a very experienced, wise, and sensible Family Court judge who is troubled by the emotional and other damage that seems so frequently to follow on the heels of pitched battles in Family Court over matters involving family law questions and in particular questions concerning children. So I will read a little bit from this account. [ 5 ] Judge Brownstone, on this speaking occasion, said this: Courts are designed to solve legal problems but most peoples' problems are interpersonal. When parents fight in court, they leave angrier than they were in the beginning.

There is no winner in family court, there are only degrees of losing. He goes on: After 14 years on the job... -- and this is him speaking in 2009: ...I cannot believe that parents could hate each other so much that they would give all that power to a judge. They need to love their children more than they hate each other. [ 6 ] I want everyone to reflect on that profound statement. I will pause to say, I have no doubt that Ms. F. and Mr. P. love Child L dearly. I do wonder if they love him more than they hate each other. [ 7 ] Hate is a powerful word. Judge Brownstone used it. I think it is apt.

If two people who brought a child into the world subordinate creating conditions that are nurturing for that child, notwithstanding their division, their separation, their failure to be able to cohere as a couple -- that is, if, in the wake of their breakdown they are not able to check their own issues with each other at the door and just get on with the practical requirements of meeting the needs of a child who must necessarily now reside in two households -- that is, if they cannot put that ahead of their own conflict -- then that tells me that, while unquestionably they love the child, they do not love the child enough to do the right thing in terms of getting on with the practical requirements of being separated parents with a child in common. [ 8 ] Judge Brownstone goes on: Family courts are clogged with cases that have parents fighting so long the files are closed only because their children turn 18. [ 9 ] I pause to say, this file has all of the hallmarks of a file that, sadly, is going to follow that pattern.

It is not too late for people to climb down from their high horses and get on with the job of creating the right conditions for Child L, but the signs are rather ominous that the progress, so far, reflects the pattern that Judge Brownstone says is so destructive. [ 10 ] I do not think it hurts to remind people of the fact that taking their disputes to law and to judges to decide them in family court should be a last resort.

There should be a sincere and genuine effort made to find consensus in all areas and parties should only turn to courts in the last instance, because what happens is what happened in this courtroom today and has happened in this courtroom on all the other appearances over which I presided.

Things are said which deepen divisions, inflame and aggravate conflict, create greater distance between the adults in the child's life, all ultimately to the prejudice and disadvantage of the child. [ 11 ] We must not fool ourselves that warring parents do not produce an atmosphere in the child's life that degrades and harms the child's quality of life in some fashion.

Child L is a wounded foot soldier in his parents' war and he will become more wounded and more damaged as time passes if the pattern does not change. [ 12 ] Judge Brownstone: Children are the real victims in Family Court because they are caught in the middle of a tug-of-war. Parents have to understand the impact of their behaviour on their children.

[ 13 ] So what has the court been occupied with today? A full morning after yet another opportunity to work out something that is practical and consensual concerning how Child L's time shall be spent during the Christmas holiday season. [ 14 ] The Christmas holiday season: a time of rejoicing in Canadian culture; a time of warm family reuniting; a time of gift giving; a time of intergenerational contact; a time of renewal of relations between children, their parents, their grandparents.

A time when, at least briefly, the cares and the troubles of ordinary living are meant to fall away and to allow positive, uplifting, pleasant experiences that serve to nurture and to reinforce the human bonds that are so important to the development of everyone, and in particular children, as robust, psychologically intact, happy, and well-adjusted people. [ 15 ] But Christmas in this case and in many others -- apart from its significance as I have just described -- is yet another battlefield upon which warring parents can come at each other with weapons drawn, aiming to vanquish each other on the issue of how the child's time is to be spent.

I am not saying that either of the parties is not aware of the implications of their doing battle in this way for Child L but I think it is essential that they be reminded of that. [ 16 ] This is a little boy, impressionable, young, still not fully formed, who aims to make his way forward in his life with the best adjustment possible but who must be a bystander and sometimes an active combatant in the battles between his parents.

Here, you juxtapose that against what Christmas represents in our society, the season -- what it means in the lives of the two adults who spoke persuasively and convincingly today about how important it is to them and their respective families -- you juxtapose all of that against this tug-of-war and you have to ask yourself, how can something so full of promise and happiness be drawn into a seemingly never- ending battle and form yet another part of the weaponry in a dispute that shows no signs of abating.

As Judge Brownstone says, these parents, like all parents in family law proceedings, need to love their children more than they hate each other. [ 17 ] These parties before me, Ms. F. and Mr. P., cannot agree on how Christmas, a seasonal period, should be allocated as between them. Obviously, the Christmas season has a different character than the ordinary calendar year. There is an existing pattern of movement from house to house that Child L follows according to a previous order, and special provision is made for Christmas because Christmas is different.

A seasonal period is different, as has been recognized in respect of other important different times of the year, like Thanksgiving and Easter, that are reflected in previous orders. Something has to be done about Christmas that stands apart from the generally prevailing pattern. The parties seem unable to come to agreement on what is, with all respect, a simple and practical problem. [ 18 ] They have submitted that question to the court. I continued today to follow the practice of reminding parties and their counsel of the opportunity to find consensus.

I insisted that they make one last try at resolving matters by consensus and still they could not reach agreement and so the court heard a full morning of argument and evidence on the issue. [ 19 ] The opportunity to co-define a practically workable, fair disposition has been lost by the parties' inability to reach agreement and so now I must impose something in the way of a Christmas

schedule that reflects my best assessment of what would be fair, just, and appropriate, and most importantly, serve the best interests of Child L, despite the parties' disagreement. [ 20 ] One of the characteristics of such an arrangement is that it must be fair and even-handed. The Christmas season has special meaning and significance in our culture and in the lives of these two parties. They must both be able to partake of that season in the company of Child L in a fair and even-handed way. [ 21 ] I have been invited by Ms.

Chambers to make a qualitative assessment as to the benefits of celebrating Christmas that do accrue to Child L when he is in Ms. F.'s household as compared to Mr. P.'s household. Ms. Chambers made reference to the number of people who are present in both households as a comparator. She made reference to the number of children versus adults in both households.

I pressed her to confirm whether she was truly saying that the court should embark on a qualitative assessment of whether Christmas is as fulfilling in one household as the other and I will say, to my surprise, that she answered that she believed I should. [ 22 ] I respectfully decline to carry out that qualitative assessment. One cannot measure the quality of a child's experience in two households by counting heads.

One cannot measure qualitatively the meaningfulness and the significance of different traditions as they unfold in different households. [ 23 ] What I know -- and, in my respectful view, this is all I need to know -- is that in both of his households during the Christmas season, Child L enjoys warm, high quality interactions with the people that matter to him. That is true in Ms. F.'s home. That is true in Mr. P.'s home. They may not have the same traditions.

They may not engage in all the same practices, but I have no question that there is something worthy, valuable, and important for Child L to experience in both households. To purport to weigh that experience in one household against the other in the course of determining the question before me would be, I think, manifestly inappropriate. [ 24 ] The arrangement that ultimately must prevail must be even-handed. It must reflect some realities in terms of timing and travel and so on. It has been suggested by Ms.

Chambers that Child L perhaps might have a kind of proxy Christmas on some day or days other than the actual special days in the calendar. Again, with respect, I find myself unpersuaded by that argument. [ 25 ] I am hearing this application because of the cultural and familial significance that is attached to the Christmas season and to particular days in the Christmas calendar. Something must be done to ensure an equitable sharing of that time of the year as between the two households who care for Child L.

Simply allocating the formally recognized seasonal holidays to one side in this dispute in preference over the other would, in my judgment, not accord with the court's duty to be even-handed and fair. [ 26 ] I have heard, in the course of the evidence today, too much from both parties about discussion they have been having with Child L about what may or may not happen this Christmas. This five-year-old will ultimately have his movements between households defined by a court order and neither of the parties could know until the court order is pronounced how those movements would look.

Yet, both of the parties have been engaged in discussions with Child L about how they might look. This drawing of Child L into a matter of controversy between his parents is harmful to him. It should never happen and it should stop happening from this point forward. [ 27 ] Child L is not going to be a trustworthy communicant with respect to his wishes and desires in his discussions with either of his parents. He knows that his parents are at each other's throats and he also knows the kinds of things that he can say that will please and

not displease each of his parents. He should not be put in a position where he is called upon, in some way, to choose between them and say things that they hope to hear. It is easy to keep him out of these discussions. Adults really thinking deeply about what their children's needs are can do that. I expect Mr. P. and Ms. F. to do that going forward. [ 28 ] I have arrived at a conclusion that involves alternating years: one disposition applying in even-numbered years, another disposition applying on odd-numbered years.

Such an arrangement will ensure that Child L can spend some part of Christmas Day in every year with each of his families. That has been described in some of the submissions before me as, in some way, inimical to this child's interests. A child being "ripped away", from one family to go to the other in the course of the Christmas holiday, in my view, is a mischaracterization. Certainly, it can be given that characterization if the parties are focused on their conflict as opposed to creating conditions that are favourable to Child L's happiness and wellbeing.

Another way to characterize it and, frankly, present it to Child L, is as an opportunity to celebrate Christmas twice on the same day in two places. [ 29 ] I come to the terms of the order I am making that will define the Christmas parenting time allocation going forward until further order of the court. I will say here that I am going to resist the submission that I heard today that I make an order that speaks only to this particular Christmas.

There needs to be a blueprint for the parties to follow going forward that, as the alternating pattern cycles through its alternating phases, is even-handed and allows both of Child L's families to benefit equally from the allocation such that Child L's life at Christmas can become routine and predictable, regularized such that there will not be a need for appearances in 2018 and '19 and '20, and all the way until Child L ages out, as Judge Brownstone said, reinventing the Christmas wheel over and over again. [ 30 ] I come to the conditions.

During the Christmas season, notwithstanding that the generally prevailing parenting time

schedule provides otherwise, in odd-numbered years, commencing in 2017, Child L shall spend the time between three o'clock p.m. on the last school day of the school term until 12 o'clock noon on December 25th, Christmas Day, with Ms. F., and he shall spend the time from 12 o'clock noon on December 25th, Christmas Day, until 12 o'clock noon on December 31st, New Year's Eve, with Mr. P. [ 31 ] In even-numbered years, commencing in 2018, Child L shall spend the time between three o'clock p.m. on the last school day of the school term until 12:00 noon on December 25th, Christmas Day, with Mr.

P., and he shall spend the time from 12:00 noon on December 25th, until 12:00 noon on December 31st, New Year's Eve, with Ms. F. [ 32 ] This alternating, year-by-year, allocation of Christmas holiday time shall continue until further order of the court. I shall just add that that allocation divides the central element in the Christmas holiday season, Christmas Day, right down the middle and ensures that both Ms. F. and Mr. P. have an opportunity to have a fully developed Christmas experience with Child L in each of their respective households. (REASONS FOR JUDGMENT CONCLUDED)