G.L. v. C.O. Date:, 2015 BCPC 37

Citation: G.L. v. C.O. Date: 20150122 2015 BCPC 0037 File No: F16363 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: G.L. APPLICANT AND: C.O. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Applicant: F. Tromans Appearing on their own behalf: The Respondent, C.O. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 22, 2015

Date of Judgment: January 22, 2015 [ 1 ] THE COURT: We are here for a decision today on Mr. L.'s application. [ 2 ] The parties are the parents of D., [D.O.B.]. Although the parties maintained a friendship and D. knew Mr. L. from shortly after his birth, D. did not know that Mr. L. was his father until DNA testing was done in 2012. [ 3 ] In 2013, Mr. L. applied for more regularly scheduled time with D. which is the subject matter of today's proceedings. [ 4 ] The interim order that is currently in place provides that Mr.

L. has parenting time with D. on alternating Sundays from noon to 4:00 p.m. [ 5 ] A trial will be scheduled at a later date to consider whether Mr. L. is a guardian under s. 39(3)(

c) of the Family Law Act and to consider Ms. O.'s application for child support. Depending on that determination, Mr. L.'s time with D. may be re-described as parenting time. [ 6 ] Mr. L. seeks time on alternating weekends from Saturday at 9:00 a.m. until Sunday after dinner. He also seeks a mid-week visit with D. from 5:00 to 8:00 p.m. on two weeks out of every four weeks to conform to his alternating two weeks day shift, two weeks afternoon shift work schedule. [ 7 ] Ms. O. opposes the application on the basis that D. is not comfortable with Mr. L. and does not wish to spend that much time with him. Ms.

O. asserts that D. feels let down by Mr. L. and feels that Mr. L. is "not there for D." [ 8 ] The evidence established that Mr. L. has never missed a scheduled visit. It also established that he has voluntarily made support payments from shortly after he was advised of the result of the DNA testing until the present time. He has also paid for various items of clothing or sports equipment from time to time. [ 9 ] Although he has never missed a visit, Ms. O. admitted that five of the 16 visits required by the most recent court order had been cancelled by Ms. O.

D. has been accompanied by his younger half-brother or by a friend at a number of the most recent visits. [ 10 ] D.W. testified on behalf of Mr. L. who is her younger brother. She is a school teacher who resides and works in a very small First Nations community in the Northwest Territories. [ 11 ] She has been exceptionally supportive of her nephew D. and his mother, providing financial support to Ms. O. with no strings attached in excess of $7,000 as well as gifts, including a gift to Ms. O. of a gently used computer. She has also spent Christmas 2012 and 2013 and a few days of vacation time with D.

She took him on shopping trips to buy clothes and shoes several times in the summer of 2014. [ 12 ] Around Christmas time 2013, Ms. O. requested that Ms. W. buy her a car. Ms. O.'s plan was that she would be reimbursed for the cost of the car, over time, by Mr. L. redirecting his child support payments to Ms. W. Ms. W. refused to be involved with this scheme. [ 13 ] Ms. O. also asked Ms. W. for money to put D. in a hockey program. However, the plan involved practices in Langley, Ms. O. did not have a car, and Mr.

L. lived in Burnaby and worked full-time and so could not be available to provide reliable transportation for D. Ms. W. was concerned that this plan was not practical and did not wish to throw money away. She refused this request. [ 14 ] Ms. W. testified that during a shopping trip in the summer of 2014, Ms. O. learned that Mr. L. was accompanying D. and Ms. W. Ms. O. responded to this information by sending Ms. W. a series of angry and abusive text messages objecting to Mr. L.'s involvement. As a result, Ms. W. blocked the receipt of further messages from Ms.

O.'s number and has discontinued providing support directly to Ms. O. [ 15 ] Both Mr. L. and Ms. W. testified that the relationship between Mr. L. and D. was strengthening over 2013 but that D. became more distant in 2014. [ 16 ] Ms. O. testified that D. no longer wished to spend as much time with Mr. L. and that some of the visits were missed because D. did not want to go. She testified that D. described his visits with his father as "awkward" and requested that his younger brother accompany them. [ 17 ] Ms.

O. attributed D.'s change in attitude to D.'s perception that his father was not there for him, physically, financially, or emotionally. She acknowledged that Mr. L. never missed a scheduled visit and that visits were cancelled by her, not Mr. L. She also acknowledged that Mr. L. regularly paid her child support. [ 18 ] The only evidence that she presented to support Mr. L.'s lack of commitment to D. was a generalized statement that he failed to show initiative by approaching D. directly with ideas of ways they could spend time together, or by phoning D. to see how he was doing. [ 19 ] Mr.

L. testified that he thought that D.'s more recent distancing of himself from Mr. L. was based on information that D. received from Ms. O. about Mr. L.'s conduct in relationship to Ms. O. [ 20 ] It was clear from Ms. O.'s testimony that she was angry with Mr. L. for refusing to provide Ms. O. with money directly, additional to his child support payments. She was also angry that after providing a child support payment earlier than at the scheduled time on one occasion Mr. L. refused to agree to do so on subsequent occasions. She was also angry with Mr.

L.'s sister for not supporting her plans and for discontinuing her direct financial support of Ms. O.

[ 21 ] Although she testified that she was not angry at Mr. L. for bringing this application for more time with D., when confronted in cross-examination with the text message that she had sent to Mr. L. in response to receipt of his application, she eventually conceded that she had been angry. [ 22 ] When asked to read the text message to the Court, she initially took the unsupportable position that she could not read. She eventually admitted that she could read and that she had been extremely angry that Mr. L. had applied to court for more time with D. In the text message, Ms. O. told Mr.

L. that D. would hate Mr. L. for doing that to her. [ 23 ] In cross-examination, Ms. O. also admitted that at an earlier court appearance D. had missed school and accompanied Ms. O. to the courthouse. For this trial, Ms. O. was accompanied by her younger son who attended in the courtroom until directed to wait outside. [ 24 ] I infer from all of the evidence that D. is very aware of the court proceedings between his parents and that Ms. O. is the source of his knowledge and point of view on these proceedings. [ 25 ] I also infer from all of the evidence that Ms.

O. has shared her feelings of anger and distress at Mr. L. for bringing these proceedings. It is quite understandable that D. would be distressed by anything that distresses his mother and would blame the person who was causing this distress to his mother. D. is too young to have the knowledge of the world that would put these events into perspective. [ 26 ] In cross-examination, Ms. O. admitted that she had asked Mr. L. to fix her car on one occasion which he did. She admitted that on another occasion her car broke down when D. was with her. She texted Mr. L. to either attend and fix the car or pick them up.

She testified that when Mr. L. refused to do so she was frustrated at her circumstances and angry with Mr. L. for not helping her out on that occasion. [ 27 ] In the formal atmosphere of the courtroom, Ms. O. demonstrated very little emotional self-control. I have no doubt that she made her feelings of anger, frustration and distress known to her son on this occasion. That his father was the cause of Ms. O.'s distress would also have been abundantly clear to D. [ 28 ] In her testimony, Ms. O. compared Mr. L. unfavourably to the father of her younger son. She testified that in contrast to Mr.

L., "M. would give the shirt off his back for me," then added only as an afterthought, "to help his son." [ 29 ] I have concluded from all of the evidence that it is probable that the reason why D. sometimes does not wish to see his father and is becoming increasingly distant from him is because Ms. O. demonstrates inappropriate anger, frustration and distress when Mr. L. does not accede to Ms. O.'s wishes. [ 30 ] Ms. O. is confusing her son's best interests with her personal best interests. When Mr. L. fails to meet her needs or do what she asks of him, she interprets Mr. L.'s response as Mr.

L. failing to meet the needs of D., and inappropriately communicates that

interpretation to D. [ 31 ] Ms. O. needs to understand that while Mr. L. and Ms. O. are the parents of D., they are not in a relationship and Mr. L. has no obligations to Ms. O. except to abide by the terms of court orders. Mr. L. has abided by those Court orders; that is all that is required of him in relationship to Ms. O. Similarly, Ms. O. has no obligations to Mr. L. except to abide by Court orders. [ 32 ] In contrast to Mr. L., Ms. O. has from time to time failed to abide by the Court order that D. is to have certain identified time with Mr. L.

It is her obligation to ensure that the visits take place. [ 33 ] I trust that once Ms. O. understands that her conduct has arisen from a misunderstanding about Mr. L.'s obligations to her and her obligations to him that she will abide by Court orders and stop having unreasonable expectations of Mr. L. and his family. [ 34 ] The most important obligation of D.'s parents is to act in the best interests of D. I have no doubt that Ms. O. and Mr. L. love D. very much. Ms. O. claims that she wants D. to have a stronger relationship with his father. [ 35 ] I believe that Ms.

O. understands that it is in D.'s best interests that he spends time with his father and develops a strong bond with him. However, she has not acted on those beliefs. Instead, she has exposed D. inappropriately to the court proceedings between his parents. She has also displayed anger and distress directed at Mr. L. in front of D. She may not have done so with the purpose of alienating D. from Mr. L. She may simply choose not to exercise an appropriate level of emotional self-control in front of D. In doing so, she is placing her interests before those of her son.

Regardless of her intent, it is likely that her conduct is alienating D. from his father. [ 36 ] As set out earlier, the basis for her conduct is a mistaken belief about what she is entitled to from Mr. L. [ 37 ] Ms. O. must recognize the destructive effect that her conduct is having on her son and that she has consistently failed to act in D.'s best interests. She must stop the conduct that is sabotaging D.'s relationship with his father. [ 38 ] In considering an application for parenting time or contact, my only consideration is the best interests of the child.

A non- exhaustive list of factors is set out in s. 37(2) of the Family Law Act . I have considered the list carefully and review the factors in the order in which they are set out in the section. (

a) The child's health and emotional well-being: More time with his father will provide D. with the opportunity to develop a significant relationship with a committed father which will enhance D.'s emotional well-being.

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b) The nature and strength of the relationships between the child and significant persons in the child's life: More time with his father will also support the further development of the relationship between D. and the other members of D.'s family, including his Aunt D. who has been so very generous to D. and his mother. (

c) The history of the child's care: D. has lived with his mother since his birth. Mr. L. has had some contact with D. since his birth and has shown a steadfast commitment to spend time with him and to provide child support since 2012 when DNA tests established that he was D.'s father. (

d) The child's need for stability, given the child's age and stage of development: D. is only ten years old and so his stability is of concern. His exposure to his father has been limited and in more recent times has been compromised to some extent by the conduct of his mother. Hence, I must be sensitive to the need to build the relationship between father and son incrementally and consider how its development can be fostered. (

e) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities: Mr. L. is 48 years old and is employed full-time. In his evidence he demonstrated a mature understanding of the responsibilities of parenting. (

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

g) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs: No evidence of family violence on the part of Mr. L. was presented. (

h) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members: This is not relevant at this time. (

i) Any civil or criminal proceeding relevant to the child's safety, security or well-being: No evidence respecting (

j) was placed before me. [ 39 ] I choose to deal separately with factor (b), the child's views, unless it would be inappropriate to consider them. [ 40 ] Due to the history of contact in this case, the recent limits placed by Ms. O. on that contact and the evidence referred to above, I consider it to be inappropriate to formally solicit the views of the child in a report under s. 211 of the Family Law Act . It may be appropriate to solicit such a report in future proceedings. [ 41 ] Mr.

L. indicated that he wishes to engage in Family Development counselling with his son in order to build their relationship with professional assistance. In light of their recent history, it is my view that this is a good plan. [ 42 ] While previous orders have referred to parenting time, I note that Mr. L. must first establish that he is a guardian before that term should be used. Hence, I am using the term "contact." Depending on the results of Mr. L.'s application for guardianship, the correct term may be parenting time. [ 43 ] This is my order: 1. The style of cause is amended to spell Ms.

O.'s last name as follows: "O------" 2. Commencing the first Wednesday that Mr. L. is on dayshift, Mr. L. shall have contact with D., (D.O.B.), "D." from 5:00 p.m. until 8:00 p.m. two Wednesday nights in every four Wednesday nights. This contact shall occur on the weeks when Mr. L. is on dayshift. 3. Mr. L. and D. shall attend Family Development counselling sessions together at intervals and for a duration recommended by the counsellor at times convenient to Mr. L.'s work schedule. 4. Mr.

L. shall have contact with D. in 2015 in accordance with the following schedule: Sunday, January 25th from 9:00 a.m. until 4:00 p.m. Sunday, February 8th from 9:00 a.m. until 4:00 p.m. Sunday, February 22nd from 9:00 a.m. until 7:30 p.m. Sunday, March 1st from 9:00 a.m. until 7:30 p.m. Sunday, March 8th from 9:00 a.m. until 7:30 p.m. 5. Commencing Saturday, March 14th, 2015, Mr. L. shall have contact with D. on alternating weekends from 9:00 a.m. on Saturday until 7:30 p.m. on Sunday. 6. Mr. L. shall decide whether and at what times D. is accompanied by any other children during the contact time. 7.

This order replaces all previous orders respecting contact or parenting time. [ 44 ] That is my order.

[ 45 ] MS. TROMANS: Your Honour, I believe we also had a change to D.'s name and birth date for the purpose of the –- [ 46 ] THE COURT: I was going to seek clarification from the parties with respect to that. [ 47 ] MS. TROMANS : Yes I believe his legal name in my – and Ms. O. can correct me – is D.M., am I right? [ 48 ] C.O.: (indiscernible) [ 49 ] MS . TROMANS: Okay. And I think in the orders thus far Your Honour he is down as D.O. [ 50 ] THE COURT : Okay. [ 51 ] MS .

TROMANS: So if we can make -– I don't know if -– it wouldn't be a style of cause change per se but rather it may be in your order since it replaces all the previous orders I think that's sufficient to simply have his name set out appropriately. And does he have a middle name? [ 52 ] C.O.: A. [ 53 ] MS . TROMANS: A. So D.A. – [ 54 ] THE COURT : So it is D.A.M. then. Okay. So we will add an additional order perhaps it can be between paragraph 1 and current paragraph 2 that in future proceedings or how should we word this? [ 55 ] MS .

TROMANS: My view, Your Honour, is because this order replaces the previous –- [ 56 ] THE COURT : Right. [ 57 ] MS . TROMANS: -- so long as -- usually there's a -– there's a

preamble that says "And upon the Court being advised of the name and birthdate of the child is" If I can put it in the

preamble I don't know that we need an order frankly as long as your order directs that the -- [ 58 ] THE COURT : Okay. Why don't we put in the

preamble, then, "And upon being advised by the parties that the name of the child is D.A.M." and just to clarify the date of birth? [ 59 ] C.O.: (D.O.B.). [ 60 ] THE COURT : (D.O.B.), okay. [ 61 ] MS . TROMANS: And is it M---? [ 62 ] C.O.: c-k. [ 63 ] THE COURT: c-k. [ 64 ] MS. TROMANS: And the only other thing I wish to address Your Honour -- [ 65 ] THE COURT: And then we do not need to do anything further. The order can remain as it is just provided we put that

preamble in because the order then will in fact show the correct name. Thank you. [ 66 ] MS. TROMANS: And the only other thing I want to address Your Honour is I wrote to Ms. O. prior to today asking her to advise her status of obtaining a new lawyer. You will recall at our last hearing date we decided to not proceed with setting a trial date given that Ms. O. was –- [ 67 ] THE COURT: Exactly. MS. TROMANS: -- anticipating having a lawyer. Today she has told me she still anticipates that. However, it's a cost to my client if I have to come back to court to set dates in the event Ms.

O. doesn't follow through so it's my suggestion - I advised Ms. O. before we appeared today - that we proceed to the JCM, set a trial date and if she gets a lawyer and we have to adjourn, we have to adjourn, but we would do it by consent based on our respective calendars. But this way we have a goal post. [ 68 ] THE COURT: Exactly. [ 69 ] C.O.: I will have a lawyer by then. [ 70 ] THE COURT: Terrific. So, Ms. O., you have been able to take steps then to -– okay, excellent. And if the parties are agreed, that sounds like a sensible plan. Do we know how long the trial will take? [ 71 ] MS. TROMANS: In the event Ms.

O. remains self-represented, I recognize her plan, but you never know, I would prefer to have enough time to deal with all the issues, so I'm going to suggest five days. I suspect three to four is probably sufficient, but just for safety's sake. [ 72 ] THE COURT: Okay. Yes, I am prepared to agree to your recommendation because you are going to be the most knowledgeable about how much time the trial will take. The only thing I am a little bit apprehensive about is setting aside that much time and then having an adjournment of that much time.

[ 73 ] MS. TROMANS: Agreed. [ 74 ] THE COURT: Again, I really urge you, Ms. O., to continue your plans to get a lawyer. [ 75 ] MS. TROMANS : Oh, we may be – Your Honour, we could do four days. Often when it's a four day in any event and if we need to spill over, a judge is available -– [ 76 ] THE COURT : It usually is – it can go. [ 77 ] MS . TROMANS: -- so perhaps we should start with a four-day plan then and be optimistic. [ 78 ] THE COURT : Okay. Why don't we say four days, then, and again, Ms.

O., I understand you are committed to getting a lawyer, so that is excellent, and so the Judicial Case Manager will set a trial date for you. Thank you. [ 79 ] MS . TROMANS: Thank you, Your Honour. [ 80 ] MR. L.: Thank you very much, Your Honour. [ 81 ] C.O.: Thank you. [ 82 ] THE COURT: Thank you. (ORAL REASONS FOR JUDGMENT CONCLUDED)