M.M. v. N.A. Date:, 2017 BCPC 297

Citation: M.M. v. N.A. Date: 20171016 2017 BCPC 297 File No: F17113 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: M.M. APPLICANT AND: N.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Applicant: B. Ingram

Counsel for the Respondent: R. Chambers Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 10, 2017 Date of Judgment: October 16, 2017 [ 1 ] In this family dispute I am asked to determine interim parenting arrangements for the two children of the relationship, R.M., born [omitted for publication], and Y.M., born [omitted for publication]. The trial of this matter commenced on September 19, 2017 and has proceeded for four days. The trial did not complete in the four scheduled days and a further three days have been set to conclude the trial on January 29, 31 and February 13, 2018.

Given the significant length of time before the expected conclusion of the trial and the fact that the interim parenting

schedule has now been in place for close to two years, a

schedule that the Father considers inadequate, the Father seeks a variation of the interim parenting

schedule pending the conclusion of the trial. [ 2 ] Section 216(3) of the Family Law Act provides the court with jurisdiction to vary an interim order. It states:

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists: (

a) a change in circumstances has occurred since the interim order was made; (

b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection (3); (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [ 3 ] Variation of an interim order in the midst of a trial is unusual. I have not heard all of the evidence and indeed at this point I have heard all of the father’s evidence and only three of the mother’s witnesses. Significantly, the mother has not yet testified.

I am advised that she has a number of other witnesses who will be testifying as part of her case. [ 4 ] However, unlike in some cases, in this case I have the benefit of a lengthy s. 211 report prepared by Robert Finlay on March 16, 2017. Although I am advised that the mother takes issue with the conclusions of the report, I do not understand her to be calling Mr. Finlay for cross-examination during the trial. As such, I find that I am able to place considerable reliance on the report, which has been entered into evidence.

Furthermore, the father and his witnesses have been subject to cross examination by the mother’s counsel and as such I have a picture of what the mother’s evidence is likely to disclose, although obviously I do not yet know all of it. [ 5 ] The father says that the s. 211 report is evidence of a substantial nature that was not available at the time the interim order. I agree. That, combined with the lengthy delay until the conclusion of the trial satisfies me that it is appropriate to reconsider the interim order regarding parenting time which was made on May 17, 2016.

I also find the somewhat delayed course of these proceedings to be significant. The proceedings were commenced almost two years ago in October 2015 immediately after the mother left the family home with the children. An interim order was made on December 1, 2015 permitting the father parenting time three weekday afternoons per week for three hours and Saturdays for ten hours. A trial was set for May 17, 2016 but was adjourned on the first day of the trial to allow for the completion of a s. 211 report.

On the same day a further interim order was made expanding the father’s parenting time to Saturdays from 9:00 a.m. to 8:30 p.m. and Sundays from 9:00 a.m. to 7:30 p.m. That order continues to govern the parenting schedule. A subsequent trial date of April 11, 2017 did not proceed due to a lack of court time and the present trial dates were scheduled. Thus, through no fault of the parties, there have been exceptional delays in having this matter come to trial. [ 6 ] I thus must decide what, if any, changes should be made to the interim parenting

schedule pending the conclusion of this trial. [ 7 ] The father is seeking an interim

schedule that would have the children in his care four nights each week, being Friday, Saturday, Sunday and Monday, with the mother having the remaining Tuesday, Wednesday and Thursday nights each week. He says that this proposed interim

schedule includes an element of what he calls “make up time”, presumably to reflect the lack of overnights that he has had in the past two years, as the father has not alleged any denial of court ordered parenting time by the mother. The mother seeks to maintain the status quo

schedule of Saturdays and Sundays each week with no overnights. [ 8 ] The father suggests that the mother has unreasonably refused to permit overnights for him since the separation. However, whether or not the mother has been unreasonable in her position, the fact is that her position has been supported by the various court orders that have been made to date in this matter. The father has applied to court on a number of occasions for overnight parenting times

but for reasons that are not before me, various judges have declined to order that he have overnights. Thus the mother’s position has been accepted by previous judges, albeit on an interim basis and without the benefit of the fulsome evidence of a trial and the s. 211 report. [ 9 ] The father further asserts that the continued lack of overnights is akin to supervised parenting time which is one step away from a complete termination of the parent-child relationship and which requires evidence of exceptional circumstances. With respect, I cannot agree with that proposition.

While I understand the father’s desire for overnight parenting times, he is currently having the children in his care for 22 hours each week. Significantly, those hours are entirely outside of school and sleeping hours. This arrangement also reflects the fact that the mother works on Saturdays and Sundays while the children are in the care of the father. Accordingly the mother has the children in her care during the week, when they are in school during the day.

The mother makes a reasonable argument that her time with the children is not significantly greater than that of the father since the children are either at school or sleeping when they are with her. What time the father currently has with the children is what most parents would characterize as quality time and the best time of the week to have children. This is very different than supervised parenting time. [ 10 ] The s. 211 report of Robert Finlay is lengthy and thorough.

He recommends that the parties share parenting time equally on an alternating week basis. [ 11 ] The mother says that the father is never satisfied with the parenting time that he has and that he should be satisfied with the

schedule that is currently in place.

She points to the fact that the father is asking for more time than what is recommended by the s. 211 report since at the conclusion of the trial he is seeking primary care of the children, with the mother to have the children alternate weekends from Thursday to Monday, or in other words, 10 days out of 14 days with the father. [ 12 ] The mother’s objection to the father having overnight parenting time is largely based on her view that the father is coaching the children and that any additional time that he has with the children will allow him to coach the children more in his pursuit of alienating the children from her.

Her concern arises from comments made by the children to Mr. Finlay which are strongly suggestive of him attempting to persuade the children to view their mother negatively and the father engaging in alienating behaviour. Indeed Mr. Finlay concludes that there is evidence of coaching and alienating behaviour by the father. This view by the mother is buttressed by the testimony of the S.J., the mother of the father’s older children, which was also suggestive of the father intentionally excluding her from the lives of their children.

She currently has no relationship with her children. [ 13 ] Frankly I share some of the mother’s concern, given the comments of the children in the s. 211 report and the testimony of S.J. The father had little good to say about the mother and appears to support the children holding negative views of their mother. [ 14 ] However, I do not believe that the concern about the father coaching the children or concern about the possibility of him alienating the children from their mother is so clear as to limit the time that he spends with them. As Mr.

Finlay has stated, the father has a lot to offer the children, a proposition which I believe is supported by the evidence. He is clearly interested in and wishing to be involved in their education which is a priority for him.

In addition, the time with him allows the children to spend time with their paternal family, including their two half siblings, their grandmother and step grandfather, all of whom reside in the same home as the father. [ 15 ] Perhaps more significantly the lack of overnights with the father in the two years since the separation creates an unnatural dynamic for the children, which may lead them to conclude that there must be something wrong with their father’s home.

Another possibility is that the children may develop an increased hostility towards the mother for what they see as her decision to not allow overnights with the father. The latter possibility appears to be more supported in the s. 211 report than the former. Regardless, moving towards a more normalized parenting structure which includes overnights is appropriate. [ 16 ] The mother has in the past expressed a concern about the father sexually abusing Y.M., and says that concern should be a factor in which militates against overnights.

However, the evidence of that having happened is little more than speculation on the part of the mother. If the father was capable of that, and I do not believe the evidence supports such an allegation, then his parenting time should be supervised, which the mother is not seeking. Such a risk is no different if parenting time occurs during the day or includes overnights. [ 17 ] In all of the circumstances, tempered with the fact that I have not heard all of the evidence in this trial, I believe that it is appropriate to add Saturday overnights to the father’s current interim parenting times.

As such, going forward he will have the children in his care from Saturday at 9:00 a.m. to Sunday at 7:30 p.m. While this will not permit him any additional parenting time during the week, it will effectively give him the entirety of the weekends. This coincides with the parties’ respective work schedules, with the father working during the week and the mother working Saturdays and Sundays and two shorter shifts during the week while the children are in school. It will also reduce the frequency of exchanges of the children, which have been a source of conflict.

While the father will no doubt see this as inadequate since it does not permit him weekday times, it will arguably provide him with more of the quality time with the children than the mother currently has given that his time occurs on the weekends. [ 18 ] Mr. Ingram for the father quoted extensively from recent case of Khangura v. Rogalski 2017 BCSC 1753 , and specifically the comments of Dr. Nicole Aube in a s. 211 report, to the effect that the more involved a father is after a separation, the better it is for children. I accept that proposition.

However, to benefit children such involvement need not necessarily be equal time, or, as sought by the father in this case, greater time than the mother. Each case will depend on its own particular facts. Indeed in the Khangura case, after highlighting the importance of the role of father’s post separation, the court ordered that the father in that case have parenting time alternate weekends and Wednesday afternoons.

That is far less than what the father in the present case would see as being appropriate but shows the range of appropriate schedules which permits a parent to be fully involved with a child. [ 19 ] Finally, since the continuation dates for this trial will occur in January and February 2018, it is appropriate to set a

schedule for the winter school break. The father seeks an equal sharing of the school break. The mother, in keeping with her view that the father should not have overnights, seeks an alternate day

schedule throughout the break, with the father’s time being during the daytime only, as occurred last December. Since I have determined that the father is entitled to overnights, I believe it is appropriate to divide the holiday equally with the father to have overnights during his times. As such, for the 2017 winter school break, the mother will have the

children from 7:30 p.m. on Sunday December 24 to 7:30 p.m. on Sunday, December 31. The father will then have the children from Sunday, December 31 at 7:30 p.m. to Sunday, January 7 at 7:30 p.m. [ 20 ] In

summary, the May 17, 2016 order is varied in part such that the father shall have interim parenting time each weekend from Saturday from 9:00 a.m. to Sunday at 7:30 p.m. The winter school break shall be shared between the parties with the mother to have the children from December 24 at 7:30 p.m. to December 31 at 7:30 p.m. The father will then have the children until January 7 at 7:30 p.m. at which time the regular parenting

schedule will continue. The Honourable Judge R.P. McQuillan Provincial Court of British Columbia