M.M. v. J.D.M. Date:, 2016 BCPC 127

Citation: M.M. v. J.D.M. Date: 20160509 2016 BCPC 0127 File No: F34058 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Holden at Surrey IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.M., Mother APPLICANT AND: J.D.M., Father RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.G. COHEN Appearing in person: The Applicant (the Mother)

Counsel for the Respondent: Mr. P. Coté Place of Hearing: Surrey , B.C. Dates of Hearing: January 25, 26, 27 & 28, and March 23, 2016 Date of Judgment: May 9, 2016 Opening: [ 1 ] This case proceeded for four days in January and then for another day in March. The parties also attended court for 36 other court appearances between December 2011 and the day the trial started in January 2016.

The cost of such protracted proceedings is prohibitive for most families and no doubt was for this family. [ 2 ] One might ask if it was necessary for these parties to be put to this expense and surprisingly the answer would be yes. If this matter had not come to court, it is unlikely that young N. ever would have been allowed to bond with his father. [ 3 ] This matter was more costly for the father because, at least for the purposes of trial, the father was represented by counsel while the mother chose to represent herself for those five days. [ 4 ] There was little in dispute in this case.

The father was not trying to take N. away from his mom. He was just asking to be allowed to be N.’s father. He was just asking for visitation with his son. [ 5 ] There was no reason for the issue of visitation to have taken five days of trial time but for the unreasonable intransigence of N.’s mother across almost all of the prior court appearances on this issue as well as her lack of preparation for trial. [ 6 ] This trial almost didn't go ahead. The mother came to the court on January 5 to ask for it to be adjourned.

Judge Jardine turned down that request. [ 7 ] On the day that the trial started she repeated her application for an adjournment and that was again denied. [ 8 ] The adjournment was denied because it was clear that N. needed the court’s intervention. [ 9 ] It was denied because the court accepted the father’s submission that this was just a way for the mother to win this case without having to provide any evidence. The court accepted that the mother had demonstrated the intent to deny proper contact between the child and his father and that any further delay was as good as a win for her.

Therefore the trial was ordered to proceed on the dates that were set; commencing January 25. [ 10 ] On that day, when her requested adjournment was denied, the mother simply left the courtroom and she did not return for several hours.

Once she did return, the court restated the evidence heard so that she would be able to respond to it. [ 11 ] Based on these sorts of actions, if it were possible to require the mother to pay the father’s legal expenses for at least three of the five days of this trial, I would undoubtedly make such an order. [ 12 ] As I cannot make such an order, the following are my reasons for judgment in this matter. The facts: [ 13 ] Prior to these parties getting together, the father had been in rehabilitation for drug addiction. He says that he has been clean since September 2009 and there is no evidence to the contrary.

Indeed the father has, since then, worked a great deal in helping others overcome addiction such that the court accepts his evidence and finds that he has been clean and sober since that time. [ 14 ] However, the fact is that the parties met while the father was still in recovery. They got together by the spring of 2009, before the father was clean. [ 15 ] We know that they got together by then as N. was born early in 2010. [ 16 ] The parties were living together at the time of N.’s birth and continued to live together thereafter for somewhere between 6 months and a year.

Therefore, both parties are presumptively the child’s guardians pursuant to Section 39(1) of the Family Law Act SBC 2011

Chapter 25 (the FLA ). [ 17 ] For the first few months after the separation the mother did allow the child and father to see each other sporadically. [ 18 ] The evidence suggests and the court accepts that the mother allowed these sporadic visits for her own benefit; not to encourage a relationship between child and father, but rather to have free babysitting services. [ 19 ] Shortly thereafter the mother cut off all contact between the child and his father for many months until the father was able to get a court order for access. [ 20 ] The father came to court and filed his first application for visitation on December 5, 2011.

Since that time, of the 36 court appearances that occurred before trial, only three or four of them were solely about child support; all the rest were either entirely or partly

about visitation. Ten visitation orders were made. Two of those orders were consent orders (one in October 2013 and one at a family case conference in June 2015) but the rest appear to have been made against the mother’s wishes.

Further, the father applied 4 times for enforcement of the visitation orders. [ 21 ] Notwithstanding all these appearances, the mother was generally successful in resisting the father’s applications and was generally successful in keeping the father from getting regular visitation by pointing to the father’s prior addiction and by pointing to a letter he wrote after they separated in which he said he was feeling down. [ 22 ] As I understand it, the first order made for visitation failed to be effective because the mother relied on the above-mentioned information and suggested that the father’s visitation be supervised.

The court accepted her suggestion and ordered only supervised visits. The mother had agreed to certain named supervisors being appropriate but those supervisors quickly became unavailable. The visits then simply stopped and the father had to apply again. [ 23 ] I will not address all of the ongoing battles that occurred between the parties since 2011 but many were in a similar vein. Orders were made but the mother found ways of frustrating them. [ 24 ] In 2014, N. was diagnosed with a mild form of Cerebral Palsy (CP). [ 25 ] This raised a second issue between the parties.

The mother did not include the father in the medical visits that led up to this diagnosis.

As a result, the father was suspicious of the diagnosis; believing the mother capable of saying anything to ensure he would not have proper contact with his son. [ 26 ] He may have had reason to be suspicious as the mother has also said (although at a later date) that N. is autistic and has a diagnosis of anxiety disorder; neither of which diagnosis is supported by the evidence. [ 27 ] However, the CP diagnosis was real and the father’s lack of acceptance of the diagnosis further hampered his relationship with N.’s mother. [ 28 ] In the spring of 2014, the father again filed a court application for regularized visitation and, despite the mother’s objection, he was granted an order for regularized overnight unsupervised visitation.

To be clear here, the mother did not consent to the father having this regularized visitation. She was still seemingly insisting that the father was unfit but Judge Raven disagreed.

She found instead that N.’s father was a fit parent worthy of regular overnight visitation with no requirement for supervision and so she implemented a plan that began to regularize N.’s visits with his father. [ 29 ] Once Judge Raven’s court order took effect and the father was back in the child’s life on a regular basis, he discovered that the mother was apparently taking the child to a large number of doctors and specialists and she had not been telling the father about the great majority of these appointments. [ 30 ] On application by the father, the court ordered the mother to keep the father advised of all medical appointments of every nature. [ 31 ] The mother says that thereafter she kept the father advised of these appointments but she failed to produce much evidence of that at the trial before me.

She said that evidence would be found in a communication book that went back and forth between the parties with the child. She says it is the father who made this book disappear and that was the reason she did not have the evidence to give to the court.

She said that she could also, given enough time and perhaps a method of retrieving information from prior electronic devices, find her emails and or text messages which would prove that she kept the father advised of N.’s medical and medically-related appointments. [ 32 ] The mother knew that this allegation (of failure to keep the father informed of the child’s health issues and medical appointments) was one of the main issues for this trial but yet came unprepared to respond to this allegation. [ 33 ] The father, on the other hand, presented evidence to prove that the mother did not keep him advised of many of these appointments and I find as a fact that she, despite one or more orders to the contrary, did indeed often fail in that obligation. [ 34 ] This trial then came on for hearing commencing on January 25, 2016. [ 35 ] Part way through the trial we ran out of time (mostly due to the mother’s decision to leave the courtroom for several hours on the first day of hearing and her lack of preparation for the rest of the trial) and we therefore had to fix a continuation date.

Before adjourning, the court fixed a new

schedule for the sharing of N.’s time between his parents. The parties implemented the new

schedule right then in January. [ 36 ] When the continuation of the trial came on for hearing in March, both parties told the court that this new

schedule was working well and that they could probably live with it for the long term. [ 37 ] These are the facts as I find them. Conclusions drawn from the facts: [ 38 ] Why did the mother make such an effort to keep a fit father from her son’s life? [ 39 ] It may be that he was an easy mark as he has the issue of drug addiction in his past and he had written that letter saying he was feeling poorly about his life after they separated.

It may be nothing more than the fact that the two of them had broken up and she no longer wanted him in her life so the only way to get rid of him from her life was also to get rid of him from her son’s life. It may be some other reason that the court has failed to discern or it may be a combination of many different reasons.

[ 40 ] It is clear, however, that at the trial of this matter the mother did not provide any proof of any good reason for such an extensive denial of contact between father and son. She did not provide any evidence that the father was ever truly unfit. As she gave no proper explanation for the years of denial of contact, the court has drawn a number of negative inferences and conclusions against the mother. [ 41 ] The court concludes that the reasons for denial of contact were inappropriate and false.

The court further concludes that the mother resorted to misleading the court in order to keep this child away from his fit and proper parent. Further, the court concludes that this was for selfish reasons; not for reasons that were in the child’s best interests. [ 42 ] Why did the mother make such an effort to keep the father from knowing anything about N.’s health needs? [ 43 ] Again the court cannot be sure but the conclusion which the court draws from the evidence is that the mother used or tried to use the father’s lack of knowledge of the child’s health needs against him.

By denying the father access to the child’s medical needs and diagnoses, she could say to a court that the father doesn’t know enough about the child’s health needs to have regular visitation. A very circuitous argument but one she seemed intent on carrying forward. [ 44 ] Why did she come around and agree that the new parenting time

schedule imposed in January was appropriate to be imposed on a more permanent basis? [ 45 ] The court concludes that she did so because she realized that she had no evidence that the father was unfit such that she had no evidence upon which to continue to resist the father’s application for regular visitation. Discussion: [ 46 ] If the father had come to court seeking to have this child live with him full-time, the court would have had a very difficult decision to make. The court may have had to grant such an order.

This is because the mother made such a concerted and contrived effort to keep her son from having his own father in his life with no valid basis and, also, because she seemed to be intent on finding more health issues for her child than the medical profession agreed with. [ 47 ] It might well be said that the court would be committing error to leave a child in an unwelcoming or in a medically over-treating home. [ 48 ] This is not to say that this mother is unfit in the usual meaning of that term. She is a person who is attentive to most of her child’s needs.

She gets her son to school and to his appropriate medical appointments. She found the money on her tight budget to let him take horse-riding lessons which greatly improve his CP limited mobility. She is in many respects a very appropriate parent. [ 49 ] However, and I repeat, a parent who wrongfully deprives a child of beneficial relationships or harms the child’s health by over medicating and over-treating is probably not the parent with which that child should be placed permanently. [ 50 ] N.’s father, however, does not seek to have this happen.

He does not seek to take N. away from his mother; he only seeks to be the child’s father. However, he seeks to be N.’s father in the fullest sense of that word; not just some occasional visitor in his son’s life. [ 51 ] As stated, the parties have already instituted a new parenting time

schedule so the court is not called upon to make further orders in this regard. [ 52 ] The court is only called upon to settle a few minor remaining issues. Orders sought: [ 53 ] The orders sought by the mother were more in response to what the father was seeking so I will address his requests first. [ 54 ] The father asked for an order recognizing him as a guardian of N. [ 55 ] The father agrees that his regular visitation with N. is now appropriate and sufficient for him to be N.’s dad but he still applies for various orders respecting parenting time. [ 56 ] Under the visitation

schedule imposed on the parties in January, the father has N. with him from Thursday after school to Tuesday before school, every other week, with pick-up and drop-off at the school so the parents never meet. The father asks that any statutory holidays and or professional development days that the child is out of school that fall on the Wednesday before or the Wednesday after visitation be added to his time.

He acknowledges that these will be rare but still asks for them. [ 57 ] He asks that the court apportion out the longer holidays. [ 58 ] He asks the court to grant him a fair sharing of the parental responsibilities but in specific he asks that the court no longer allow the mother to fix medical appointments for N. He argues that she has taken N. to 9 doctors, the great majority of which have added nothing to the understanding of N.’s health issues. He argues that the child has a mild case of CP and nothing more.

He submits that the mother treating the child like he is an invalid will eventually turn the child into just that so he asks the court to prohibit the mother from taking the child to see any more doctors (other than during any obvious emergency). [ 59 ] The father resists paying some of the existing special or extraordinary expenses incurred by the mother saying he was not consulted before incurring them and that some have proved to be unnecessary. [ 60 ] Finally, the father asks to be allowed to phone N. before bed to wish him a good night while N. is at the mother’s home and offers the mother the same option while N. is at his home.

[ 61 ] I understand that child support has already been ordered and that I am not expected to deal with that issue other than to review the special or extraordinary expenses. [ 62 ] For her part, the mother did not make any specific applications or suggest any specific orders that she would like to see implemented as a result of this trial. [ 63 ] She agreed that the father should be recognized as one of N.’s guardians. [ 64 ] She addressed the parenting time requests of the father by agreeing that the current

schedule is working well and she offered that the father may have N. with him on the day ahead or the day following his visitation so long as it is a statutory holiday or professional development day that the child is out of school. [ 65 ] She made submissions about how she would like to see the longer holidays shared. [ 66 ] She resisted the father’s request that she be prohibited from taking the child to any more medical appointments. [ 67 ] Finally, she argued that the father should be required to contribute to the cost of the child’s special or extraordinary expenses already incurred because they were for N.’s benefit.

Decision: [ 68 ] I am satisfied that both parties are the guardians of N. and I do hereby grant the order recognizing both parents as N.’s guardians pursuant to Section 39(1) of the FLA . [ 69 ] I order that N. live primarily with his mother and that he spend time with his father (his father’s parenting time) from Thursday after school (father to be responsible for pick-up from school) until the following Tuesday before school (father to be responsible for the drop-off at school) every other week during the school year.

If the day before or the day following the father’s parenting time is a statutory holiday, a school holiday, or a school professional development day, then that day will be added to the father’s parenting time by changing the pick-up day to Tuesday after school or by changing the drop-off day to Thursday before school, whichever is applicable. [ 70 ] N. will spend such vacation and or holiday time in each party’s home as the parties may agree upon from time to time in writing. [ 71 ] Failing agreement between the parties on a specific

schedule for N. during the summer, N. will spend half of his school summer vacation with his father in that he will spend 2 weeks out of each 4 with the father. The

schedule will be arranged such that N. will spend the last week before school starts in September at his mother’s home in order to prepare for school. This last week before school will be part of the mother’s one half of the summer vacation rather than being on top of her time with the child in the summer. [ 72 ] Again, failing agreement to the contrary, N. will spend half of all other major school holidays with his father.

This will include from the last day of school before the school Christmas break (father to pick him up from school) to and including Christmas day at 1:00 p.m. in even numbered years and will commence at 1:00 p.m. on Christmas day and end on the last Sunday before school starts in odd numbered years. This will also include the first half of spring break and the first half of Easter break each year.

Although not a major school holiday, this will also include the father having parenting time for Halloween in that N. will, unless the parties agree otherwise, go out trick-or-treating with his father in even numbered years but not in odd numbered years. [ 73 ] Regarding mother’s and father’s days; if the parties cannot otherwise agree, N. will spend all mother’s days with his mother and he will spend all father’s days with his father.

If the parties cannot otherwise agree on how this will happen, then, no matter who is entitled to parenting time on one of these weekends, N. will go to his mother’s home the Saturday evening before mother’s day and spend all of mother’s day with his mother and, likewise, N. will go to his father’s home the Saturday evening before father’s day and spend all of father’s day with his father each and every year. [ 74 ] I have tried to make it clear that I would prefer for the parties to be able to set their own schedule. Wherever possible, I have said should the parties not otherwise agree, then the

schedule I have imposed on them will apply. To make this even clearer, I hereby also order that the parties may, by agreement in writing, vary any parenting time term of this order without returning to court. [ 75 ] Regarding N.’s special or extraordinary expenses as contemplated by

Section 7 of the Child Support Guidelines ; N. shall not be registered for any event, program or activity without the consent of both parents. So long as both of N.’s parents agree, then any events, programs or activities that N. is registered in shall be paid for by the parties paying, in proportion to their incomes, the costs so incurred. Should the parties be unable to agree upon any given event, program or activity, then, so long as the event program or activity is related to N.’s diagnosis of CP, they have liberty to bring that matter back before the court.

To be clear, events, programs and activities unrelated to N.’s CP will not be the subject of further applications to court. Again and to be clear, the parties must agree to incurring costs before being required to contribute; otherwise the party incurring the costs shall pay them. [ 76 ] Regarding any currently existing expenses that were incurred by the mother for N. before this trial started, and not otherwise already dealt with by court order; I hereby dismiss the mother’s application to have the father contribute to these expenses.

I do so based on the fact that the mother put the father to a great many extra and unnecessary monetary expenses throughout these proceedings. [ 77 ] Regarding the parental responsibilities and decision-making, I hereby order, pursuant to S. 40(2) of the FLA , that the parties share equally all parental responsibilities for N. set out in S. 41 of the FLA . [ 78 ] I specifically order with regard to S. 41(

f) that N. not be taken to any more doctors, treating specialists, medically related appointments or any other similar consultations, treatments, interviews or appointments save under specific conditions. These conditions are that N. will attend for appointments set by agreement of the parties. He will attend for appointments that arise out of a referral from any appointment that was set by agreement of the parties. He will immediately attend to be treated for any and all medical emergencies

(the party then parenting N. will attend to the emergency and will notify the other party as soon as practicable). Finally, he will finish off any appointments already set.

If there are any appointments already set, then whichever parent set those appointments will immediately notify or re-notify the other parent of the date and time of any such appointment and, should the other parent not be available for the appointment on the day currently set, then the parties will use their best efforts to have that appointment changed to a date when both parents can be present. [ 79 ] Should the parties be unable to agree on the fixing of a medical or medically related non-urgent appointment for N., then they have liberty to bring that matter back before the court. [ 80 ] I will remain seized of any applications that arise out of this order for the period of one year from today’s date. [ 81 ] Finally, while N. is with either parent, the other parent is hereby permitted to phone N. before bedtime to say goodnight and speak for a few minutes.

The parties will facilitate these telephone calls to the best of their abilities. BY THE COURT Judge J.G. Cohen