A.R.S. v. M.C.T. Date:, 2016 BCPC 345

Citation: A.R.S. v. M.C.T. Date: 20161026 2016 BCPC 345 File No: F37691 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.R.S. APPLICANT AND: M.C.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.G. COHEN Counsel for the Applicant: E. Chapman

Counsel for the Respondent: P. Joshi and A. Randhawa, Articled Student Place of Hearing: Surrey , B.C. Date of Hearing: June 22 and 23, July 6, August 10 and August 30, 2016 Date of Judgment: October 26, 2016 [ 1 ] The parties lived together until the spring of 2012 when their son was just four years old. [ 2 ] After their separation, they were able to set up a parenting time arrangement that worked well enough such that neither party sought court intervention until 2015. [ 3 ] The father commenced this action in February of 2015, seeking a 50/50 sharing of the child’s time.

He said that he had been exercising joint guardianship and that the child had been living with him about 50% of the time, but that the mother had unilaterally changed their parenting time arrangement. [ 4 ] The mother filed her reply to the father’s application in March 2015.

In it the mother stated that the father was making his application to intimidate her, to save himself from having to pay child support, to use the child as a tax deduction, and because “I have a very kind, reliable, pleasant, non-violent partner which dad doesn’t like.” She sought a protection order that the father be restrained from speaking with their child except during supervised visits but she agreed that the visits could be supervised by his spouse. She said the protection order was necessary due to family violence.

She also sought a full review of child support. [ 5 ] A “Views of the Child” report was prepared immediately by family justice counsellor K. Fenton, and later a full psychological investigation was undertaken and a report was prepared by Dr. A.

Posthuma. [ 6 ] The trial commenced on June 22, 2016 before me, and all matters remained in issue except for the mother’s applications for a protection order and supervised contact, both of which applications had, by then, been abandoned. [ 7 ] On an urgent basis, the parties needed the court to settle the issue of where the child would go to school in September of 2016, and that decision was provided to the parties in July. [ 8 ] In order to protect the identity of the child, the court will use the terms ‘the mother’, ‘the father’ and ‘the child’ instead of using names or anything else that might tend to identify him.

HISTORY AND FINDINGS OF FACT The separation: [ 9 ] Much of the history of this matter is basically set out above but, to be more specific, the parties lived together for a number of years in a rather rocky relationship before their son was born in 2008.

They made an effort to stay together for the sake of their son, but eventually separated permanently in 2012. [ 10 ] Each had unpleasant things to say about the other in describing the reasons for the final separation. [ 11 ] The mother said that the father was abusive and that he committed acts of family violence against her. [ 12 ] The father denied this and said that he and the mother often fought over money. He stated that he eventually had to hide money in a locked tool box.

He said that she broke into that locked box and took and spent their savings. [ 13 ] The mother denied this, but her explanation about how and even if she had spent that money did not make sense. By this I mean that during one part of her evidence, she indicated that she did not spend it at all, and yet in another part she said that she had the right to spend it. While this was not an admission that she had spent it, I was left with the impression that she had. According to her, this money was only locked away in order to protect it from thieves.

The father made it clear that it was locked away to protect it from the mother. I do not understand why the money was not in a bank. [ 14 ] On the day on which the money went missing, the parties had a major fight, during which the father committed

an act of family violence. To be clear, I find that the father committed

an act of family violence against the mother when he “threw her on the floor” (page 11 of Doctor Posthuma’s report). The father argued that he acted out of frustration at the family again facing debt. [ 15 ] I find that the parties fought, usually about the family finances. The last one of these fights, the one referred to above, ended their relationship. [ 16 ] The parties separated in June of 2012.

After the separation: [ 17 ] After the parties separated, they worked out their own arrangements for sharing the child’s time, but each had a different view as to what those arrangements were. [ 18 ] The mother had some trouble being specific about the amount of time that the child spent in each home. She said that the child

would be with his father about two to three days per week, ending on a Tuesday or a Wednesday. She calculated this to be 40% of the child’s time with the father and 60% of the child’s time with her. [ 19 ] I find that she was likely describing a two-week pattern under which the father had the child from Sunday of each week to Tuesday of one week and to Wednesday of the other. I note that this

schedule would calculate to 35% but it is the

schedule that is closest to what the mother appeared to be describing. [ 20 ] The father said he was spending seven out of every 14 days with the child on a two-week pattern under which he said that the child came to him every Saturday and returned to the mother on Tuesday of one week and on Wednesday of the other. [ 21 ] To complicate this issue further, each party alleged that the other was so aggressive that it was always simpler to give in rather than fight. [ 22 ] The mother alleged that, if the father had more time with the child than she had described, then it was only because he used his aggressive attitude and demeanour to the point that she would give in to his demands. [ 23 ] Similarly, the father alleged that, if he had less time with the child than he had described, it was because the mother used her aggressive attitude and demeanour to the point that he would give in to her demands. [ 24 ] The one part of the evidence that the parties seemed to agree upon was that, out of every two weeks, the child would be with his father until Tuesday of one week and until Wednesday of the other. [ 25 ] On the evidence, I find that the child would go to his father’s home on Saturdays in some weeks and on Sundays in other weeks.

These variations, as well as any others that undoubtedly occurred, were likely a source of conflict between the parties. However, they were probably most often accepted by the parties as part of adapting to schedules and needs, not because of bullying. [ 26 ] I find that from their separation in June of 2012 until February of 2015, there was, effectively, an equal sharing of the child’s time in that the child spent well above 40% of his time with his father. The child’s school: [ 27 ] The issue of where the child would go to school was a significant one that took up much of the trial time.

The child had been going to school in Delta and to a day-care nearby for all of his school years. However, neither party currently lives in Delta. The father now lives in Langley, while the mother now lives in a part of Surrey that is too far from the Surrey/Delta border to make attendance at any Delta school appropriate. [ 28 ] The father has remarried and they have recently had a child together. The father is also the stepparent to his wife’s child from her prior relationship. [ 29 ] In January 2015, the parties jointly applied to have the child registered in the Langley Fine Arts School.

This seems to be an exclusive school with a long waiting list. They chose to transfer the child to this school on the basis of a recommendation from a school counsellor that their son was artistic and would benefit from being in a school that supported his artistry. The mother was the person who filled out the application to register the child in that school, and she put down the father’s address as the child’s residential address so that the child appeared to live full time in the catchment area for this school. The lawsuit: [ 30 ] Just a month later, in February 2015, the father launched this action.

He said he did so in response to the mother cutting back on his time with the child. [ 31 ] As mentioned above, the mother chose to counter the father’s application with allegations that he was an unfit parent such that his time with the child had to be supervised. [ 32 ] I find that one of the factors that motivated the mother to react as she did was mentioned in her reply: the argument about her new partner. I suspect that the father objected vocally to the possibility of the mother’s new partner becoming the child’s stepparent.

I believe that this argument was the reason that the mother cut back on the father’s time with the child, but cannot be sure. Whatever her reason for doing so, I find that she did unilaterally change the parenting

schedule in January of 2015. [ 33 ] The mother’s relationship with that man ended before this action started and even the mother now admits that he was not the “kind, reliable, pleasant,” partner she portrayed in her pleadings. [ 34 ] The mother is now seeing a new person, but that man is not living with her and, therefore, is not a stepparent. She did not bring him in to testify. Indeed, it appeared to the court that she made an effort to try to hide his existence. Only after strong questioning did she admit that this person existed, even though the child knew him and had talked about him.

Family violence: [ 35 ] Whatever her reason for doing so, the mother pleaded that the father was not a fit enough parent to exercise unsupervised parenting time with the child. Whenever one parent alleges that the other is not fit, the most likely result will be that their child or children will lose, at least for a time, the love, affection and attention of that parent. [ 36 ] When it is a false allegation, it treats those children like they are nothing more than pawns to be used to win a law suit and is therefore worthy of further comment.

[ 37 ] I find that the mother’s pleadings, which alleged that the father was an unfit parent, were filed with the court to improve her chances of winning a law suit; not because they were true. [ 38 ] Shortly after filing those pleadings, the mother cut off the father’s parenting time for about a month and, further, she allowed the child to know certain things about the law suit. She allowed the child to believe that the father was going to court to get an order to make the child go to a different school and to take him away from his mother. [ 39 ] Family violence is defined in

Section 1 of the Family Law Act to include “psychological or emotional abuse of a family member”. [ 40 ] I find that the mother: falsely allowed the child to believe that his father was going to court as some sort of plot to try to take him away from his mother; falsely pleaded to the court that the father was unfit; and acted as though that allegation were true and cut off contact between the child and the father. I find that the cumulative effect of those actions was that she committed

an act of psychological or emotional abuse of a family member which is

an act of family violence. [ 41 ] Both the father’s and the mother’s acts of family violence should be denounced, and perhaps they should even be punished. However, family law is not about punishing parents, it is mostly about helping children. So these acts are hereby denounced but will otherwise go unpunished. [ 42 ] We are still only at May of 2015. The reports: [ 43 ] A “Views of the Child” report, which is a short form report prepared pursuant to s. 211 of the Family Law Act ( FLA ), was authored by K. Fenton, family court counsellor, on May 27, 2015. The child told Ms.

Fenton that he understood that his parents were fighting. He said things that suggested that both of his parents were active in his life, in that both took him to appointments and both monitored his school progress. He did not express any strong view about his living situation. [ 44 ] The day after that report was ready, the Honourable Judge Sutherland made a consent order for regularized visitation between the father and the child, and ordered that the parties attend for the purposes of preparing a long form of report pursuant to s. 211 of the FLA . The long form of report was prepared by Dr.

Posthuma. [ 45 ] Dr. Posthuma’s report basically excoriated the mother. The doctor started his report by saying at page 5 that: “[the child] consistently described his mother as the prime source of animosity or opposition to the success of co-parenting.” [ 46 ] In this paragraph, the doctor also mentioned that the child believed that his mother would move away if his father moved closer, and that his mother would move away to avoid the child going to a school near the father. [ 47 ] At pages 21 and 22 of his report, Dr.

Posthuma recommended that the child’s needs would be best served by an equal sharing of time in each home. After saying that, however, he added: “Unfortunately, [the child’s] mother believes that [the child’s] relationship with his father is toxic.” He went on to say that the mother: “believes he is disinterested in [the child’s] welfare and is uninvolved with his parenting.” [ 48 ] I accept that the mother said these things to the doctor as she testified similarly at trial. [ 49 ] The doctor went on to end that paragraph by commenting that he disagreed with the mother’s belief.

He said that he found that the child had a strong emotional attachment and a positive bond with his father.

He added: If indeed [the child] does offer critical comments of his father, and/or his father’s household, to his mother and her friends and family, as they maintain, this is most likely an artefact of [the child’s] attempt to maintain a positive relationship with his mother by reinforcing her negative opinions of his father. [ 50 ] Once a report of this sort is received by a party to a family law action, there are three things that counsel most often do to minimize the negative impact it will likely have on the court. [ 51 ] Some counsel choose to attempt to attenuate the damaging parts of the report through other evidence and carefully crafted submissions. [ 52 ] Other counsel choose to hire a different expert to point out problems in the first expert’s report. [ 53 ] Finally, some counsel choose to require the expert to attend for cross-examination.

This last route is risky for counsel, as the general rule is that the counsel who requires an expert to attend for cross-examination will have to pay the expert’s fee for testifying should the cross-examination fail to assist that counsel’s case. Dr. Posthuma’s fee for attending for cross-examination in this matter was nearly $3,000.00. [ 54 ] The mother was represented by counsel, but that counsel only occasionally appeared; rather, his articled student conducted the majority of the trial.

It was the articled student who conducted the cross-examination of the doctor and he did so in the absence of his principal. [ 55 ] The court cautioned the articled student against requiring the doctor for cross-examination, and suggested that he should get advice about this from his principal or any senior counsel before continuing. [ 56 ] It is generally not a good idea for an articled student to cross-examine any expert witness. It was specifically not a good idea in this case because this doctor is a very experienced expert witness. His report was 25 pages, but the document was 60 pages with the

doctor’s CV. He has testified before every level of court and has been cross-examined by the best. [ 57 ] Despite the caution from the court, the articled student assured the court that this cross-examination was planned, the questions were prepared, and that he would be pursuing the cross-examination. [ 58 ] The articled student handled this trial well, but for this part of the case. [ 59 ] In this trial, the cross-examination did not assist the mother’s case, rather it did significantly further harm to it.

The presence of the doctor and the nature of the questions put to him served only to highlight and further explain his opinions to the court rather than diminish their impact. No weaknesses were proved, no errors demonstrated and no benefit was gained for the mother from this doctor’s attendance. [ 60 ] I find that the doctor should not have been called for cross-examination.

Parental fitness: [ 61 ] Based on all of the evidence, I am of the view that the doctor’s opinions about the parents’ fitness are accurate. [ 62 ] I find that the father is well bonded to the child, and is properly and appropriately active in the raising of his children. I find that he committed

an act of family violence during a fight between the parties over money, but I am not convinced that there were any other such acts of violence. Based on the evidence, I find that his act of family violence, as found above, was most likely out-of- character. [ 63 ] I find that he is, and has been, a fit parent throughout. [ 64 ] I find that the mother has allowed her animosity against the father to colour every part of her life, at least since she went into litigation mode. I find that her belief that the father and child have a toxic relationship could not be further from the truth.

I find her act of family violence, as found above, was committed in a calculated manner, rather than as a result of frustration and, so, was most likely in-character. [ 65 ] That said, I believe that the mother can learn and can come to understand that her animosity towards the father is something her son understands and dislikes. The child sees a very different picture when he looks at his father than the mother sees when she looks at him.

This is driving a wedge between her and her son that will only get worse the longer she maintains her unrealistic and untrue beliefs about the father. [ 66 ] I find that the mother is a fit parent, but less so than the father until she addresses this issue. The child: [ 67 ] The doctor had the child complete psychological testing. One of his most significant findings was that the child scored in the 95 th percentile on his ability to adapt to his surroundings.

I am convinced that finding is accurate based on the way that the child has adapted to his parents’ fighting. [ 68 ] The doctor also confirmed that the child is artistic. I therefore found that the child’s attendance at the Langley Fine Arts School would be in his best interests. On July 6, 2016, I ordered that his registration to attend that school be completed and filed with the school. I have since learned that we were too late and that he was not accepted for this scholastic year.

He has, for this year, been registered in a school nearby to the Langley Fine Arts School, but not at it. [ 69 ] I am convinced that he should be moved to the Langley Fine Arts School next year because he is adaptable enough to weather one more school change without difficulty and because it would be in his best interests to be at that school; so long as the parents commit to keeping him in that school once they get him there. [ 70 ] I am convinced that the child should reside half time with each of his parents so long as the mother can address the issue raised above.

Should the mother not do so, I am convinced that it will be a source of conflict between her and the child, such that the child will eventually, and of his own accord, choose to spend more time with his father and less with his mother. SUPPORT [ 71 ] I understand that the parties will likely be able to settle the issue of child support payable, both retroactive and prospective, so long as I set out the facts necessary. [ 72 ] On that basis, I find that once the parties separated in June of 2012, there was effectively an equal sharing of the child’s time until February of 2015.

For that period of time the shared custody provisions of the Child Support Guidelines apply. [ 73 ] From February of 2015 until July of 2016, there was no such equal sharing, and child support would be payable only from the father to the mother in the Child Support Guideline table amount or amounts. [ 74 ] Since July of 2016, I understand that the parties have been sharing the child’s time equally and so, once again, the shared custody provisions of the Child Support Guidelines apply. CREDIBILITY DISCUSSION

[ 75 ] By the end of the trial it was clear that the parties had very different views of the facts to be found by the court. [ 76 ] On behalf of the mother, it was argued that the court should accept her version of events wherever they differ from that of the father. [ 77 ] I responded that I was very unlikely to do that. This was because the mother had changed her story often, sometimes changing her testimony dramatically and incompatibly within seconds. While the mother was testifying, I counted at least 19 times that she provided incredible evidence to the court. Some were very obvious, others not so much so.

However, the cumulative effect was that the court could not, for the most part, trust her evidence. [ 78 ] Further, I have found that the mother misled the court when she tried to claim that the father was an unfit parent, so I also find that her lack of credibility in this matter started right at the very beginning. [ 79 ] I have therefore most often accepted the testimony of the father when it has differed from that of the mother. However, this is not to say that his testimony was without problems, and this is also not to say that I accepted his version at all times.

DECISION [ 80 ] The court recognises both of the parents as guardians of the child. This order is made pursuant to s. 39(1) of the FLA . [ 81 ] The child will live half time with each parent as the parties may agree from time to time pursuant to s. 42 of the FLA . [ 82 ] Should the parties be unable to agree on the child’s parenting time schedule, the child will reside one week out of every two in each parent’s home with exchanges on Fridays after school. [ 83 ] The long holidays: spring break, summer vacation and Christmas break, will be split as equally as possible.

If the parties are unable to agree on how they will split these, then the father will have the first half of these breaks in even numbered years and the mother will have the first half in odd numbered years.

The first half of the Christmas break will include overnight Christmas Eve to 1:00 p.m. on Christmas Day. [ 84 ] The parties should be able to share the parental responsibilities and decision making but I am not confident that they can make that work right now. [ 85 ] Therefore, I order pursuant to s. 40 and 41 of the FLA , that the parties share equally the parental responsibilities set out therein, but should they be unable to agree on any decision of importance about their child, then for so long as the child is going to school in the catchment area of the father’s home, the father will have the final decision- making authority. [ 86 ] Should both the mother and the father come to live in Langley close to the child’s school, then the father will no longer have the final decision-making authority, but rather the parties will employ a Parenting Coordinator, appointed under the FLA division 3, to make any such decision. [ 87 ] Pursuant to Rule 11(8) of the Provincial Family Court Rules, the mother will pay the cost of the attendance of Dr.

Posthuma for cross-examination at the trial of this matter. [ 88 ] Child support, both retrospective and prospective, will be payable as the parties agree. Failing agreement, the matter will be brought back before me. The Honourable Judge J.G. Cohen Provincial Court of British Columbia