C.B. v. P.S. Date:, 2016 BCPC 419

Citation: C.B. v. P.S. Date: 20161125 2016 BCPC 419 File No: F5077 Registry: [deleted for publishing] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.B. APPLICANT AND: P.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Applicant: J. Orrego

Counsel for the Respondent: S. Knott Place of Hearing: [deleted for publishing] , B.C. Date of Hearing: November 10, 2016 Date of Judgment: November 25, 2016 Introduction [ 1 ] C.B. and P.S. are the mother and father of R.S. who is 7 years old. The issue before the court is how parenting time, and parenting responsibilities, for R.S. is to be divided between them. [ 2 ] C.B. and P.S. were married for approximately thirteen years and have three children: D.S., currently 16 years old; T.S., currently 13 years old; and R.S. who will be 8 years old in February, 2017.

They separated in 2011. [ 3 ] R.S. is in Grade 2 at [deleted for publishing]. She is exceeding expectations but has needed assistance in her reading skills since Grade 1. She is involved in swimming and gymnastics and plays volleyball. She enjoys singing, art and costume dancing. [ 4 ] She is described by her parents as being a gentle, happy, loving little girl full of life and ambition. P.S. describes her as Daddy’s little girl. [ 5 ] In her Notice of Motion and Application filed September 13, 2016, C.B. seeks a Protection Order under s. 183 (3) (

a) and (

b) as well as an order that shared parenting for T.S. continue, that R.S.’s primary residence be with C.B. and P.S. to have parenting time with R.S. every other weekend. She also seeks an order for shared parental responsibilities for T.S. and R.S. as well as child support.

In support of her application, she references s. 216 or 217 of the Family Law Act and also filed a number of affidavits. [ 6 ] In his Reply, P.S. disagrees with the orders sought by C.B. and applies for an order for equal parenting time with R.S., parental responsibilities as well as child support. [ 7 ] P.S. also filed a Notice of Motion seeking an order that parenting time with R.S. be shared on the basis of a week on/week off regime.

He also filed supporting affidavits. [ 8 ] During the hearing, C.B. testified that she would agree that P.S. have parenting time with R.S. from Friday after school to Monday morning for three weekends out of four. That would leave one weekend with C.B. and R.S. to share together. [ 9 ] P.S. wishes to have equally shared parenting time of R.S. which he says has been the regime established by the parties and court order.

He proposes that he have parenting time with R.S. from Friday after school until Friday morning the week following and every other week thereafter. [ 10 ] Since approximately mid-August, 2014, C.B. has not allowed P.S. to have parenting time with R.S. unless he agreed to it being limited to a Friday to Sunday evening schedule. P.S. refused because he does not agree to such an arrangement and has seen very little of his daughter since this time.

Background [ 11 ] There was a prior interim ex-parte order made by Judge Cowling on September 9, 2014, varied on November 4, 2014, and which expired on December 31, 2015. [ 12 ] C.B. testified that in the summer of 2014, she travelled to [deleted for publishing] to work as a paramedic.

She testified that during this time she was away twenty one days, during which time the children would be with P.S. but when she returned home to [deleted for publishing], the parenting time would revert to the week on/week off sharing of T.S. and R.S. [ 13 ] A consent order was made by Judge Saunderson on October 21, 2014 at a Family Case Conference. C.B. appeared by telephone with her counsel present (not current counsel) and P.S. appeared in person. That order provided that when C.B. was home from work the parties would share parenting time of T.S. and R.S. on a week on/week off basis.

The draft Order was submitted but returned to counsel on January 8, 2015 because P.S. was also required to sign the order. It was never returned and entered but it remains an Order of this Court. [ 14 ] I have reviewed the Court

Summary Sheet for that date which indicates that this was an interim order. The matter was referred to the Judicial Case Manager to set a date for a further hearing but this never took place. [ 15 ] It is agreed that D.S. has lived full time with P.S. for the past six years. [ 16 ] Based on the evidence, I accept that the shared parenting arrangements with T.S. appear to be working well and that when T.S. wants to spend additional time with his father, C.B. does not object. [ 17 ] There is disagreement as to how much time R.S. has been living with C.B. in 2016.

C.B.’s affidavit evidence (filed Sept 13, 2016, para 3) is that since March, 2016, R.S. has lived with her 80% of the time. She also deposes that sometime in November, 2015 near the time that Judge Cowling’s order expired in December, 2015, the parties agreed that R.S. would live with her mother for ten days and then live with her father for two days and nights. [ 18 ] P.S. denies that he agreed to a change in the shared parenting regime for R.S. He testified that if C.B. had attempted to do that,

he would have brought an application in court. His oral evidence, as well as the evidence in his affidavit filed October 31, 2016, is that the shared parenting continued through to the time that C.B. would not allow him to take R.S. unless he agreed to a weekend parenting arrangement. [ 19 ] There is consistent evidence from both parties that since approximately mid-August or early September, 2016, C.B. has not allowed P.S. to have parenting time with R.S. unless he agreed to that it would be only for the weekend. [ 20 ] As C.B. is seeking to vary the interim order of October 21, 2014, the provisions of s. 216 (3) and (4) of the Family Law Act apply: Court may make interim orders 216

(1) Subject to this Act , if an application is made for an order under this Act , a court may make an interim order for the relief applied for.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(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). [ 21 ] Judge Saunderson’s order of October 21, 2014 was an interim order. The purpose of an interim order is to maintain the status quo and provide a temporary solution until all the issues, including what is in the best interests of the child, can be fully canvassed at trial: Fitzgibbon v.

Fitzgibbon , 2014 BCCA 403 para. 22 . [ 22 ] An interim order is made pursuant to s. 216 (2) of the Family Law Act which directs that other provisions of the Act apply to the extent practicable, including s. 37 which directs that in making an agreement or order, the parties and the court must consider the best interest of the child only.

Therefore, it is assumed that the parties, and the court, in making an interim order, contemplated that it was made in the best interests of a child. [ 23 ] Interim orders may be varied, suspended or terminated in accordance with s. 216 (3) and (4) of the Family Law Act. [ 24 ] I find guidance in the approach taken by Holmes, J. in B.K. v.

J.B. 2015 BCSC 1481 at para. 28 : Where a court is asked to exercise the authority under s. 216(3) by varying (or suspending or terminating) a parenting interim order already made, the court can properly start from the assumption that the interim order reflected the child's best interests insofar as those could be discerned at the time of the previous order. It is for this reason that s. 216(3) and (4) focus the court's attention on whether there is a change or new evidence since the previous order, and, if there is, on the factors in s. 216(4).

Those factors relate mainly to the timing of the application to vary in relation to the previous interim order and the trial; the purpose of the interim order; and the potential adverse effects on the parties of varying or not varying the interim order. [ 25 ] The threshold issue for me to determine is whether C.B. has established, on a balance of probabilities, that there has been a material change in circumstances or new evidence of a substantial nature since Judge Saunderson’s order. A change in circumstances will not usually be material unless it relates to the child’s best interests: B.K. v.

J.B. para. 32 (supra). [ 26 ] C.B. argues that there has been a material change in circumstances. In support of this contention, she points to her evidence during the hearing as well as the affidavits filed in support of her application. The Evidence [ 27 ] C.B.’s evidence is that R.S. has been living with her 80% of the time since March, 2016 and that P.S. agreed to that arrangement.

[ 28 ] S.M. provided an affidavit sworn November 9, 2016. She is C.B.’s landlord and lives on the same premises. Her evidence is that she sees R.S. daily as she comes over for a visit most days and R.S. has been there more than T.S. She does not indicate a time frame such as when this started or if this has changed over time. Her affidavit is not of much assistance. [ 29 ] J.M. provided an affidavit sworn November 4, 2016. She has known C.B. for five years and sees her “a couple of times per week”. Her evidence is that since their tenancy began in April 2016, R.S. was in her mother’s care more than T.S.

She went on to say “I’d say about 80% of the time” and that since August 2016 100% of the time. I am troubled that she was able to give a percentage and that it was the same percentage of time given by C.B. She does not give any particulars of dates or when and where she has seen R.S. She also refers to C.B.’s attempts to contact P.S. and that he refused to take R.S. for weekend visits. My impression is that she is more of an advocate for C.B. rather than an impartial witness. [ 30 ] J.C. is C.B.’s sister-in-law and provided an affidavit sworn November 9, 2016.

She specifically responded to P.S.’s affidavit so has obviously read his materials. She swears that R.S. has been with her mother full time since March, 2016 with some visits with her father and then after August 2016 “100% of the time with her mother”. This is inconsistent with C.B.’s own evidence which is that R.S. was with her 80% of the time before August.

J.C. does not provide details such as where and when she has seen R.S. other than picking her up at day care or having her overnight on a number of occasions. [ 31 ] L.H. provided an affidavit as “proof that R.S. had been with her mom full time” and gives evidence that C.B. picks up R.S. from day care Monday to Friday since July 2016. The exhibit she attaches is a child care subsidy for C.B. from the Ministry of Children and Family Development provided to the day care centre. [ 32 ] The exhibit is of little assistance in establishing the times that R.S. is living with her mother and/or father.

The letter is dated October 31, 2016 and it also covers the time period commencing in August which is also around the time that it is clear C.B. would not allow any more than weekend parenting time with P.S. [ 33 ] P.S. filed an affidavit on October 31, 2016 and also testified. He denies that he agreed to R.S. remaining with C.B. on a full time basis with his parenting time on weekends. His evidence is that the agreement was a shared parenting time arrangement except for D.S. and that C.B. unilaterally changed this in late August or early September.

He testified that he would have brought an application immediately if C.B. had refused to allow him to have equal parenting time prior to that time. [ 34 ] I have also reviewed the affidavits filed by P.S. in support of his application. C.R. is a business owner and friend. C.R.’s son is a friend to T.S. and she has known C.B. for about three years. C.R.’s evidence is to the effect that based on her observations, C.B. is abrasive, aggressive and often yells in front of the children. [ 35 ] D.P. has known P.S. for over twenty years and owns an auto repair business. P.S. lives above this shop.

His evidence is that he has observed C.B. when she attends to pick up or drop off the children or seek out P.S. and that she behaves badly, is extremely aggressive and abrasive towards P.S. This occurs in front of him, customers and the children. He has never observed P.S. yell at or threaten C.B. or the children. Analysis [ 36 ] I have reviewed and considered the affidavits and oral evidence of both parties. [ 37 ] I find that prior to late August or early September, these parties essentially shared parenting time with R.S. on an equal basis.

I find that this arrangement has been in place since 2014 and that had C.B. altered that regime as she says in May 2016 that P.S. would have brought an application at that time. [ 38 ] I find further support for this conclusion in the text messages that are attached to C.B.’s affidavit filed November 9, 2016. Those messages between the parties appear to start around September 20, 2016. One of the text messages from C.B. is that: since the old interm (sic) order expired WE AGREED THAT R.S.

SPEND THRUSADYS (sic) TO the FOLLOWING Sunday with you…..That’s 10 days!!!...And with some week on week offs in there but very few.” and “Since August 15 she has been in my FULL CARE!!!!” [ 39 ] Nothing is mentioned about a weekend only parenting regime since March, 2016. [ 40 ] It is also clear from those text messages that P.S. does not agree to seeing R.S. only on weekends. [ 41 ] P.S. also exhibited text messages between the parties to his affidavit filed October 31, 2016. I am unable to determine the actual date, but his evidence is that they are from early September, 2016.

The text messages from C.B. state: She is to reside here during the week until our court arrangements are finalized. Its stable for everyone involved all you have to do is keep her for the weekend and bring her back for he (sic) school week…..If you choose to disagree then you’ll have to go to court to get rights to see her….Until the court hearing she will be in my care…..You agree or go get a court order. [ 42 ] In further support of her submission that there has been a material change in circumstances, C.B. submits that P.S. is not spending enough time with R.S. during his week with her.

P.S. owns and operates a [deleted for publishing] business. He testified that he works until 7 p.m. approximately two to three times per week and that he takes T.S. and R.S. with him while he is working. On the occasions when he doesn’t take them, they are with D.S. at home who babysits them. [ 43 ] Sometime in the middle of August 2016 while R.S. and T.S. were with P.S. during one of these trips, R.S. cut her finger on her brother T.S.’s jack knife when P.S. stepped away from his truck for a brief time. P.S. immediately took her to the hospital and she received five stitches.

His affidavit filed September 13, 2016 indicates that R.S. did not want her mom to know because she thought that C.B. would be mad at her.

[ 44 ] In her affidavit filed September 13, 2016, C.B. deposes that when she questioned R.S. about what happened “she would not tell me because the Respondent had threatened her not to tell me.” [ 45 ] I find that this incident is the primary reason that C.B. has not allowed R.S. to see her father for alternating weekly shared parenting time although C.B. also deposes that P.S.’s home is messy and dirty.

It is not coincidental that on August 15, 2016, around the time of this incident, the Ministry of Children and Families received a report regarding concerns for the three children living in dirty and unsanitary conditions. [ 46 ] The Ministry investigated and spoke with all three children. They concluded that that none of the concerns were substantiated and the file closed. [ 47 ] C.B. also says that P.S. is very involved in racing at the [deleted for publishing] Race Track with D.S. and T.S. but that R.S. is not involved and doesn’t attend with them.

P.S. testified that from May to October, he and the older two children go to the track on Saturdays from 5:00 p.m. until 11:00 p.m. as well as practices on Wednesday nights from 5:00 p.m. until 7:00 p.m. During those times, R.S. is looked after by his other daughter J.

She is twenty eight and has a nine year old son with whom R.S. plays. [ 48 ] When asked why she was of the view that R.S. should remain with her on a full time, rather than shared, basis, C.B.’s evidence was that she has a structured home life, she and P.S. have differing living styles and that R.S. is young and needs to be with her mom and lastly, that C.B. spends more time with her. She testified that R.S. has trouble reading and that she reads with her every evening. [ 49 ] P.S. testified that he also helps her with her reading - R.S. brings a book home and he reads with her.

According to C.B., P.S. is not filling out R.S.’s book as required when he reads to her. According to P.S., C.B. filled out portions of the book and wrote in “Dad’s week” and “Mom’s week” and he didn’t feel that he needed to “report to someone his every move”. [ 50 ] P.S.’s evidence is that he is concerned about R.S.’s exposure to fighting between C.B. and her current boyfriend. C.B. asked P.S. to take the children during an episode around Thanksgiving, 2016.

He testified that C.B. told him that her boyfriend was “flipping out” and was threatening people including family members. [ 51 ] P.S. went to C.B.’s home after school to pick up R.S. and his evidence was that there was yelling and screaming in the front yard of C.B.’s residence. He took R.S. home with him for the night.

Not surprisingly, he described R.S. as scared and upset. [ 52 ] P.S. also testified that in September, 2016, C.B. was in [deleted for publishing] with her boyfriend who was in court facing criminal charges and that he had both T.S. and R.S. with him during this time. [ 53 ] There was not much evidence regarding C.B.’s boyfriend and I am unable to determine what the current situation is in C.B.’s home.

In one of her text messages to P.S., she indicates that she is dropping the children off at the shop (where P.S. lives) as it is “not a good environment for them here right now.” This does show that C.B. has an understanding about the importance of the children being in a stable and calm environment but I have some concern about the impact that her boyfriend may be having in the home and upon R.S.

Discussion [ 54 ] I have come to the conclusion that the evidence does not establish that there has been a material change in circumstances or new evidence of a substantial nature that would require this Court to change the equally shared parenting regime that was agreed upon by the parties and ordered by Judge Saunderson in October, 2014. [ 55 ] There is no evidence before me about R.S.’s needs or circumstances and whether those have changed.

There is little evidence before me about the circumstances of either P.S. or C.B. and whether those have changed in a material way since the interim consent order of October, 2014. [ 56 ] C.B. and P.S. were married for about thirteen years. I expect that she was aware of their different lifestyles throughout that time and also at the time of Judge Saunderson’s order. She has also been aware, I expect, that P.S. takes the children on occasions when he is working.

She is also aware of the time he spends at the race track with the other two children. [ 57 ] Since the order of October 21, 2014, R.S. has started school and she is now almost eight years old. While it is conceivable that her needs and circumstances have changed in a material way, there was no evidence of that before me during this hearing. [ 58 ] While it is apparent that both parents love R.S., the tension and hostility between them is clearly evident. I am concerned that both T.S. and R.S. have been caught in the middle of this volatile relationship.

C.B. filed an affidavit purporting to show pictures of P.S.’s residence. I am also concerned that C.B. enlisted at least one of the children to take those photographs and is therefore directly engaging them in the dispute between the parties. P.S. saw those photographs for the first time during the hearing.

It is hoped that this wasn’t discussed with the children and I caution both parties that involving the children in their disagreement with one another is not viewed favourably by the Court. [ 59 ] I am also concerned that the parties are arguing and expressing their disagreement about parenting time and hostility for one another in front of the children. C.B. confronted T.S. who had been asked by P.S. to get his bike after she had told him it had to stay at her house.

In her affidavit regarding this, she deposed that “When I confronted him about the bike T.S., said in a scared whisper that his father had told him to go and get the bike.” Both parties placed T.S. in the middle of their dispute with one another. [ 60 ] It was on this occasion that P.S. waited in his vehicle in front of C.B.’s house for about one and a half hours when C.B. refused to allow P.S. to have parenting time with R.S. unless he agreed that it was only for the weekend.

T.S. was also in that vehicle and both R.S. and T.S. were directly exposed to the disagreement and friction between C.B. and P.S. [ 61 ] Both parties have made accusations about the other’s behaviour, including yelling and swearing at each other in front of the children. As is often the case, there are typically no witnesses (other than children) who are present to observe this behaviour.

[ 62 ] I am unable to make specific findings based on the evidence before me, but based on my observations of them in Court and my review of all the materials, the hostility between these parties was barely controlled. It appears to me that both children are being, and have been, exposed to their parents’ mutual hostility for one another. This is certainly not in the children’s best interests even though, as stated earlier, I have no doubt that both parties deeply love their children. [ 63 ] I have considered C.B.’s concern that P.S. is not at home with R.S. for a substantial period of time.

During the week, he is working until after 7:00 p.m., two or three times per week. Either R.S. is with him or is being looked after by her older sister D.S. Between May and October, he is not home until after 7:00 p.m. on Wednesday nights and on Saturdays between 5:00 p.m. and 11:00 p.m. During the months between November and March, P.S. may be home after 7:00 p.m. two to three times per week.

Between May and October, P.S. may not be home until later in the evening on four to five evenings during the week. [ 64 ] During the school year, R.S. needs a parent to assist her with reading and get her to bed at a reasonable hour to be ready for school the next morning.

I have some concern that she is in P.S.’s work vehicle on occasion during school nights when she should be doing her reading exercises and getting ready for school the next day but that does not amount to a material change in circumstances. [ 65 ] I am also concerned about the allegations, and that is all they are at this point, about C.B.’s boyfriend and the atmosphere in her home. [ 66 ] In

summary, there is simply not enough evidence before me to support the view that there has been a material change in circumstances such that the shared parenting regime as previously ordered should be changed. [ 67 ] Since Judge Saunderson’s interim order made October 21, 2014, C.B. resides in [deleted for publishing] and the terms in it are no longer relevant.

Accordingly, I order that Judge Saunderson’s order made October 21, 2014 is terminated. [ 68 ] I will make a new interim order that the shared parenting time regime for both T.S. and R.S. is to continue on a week on/week off basis. [ 69 ] This matter should be set for trial to enable a court to determine what parenting time arrangement is in R.S.’s best interests. I remind the parties that the focus should be on R.S.’s needs and best interests, not their own.

To that end, pursuant to s. 211, I am ordering that a Family Justice Counsellor prepare a report to assist the Court in making this determination. [ 70 ] The parties are to have shared parenting responsibilities for both children - T.S. and R.S. [ 71 ] C.B. seeks a protection order pursuant to s. 183 (3) (

a) and (3) (

b) of the Family Law Act to prevent P.S. from communicating with her or attending her home.

A court can make such an order if it is determined that family violence is likely to occur and that the other family member is an at-risk family member. [ 72 ] I accept, as I have previously stated, that there is considerable hostility between these parties and the children are being exposed to that hostility. [ 73 ] However, in all the circumstances, including that C.B. asked P.S. to care for R.S. in September and at Thanksgiving this year, I am not convinced that family violence is likely to occur without a protection order.

I have also reviewed the factors set out in s. 184 (1) although no submissions were made regarding this. The evidence does not establish the need, at this time, for a protection order.

Summary of Orders Made [ 74 ] I order that a s.211 report be prepared by a family justice counsellor to assess R.S.’s needs and the ability and willingness of either party to meet her needs with a focus on parenting time. [ 75 ] This matter is referred to the Judicial Case Manager to fix a date for a trial to determine how parenting time with R.S. should be shared between the parties. [ 76 ] I make the following interim orders: P.S. will have parenting time with R.S. from Friday after school until Friday morning the following week.

The first week of parenting time with P.S. will start Saturday November 26, 2016 at 10:00 a.m. and thereafter his parenting time will start Friday, December 8, 2016 after school and resume every other Friday thereafter. P.S. and C.B. are to share parenting time with T.S. on a week on/week off basis at times and dates to be agreed upon by the parties. The parties will have shared parenting responsibilities for both children. Unless the parties otherwise agree, P.S. will pick up and drop off R.S. and T.S. at their respective schools.

The application by C.B. for a protection order is dismissed. [ 77 ] The parties should have shared Christmas and other holidays with the children. This was not spoken to and the parties are at liberty to make submissions before me regarding Christmas or other holidays as well as pickup or drop off locations if they are unable to agree. BY THE COURT The Honourable Judge B. Flewelling