E.A.H. v. C.R.H. Date:, 2015 BCPC 81

Citation: E.A.H. v. C.R.H. Date: 20150224 2015 BCPC 0081 File No: F61509 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.A.H. APPLICANT AND: C.R.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: S. Bartlett

Counsel for the Respondent: B. Soloway Place of Hearing: Nanaimo , B.C. Date of Hearing: February 4, 2015 Date of Judgment: February 24, 2015 BACKGROUND [ 1 ] Mr. H and Ms. H are the parents of one child, J, now age 4. Mr. H and Ms. H have never resided together. [ 2 ] Before J’s second birthday, issues arose between Mr. H and Ms. H about where J should reside, parenting time for the non- custodial parent, and child support. Those issues were set for trial on August 31, 2012.

However, the parties reached agreement on the morning of trial, and the agreement was recorded in a consent order made by His Honour Judge MacCarthy that day. The material terms of the consent order were: a. J’s primary place of residence would be with Ms. H. b. Ms. H would have the obligation to consult Mr. H in relation to decisions about J’s education, health care, religious instruction, etc. In the event of disagreement about such matters, Ms. H “… shall have the right to make such decision …”. c. Mr.

H should have “reasonable and generous” access to J, such access to “include” certain specific dates set out in the consent order. d. The income-earning capacities of Mr. H and Ms. H were assessed at $65,000 per annum and $20,000 per annum, respectively. Applying the Child Support Guidelines , the order provided that Mr. H pay child support at the rate of $605 per month and 75% of special or extraordinary expenses. e. In each year that child support is payable [Mr. H] shall provide to [Ms.

H] … a completed copy of his filed Income Tax Return … and a copy of his Canada Revenue Agency Notice of Assessment …, and the quantum of child support shall be adjusted commencing in June of each year, commencing in 2013. It is to be noted that both parties had retained counsel for the trial, and that both parties were advised by counsel during the negotiation of the consent order. [ 3 ] Mr. H now applies for an order that J’s primary place of residence be with him, or, in the alternative, for increased parenting time with J (beyond the

schedule set out in the consent order). He also applies to reduce the amount of his child support obligation. Parenting Time & Responsibilities [ 4 ] At the time J was born, Mr. H and Ms. H both lived in Nanaimo. Ms. H moved, with J, from Nanaimo to Qualicum Beach in July, 2012, when J was about 20 months old. Mr. H continues to reside in Nanaimo. It is about 40 minutes’ drive from Nanaimo to Qualicum Beach. The community of Nanoose Bay is about half-way between the two. Mr.

H’s proposal is that J should reside with each parent for a week at a time, alternating weeks, and that J should be enrolled in school in Nanoose Bay. Ms. H proposes that J should continue to reside primarily with her and attend an elementary school in Qualicum Beach which is a few blocks from her house (where he now attends preschool). She points out that, if J were to attend that school, he could ride his bicycle to and from school. She has also considered a French immersion school which is a 5-minute drive from her house, but has not yet discussed the concept of French immersion with Mr.

H. [ 5 ] I heard a number of complaints from each parent about the other. It is apparent that they are incapable of parenting cooperatively, and that each has devoted considerable energy to manoeuvring for position in the continuing court proceedings between them. In that context, it is remarkable that they agree on one point. Mr. H describes J as “… well-rounded happy little guy …”. Ms. H describes him as “happy”, “outspoken”, “… doing fantastic …” and “… an amazing little boy …”. Mr. H says that he has no criticism of Ms. H’s parenting skills or practices.

The evidence disclosed no cause for concern about J’s emotional, intellectual or physical development. [ 6 ] I think it appropriate to refer at the outset to a formidable difficulty which confronts Mr. H on this application. Section 37(1) of the Family Law Act SBC 2011, c 25 provides (underlining added): In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

In considering any proposed change to the parenting arrangements in this case, I must ask myself only one question; i.e. how, if at all, would the proposed change benefit J? [ 7 ] The complaints which the parents make about each other are largely irrelevant to that question. For example, Mr. H complains that: a. a hostile conversation between Ms. H and a daycare owner led the owner to ask Ms. H to remove J from the daycare; b. Ms. H made an unfounded allegation to the police, to the effect that Mr. H had threatened her, which caused the police to arrest Mr. H in J’s presence.

On each of those occasions, Ms. H behaved very badly. Each incident supports the conclusion that Ms. H lacks appropriate emotional restraint and sometimes fails to provide J with good examples of appropriate adult behaviour. However, the question mandated by the statute is not whether a parent has behaved badly, nor whether sanctions should be imposed for bad behaviour. Rather, the question is whether the child’s life would be improved by a change in parenting arrangements.

There are cases in which a parent behaves so badly, and so consistently badly, that it is necessary to restrict that parent’s access to the child. This is not such a case. Indeed, Mr. H’s proposal would leave J. in Ms. H’s care for half the time. J’s interest would be well-served by a change in Ms. H’s behaviour. However I see no reason to think that the implementation of Mr. H’s proposal would affect the desired change. Shortly put, the remedy proposed by Mr.

H would not solve the problem which he identifies. [ 8 ] In view of the fact that J is flourishing under the existing parenting regime, I would require some compelling reason to order a change in it. The only rationale offered by Mr. H is the often-expressed, but rather dubious, adage that it is always best for a child to spend as much time as possible with each parent. I find that unpersuasive. On the contrary, I foresee some disadvantages (from J’s point of view) to the arrangements proposed by Mr. H. a. Every child needs friends of his own age.

J is at the age where he will begin to form lasting and important friendships with his peers. In so doing, he will develop a set of social skills which will be critical to his transition to healthy adulthood. Most children meet their friends at school, but the important and valuable elements of friendship develop and express themselves outside school hours. As a practical matter, that can only happen if J. and his classmates live close to each other. Mr. H’s model contemplates that a parent will pick up J each day after school and drive him 25 kilometres or so to a parental home.

In such a circumstance, J’s opportunities to make friends of his classmates will be very limited. Children can make friends who are not classmates, although that is difficult at J’s age. The difficulty would be more acute for a child who spends alternate weeks at homes 50 kilometres apart. b. For the next few years, J and his friends will require adult supervision. However, by age 10 or so, one would hope that J and his friends will begin to engage in after-school and weekend activities of their own invention, free of adult supervision.

J’s opportunities for healthy social interaction with his peers on school days will be materially reduced if his peers go off for unsupervised adventures at 3:15, while he boards a parent’s vehicle for a 25-kilometre drive to another community. If Mr. H’s proposal were accepted, J’s classmates would be playing with their friends in Nanoose Bay on the weekends, while J would be in Nanaimo or Qualicum Beach, each 25 kilometres away. [ 9 ] Mr. H complains that Ms. H has failed to comply with her obligation to consult him about significant issues in J’s life. That complaint is well-founded.

In hindsight, it appears that Mr. H and Ms. H were not well-suited to cooperative parenting. However, they agreed to the terms of the consent order, and both parents have an obligation to do their best, in good faith, to make it work. Quite apart from their legal obligations, they owe that to J. [ 10 ] I could provide a remedy for Mr. H’s complaint by ordering that he, rather than Ms. H, make the significant decisions in J’s life. I do not think that I should do so now, because, as a practical matter, the decision-making authority must rest with the parent who is primarily responsible for J’s care.

J is doing very well in Ms. H’s primary care. Changes are difficult for young children. I do not think it wise to make a fundamental change in J’s universe at this time. However, Ms. H should be aware that repeated failures to properly consult with Mr. H may lead a judge to conclude that she is failing to put J’s interests first, and that consequences may flow from such a conclusion. In that context, I observe that an obligation to consult is not satisfied simply by dismissive listening. The court will expect to see affirmative evidence that Ms. H has heard any concerns expressed by Mr.

H, and has taken affirmative steps to address them in the decisions which she makes. [ 11 ] I note Ms. H’s evidence, to the effect that communications between Ms. H and Mr. H deteriorated after the consent order was made, because ambiguities (real or perceived) in the terms of the consent order gave rise to opportunities for argument over the rights and responsibilities of the parents. It is apparent to me that both parents took advantage of those ambiguities in an attempt to advance their positions in an on-going struggle over issues of parenting time and responsibilities.

I consider it to be in J’s interest to do what I can to bring that struggle to an end. Given that the status quo is serving J well, the best way to do that is to make it clear that no change in the existing parenting arrangements will be ordered in the absence of compelling evidence that J’s interests are insufficiently served by those existing arrangements. [ 12 ] I am comforted by the evidence of both parents, to the effect that, since 2014, communications between them have been more civil, more cooperative and more effective.

It is important for both parents to understand that their power struggle does not serve J’s interests. It is also important for Ms. H to understand that a failure on her part to consult Mr. H, as the court order requires, only serves to inflame the conflict of which she complains. Child Support [ 13 ] When the consent order was made, Mr. H was employed as a heavy truck salesman. He was laid off from the job, because of poor markets, in the spring of 2014, and has been collecting employment insurance benefits since that time.

He has recently earned his Class 1 driver’s license, and expects soon to be employed as a truck driver. As a result, his income during the past year has been significantly lower than the $65,000 figure on which the consent order was based. Ordinarily, Mr. H would be entitled to a reduction in his child support obligation to reflect the reduction in his income. [ 14 ] However, Mr. Soloway submits that no such order should be made in this case because of the provision of the consent order quoted in paragraph 2(e), above. He says that the intention of that provision is: a. Mr. H is to provide Ms.

H each year with the proof of his income in the preceding year. b. Mr. H’s child support obligation for the ensuing year is to be determined by applying the Child Support Guidelines to his income from the previous year. c. As a result, if Mr. H’s income increases, his child support obligation will increase, but the increase will be delayed by one year. Similarly, if his income decreases, as it has in the past year, the child support obligation will decrease, but, again, the decrease will be

delayed by one year. If Mr. Soloway is right, Mr. H will pay more than the Guideline amount for the period August, 2014 - August, 2015 (when he has been unemployed), but less than the Guideline amount for the period August, 2015 to August, 2016, when, presumably, he will be working. So, Mr. Soloway says, Mr. H will pay neither more nor less than he should - only the timing of the payments will be affected. Mr.

Soloway says that any potential injustice is more than offset by the convenience and cost-savings attendant upon a mechanism for adjustment of child support which does not require court intervention. [ 15 ] I do not think that Mr. Soloway’s analysis can be reconciled with the governing principles, as stated in DBS vs SRG 2005 ABCA 2 ; 249 DLR (4 th ) 72; 7 RFL (6 th ) 373. Those principles may be summarized as follows: a. Child support is a right of the child[ren], not of the custodial parent. b. The quantum of entitlement is fixed by the Child Support Guidelines , not by agreement of the parents.

A figure different from that mandated by the Guidelines may be permissible only if the court is satisfied that reasonable arrangements have been made for support of the child[ren]: Family Law Act ,

section 150. It necessarily follows that a bargain of the kind described by Mr. Soloway could be enforced only if the court had reached that conclusion in relation to J. As Mr. Bartlett points out, the court has never been asked to adjudicate that issue. c. A non-custodial parent has an obligation to pay support, in the amount mandated by the Guidelines , whether or not that parent has made disclosure of his income to the custodial parent. The obligation to disclose flows from the obligation to pay, not the other way around. d. The disclosure obligation is a necessary consequence of the obligation to pay.

It requires the non-custodial parent to make ongoing disclosure of changes in his income, or income-earning capacity, even in the absence of a request for such disclosure or an order or agreement compelling it. e. Adjustments, up or down, in the quantum of child support should be made promptly upon a change in the income, or income earning capacity, of the non-custodial parent. The parents should make such adjustments voluntarily, and should rarely require the assistance of the court to determine the appropriate adjustment. The term of the consent order quoted in paragraph 2(

e) is useful because it sets a minimum standard of disclosure which Mr. H must meet. However, compliance with that term will not fully discharge the obligation, which requires continuous disclosure of material changes in income, or income-earning capacity, throughout the year. [ 16 ] Mr. H has been receiving employment insurance benefits of $2000 per month since early in 2014. He does not seek a retroactive reduction in his child support obligation, but does seek a prospective reduction to $206 per month, being the Guideline figure for one child and an annual income of $24,000.

He concedes that he owes arrears of $3693.43, and undertakes to pay those when he can. He also seeks an order that special and extraordinary expenses be borne equally by the parties until he secures new employment. Those orders are reasonable and appropriate. Disposition [ 17 ] Mr. H’s application for increased parenting time and parental responsibilities is dismissed. Mr. H’s child support obligation is fixed at $206 per month, effective March 1, 2015. Arrears of child support are fixed at $3693.43 as at February 24, 2015.

Each party is responsible to pay 50% of special and extraordinary expenses, effective February 24, 2015. February 24, 2015 ______________________________ T. Gouge, PCJ