M.R. v. L.J. Date:, 2014 BCPC 39

Citation: M.R. v. L.J. Date: 20140211 2014 BCPC 0039 File No: F63927 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.R. APPLICANT AND: L.J. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Appearing on their own behalf: M.R. Counsel for the Respondent: N. Evans Place of Hearing: Nanaimo , B.C.

Date of Hearing: February 11, 2014 Date of Judgment: February 11, 2014 [ 1 ] THE COURT (orally): M.R. (the "father") and L.J. (the "mother") are before me with respect to an application brought by the father in connection with the three children of the relationship, namely: A.P.R., born [deleted for publication]; D.R.R., born [deleted for publication]; and A.R.R., born [deleted for publication] (collectively hereinafter referred to as the "children"). [ 2 ] The father's application is to seek variation and changes to the order made by the Honourable Judge Gouge on October 29, 2012. [ 3 ] Judge Gouge made his order following a hearing that took place on June 26, August 31, October 11, and October 25, all of 2012.

His written reasons for judgment were rendered on October 29, 2012 (see: M.R. v. L. J-R . 2012 BCPC 402 , [2012] BCJ No. 2346.) [ 4 ] In his reasons for judgment, which are concise and to the point, Judge Gouge remarked on the high level of animosity between the mother and the father that has marked the relationship since they separated in September of 2011. [ 5 ] The hearing that Judge Gouge presided over caused him some concern.

He expresses in very clear terms the concerns that he had at the time that he rendered his reasons for judgment; also somewhat prophetically he expressed concerns about the way that the parents would continue to act in their relationship and specifically as it related to the children. [ 6 ] The order made by Judge Gouge was based on his observations as follows, found at paragraph 8, and I quote: I begin with the question of custody. Joint custody is a viable option only if the parents are able to parent cooperatively: S.M.M. v. J.P.H. , 2011 BCSC 1084 @ paragraphs 186 – 187.

M.R. and L.J. have demonstrated that they are not. If they were the only parties, it might be useful to decide who is most at fault for that, and to award the prize (custody) to the parent least at fault. However, the interests of the children are paramount. The question is not whether one parent is more at fault than the other, but rather which parent is better able to provide an appropriate home for the children. In this case, the answer is that L.J. is better able to provide an appropriate home than is M.R. That is true for the following reasons: a.

Stability and consistency are very important to children, particularly young children. It is not generally desirable for children to live in two different houses, alternating weeks. Such arrangements are usually too disruptive to the routines which are important in the lives of young children. In this case, the problem is exacerbated by the hostility between the parents. b. The children have been living with L.J. for more than a year. Her house is home for them. c. M.R. travels frequently for his work. His work hours are irregular.

He will not be able to provide consistency and routine for the children. [ 7 ] Accordingly, Judge Gouge awarded joint guardianship, as it then was designated under the terms of the Family Relations Act , to the parents, and in doing so ordered that the joint guardianship would be on the terms of the Master Joyce model. [ 8 ] The terms of the Master Joyce model that were followed and ordered by Judge Gouge in paragraph 9 of his reasons are as follows: a. the parents are to be joint guardians of the estates of the children; b. in the event of the death of either parent, the remaining parent will be the sole guardian of the persons of the children; c.

L.J. will have the obligation to advise M.R. of any matters of a significant nature affecting the children; d.

L.J. will have the obligation to discuss with M.R. any significant decisions which have to be made with respect to the children, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the children, and M.R. will have the obligation to discuss these issues with L.J., and each parent will have the obligation to try to reach agreement with respect to those major decisions; e. in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, L.J. will have the right to make such decision, and M.R. will have the right, under s. 32 of the Family Relations Act , to seek a review of any decision which he considers contrary to the best interests of the children; f.

L.J. shall advise M.R. of the names of the children's medical and dental practitioners; and g. each parent will have the right to obtain information concerning the children directly from third parties, including teachers, counsellors, medical professionals and third-party caregivers.

[ 9 ] In paragraph 13 of his reasons for judgment, the Honourable Judge Gouge provided unsupervised access (now known as parenting time under the Family Law Act ) to the father with the following schedule: a. every second weekend, commencing November 3, 2012, from 9:30 a.m. on Saturday to 4:00 p.m. on Sunday; b. from 1:00 p.m. on December 25 to 4:00 p.m. on December 26, each year; c. from 9:30 a.m. on Good Friday until 4:00 p.m. on Easter Monday, each year; d. from 5:30 p.m. on the last Friday in July to 4:00 p.m. on the third Friday in August, each year. [ 10 ] Judge Gouge further indicated, although it is not incorporated into the terms of the form of the written order, the following: Given the nature of his work, it is likely that M.R. will, from time to time, experience difficulty in exercising all of the access rights granted by this order.

When that occurs, it would be appropriate and helpful for L.J. to cooperate in arranging make-up access periods, with the objective of fostering M.R.'s relationship with the children. [ 11 ] The application that is before me, brought by the father, alleges that circumstances have changed since the making of Judge Gouge's order. Certain incidents are referred to and certain aspects of the children's emotional development are referred to in the application. Certain complaints are raised with respect to the mother’s compliance with the provisions of Judge Gouge's order.

In paragraph 7 of his application, the father seeks what he describes as a shared parenting plan.

In that plan, he suggests as follows: that he and the mother will share parenting time, such that he shall have every other week from Sunday at 1:00 p.m. to Saturday at 1:00 p.m.; alternating all statutory holidays every year; alternating Christmas each year, providing one-half day with each parent; alternating birthdays each year; alternating Easter each year; summer holidays, June 28 to July 31 with one parent, and from August 1 to September 30 each year. [ 12 ] I canvassed in M.R.'s testimony as to the compliance and the success as between the parties of dealing with the various components of the Master Joyce model, provided for in the order that Judge Gouge made.

In one sense, the form of that order has worked. The father was unable to point to a vast number of problems with the order. He was able to indicate that with respect to the order made in paragraph 9(

c) of the reasons, that there were some examples of when he was not informed of matters of a significant nature. However, those related to school selections and preschool selections and attendance. [ 13 ] He also pointed to a problem with respect to paragraph 9(d), that is the mother's obligation to discuss significant decisions. He indicated that again there were school changes that may have been made without consultation with him, and one occasion of a medical procedure or medical attendance at the emergency department of Nanaimo General Hospital, of which he was not informed.

He did concede that that this situation probably fell within the exception of emergency decisions. [ 14 ] He conceded with respect to paragraph 9(

e) that there had been no significant problems with the major decisions that had been reached. He confirmed that he has not been back before the court to have any decision that may have been made by the mother reviewed. [ 15 ] He indicated that the matters of concern to him, which he characterizes as being material changes, have been problems that have occurred over the course of the year with the transitioning of the children as between the mother and the father, in order to permit the father to have his required access, now known as parenting time.

He characterized those situations as becoming emotional events and indicated in his evidence about the angst which the children suffer when they are asked to return to their mother. [ 16 ] The father outlined his steps that he takes in order to make that transition smoother.

While I conclude that some steps are taken, I am not satisfied that all that can be done has been done by either the father or, for that matter, the mother, in terms of making those transition periods as smooth as they should be for three very important individuals in the lives of these two parents; that is, their children. [ 17 ] The father described in his evidence the nature of the parenting time that he exercises with his children and the array of activities that are pursued. The father testified that he would be able to accommodate his

schedule in order to assume the shared parenting time that he proposes in his application. That would necessitate an amendment to his working hours, and in some instances the utilization of daycare if that were to be necessary. [ 18 ] From the father's evidence, and I must say as confirmed by the mother's evidence, there are unresolved issues within their relationship. From what I heard, my sense is that the separation trauma continues to be bestowed upon the children through the activities of the parents.

Whereas they may believe that they are taking steps to cultivate positive relationships as between themselves for the benefit of the children, the evidence is to the contrary. [ 19 ] The father indicates that he has made attempts to resolve outstanding issues between himself and the mother through the Justice Access Centre. He says that those steps, which as I understand it he took in October 2013, have not been able to resolve some of the outstanding issues. [ 20 ] On cross-examination, he did confirm that there has been a lot of communication between the parents with respect to the children.

He expressed concerns that he believes that decisions are made by the mother and that he is only learning of those decisions after the decisions have been implemented, and not in accordance with the guidance provided by the reasons of Judge Gouge. [ 21 ] He did concede that the mother has been the primary caregiver. He also concedes in cross-examination that the children are settled, and issues of access and timing and places to live have been stabilized.

The evidence both from the father, as well as from the mother, is that the children are happy, for the most part healthy, and they have been succeeding in their school endeavours.

[ 22 ] The father expresses concerns about the desire of the children to have a greater amount of time with him. He says this is evidenced by the way time is spent during his parenting time and at the transition periods. [ 23 ] The mother also testified. Both she and the father expressed concerns about the parenting capabilities of each other. I do not take the complaints to be at the serious end of the scale. They obviously have different parenting styles. The father's parenting style is less structured and has a great more flexibility in it.

The mother adheres to a more structured and rule-oriented parenting style, where there is consistency both in terms of the children's daily routine and activities. She indicates that the father does not appear to share those same values, and that she is concerned that the children return from their weekends spent with the father very fatigued, worn out, and obviously emotionally high from the experience.

She says it takes some time for her to get the children adjusted back to a routine. [ 24 ] In order to succeed on this application, the father, who bears the burden of proof in this matter, must satisfy the court that the provisions of s. 47 of the Family Law Act have been satisfied.

Section 47 provides as follows: On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. [ 25 ] In that regard, there is little before me to conclude that the father has in fact discharged the burden on him as outlined in s. 47. [ 26 ] There is a suggestion that there has been severe negative emotional impact on the children as a result of the transition in parenting time between the father and the mother.

However, having heard the circumstances of the transitions, I am not satisfied that I can conclude that what the father alleges as being severe negative emotional impact has been established or can be reasonably concluded to have occurred. [ 27 ] I say parenthetically the fact that the parents' dysfunctional relationship is such that they have to plan those transition exchanges at the local police station itself, in my view, may be a more severe negative emotional impact on the children than what I have otherwise heard by way of evidence. [ 28 ] One change that the father does recite is that his financial circumstances have suffered.

He has undergone personal bankruptcy in the fall of 2013, and his business corporation, as I understand, is no longer functioning. That, I do not consider to be a change in circumstances worthy of investigation as to whether or not I should be amending or varying the order of Judge Gouge, as contemplated by s. 47. [ 29 ] In his reasons for judgment, Judge Gouge was very clear about the necessity for stability and consistency in the lives of these children. He is very clear that it is not desirable for children to live in two different houses in alternating weeks.

He makes it very clear that such arrangements are usually too disruptive to the routines that are important in the lives of young children. [ 30 ] There is nothing that satisfies me that there have been any changes in circumstances which would allow me to conclude that I should be varying the thoughtful and appropriate order made by Judge Gouge with respect to these three children. [ 31 ] Accordingly, I will dismiss the application of the father with respect to those changes that he is seeking.

However, having heard the evidence, it is appropriate for me to consider some slight modifications to the form of the order. I am doing so to better enable the parents to focus on what should be the best interests of these children as now set out in s. 37 of the Family Law Act . [ 32 ] Again, I will note parenthetically, at the outset of this hearing I provided each of the parties with the provisions of

Part 4 of the Family Law Act and I asked them to read it. I will commend that to their further reading and consideration in the months and years to come. [ 33 ] The revisions that I intend to make are intended to introduce what I consider to be a requirement for some greater flexibility in the relationship between the parents as it relates to parenting time. [ 34 ] In her evidence, the mother was able only to point to one example of where she offered any additional parenting time other than what is stipulated in Judge Gouge's order. That apparently occurred during the most recent New Year's.

There are examples of where the parents have cooperated to allow for the father to make up time if the scheduled parenting time could not be accommodated due to his work schedules; this as suggested by Judge Gouge is appropriate. [ 35 ] If the parents expect that their relationship is to progress on a more positive basis, they must understand that flexibility and accommodation is important, not just for them, but for the most important people that this application affects, and that is their children. [ 36 ] Accordingly, I am going to make a variation to the terms of Judge Gouge's order along the following terms; I will use the nomenclature that appears in the form of order that has been prepared and filed in this matter. [ 37 ] The respondent ("mother") will make additional unsupervised parenting time available to the father in order to permit the father to share celebrations around, but not necessarily on, for the following events: (

a) Father's Day; (

b) the birthdays of each of the children; (

c) the father's birthday; (

d) occasions that have particular significance to the father or his extended family; (

e) or any other special occasions or events for any or all of the children; provided that the father proposes the arrangements for additional parenting time by email to the mother not less than 14 days in advance of the event.

The mother will provide a response by email to the father no less than three days after the date of receipt of the father's email proposing the additional parenting time, either accepting the father's request or providing alternative options for consideration and acceptance by the father within three days of receipt of the mother's email setting out the alternative arrangements. [ 38 ] For clarity, reference to the father in the order will be to the applicant, as specified by the terms of the entered order in this

matter. [ 39 ] The second order that I am going to make is that the applicant father and the respondent mother will, within 60 days of today's date, meet with a Justice Access counsellor for the purposes of preparing and agreeing to a plan to assist in the orderly transition of the children at drop-offs and pickups for parenting time, which agreement will be evidenced in writing and executed by the parties. [ 40 ] There will be a similar order on the following terms, and that is that the applicant father and the respondent mother will, within 60 days of today's date, meet with a Justice Access counsellor for the purposes of preparing an agreed plan to assist them with timely and constructive child-centred communication about any matters of a significant nature affecting the children and any significant decisions which will have to be made with respect to the children. [ 41 ] My reason in making those orders is to allow the parents to engage in a productive and constructive mutual working session to eradicate some of the ongoing problems that continue to mark their parenting relationship and their interpersonal relationship as it relates to and affects the children. [ 42 ] I am going to direct that the mother's legal counsel will prepare the form of the order.

I am going to waive the father's approval as to the form of the order. [ 43 ] I would ask that the parents take steps within the next 10 days in order to seek to make arrangements with the Justice Access Centre, in order to carry out the provisions of the order that I have made that apply to the Justice Access Centre. [ 44 ] That concludes my reasons for -- [ 45 ] MR. EVANS: That is to form part of the order, the last comment, Your Honour? [ 46 ] THE COURT: I will make that -- I will direct that as being part of it, so that that will -- [ 47 ] MR.

EVANS: Okay. [ 48 ] THE CLERK: Sorry, I missed it. [ 49 ] THE COURT: I will therefore order that within the next seven days that the parents will arrange for their meeting, that is arrange the time and scheduling of their meeting with the Justice Access counsellors. [ 50 ] Any questions about the form of that order? All right. I hope I have made myself as clear as I can.

It is my very sincere hope on behalf of your children that you are not back here, unless there is a matter of significant concern that was contemplated by Judge Gouge's order and requires further intervention of this court. [ 51 ] Thank you. (REASONS CONCLUDED)