M.M. v. D.M. Date:, 2011 BCPC 166

Citation: M.M. v. D.M. Date: 20110531 2011 BCPC 0166 File No: F6415 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: M.M. APPLICANT AND: D.M. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Appearing on their own behalf: M.M. Appearing on their own behalf: D.M. Place of Hearing: North Vancouver , B.C.

Date of Judgment: May 31, 2011 [ 1 ] THE COURT: As I understand the application which is before me, it really arises from D.M.'s application to set aside an order made in his absence on February 23rd of 2010. Also M.M.'s application for child support is before me by way of a reply in which she sought child support, based on an estimated income of $37,000. [ 2 ] The parties were before Judge Gedye on November 30th of 2010. Matters were dealt with in an interim fashion at that point because D.M. requested an adjournment of that hearing date.

There was an interim order for child support in an amount, but the commencement date of the child support was not dealt with at that time and there was an imputed income. D.M. was ordered to provide financial statements within a month of that date which would have been December 30th of 2010. [ 3 ] The issues that are before me at this time are what to do with the child support and whether it should go back to the date of the application that M.M. made in March of 2010; and what to do about the ex parte order that was made in February of 2010 in D.M.'s absence.

Chronology [ 4 ] I will go through the chronology so those issues are put into some perspective. The parties separated in about 2005. They have a daughter, M.M.M., born November 8th, 1998, and they arrived at an agreement, to their credit, in 2005 which set out joint custody and guardianship and, essentially, a shared custody situation where M.M.M. spent half a week with each of the parties approximately.

[ 5 ] The matter did not come to court, again to their credit, until 2009 when the mom, M.M., applied for sole custody and guardianship and the other orders that were made in the February 23rd order. The dad replied at that time in a fairly unconstructive fashion saying, "false accusations, vendettas, and lies, "which was not particularly informative. Nonetheless, he missed the date on February 23rd, 2010, because he was not properly served.

He then fairly shortly thereafter, the next day, applied to set aside the order that was made in his absence. [ 6 ] The order that was made on February 23rd by Judge Auxier was for sole custody of the child to M.M., reasonable access to D.M., and a variation of the agreement to read that, "In the event that the applicant, M.M., predeceases the respondent, D.M., R.P. and D.M. shall share joint guardianship of the child, M.M.M." [ 7 ] In the response to the application that the father made to have that all set aside, M.M. disagrees and says that she would like to keep those orders in place as they are at this time and also have a further order backdating the child support for M.M.M. [ 8 ] After the reply was filed in March of 2010, a s. 15 "Views of the Child" was prepared in a fairly timely fashion.

It is dated May 31st, 2010, and it sets out quite clearly M.M.M.'s frame of mind as of that period of time, which was just prior to the end of her grade 6 school year.

It certainly sets out the bullying, et cetera, that she was experiencing; her concerns with respect to school; her concerns, fully, with respect to her father, and how she tried to convey those to him and felt that he had not been particularly receptive. [ 9 ] That report was filed on June 7th, 2010, with the court, and as I do recall, because the parties were before me on a prior occasion, it was in the court file and the subject of some comment in prior proceedings.

D.M. says he did not receive a copy of it formally until today when he had an opportunity to look at it. [ 10 ] After that report was filed, there was an application to the court on July 21st, by D.M. to not allow the mother to move to Langley. In fact, she had already moved at that point without D.M.'s consent, although she says with some attempt on her part to discuss that move with him.

She explains her reasons for the move today as being, in her view, in M.M.M.'s best interests largely because of the problems in school that she was experiencing in North Vancouver, partly because M.M.M. was amenable to moving to Langley at that point, and also because M.M.'s employment is in Langley and it allowed M.M. to spend a lot less time commuting and a lot more time with her daughter, M.M.M. [ 11 ] M.M. also testified or indicated to me in her remarks today that after the change in custody from joint custody to sole custody, which facilitated a change from essentially shared custody to weekends with dad as of about February 2010, after that, and prior to the move, M.M. says, D.M. did not exercise his access as liberally as he may have and there were lots of times when he was unavailable or busy and that sort of thing. [ 12 ] She actually described a scenario similar to today, that is, that D.M. has had many opportunities to exercise access and has declined to do so.

So she saw it in M.M.M.'s best interests and not contrary to her interests to move to Langley and attempt as best she could from that distance to facilitate D.M. [ 13 ] It is unfortunate that M.M. did not either bring the matter to court to receive the court's endorsement of her move or give formal notice to D.M. before she did that.

If I had not been convinced that it was at that time in M.M.M.'s best interest that the move be effected, I would have been in a position at this point of considering perhaps changing custody, because when a mother or a father takes it upon themselves to move a child out of the jurisdiction where the other parent lives, it is a very serious matter because it severely curtails the ability of the other parent to access the child. [ 14 ] However, I am satisfied that M.M. was acting in what she viewed to be M.M.M.'s best interests at that time.

They clearly were not the best interests of D.M., but that is a secondary matter as we are dealing with the interests of a child in things of this nature.

I am satisfied in view of what I have seen in the "Views of the Child" report that he had curtailed his access a little bit on his own voluntarily, perhaps because he was hurt by the fact that M.M.M. had essentially chosen, it appears, to cut things back a bit, to not spend time with him during the week overnight, and to be in her mother's home on school nights. [ 15 ] That is apparently a request that she made and had been making for some time, but I take it that D.M. was hurt by that and hurt by the sole custody being granted in his absence.

To some extent, his behaviour thereafter was coloured by the fact that he was hurt by that. [ 16 ] Unfortunately, some of that behaviour took place in the presence of M.M.M. and some of it was discussed with her, not with respect to the order per se, and I am satisfied D.M. is not discussing court proceedings with her. He is discussing things with her from time to time that probably a 12-year-old girl now should be spared such as his own financial woes and potential problems with the dog and having to move and that sort of thing.

Those are not the kinds of things that children should be burdened with, even at the age of 12, even for a precocious intelligent child like M.M.M. [ 17 ] Nothing particularly turns on that, but I am just hoping that D.M. will take from it something in the sense that I am not sure that he is always acting in M.M.M.'s best interests when he has those kinds of conversations with her or displays of anger that she complains about, et cetera. [ 18 ] I do note, as well, and if you have read the s. 15 report which you can obtain a copy of from the court file, D.M., there are some specific statements by M.M.M. in the report about attempts she has made to communicate with you about certain things which she felt were not received well by you and that you were not particularly listening to what she had to say.

So at 11 when she was interviewed, it appears that she had drawn her own conclusions about your behaviours and actions and the extent to which you were prepared to engage with her as a parent should. [ 19 ] Again, not much turns on that. I do not think you have robbed yourself of the ability to be a father to her by any stretch, but at this point, some of the reason that she is in Langley with her mother and some of the reason that she is not seeing you is really authored by yourself. Some of it is voluntary in the sense that you have chosen not to see her.

[ 20 ] Now, what you say now at this point is that you are unable to see her because you do not have the money or transportation, and I will deal a little bit more with that in a moment. I am just going to go a little bit back through the chronology. What occurred after the "Views of the Child" report was there were a few interim orders made in the court. The issue of the move was dealt with. The parties were both ordered not to move the child without further court order. Of course, the horse was out of the barn at that point. In any event, then the parties came before me on August 24th. [ 21 ] There was an access

schedule set out that would have had M.M.M. seeing her father overnight on weekends every alternate weekend as of about the beginning of September 2010. There was a specific term in that order that dealt with alcohol; that is, that D.M. was not to consume alcohol within 12 hours before or during any access visit and he was specifically not to have it visible in his residence while the child, M.M.M., was present. [ 22 ] That was to address the concerns that M.M.M. and M.M. had raised and, as well, that were outlined in the s. 15 report, that confirmed that M.M.M. had concerns about D.M.'s drinking.

It may or may not be a problem, that drinking, I do not know, but M.M.M. appears to perceive it is a problem. I do not accept that that is entirely of her mother's doing, and I will say this about that, as well. At the time when the parties were before me in August of 2010, nothing was said by D.M. about the fact that he had been recently charged with impaired driving sometime in August of 2010. [ 23 ] Nonetheless, there was an order in there about drinking and it addressed it.

M.M. came back before the court shortly after, having learned of that, and, obviously, it was going to cause a problem with the transportation issue because D.M. was not going to have a licence. She asked that it be disclosed and then asked for a further ex parte order that D.M. not drive without a licence and that he carry his licence with him when he is driving and not drive while prohibited, et cetera. [ 24 ] So concerns were raised at that point again.

If a person is denying that they have an alcohol problem and it is raised in the "Views of the Child" report, keeping the impaired driving offence from the court as you did in August is not particularly the best way to refute that there is a problem with alcohol. [ 25 ] Nonetheless, those applications came before the court in the fall of 2010. As I say, interim orders were made. Then the matter came before Judge Gedye for hearing on November 30th.

She adjourned at D.M.'s request and made the order that I have already referred to indicating that D.M. would pay child support and file statements, et cetera. [ 26 ] I will say this at this point, D.M. has not complied with the order to provide a financial statement. He says he is doing his best to get those things together, but he has not yet been able to do it.

So the court at this point with this matter before it again, as it was before Judge Gedye, is in the situation of having to impute income until D.M. can establish otherwise, essentially, and to endorse the child support order that has already been made because there is no reason to deviate from that at this point. I will deal with the aspect of backdating in a minute. [ 27 ] So, as I have endeavoured to say, the position of the mom at this point is that D.M. has chosen, essentially, to spend less time with his daughter, M.M.M.

She would like to be able to facilitate further time with him, but of course there is likely to be a transportation problem with the parties as far apart as they are and with D.M.'s driving challenges. [ 28 ] The position of D.M. has been that he is unable and has been unable due to distance and finances to initiate access visits with M.M.M. He perceives that she has been alienated and wishes not to see him and that part of the reason that there has not been liberal access is because of her reluctance, which he attributes to her mother's influence upon her.

I have said a little bit about that, but I do find that the s. 15 report negates that there has, in fact, been alienation. [ 29 ] M.M.M. appears to be a child with a great degree of insight and she is quite willing, as I read it, to accept her father for what he is, but she makes her own observations with respect to the drinking issue. I will not call it a problem, I will call it an issue.

She sees after that report that D.M. is still having alcohol in his premises when she is there even though he was ordered by the court not to do that, and I take it from what M.M.M. says in the s. 15 report to the author, is that she, again, does not feel she is being heard by her father about her concerns. [ 30 ] I believe I mentioned it in August last year, but I will say it again, if a person wants to demonstrate to their child that they are willing to do everything to make a good relationship between them, failing to comply with a court order to have alcohol present in the premises is not the best way to do that.

Because M.M.M., if nothing else, may well be aware of the fact that there is a court order and what is she to make of the fact that there is still alcohol, even a wine rack, as innocent as that may seem, present. If that is present and there is some beer in a cupboard, what is she to make of that in terms of her father's willingness to make an effort to be the parent that she would like to see him be.

There are other indications in the report about problems with anger and, as I have said before, issues about sharing things with M.M.M. that perhaps ought not to have been shared. [ 31 ] So having said all of that, I can just say this. You did not pursue the alienation application today, D.M., but I do not see it as a problem at this point. I think M.M.M. will be what you would like her to be in terms of a daughter. I know you would like to get back to those days when it was half and half and it was all in North Vancouver. [ 32 ] Unfortunately, it is not that way now. She is in Langley.

She has made a life there for herself. If I had thought that that was an effort to alienate M.M.M. from you on M.M.'s part, I would have considered and even ordered that she be returned to North Vancouver to your custody, but I do not think that is appropriate at this time because I do not think you are doing the things you need to do as a parent to be a custodial parent or a full-time father. I do not think you are doing that at this point. And I do not perceive that that is what you are asking.

You do not even have the room to accommodate her at this point. [ 33 ] What we do need to do is ensure that there is as liberal access as there can be from this point forward. It is all set out in the orders. It is available to you. The question is how are you going to transport yourself back and forth, or M.M.M. back and forth as the case may be. [ 34 ] Having said all of that, as far as the ex parte order is concerned, D.M. was not here to address any of the concerns that were

raised by M.M. in her application before Judge Auxier. Revisiting that with what I have heard from the parties today, I do not see any basis for changing the primary residence. It should remain with M.M. [ 35 ] However, I do not see any basis for sole custody to M.M. in the circumstances. These are both parents to M.M.M., both of you are, and it was an amicable joint custody situation before.

Joint custody is really just a name, but it means a lot to a parent to be robbed of their custody capacity, especially in their absence without an ability to respond to that. [ 36 ] Nothing I have said about D.M. or read about him or heard about him leads me to conclude that he is incapable as a parent. Far from that. He is a capable custodial parent and, in my view, he should have joint custody and that portion of the order that Judge Auxier made should be set aside. [ 37 ] Nothing particularly will turn on that.

It is just a matter of a notional -- each of you is an equal parent to M.M.M. and that should be endorsed for D.M., in my view. It does not mean she is going to be spending half-time with him because she cannot do that. She is in school in Langley. She is going to spend as much time as she can with her father who loves her and who she loves, from Langley, however they get together to do that. I will set aside that and reinstate the original order of joint custody. [ 38 ] As far as guardianship is concerned, again, an order made in the absence of D.M.

I do not see it as necessary or appropriate that a half-sister, capable as she may be, share guardianship. It is an unworkable scenario and I think it is appropriate to reinstate the joint guardianship model that was there by consent of the parties previously. I expect that D.M., if ever it comes to pass, would involve the half-sister in M.M.M.'s life if he ever comes to be the sole guardian.

If there were any problems with that, obviously, the half-sister would have her recourse, but I do not think it is appropriate or necessary that she be a joint guardian at this point, and that order was made in D.M.'s absence. [ 39 ] We have had a hearing with respect to it at this point and I am going to reinstate joint guardianship for the parties that are before me at this point.

So the order at this point will be that D.M. and M.M. will be joint -- will have joint custody and joint guardianship of M.M.M. [ 40 ] The next order I am going to make and I meant to ask this, have you taken Parenting After Separation, D.M.? [ 41 ] D.M.: No, I have not, Your Honour. [ 42 ] THE COURT: All right. You are directed to do that within the next 60 days. There are classes available. It is an evening class, three hours. It will tell you a little about appropriate conversation with children and things that you can do to work on your parenting skills.

I am going to direct you to do that, then, on or before, let us say, July 31st. Is that something you can do? Okay. [ 43 ] I am also going to direct that you make a reasonable effort to enrol in a parenting course with the North Shore Family Services or another similar facility, but I cannot really give you a deadline of that because there might be some money involved. So I will just leave it at that, and that is just a reminder that there are some things you can do that will assist you in enhancing your relationship with your daughter. [ 44 ] There is an access schedule.

I do not perceive that that needs to be altered. It does actually provide for overnights on weekends – [ 45 ] M.M.: Mm-hmm. [ 46 ] THE COURT: -- the only issue being the transportation and I gathered from your submissions, M.M., that you were prepared to undertake some or a substantial amount of the transportation. [ 47 ] M.M.: I always am, absolutely. [ 48 ] THE COURT: Okay. So the only alteration that should be made is that the access -- I will say the access

schedule will continue as previously ordered, but M.M. will make reasonable efforts to transport M.M.M. to and from the access location, wherever that may be. [ 49 ] M.M.: Okay, I -- my issue with that, Your Honour, is the fact that I realize I live in Langley. I am quite willing to do, you know, the better part of it. D.M. is not willing to do any of it. [ 50 ] THE COURT: He is not going to be able to do any of it after August or July or whenever.

I perceive that he will have six months to a year of prohibition, probably. [ 51 ] M.M.: His unwillingness to do anything up to this point is a concern – [ 52 ] THE COURT: Okay. [ 53 ] M.M.: -- and it always seems to fall on my shoulders – [ 54 ] THE COURT: Okay. [ 55 ] M.M.: -- that I have to always pick up the slack. [ 56 ] THE COURT: Bear in mind what I have said about the move. [ 57 ] M.M.: Mm-hmm. [ 58 ] THE COURT: I think for the next little while –

[ 59 ] M.M.: I understand that. [ 60 ] THE COURT: -- you should make the effort. [ 61 ] M.M.: Sorry. [ 62 ] THE COURT: Okay. So I will put that in the order. It is softly worded, but you make reasonable efforts to facilitate transportation, or whatever I said, transport M.M.M. to and from at the access location which has been your house, right? [ 63 ] D.M.: Yes. [ 64 ] THE COURT: Okay. Okay.

You are directed to make reasonable efforts to ensure that you are available for every scheduled access period, okay, and obviously work has got to take some priority, but your daughter should take more. [ 65 ] Now, again, non-compliance with a few court orders, D.M. At this point, the child support has to be dealt with and it was to have been dealt with today. You did not file it.

We do not have the financial statements, and did you say you were going to file something with respect to that? [ 66 ] D.M.: Well, I was going to file an application to change an order, I think it is called – [ 67 ] THE COURT: Okay. [ 68 ] D.M.: -- to revisit the amount of child support based on my – [ 69 ] THE COURT: Okay. [ 70 ] D.M.: -- current income. [ 71 ] THE COURT: As it stands, I have to endorse the order that Judge Gedye made because it is before me at this time.

It is my view that it is appropriate, unless you show otherwise, that the amount should be commenced as of the date on which the application was made which was March 2010, March 5th; it would be April 1st of 2010. M.M. had asked for a $37,000 imputed income and I think you told Judge Gedye your income for 2010 would be about $40,000, you thought. Right? [ 72 ] D.M.: Yes. [ 73 ] THE COURT: Okay, so as a general rule, the court will look at the time when the person first received notice that child support was being sought.

Now, having said that, it should not take effect any earlier than the change in custody, but that would be before that. So yes, it will have to take effect as of April 1st. So the amount of child support that was ordered by Judge Gedye will take effect as of April 1st, 2010. [ 74 ] That is going to mean that you have some arrears with FMEP, but you still have the ability to apply to vary an order and prove that you did not actually make that much and you have got hardship and all of that. So it is -- nothing is ever written in stone -- but that is not.

However, at this point, they will be making their efforts to collect for what I have just ordered and what Judge Gedye ordered before. Okay. [ 75 ] D.M.: Yes, Your Honour. I wonder if it would be possible to stop trying to seize bank accounts and things like that because it just adds more cost to me? I have got a $200 bill now for the federal government because of that and one of my customers has been served – [ 76 ] THE COURT: Have you got a date for a court with FMEP? [ 77 ] D.M.: No, I have not.

I spoke with them a few weeks ago and – [ 78 ] THE COURT: Okay, I cannot – [ 79 ] D.M.: -- then I came and got the forms. [ 80 ] THE COURT: -- stay their attempts to do it yet because I do not have that file or their application before me, but when you do file your application to change the order, you can ask -- also add to it that you would like to have any enforcement efforts stayed until the matter is heard.

I do not know if you will be successful, but you can try and do that, and then I guess the other best thing to do is get some work and getting paying something, okay, and try to put all of this behind you and move forward. Okay? [ 81 ] I am going to direct that there be a transcript of my reasons provided because I went pretty quickly and you will get a copy of the order in due course.

Okay, any questions? [ 82 ] D.M.: No, Your Honour. [ 83 ] THE COURT: No, thank you. [ 84 ] M.M.: Oh, no, I do. [ 85 ] THE COURT: Yes. [ 86 ] M.M.: In regards to M.M.M. staying overnight, D.M. does not presently have a proper bedroom for M.M.M. I just need to make sure that that is looked after so she has a private place –

[ 87 ] THE COURT: Okay. [ 88 ] M.M.: -- absolutely. [ 89 ] THE COURT: I am going to add to this order that resumption of overnight access will be contingent upon D.M. having a suitable bedroom for M.M.M., okay, so rent out the other one. [REASONS FOR JUDGMENT CONCLUDED]