L.S. v. R.N. Date:, 2012 BCPC 237

Citation: L.S. v. R.N. Date: 20120711 2012 BCPC 0237 File No: F7476 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: L.S. APPLICANT AND: R.N. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Applicant: K. F. Redmond

Counsel for the Respondent: R. P. McQuillan Place of Hearing: North Vancouver , B.C. Date of Hearing: May 24, 2012 Date of Judgment: July 11, 2012 [ 1 ] In this matter the Court is being asked to revisit Father’s access time with the children and to determine whether there should be any retroactive variation of child support and special expenses and/or cancellation of arrears and to set ongoing child support and special expense payments. [ 2 ] The parents were married in 1998. They separated in 2006.

There are three children; N. born [DOB] (now 14), G. born [DOB] (now 11) and S. born [DOB} (now 8). [ 3 ] The parties separated after Father moved to Edmonton to attempt to better his employment and be closer to his family. There appears to have been differing points of view about this move and after Mother concluded it was Father’s intention to stay in Edmonton permanently she declined to relocate. He remains there and she and the children reside in North Vancouver. [ 4 ] Mother remarried in mid 2008.

Her husband has been parenting the three girls since that time. [ 5 ] Father commenced a new relationship in early 2010. His partner has five children of her own who reside with them full time. They range in age from 12 to 6. History of Orders [ 6 ] On July 11 th , 2006 the parties entered into a Consent Order which provided for joint custody and guardianship with primary residence at Mothers home. Father was to have one week of access per month to be arranged between the parties at least one month ahead of time. This access was not to interfere with activities or school.

Father was also to have them in his care for one month each summer, one half of Christmas break and alternating spring breaks. The summer access was to be arranged by December 31 st of the preceding year. It is this Order that Father seeks to vary respecting his child support and special expenses obligations. [ 7 ] Father obtained an ex parte Order for access on August 21 st , 2009 after alleging that Mother was refusing to allow him to see the girls for the weekend while he was in Vancouver. The Order provided he would have access for three nights. [ 8 ] The current Order was made on August 24 th , 2010.

Father was not present although he had been notified. Monthly access was to continue as in the 2006 Order. The holiday access was also to continue but had to occur in Vancouver. The holiday access was premised on Father exercising regular access during the year defined as at least once every two months. If he failed to do so, the holiday access would be reduced or cancelled. It also provides that all access with S. must occur in Vancouver.

It is this Order that Father seeks to vary respecting his access. [ 9 ] Father filed his application for relief from the 2010 Order in February of 2011 and his application regarding a retroactive variation of child support and reduction of ongoing support in July of 2011. Evidence and Findings re Access [ 10 ] Mother’s evidence is that Father has not exercised access in a dependable way, and does not engage in meaningful discussions about potential access opportunities. She says he is also unwilling to consider any compromises about access.

If he cannot get the dates he requests he will immediately accuse her of wrongfully denying him access and refuse to entertain any alternatives. Father says that Mother intentionally takes positions which result in a denial of reasonable access and has interfered in his relationship with his daughters. [ 11 ] Mother is not entirely innocent of decision making that has not been child centered. In 2007 she determined that S. should not have overnight visits with Father.

Although this decision was properly founded at the time in that the child was very young and was returning home to Mother with behaviours such as bedwetting, those concerns no longer exist and yet Mother maintains that position. Mother also now says that in order to have regular access Father must first exercise regular access and that he must now travel to the Vancouver area to do so.

As Father’s counsel observed, this is what could aptly be described as a “Catch 22” proposition. [ 12 ] There is little to suggest that Father is not a competent and appropriate caregiver or that he is not bonded with his daughters. He was on disability for four years when the children were young and provided their day to day care for that period of time. However, the evidence does establish that Father has demonstrated a continuing animosity toward Mother that has caused her frustration and resentment and has also upset the children. G. has refused to attend visits with him since February of 2011.

It is unclear why she takes this position except that she had some negative experiences with her cousins in Edmonton on a visit there. Father may wish to consider whether he was in fact sensitive to the concerns she expressed at that time. It also appears that Father needs to ensure he spends his time with his daughters when they are in his care in Edmonton and not leave them with his family or new partner or her children. [ 13 ] I accept Mother’s evidence as to the nature of the communication between them and find that her version of events is more likely accurate. Father was not an impressive witness.

I find he was evasive, inconsistent and that some of his assertions were improbable and self serving. On all the evidence I find that Father has been engaged in self centered and unnecessarily obstreperous

conduct around access and has been inappropriate in his communications with Mother and the children. [ 14 ] After separation the parents worked out reasonable access up to the end of 2006. Some of the visits were in the lower mainland and some were in Edmonton. The children and Father stayed at his parent’s home there during his visits. He otherwise lived with his brother. [ 15 ] At Christmas of 2006 the children went to visit him.

When Mother contacted him about their return she was informed for the first time that he would not be sending them back at the time arranged as he had no money for their flight home and if she wanted them back she would have to come to get them. [ 16 ] Since early 2007 matters have not gone well between the parents and deteriorated to the extent that by mid 2007 Mother requested that any communications between them be in writing. [ 17 ] Father’s evidence was to the effect that Mother has been at fault for not accommodating him and that any visits he missed were justified.

To the contrary, I find that Father did not comply with Mother’s requests for reasonable notice or with Orders regarding notice and expected his requests for access time should be accommodated regardless of when he made them. I accept that he would become angry and verbally abusive when he did not get his way. I find he was often ambivalent about seeing the children and looked for and found many excuses for not being able to follow through with his access.

He often offered a lack of finances as a reason for not seeing the children and I will address this further in my reasons respecting support and special expenses. I regret to conclude that it does not appear that spending time with his children was a high priority for him. [ 18 ] In August of 2009, Father obtained an ex parte Order. On the evidence as I heard it, I find he was not entirely forthright with the Court at that time.

This behavior supports Mothers contention that Father has at times been very unreasonable in his dealings with her. [ 19 ] In June of 2010, Father was served with an Application by Mother concerning his access. He filed a reply but did not attend Court. Instead, he chose to go to Ontario to be with his new partner. He said he called Family Maintenance Enforcement and a Family Justice Worker to advise he was not going to appear. Even if true, this was an irresponsible manner in which to respond to a court proceeding.

He then said he was “flabbergasted” that Mother had obtained the order sought. [ 20 ] The evidence is that in the past Father has repeatedly engaged in disparaging Mother to the children and has discussed court proceedings and the terms of Orders with them. Due to how upsetting this was for the children, Mother has been monitoring his telephone or Skype communications with them.

The content of some calls was put before the Court in an affidavit of mother’s new partner sworn June 7 th , 2010 and Father’s comments to the children were indeed highly inappropriate and damaging. [ 21 ] Father blames Mother for not knowing about the children’s progress in school and their activities but has made little effort to inquire about these matters or to access information directly. His daughters are involved in Irish dance. They are active in competitions which require extensive time commitments day to day as well as for travel on holidays and weekends.

Their dance is important to them and there is no doubt that it has stood in the way of some access time Father has requested. I also find that Mother has at times used their dance as a convenient reason to decline requests for access. There can be no question that their relationship with their Father is more important to them in the long term than their interest in dance. [ 22 ] On the other hand, the girls do not want him to attend their dance events due to the potential for conflict.

Fathers own evidence is that N. asked him not to attend her recent elementary school graduation because she was concerned that conflict between he and Mother would ruin the occasion for her. I find Father must bear the primary responsibility for not being able to freely attend these events and spend quality time with his daughters when they come to Edmonton for this purpose as a result of his difficult behavior and attitude. [ 23 ] Mother says the children told her that they did not get to spend a lot of time with their Father in Edmonton when he was living with his family.

I also find Father has not appreciated the significance his new relationship would have for his daughters and as result has failed to introduce them to it in a manner sensitive to their level of understanding or mindful of the emotional and practical impact it would have and has had upon them. [ 24 ] At this time matters have evolved to the point where, due to ongoing disappointments for the children and because of difficulties arising from Father’s attitudes and behaviours toward her and the children, Mother no longer makes an effort to facilitate Father’s access.

This is not to say that she is or has been actively thwarting his relationship but rather that she has for some time now left it to Father to take the initiative and unless he gives her reasonable notice she will no longer change her family’s plans to suit him. [ 25 ] I also conclude that Father does not sincerely appreciate how significantly his own conduct has contributed to the situation which now exists.

At this stage, he must take the opportunity to get counseling or at the very least self reflect on how he can change his attitudes and behaviours to serve the best interests of his children and work toward a more healthy relationship with them. This necessitates establishing a respectful attitude toward Mother and in turn a co-parenting relationship which is child centered. [ 26 ] I conclude that Mother’s frustrations and resentments have contributed to this to some degree but I do not find she has engaged in any active or conscious attempts to alienate him.

At the end of the day, regardless of how this situation has come to be, Father must now put the past behind him and work to re-establish a relationship with all his daughters as he has had limited contact with them over the past few years. Views of the Child Report [ 27 ] All three children were interviewed. N. and S. expressed that they would be happy to see their father in Edmonton for up to two weeks in the summer. They love him and would like to have a relationship with him. They have met his new partner but have not met

her children. N. advised that he has not said negative things about her mother for some time. G. spoke of having had bad experiences with other children and cousins when she was in Edmonton in the past. She appears ambivalent about seeing her father in that she says she is concerned about her school work and dance being impacted. Conclusions and Order re Access [ 28 ] On all the evidence and taking into account

Section 24 of the Family Relations Act I conclude that it is in the best interests of the children that their relationship with their father be encouraged and re-established. I find that Father has established that there is a basis at law to vary the ex-parte Order. He was clearly guilty of a willful default in failing to attend Court or make arrangements for an agent to attend Court. Furthermore, he did not act promptly to seek to set the Order aside and it took him six months to file his application to vary.

Nevertheless, I find he has established that there was a “defense worthy of investigation” because the relief Mother sought and obtained had the potential to, and indeed has substantially limited the ability of his children to see him even though there are no safety or protection concerns. [ 29 ] N. and S. desire contact now and I infer desired contact then, as did G.. Mother’s concerns about his failure to comply with the previous Orders and his inconsistency and unreliability in the exercise of access are well founded. His conduct has been an ongoing annoyance and has created great inconvenience to her.

He has doubtless also negatively impacted his relationship with his children and caused them to feel rejected and unimportant. In turn, this has created worry and stress for Mother. However, it is the interests of the children themselves which must prevail. He is their father and they are entitled to a relationship with him and the opportunity to foster that relationship.

Only time will tell if that relationship is or will continue to be a meaningful one for the children. [ 30 ] Father will be granted ongoing access on terms similar to those which have been in the previous Orders, however he need not exercise that access in Vancouver. [ 31 ] It may be that his finances will dictate where the access is exercised. If he cannot afford to fly the girls to Edmonton, he may have to travel to Vancouver for these visits.

For the reasons set out below with respect to the financial issues, I find that Father should bear the costs of transportation to and from Edmonton. [ 32 ] Father will have the children for at least one and preferably two, seven day visits the summer of 2012. If he is unable to have them for one of the weeks, he may have them for one three night visit in substitution. If he is unable to have them for both weeks he may have three, three night visits.

All three girls should be together for access this summer. [ 33 ] Commencing in September of 2012, Father will see the children once per month, in months where there is not a holiday visit, for a minimum of three overnights. This can occur on any long weekend or on a weekend where there is a Pro-D day on a Monday or Friday. Mother is to provide Father with the children’s dance

schedule and school Pro-D day and holiday

schedule as soon as she is able to obtain them. Father must give mother at least sixty days notice of any weekend he wishes to see the children. If he fails to give her sixty days notice he will not be entitled to an access weekend. For the purposes of any visit in September of 2012, Father is permitted to give mother notice by July 30 th . [ 34 ] The dance and social

schedule of the children must of course be considered by Father when choosing his weekends but must not be determinative of whether or not the girls will have a visit with Father. If the only way to accommodate a prearranged visit requires that they miss an important dance class or competition or other event they wish to attend it will be for Father to decide whether he will give up his access. If he does so he is entitled to a make up access time equivalent to the missed access time within the next four weeks. [ 35 ] In 2013 he will have summer access for one, fourteen day period and one, seven day period.

The fourteen day and seven day access periods must be separated by at least a fourteen day period unless Mother agrees. He must give mother notice of his choice of times for his summer access for 2013 by December 31 st of 2012. Failure to give notice by that time will result in his summer access time being forfeited. [ 36 ] Father will have one week of spring break and one half of the Christmas school holiday. For Christmas 2012, he will have the children from Boxing Day to January 1 st . For 2013, he will have the children from the first Saturday after school ends until December 24 th .

The children must be returned to and be in Vancouver by no later than noon on December 24 th . Christmas access will alternate yearly thereafter. [ 37 ] For spring break in 2013, he will have the children for the first week of the break. In 2014 he will have the children for the last week of the break.

Spring break access will alternate yearly thereafter. [ 38 ] If Father fails to exercise weekend or summer access according to any advance notification or Christmas or Spring Break access as set our in this Order, unless due to sudden health or other urgent or emergency reasons, he will forfeit his next similar access visit for a weekend or for that holiday. [ 39 ] Father must not leave the children in the care of any third party unless he has advised mother twenty four hours in advance of his intention to do so and the name and contact information of the third party and the reason for requiring third party care and the length of time he will be away from the children.

Father must stay in the same residence as the children over night at all times when exercising access in Edmonton. [ 40 ] Father will not ask or require any of the children to provide babysitting or daycare for any other children. [ 41 ] Father will pick up and return the children on time as agreed by the parties. Failure to do so without good reason will result in the forfeiture of his next access period.

[ 42 ] Father will not transport the children to Edmonton unless he is able to provide return transportation for them.

Failure to provide return transportation will result in a forfeiture of the next similar weekend or holiday access. [ 43 ] Father will contribute equally to the cost of private, therapeutic counseling for G. such counseling to be arranged by mother at a reasonable cost. [ 44 ] Father will have telephone or other live electronic audio/visual contact such as Skype with each child at least once per week. [ 45 ] Father must not discuss any court proceedings or Orders with the children. [ 46 ] Father must not speak of mother or her partner in derogatory or negative terms to the children. [ 47 ] The parties have leave to settle these access terms should they be unable to agree on the particulars.

Child Support and Special Expenses [ 48 ] In the Consent Order of July 11 th , 2006, the Court made a finding that Father’s income was $28,080.00 yielding a monthly support obligation of $561.00. It also provides that special expenses will be shared pro rata and lists as special expenses medical and dental, “Ballet” for N. and gymnastics for G.. Mother’s income was found to be $19,600.00. He is asking the Court to reduce the amount of child support payable for the year 2010 forward.

He is not arguing that he is suffering any hardship within the meaning of the Guidelines. [ 49 ] Looking forward, he is also asking the Court for a determination of whether all of the Irish Dance his daughters are involved in is a special expense and asks the Court to set ongoing child support. [ 50 ] I find Mothers income for the purposes of any special expense calculation to be $27,650.00 which is an average of her last three years line 150 income. Variation of Child Support [ 51 ] The law requires that Father demonstrate a significant and long lasting change in circumstances.

He must also establish that he is not willfully under employed and is earning to his potential. I find he has failed to establish either of these two matters to the balance. My earlier findings with respect to the unreliability of his evidence pertain to this issue. [ 52 ] Father has changed occupation many times over his adult life. After high school he took training as a computer program analyst. He then trained as a travel agent. He had another job at a company called Telefix and was then on disability until he took a job with BC Ferries as a ticket agent.

That employment was stable and well remunerated and provided the family with benefits. He chose to quit that job and relocate to Alberta before finding better paying employment there. [ 53 ] Since moving to Alberta he has not found more remunerative employment as anticipated. Yet, neither has he considered moving back to B.C. to be nearer to his daughters.

Rather, he has held a number of jobs, most recently at just above minimum wage as a clerk at Wal Mart and Home Depot. [ 54 ] In early 2011, he determined to return to school to become an acupuncturist only to switch to the paralegal training program after three months. He worked part time until late 2011 and then quit as he found it too much to both work and attend his training program. His studies should be complete as of the summer of 2012. [ 55 ] In 2006 he earned $28,080.00. I do not have information about his income for 2007. In 2008 he earned $24,919.00.

In 2009 he earned $23,143.00 and in 2010 he earned $13,123.00. In 2011 he earned $6243.00 and received $12,000.00 in living expenses through a student loan. [ 56 ] He has not provided the Court with evidence from which a conclusion could be drawn that he has been unable to work except for a brief period at the end of 2009 when he was depressed. He has not presented evidence showing that he has been diligent in looking for better paying work.

Neither has he established that returning to school for retraining as a paralegal will improve his financial situation sufficiently to justify being out of the workforce for almost a year and a half. However, his expectation is that he will indeed better his circumstances substantially and will therefore have the ability to satisfy the arrears. [ 57 ] He has not paid child support regularly for some time. He paid no child support in 2008 or 2009 at times when his income was similar to that set out in the 2006 Order. He made one voluntary $600.00 payment on July 11 th of 2011.

All other credits for that year are from Federal Government cheques and garnishment. He received $561.00 per month through student loans to meet his monthly child support obligation while at school but he has not paid any of those monies to Mother and was not able to satisfactorily explain why this was so. He is currently approximately $20,000.00 in arrears. [ 58 ] I find that Father has chosen to be under employed in both 2010 and 2011 and to the present. He chose to go back to school for reasons which are not clear or cogent.

In any event, since mid 2011 he has had the ability to pay the full amount of support and has not done so. Assuming he will succeed in finding employment as a paralegal as stated, any change in circumstances cannot be seen to be significant and long lasting. His application to reduce his child support obligations retroactive to 2010 is dismissed. [ 59 ] I impute his income to be $28,080.00 and order that he pay $583.00 per month commencing July 1 st 2012 and on the 1 st of every month thereafter until the children are no longer dependant or until a further order of the Court.

[ 60 ] Father moved to Edmonton by choice rather than because he had secured better employment. He remained in Edmonton for many years without ties there despite not obtaining better employment. He has immediate family in Edmonton as well as in the Vancouver area. His family in Edmonton has not provided him with employment or support although for some time they provided him with housing. He has only recently chosen to enter into a relationship and remain there. For all of the foregoing reasons I am requiring Father to bear all the costs of his access.

Special Expenses [ 61 ] Although Father consented to paying for “Ballet” and gymnastics as special expenses in 2006, $7,000.00 of dance expenses were not enforced as N. was and is in Irish Dance. G. has not pursued gymnastics but rather has also been in Irish Dance. This error was corrected in the 2010 Order and since then these special expenses, which Mother has submitted as being $315.80 per month, have been enforced. As I understood her evidence this amount covers not only lessons but also supplies and some competition expenses.

This is the only activity which mother is seeking to have declared a special expense. [ 62 ] In my view, the month to month lessons which I infer cost $100.00 per month per child are not extraordinary and should be paid out of the monthly support payments. However, the evidence is that all three girls are very involved and are or are intending to compete nationally. It is clear they enjoy this activity and are dedicated to it.

As such, any costs for travelling to competitions, special training and any costumes or supplies are not of the same nature as the lessons and I find they are extraordinary expenses related to extra curricular activities as meant by S. 7 of the Guidelines. These expenses are reasonable taking into account the parents incomes and are in the children’s best interests. These extraordinary costs shall be shared pro rata between the parents. Mother must submit receipts for these costs to Father quarterly on the 1 st days of September, December, March and June.

Father must reimburse Mother within 30 days. [ 63 ] There is no issue that Father should be responsible to contribute to any medical or dental costs for the children. These too shall be shared pro rata between the parties and should also be submitted to Father quarterly along with the dance receipts. [ 64 ] Each September 1 st , Mother will provide Father with a list of expected special expenses for the next twelve months.

This does not mean that Mother is limited to claiming for only those expenses she foresees but rather is meant to allow Father to budget for such expenses. _________________________________ The Honourable Judge J. C. Challenger Provincial Court of British Columbia