J.R. v. A.R. Date:, 2011 BCPC 445

Citation: J.R. v. A.R. Date: 20111230 2011 BCPC 0445 File No: F7651 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: J.R. APPLICANT AND: A.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: R. Hamilton

Appearing in person: A.R. Place of Hearing: North Vancouver , B.C. Dates of Hearing: August 16, September 2 and December 8, 2011 Date of Judgment: December 30, 2011 [ 1 ] A. and J.R. are the parents of E.R., born [DOB]. [ 2 ] Mr. R. applies to vary a consent order made in December 2009, to change E.’s principal residence. The application is opposed by Mrs. R., and she takes the position that there has not been a material change in circumstances since the order was made. [ 3 ] Mrs. R. applies to vary child support, to enforce what she asserts was an agreement made by the parties in December 2010. Mr.

R. denies that there was an agreement. [ 4 ] The applications were set for hearing on August 16 and continued on September 2, 2011. The hearing did not finish. On September 2, I made an interim order that E. would live with her father for the fall school term. The reasons for that order were filed on September 20, 2011. [ 5 ] The parties now seek a final order. The hearing continued and concluded on December 8, 2011, and I promised a decision by the end of the year. On December 14, Mr. R. filed some unanticipated written materials. I invited counsel for Mrs. R., Mr. Hamilton, to respond to those by December 21.

While Mr. Hamilton filed his submissions by that date, in small part due to the time of year, and in large part due to the shortage of both staff and judges in this district, those submissions did not reach me until December 29. I was out of the office and without support staff on the 30 th , but will endeavour to ensure that the parties know the outcome of my decision before the commencement of the January school term. Background [ 6 ] The parties were married in 2002 while Mrs. R. was pregnant with E. They separated in December 2008. Mrs.

R. left the home on E.’s sixth birthday, taking E. with her, to move in with her mother in North Delta. Mr. R. remained in the matrimonial home. He acknowledges that the separation arose out of his not being a “good husband.” [ 7 ] Mrs. R. says she left Squamish because Mr. R. made her fearful. There was one incident while they cohabited when she called the police because he threatened her. She acknowledges that no charges were laid and that she paid for him to retain a lawyer, but says Mr. R. bullied her into using her credit card to pay for a lawyer, as he did not have a credit card of his own. [ 8 ] Mrs.

R. alleges there were other occasions on which Mr. R. acted threateningly or made actual threats, all of which were denied by Mr. R. All of the threatening behaviour that Mrs. R. attributes to Mr. R. predates their separation. [ 9 ] After the separation, Mr. R. took E. to Squamish on weekends and saw her on Wednesday afternoons in Delta. He provided all the transportation. In due course, the parties began to have some differences about the schedule. [ 10 ] Mr. R. applied to court for custody, guardianship and primary residence of E. in June, 2009.

He says his concern at that time was mainly to preserve his time with E. as Mrs. R. had been resisting it. [ 11 ] The application for primary residence was dismissed by Judge Rodgers on July 30, 2009 without a hearing. The remaining issues were set for hearing. [ 12 ] The parties came before a judge for hearing on December 8, 2009, but after a short time in court, they entered a consent order providing that Mr. R. would have E. on weekends and Wednesdays. It is the terms of that order that are now being challenged. [ 13 ] There were no consent forms filed in connection with that order. Mr.

R. was unrepresented at the time. Mrs. R. was represented. Mr. R. says that after a brief time in the courtroom, the judge made it clear that they would be given 15 minutes to make a decision, or he would. [ 14 ] Mr. R. says he entered the order because he was fearful he would lose his parenting time with E. Mrs. R. wanted to reduce it to every other weekend. Mr. R. wanted to be just as involved as he always had, or more so. [ 15 ] The issue of whether that order was a valid consent order was dealt with in my reasons for the interim order.

Given that the parties essentially complied with its terms for a year and a half or more, I found this case distinguishable from that of Amanat v . Markazi , 2011 BCSC 249 , in which an order was found to be void because consent forms were not filed. [ 16 ] Shortly after the December 2009 order was made, Mrs. R. filed a new application, to have Mr. R. return E. on Sunday night instead of Monday morning. In response, Mr. R. applied, again, to change E.’s residence back to Squamish. [ 17 ] Mr. R. says he consented to a change in the access

schedule after that application was filed, so that Mrs. R. would have E. longer on Fridays and so that she could take her to swimming every other Wednesday. He noted that she never did take her swimming. He also observed that when he has asked to see E. on non-school days, even if Mrs. R. has to place her in daycare on those days, she refuses his requests.

[ 18 ] The parties went to court on June 22, 2010, and Mr. R. consented to paying child support in the amount of $200.00 per month. The issue of E.’s residence was put over for a hearing in November 2010. [ 19 ] On July 27, 2010 the parties consented to a summer access

schedule and Mr. R. agreed to reimburse Mrs. R. for her transportation expenses. No one appeared other than Mr. R. on the November 12, 2010 trial date, and the matter was adjourned generally on November 16. [ 20 ] Through their counsel, in December 2010, the parties engaged in correspondence about entering a consent order providing Mrs. R. one weekend a month with E. and increasing the child support amount. Mrs. R. asserts through her counsel, Mr. Hamilton, that Mr. R. agreed through his counsel to pay $450.00 per month in child support. Mr.

R. says no agreement was reached because the parties could not agree on changes to the access schedule. In his later written materials, Mr. R. says the higher amount was offered to compensate for a car payment that Mrs. R. was to make on a car registered to Mr. R. that she continued to use. He says the car payments remain in arrears. [ 21 ] Mrs. R. agreed with Mr. R.’s suggestion that she had not agreed to Mr. R. having additional mid-week access in exchange for E. spending one weekend per month with her. She wanted the “make-up” access to be added to vacations. [ 22 ] No order was ever signed at that time. Mr.

R. never increased his child support, and the

schedule remained the same. The lawyers appear to have both formed the view that an agreement was reached, but the evidence of the parties is inconsistent with that. The Hearing [ 23 ] By the time the parties came before me, Mr. R. was vigorously pursuing his application to change E.’s residence back to Squamish. Mrs. R. was seeking to enforce the “agreement” regarding child support and the change to the schedule. [ 24 ] Mr. R. had sought and obtained an order for permission to obtain a private psychologist’s report to ascertain E.’s wishes regarding where she should live. I reviewed Dr.

Michelle Gibson’s report in my earlier reasons for the interim order. It was very clear at the time she wrote her initial report that E. wanted to be in Squamish and did not like living at her grandmother’s house. [ 25 ] Dr. Gibson provided an update of her August report for the purpose of the December hearing date. She confirmed that E. is very happy with the change to Squamish. She is enjoying her school, spending time with the friends that she had maintained in Squamish, and dancing; all things she had missed when living in Delta.

Her main concerns appear to be the length of the commute on Monday mornings, when Mr. R. travels all the way to Delta and back to Squamish to get her there for school. Mrs. R. has resisted changing the exchange to Sunday evenings. [ 26 ] A consistent and not surprising theme for E. is that she would like to see both her parents as much as possible, and would prefer it if Mrs. R. lived in Squamish. Of course, for a child her age, an ideal solution would be for her parents to reconcile, but it appears the opportunity for that has long since passed.

Unfortunately, there appears to be considerable lingering animosity on Mrs. R.’s part, and Mr. R. is in a new relationship. There is some suggestion that Mrs. R. is not dealing well with that: Mr. R. described two incidents in which it seems probable that Mrs. R. acted in remarkably inappropriate ways when Mr. R.’s girlfriend accompanied him to one of E.’s school or soccer functions. [ 27 ] In addition, Mr. R. expressed concerns about E.’s living situation at Mrs. R.’s mother’s household. He feels the environment is less stable than it should be for a child of E.’s age.

He takes issue with the morals of the mother and one of Mrs. R.’s sisters who lived there as well for a time. He says both have borne children by “several” different men. He observed that the mother married and divorced a man within a year while E. lived there. [ 28 ] Mr. R. learned from E. of a police incident at the house that occurred while E. was there. Mrs. R. and her mother and sister had an argument and Mrs. R. called the police from the bathroom. Mrs. R. says her sister was yelling at her and bullying her and she called the police to make her stop because it reminded her too much of how Mr.

R. used to behave. She agrees E. was present when the incident occurred but says she was on a separate floor of the residence. [ 29 ] In relation to Mr. R.’s living situation, he has maintained E.’s room in the matrimonial home. His girlfriend N. lived there at the time of the September hearing date, but had a separate bedroom from Mr. R. This was said to be a temporary arrangement, and Mr.

R. expected that N. would maintain a separate residence in the longer term. [ 30 ] Based on the evidence of the parties, it was clear that most of E.’s sports activities and social gatherings with family friends continued to occur in Squamish after the parties separated. This was supported by the observations of Dr. Gibson. At the time of the September hearing date, Mr. R. said that he had persuaded E. to “endure” her weekday absences from her home by pretending she was in boarding school and returning home on weekends. The update from Dr. Gibson merely confirms that on the whole, E. is much happier in Squamish.

Change in Circumstances? [ 31 ] I previously addressed the issue of the validity of the order made in December 2009. It was clearly intended by both parties to be a consent order, and acted upon for some time, before a further application was made by Mr. R. to deal again with the issues of custody and access. As pointed out by Mr. Hamilton in his submissions, consent orders are not to be interfered with by the courts without compelling reasons, and without the party who seeks to challenge the order establishing a change in circumstances.

[ 32 ] In this case, however, there may be a question as to whether the consent order was ever intended to be a final order. Mr. R. said in the hearing before me that he had never had the opportunity to testify before. It appears clear that in the December proceedings no hearing was held and no evidence was taken. Mr. R. was not represented. He did not sign a consent form and his signature was dispensed with on the order that was entered pursuant to the consent. While I have decided that the order was not a nullity according to Amanat v .

Markazi , that case supports a conclusion that a signature is required where the order is made “against” a party. [ 33 ] The reality of the situation is that Mr. R. was encouraged to enter into the consent order so as not to forego or curtail his time with E., in the face of Mrs. R.’s representation by counsel, and the judge’s encouragement to the parties to enter a consent. The issues of E.’s best interests were not canvassed on that occasion, fully, or at all.

It would be harsh, in my view, in the circumstances, not to permit the unrepresented party to revisit the issues, in the absence of being able to establish a judicially recognized change in circumstances. In addition, given the way the evidence has unfolded in this case, it would be contrary to the Court’s mandate to uphold the best interests of the child. [ 34 ] I would be of the view that Mr. R. need not show a change in circumstances and that it is open to me to consider afresh what is in E.’s best interests. If I am wrong about that, and a change in circumstances is required, I find that Mr.

R. has established that. In my reasons for the interim decision, I found that the deterioration of the communications between the parties and the fact that E.’s views are now known met the threshold for reconsidering the arrangement between the parties on an interim basis. [ 35 ] In addition to those two factors, Mr. R. cited Mrs. R.’s failure to respect the terms of the order and “a lot of small things” as adding up to a material change in circumstances. He listed these as firstly, Mrs. R.’s decision not to accept his telephone calls when he called for E.

She admitted she had blocked his calls to her mother’s residence because he called incessantly when he could not reach E. on the first try. [ 36 ] Secondly, Mr. R. said that Mrs. R.’s family had alienated him, often spoke ill of him in E.’s presence, and were essentially trying to poison E. against him. He said that E. had reported to him that they sometimes called him names after he hung up the telephone. Mrs. R. admitted that she had heard her mother and both sisters say that they “hated” Mr. R. Though it was not clear this occurred E.’s presence, it supports Mr.

R.’s conclusion that E. perceives he is not well thought of in Mrs. R.’s residence. [ 37 ] Thirdly, Mr. R. pointed to the police incident at Mrs. R.’s residence and as well her behaviour in public when his girlfriend is present as indicative of a deterioration in Mrs. R.’s ability to maintain E.’s best interests as her main priority. [ 38 ] Fourthly, Mr. R. related an incident which E. appears to have been aware of, involving her grandmother having become involved in a physical altercation at her workplace, and being suspended from work. Mrs.

R. acknowledged that this incident had occurred but noted that her mother had not been charged. [ 39 ] These events, all occurring after the 2009 order was made, do in my view amount to a change in circumstances within the meaning of the legislation.

Primary Residence [ 40 ] In light of the cumulative events that have occurred since the order was made, and the mere fact that two years have now passed in E.’s young life, I find that her best interests clearly require that her living circumstances be fully reconsidered at this time. [ 41 ] I would add to the circumstances I have already outlined the fact that E.’s reaction to the interim order is now known. At the time I made the interim order, I stated that I was mindful of the dynamics of having one parent be the weekday caregiver and the other see the child every weekend.

That arrangement has now changed, and it does not appear this is just a case of E. favouring the weekend arrangement. [ 42 ] I also do not agree with the argument raised by Mrs. R.’s counsel, that the issue is just E. missing her friends. She was barely six when she moved to Delta. She has now just turned nine. Her father has worked very hard to maintain her Squamish friendships, but it is equally clear she has not replaced them with friends in Delta, for whatever reason. [ 43 ] It is also not just a question of E.’s preference.

The evidence of both parties satisfies me that E. is better off with her father in Squamish than she is at her grandmother’s house, for all the reasons outlined by Mr. R. Indeed, Mrs. R. did not vigorously resist many of his allegations about instability, conflict, police involvement, negative comments or denial of telephone access. [ 44 ] As I see it, the main reason this matter landed back in court was because of Mrs. R.’s desire to curtail Mr. R.’s time with E. and Mr. R.’s resistance to that. On the other hand, Mr. R. has said several times in court that Mrs.

R. is welcome to have as much access to E. as she wishes. She has been offered weekday access in Squamish on any day she wishes to have it. She was to have seen E. on Wednesdays, and could have changed that to another day of the week, but admitted that she had missed some weeks entirely, despite working only part time. In contrast, Mr. R. seems to have driven from Squamish to Delta on Wednesdays virtually every week for two and one-half years, on top of full time employment and also doing all the driving there and back for his weekend access. [ 45 ] The parties’ pattern of behaviour satisfies me that Mr.

R. is more likely to facilitate Mrs. R.’s access to E. than the converse. There were some issues raised at the last hearing date regarding special events arising in Squamish during Mrs. R.’s time that E. wanted to attend. Mrs. R. resisted any of Mr. R.’s requests and it was necessary to sort them out at the hearing. [ 46 ] It appears there is some inflexibility on Mrs. R.’s part that may be based on a lingering desire to punish Mr. R. It seems to cause her to overlook, or at least fail to prioritize, E.’s wishes. I see Mrs. R.’s attitude toward E.’s stated desire to be in Squamish as an example of this.

She told E. that children move and she would have to get used to it, or words to that effect, when it had been Mrs. R.’s decision to move, and it does not appear that she even considered the possibility of deciding to move back, despite fairly strong

indications that Delta was not working for E. [ 47 ] More opportunities for socializing or extracurricular outings will inevitably arise as E. resumes her relationships and activities in Squamish. Many of them will be on weekends. As I have previously observed, it would be infinitely better for E.’s stability and wellbeing, as well as safer for everyone, if both parents lived in the same community. [ 48 ] It is also clear to me from the evidence that any concerns Mrs. R. may have had regarding Mr. R.’s demeanour date back to the marriage and should have dissipated by now.

Her own behaviour somewhat belies her assertions that she fears him. [ 49 ] I understand that Mrs. R. had established friendships in Squamish and has maintained some of them. She is employed in a fairly mobile line of work. Perhaps in due course she will see her way clear to prioritizing E.’s interests enough to consider moving back there. Parenting

Schedule [ 50 ] E. commented to Dr. Gibson that the Monday morning commute was difficult for her. No doubt it is also difficult for Mr. R., who goes to Delta to pick E. up and take her back to school in Squamish. I take it that Mrs. R. is alive to E.’s wishes and the onerous nature of a Monday morning return because she herself at one point applied to change the return time to Sunday night, when Mr. R. had E. on weekends. It is clearly much better for a child her age to settle at home the night before school starts rather than have a lengthy commute, if possible.

In my view E. should be returning to Squamish on Sunday nights. [ 51 ] Mrs. R. should equally be seeing E. as much as she can during the week, in Squamish, so she can be familiar with her school and reacquaint herself with her friends and their parents there. As long as she works part time, she should be available for mid-week visits at least two days per week. That could make up for the loss of overnights on Sundays. Again, some flexibility is going to be required because the court is not in a position to provide a detailed

schedule at this time. Child Support [ 52 ] The evidence of the parties did not satisfy me that they had arrived at an agreement for an increase in child support. I was referred to the case of Owen v. Owen , 2011 BCSC 1284 regarding repudiation of an agreement for child and spousal support, but I think that case dealt with a unique scenario where the payor parent had failed to pay under the agreement and by the time of the trial he wanted to enforce it, presumably because his income had gone up.

In any event, the issue in this case is whether there was an agreement in respect of the amount of child support. [ 53 ] Both parties agreed that the issue of access had not been finalized, and the discussions between counsel clearly combined that issue with the child support discussion. Mr. R.’s income appears to have been uncertain at the time the discussions were occurring, and it remains uncertain. No income amount was specified in the correspondence. [ 54 ] In his letter, Mr. Mansfield, counsel for Mr. R., stated that Mr.

R. agreed to pay $450 on a without prejudice basis, for a five month period, until the parties’ tax information could be exchanged. He went on to discuss the issue of weekend access, stating that Mr. R. would require compensation for the time he would be giving up. He concluded with the opinion that the parties had reached an agreement and just needed to focus on its implementation. [ 55 ] Mr. Hamilton responded in his letter that he agreed they had reached an agreement, asking when Mrs. R. could begin her weekend access, and asking which midweek day Mr. R. wanted as make up time.

That appears to be the end of the correspondence. [ 56 ] There is a letter on file from Mr. R. outlining the status of the car payments, and his agreement to permit Mrs. R. to discuss the balance of the loan with the bank. It does not appear to be in dispute that Mrs. R. kept and used the car. [ 57 ] Whether I accept Mr. R.’s assertion that the offer of $450 was contingent on her taking over the car payments or not, there is an insufficient basis in the evidence for me to conclude that he agreed unconditionally to an ongoing $450 monthly payment. While Mr.

Hamilton submitted the agreement in relation to child support was severable, I read Mr. Mansfield’s letter as a contingent offer and Mr. Hamilton’s response as a contingent acceptance. Importantly, nothing appears to have been signed by the parties, and they did not act on the agreement, after the correspondence. I would add that in light of Mr.

R.’s having born the entirety of the transportation costs, the amount of $200 that he paid from June 2010 to September 2011 would not seem to have been unreasonably low. [ 58 ] Even if a severable agreement were reached for child support it amounted only to an agreement for five months’ worth of payments. If that were the case, there would be arrears of $1250. However, Mrs. R. is currently in the position of having her own obligation to pay child support in light of the change in E.’s primary residence. [ 59 ] Mr. R. is the primary caregiver at this time, and he will remain so.

He has been since the order of September 2, 2011. He stopped paying child support as of October. He should have addressed that in court; however, as of the interim order he no longer had an obligation under the Federal Child Support Guidelines to pay child support to Mrs. R., and she commenced to have an obligation to pay to him. [ 60 ] I do not know whether Mrs. R.’s potential four months’ worth of child support to date would offset Mr. R.’s potential arrears from the early part of the year, as the evidence of her income is not before me. Nor, for that matter, is his.

However, I would expect there would be at least a partial offset, and would suggest particularly in light of the issues of transportation and the car payments, that

the parties might consider disregarding whatever might be the balance, rather than pursuing further the issue of whether an agreement was reached in December 2010. [ 61 ] Mr. R. has not applied for child support from Mrs. R. He would be entitled to do so. Their current situation probably does not qualify as a shared parenting arrangement, but if Mrs. R. decides to move to Squamish so they could enter into one, she would be entitled to an offset under

section 9 of the Guidelines . [ 62 ] None of that is before me at this time, and I will have to leave it to the parties to sort out in future if they do manage to achieve shared parenting, which would clearly be in E.’s best interests. There will be no order for child support at this time, apart from cancelling Mr. R.’s obligation to pay support as of September 30, 2011. Final Order 1. A.R. and J.R. will have joint custody of the child, E. R., born [DOB]. 2. A.R. and J.R. will be the joint guardians of the child, which shall mean [Master Joyce terms with shared decision-making]: 3.

E.’s primary residence will be with A.R. 4. J.R. will have E. from after school on Fridays until 7pm Sunday (or such other time as is agreed between the parties), every weekend (including professional days and statutory holidays); provided that J.R. shall ensure that E. attends her soccer games in Squamish. At J.R.’s option, she may either bring E. to her soccer game on Saturday morning, or pick her up at the game. J.R. will also consider whether A.R. might have E. one weekend per month in exchange for her having increased weekday time with E. each week. 5.

J.R. may see E. any weekday in Squamish with 24 hours notice to A.R. 6. Each party shall have reasonable and liberal telephone access to E. while she is in the care of the other party. Each party will make their best efforts to facilitate such telephone access. 7. Reasonable changes to the parenting

schedule may be made on reasonable notice and by consent, such consent to be granted considering E.’s wishes and best interests and not to be unreasonably withheld. Any lost parenting time must be made up within a month, or if that is not possible, will be added to that parent’s vacation time with E. 8. The parties shall both act in an appropriate, polite, and lawful manner while in E.’s presence, and shall behave respectfully toward each other when together in her presence. 9. Neither party will speak unkindly about the other party or permit others to do so at any time while in E.’s presence. 10.

The parties shall communicate respectfully by email, telephone, text message, or as otherwise agreed, for the purpose of discussing E.’s parenting. 11. A.R.’s obligation to pay child support shall cease as of September 30, 2011. [ 63 ] I will ask that Mr. Hamilton prepare the final order in the terms set out above. If there are any details I have overlooked I am open to the parties returning before me for directions with respect to the

interpretation or implementation of this order. ______________________________ The Honourable Carol Baird Ellan

Provincial Court Judge