S.E. v. O.C.M. Date:, 2011 BCPC 198

Citation: S.E. v. O.C.M. Date: 20110805 2011 BCPC 0198 File No: F9010 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.E. APPLICANT AND: O.C.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant: F. Nudel Appearing on his own behalf: O.C.M. Place of Hearing: Port Coquitlam, B.C.

Dates of Hearing: January 4, February 24 and May 5, 2011 Date of Judgment: August 5, 2011 INTRODUCTION [ 1 ] I begin these reasons for judgment by making reference to Child A, the eight-year-old boy whose future parenting arrangements are in controversy in these proceedings. His interests are the court’s foremost priority and so it is fitting that he should be mentioned first. [ 2 ] Child A was born to the applicant S.E. (“Ms. E”) and the respondent O.C.M. (“Mr. M”) in 2003. The couple then resided in Maple Ridge. Approximately a year and a half later, the couple separated. A short time after that, Ms.

E moved, with Child A, to Mission, and Mr. M remained in Maple Ridge. Ms. E has moved a number of times since then, but has always stayed within the Mission area. Mr. M has moved as well, but he has not left the community—Maple Ridge—where he was residing at the time of the relationship breakdown. [ 3 ] Ms. E has, since the separation, developed a stable relationship with a fiancé who lives in Surrey. They have lived together but at present do not. Mr. M is now in a stable spousal relationship of three years’ standing with K.F. (“Ms. F”).

They reside together and now have an infant daughter. [ 4 ] As to occupations, Ms. E operates a small house-cleaning business. Mr. M has taken a leave from his duties as a driver for

Canadian Freightways in order to try his hand at operating a small landscaping business. [ 5 ] In an interim order made on consent by Judge Dossa on August 31, 2004, Ms. E and the respondent Mr. M were granted joint custody and joint guardianship of then 1½-year-old Child A, with primary residence to Ms. E. Mr. M’s access—or “parenting time” as, appropriately, it is now coming to be described—was skeletally defined in that order, which provided simply that: “[Mr.

M] shall have access to the child from Saturday am through to Sunday am, and such other reasonable access as agreed to by the parties.” [ 6 ] Pursuant to a later interim order made on consent by Judge Pothecary on April 28, 2005 (the “April 2005 Consent Order”), the access regime for then two-year old Child A was enlarged and given greater definition. That order prescribed, among other things, “reasonable and generous” parenting time with Child A for Mr. M, including the following specified times: (

a) In week one: i . weekend access from 10:00 a.m. on Saturday to 10:00 a.m. on Monday (or Tuesday if a long weekend); and ii. weekday access from 9:30 a.m. to 3:30 p.m. on Tuesday, Wednesday and Thursday; (

b) In week two: i . no weekend access; and ii. weekday access from 9:30 a.m. to 3:30 p.m. on Tuesday and Wednesday (or Wednesday and Thursday following a long weekend). [ 7 ] This two-week pattern repeats and, under the terms of the April 2005 Consent Order, the parties also committed expressly to arranging such other parenting time with Child A for Mr. M as the parties could agree upon. Beyond that, for the purpose of summer holiday access, Ms. E and Mr. M agreed that each would have “an equal number of uninterrupted [single] weeks” and, subject to Ms. E’s agreement and Child A’s response, Mr.

M’s summer holiday access could be extended to include one or more two-week stretches of uninterrupted exclusive time with the child. [ 8 ] Some years later, when Child A began attending school, Mr. M’s parenting time was markedly eroded. All but a short stub of his weekday access was eclipsed by the school day. The parties made efforts to reach agreement as to how the court-ordered access regime might be adjusted to reflect Child A’s attainment of school age and its marked, consequential effects upon Mr. M’s parenting time with him. They had little success. Indeed, the opening up of the

schedule for discussion and possible modification spawned recurrent conflict between Ms. E and Mr. M, culminating eventually in Ms. E’s application to vary Mr. M’s specified access. [ 9 ] While not spelled out in the application document, the access regime that Ms. E’s counsel, Mr. Nudel , now urges upon the court on her behalf would entail parenting time for Mr. M as follows: “ … [Mr. M would] have the child every Wednesday from after school until the beginning of school on Thursday.

In addition, every other weekend from Friday after school until Sunday at 7:00.” Transcript , January 4, 2011, p. 3 [ 10 ] Other ancillary orders regarding access at the Christmas and spring breaks are also sought by Ms. E: “In addition to that, he would have one-half of the Christmas vacation, one-half of the summer vacation of the child. And what she proposes is the parties essentially do that on a two weeks on, two weeks off period during the summer, and then they share whatever the child has in terms of spring break.

She thinks this year it's only 10 days, so whatever he has, they'll split.” Transcript , January 4, 2011, p. 3 [ 11 ] Lastly, Ms. E wishes to have these family law proceedings transferred for all purposes to the Abbotsford registry of the Provincial Court. Her counsel, Mr. Nudel , contended in his submissions that that location would be more convenient for both parties. [ 12 ] In his Reply, Mr. M indicated his disagreement with the change to his parenting time with Child A that Ms. E was proposing, although he is clear in his assertion that a change does need to be made.

Specifically, he has cross-applied to substitute a week on/week off, Friday-to-Friday, shared-parenting regime for the present arrangement. Under his proposed regime, drop-offs would occur at Child A’s school on Friday mornings and pick-ups would take place there on Friday afternoons. Mr. M wishes to see that arrangement continue through summers and spring breaks. [ 13 ] Mr. M opposes the move of these family law proceedings to Abbotsford. THE JURISDICTION TO VARY ACCESS ORDERS

Section 20: Material Change in Circumstances [ 14 ] By reason of the provisions of s. 20 of the Family Relations Act , as a threshold point I must find that the relevant circumstances have changed since the making of the April 2005 Consent Order before I can consider varying it. Well known case law, such as B.D. v. L.K. , 2004 BCSC 455 and Canning v. Fearn , 2000 BCSC 362 (relied upon by Ms. E) , establishes that the change in circumstances must be a material one. Sections 24 and 35: Effects of Variation upon the Child

[ 15 ] If the threshold requirement of a material change in circumstances is proven, I must then consider what new access regime will serve Child A’s best interests, having regard to all of the relevant circumstances as revealed by the evidence of both parties and their witnesses as adduced at trial: ss. 24 and 35 of the Family Relations Act , R.S.B.C. 1996, c. 128. In particular, s. 24(1) requires me to consider, in respect of Ms. E’s application and Mr. M’s cross-application regarding parenting arrangements for Child A: (

a) the health and emotional well-being of the child, including any special needs for care and treatment; (

b) the love, affection and similar ties that exist between the child and other persons; (

c) education and training for the child; and (

d) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. THE EVIDENCE OF THE APPLICANT [ 16 ] Ms. E gave evidence on her own behalf in this proceeding and called no other witnesses. She testified both in support of her own proposed approach to access going forward and in opposition to Mr. M’s shared parenting proposal. I briefly summarise her testimony below. [ 17 ] As I have noted, Ms. E acknowledged that the present arrangement is not working and that it must be changed.

Her main concern, repeated many times throughout her testimony, is that the regime now in place requires too much driving and that Child A is perpetually overtired as a result of the shuttling back and forth he does between his two parents’ homes. She admits that her proposed variation of that regime would leave Mr. M with less parenting time than that envisioned by the April 2005 Consent Order at the time it was made, and indeed as it is has been implemented since it was markedly curtailed when Child A began attending school. However, Ms.

E says that her proposed alternative—with fewer mid-week transitions—would leave Mr. M with more “quality time” with Child A and remove travel time that, she says, is interfering with Child A’s schooling, his ability to participate in extra-curricular activities, his ability to engage with friends and neighbours in Mission where she lives, and so forth. [ 18 ] Ms. E gave additional evidence seeking to call into question Mr. M’s judgment and competence as a parent, saying that he takes no real steps to discipline Child A or require him to conform to any standards or rules. She referred to the fact that Mr.

M had permitted Child A to stay up with his cousins playing video games and watching TV until 3:00 a.m. on New Year’s Eve this past year as an example of his bad judgment and poor parenting skills. [ 19 ] Ms. E was also critical of Mr. M for making a point of trying always to have Child A with him on his (Mr. M’

s) birthday, wherever the birthday might fit into the access schedule. She testified (surprisingly) that such celebrations should simply be deferred to Mr. M’s access days in those years where his birthday happens to fall on one of her days. She was critical of the activities that sometimes occupy Mr. M and Child A when Mr. M’s birthday comes around. Ms. E made particular reference to December 2010 when, as part of Mr. M’s own birthday celebrations, he took Child A to an NHL hockey game in Vancouver on a week night with the result that Child A did not get to sleep until 11:00 p.m.

She said that, rather than following her recommendation that he keep Child A home the next day, Mr. M sent him to school. She sought to give hearsay evidence that school staff advised her that Child A was falling asleep at school and that, for that reason, he had to come home early. [ 20 ] Ms. E testified that Mr. M cannot be depended upon to ensure that Child A gets his homework done when the boy is in Mr. M’s care. [ 21 ] Ms. E acknowledged that, following Child A’s commencement at school, she and Mr. M have tried to make some informal adjustments to the access regime, given that almost all of Mr.

M’s midweek hours with Child A had been lost to him. She said however that deviating from the court-prescribed access

schedule led to conflict between them with Mr. M being insistent upon more and more added time and showing little willingness to accept “no” for an answer. While both parents indicated that they have worked hard to conceal their conflict on access and other matters from Child A, both also recognised that Child A is not oblivious to that conflict. This, Ms. E said, was a further reason to do as much as possible to minimise the number of transitions and requirements for face-to-face contact between her and Mr. M.

She testified that, as an interim measure, when it falls to her to pick Child A up, she has recently adopted the approach of pulling up to the house and sounding the horn on her car to summon the boy so that face-to-face encounters with Mr. M can be avoided. [ 22 ] Child A did not testify at the hearing of Ms. E’s application and Mr. M’s cross-application, nor should he have. But both parties made periodic references to what they contended were his likes and dislikes. Ms.

E had the most hearsay evidence to offer in this regard, making repeated mention of alleged comments to the effect that Child A never asks her to spend more time with his father, is anxious about attracting Mr. M’s disapproval, wants to spend more time at his mother’s house, and so forth. Indeed, Ms. E said that she often asks Child A whether he wants to spend more time at his father’s house. I cautioned both parties, during trial, about the inadvisability of basing their cases on the inadmissible statements of persons who were not called as witnesses to testify at trial. [ 23 ] As I have noted, Ms.

E has resided in Mission since shortly after separation in 2004 and Child A has had all of his schooling, to date, there. During her time in Mission, she has variously lived in a basement suite, a house (with her boyfriend), another basement suite and, most recently, at her parents’ house where she temporarily resides in order to lend assistance during her father’s recovery from a bout of cancer. THE EVIDENCE OF THE RESPONDENT [ 24 ] Mr. M gave evidence on his own behalf in this matter. He also called the evidence of his common law spouse, Ms. F, and his mother, S.M. (“Grandmother M”).

I briefly summarise below the testimony of all three. Their evidence touched on both Ms. E’s proposal, and Mr. M’s counter-proposal, concerning the parenting of Child A going forward.

Mr. M [ 25 ] Mr. M’s opening words during his evidence-in-chief in some ways summarised the tenor of his testimony overall with respect to the parenting arrangement that he is advocating and the benefits he says it would confer upon Child A by comparison to those flowing from the status quo or those that would flow from the adoption of Ms. E’s proposal: “I'm trying to get a well-adjusted

schedule set in place for [Child A] to have an equal and balanced life with both parents and family. On my side we have a lot of cousins [Child A] adores and expresses how he would like to see them a lot more. He has grandparents that haven't seen him quite as often as grandparents would see a grandson or grandchild and with the limited access due to an old order and now he's in school full-time, it's pretty tough to try and accommodate relationships with family members, myself included, his new little sister, with such limited time ...

There's obviously going to be times when the other parent has something that they want to take him to, like a concert or a hockey game or something that you have to buy tickets for, and I'm in no way saying that it's seven days on, seven days off and that's it, do not contact. I want my son to be able to be happy between both, get less travel time and I know we both agree that the travel time right now is a lot of stress on [Child A], as well as everybody else. He seems to always be looking at his watch, in a rush, 'cause there's set times that are short from after school to pick-up times.

I am in no way opposed to having a set schedule, yet being able to adjust it periodically when we need it. My son, [Child A], likes fishing and camping and he's expressed an interest in hockey and in a lot of other activities that I feel as a father I'm missing out on a lot of that and just would like to see that he has a bit more influence from myself and a structured, longer period of time instead of these broken up quick little visits would be, I think, in my opinion [Child A]'s best interest.” Transcript , May 5, 2011, pp. 9-10 [ 26 ] As I have noted, Mr.

M’s evidence was that when Child A began attending school, Mr. M’s parenting time was markedly eroded. It is not seriously disputed, nor could it be, that all but a short stub of his substantial weekday access was eclipsed by the school day. Mr. M says that the effect of this has been to reduce his parenting time with Child A to an unacceptably low level, to Child A’s detriment. [ 27 ] While Mr. M agreed that it would be desirable overall to reduce the amount of time Child A has to spend in the car and the stresses associated therewith, he disagreed with Ms.

E’s contention that Child A is perpetually overtired and complains frequently about the amount of time he spends in cars. His estimate of the driving time between Maple Ridge and Mission was somewhat shorter than Ms. E’s and, under cross-examination, Ms. E’s estimate contracted somewhat. But most importantly, the thrust of Mr.

M’s evidence overall was that Child A is a normally active eight-year-old who has the same level of energy as his peers, who is not affected in any significant way by the time he spends journeying back and forth in the car between his mother and father’s homes, but who would certainly benefit from a clear and equitable access

schedule embodying fewer transitions and a reduction in the conflict surrounding access logistics generally. [ 28 ] Mr. M considers that the erosion of his parenting time with Child A, necessitated by Child A becoming of school age some years ago, has meaningfully lessened the amount of contact Child A has with him and, secondarily, with his extended family. He testified that the reduced contact and larger gaps between times of contact that Ms. E’s proposal would entail, if implemented, would not be offset by any real qualitative benefits.

Rather, he said, that regime would leave him and Child A with still less time together and less opportunity, overall, for Mr. M to foster his relationship with, and contribute to the development of, Child A. Secondarily, he said, it would also interfere with his ability to extend the degree of Child A’s integration into the larger family on the M side. Mr. M went on to testify that he believes that a Friday-to-Friday, week on/week off schedule, by contrast, would facilitate the achievement of all of those goals. [ 29 ] Mr. M did not consider Ms.

E’s objections about the events of New Year’s Eve and his own birthday, both in December of 2010, to be worthy ones. He freely admitted to having allowed Child A to remain up playing with his cousins on this just past New Year’s Eve, saying that they all had a great deal of fun and that, in any event, New Year’s Eve fell on a Friday night in 2010 and several days passed thereafter before it was necessary for Child A to return to school.

Similarly, he did not shrink from admitting that he does wish to spend his own birthday with Child A and that, on special occasions like that, he hoped that he might be accommodated. Mr. M makes no apologies for taking Child A to an NHL hockey game on his (Mr. M’

s) birthday last December and he says that he sent him to school the following morning because Child A appeared eager to go and keen to share his hockey game experience with his classmates. He characterised that event as a departure from the norm on school nights but as one that was justified by a special occasion. [ 30 ] Mr. M denied that he takes no interest or active hand in Child A’s homework, adding that the amount of homework that is assigned for students in Grade 2 is minimal in any event. [ 31 ] As I have mentioned, Mr.

M recognises that transitions create opportunities for unwelcome conflict but disagrees that the technique of stopping in the street and sounding the car horn—advocated and recently adopted, unilaterally, by Ms. E—is a sensible and sensitive means of controlling such conflict at pick-ups and drop-offs. [ 32 ] Mr. M has no plans to move from Maple Ridge and he confirmed, as well, that he did not foresee disturbing Child A’s school placement or his connections with his friends and school mates in Mission. Ms. F and Grandmother M [ 33 ] Ms.

F and Grandmother M—Child A’s step-mother and paternal grandmother, respectively—testified mainly to the good and healthy relations that exist between Child A and the members of Mr. M’s immediate and extended family. In their words and their demeanour, both revealed strong bonds to Child A. Inasmuch as the quality of the relationships that Child A has with Mr. M’s side of the family are not questioned by Ms. E (just as the quality of the relationships between Child A and Ms. E’s fiancé and her extended family are not questioned by Mr. M), little more need be said about the testimony given by Ms.

F and Grandmother M.

[ 34 ] I will note two additional points, however. [ 35 ] The first is that Ms. F testified during cross-examination that she and Mr. M would make the necessary time to drive Child A to Mission during their “on weeks”, as necessary, to allow him to maintain his connections with friends and school mates if the week on/week off

schedule were to be implemented. [ 36 ] The second is that Ms. F showed remarkable poise and strength when she testified about her recent bout with breast cancer. The issue first came up during Mr. Nudel’s cross-examination of Mr. M. Undoubtedly acting on Ms. E’s instructions, Mr. Nudel pursued a line of questioning then in which the object appeared to be to obtain evidence that would support an argument that Ms.

F may not have the stamina to meet the challenges of assuming a larger parenting role for Child A, given that she had had a cancer diagnosis and a young infant to care for (see Transcript , May 5, 2011, pp. 14-15). Mr. M handled those questions adroitly and in her direct examination, Ms. F confirmed his evidence that she has emerged from chemotherapy and radiation strong, in remission and capable of doing all that a roughly equal allocation of Child A’s time between the two households would require. To his credit, Mr. Nudel did not raise the issue again, either during his cross-examination of Ms.

F or during closing submissions. ANALYSIS REGARDING CHANGED CIRCUMSTANCES, ACCESS AND ANCILLARY ISSUES Material Change in Circumstances [ 37 ] The April 2005 Consent Order, defining Mr. M’s parenting time with Child A, was made when Child A was barely two years old. It embodies and expresses the parties’ agreement that Mr. M should have “reasonable and generous access” to Child A. That access included (but was not limited to) a specified

schedule that ensured: (

a) full weekend access twice per month with two overnights on each of those weekends; (

b) two, six-hour days of week day access in “on weekend” weeks; and (

c) three, six-hour days of week day access in “off weekend” weeks. [ 38 ] The specified access set out in the April 2005 Consent Order can fairly be viewed as defining the minimum or baseline assurance of parenting time with Child A for Mr. M that the parties fixed themselves.

This must be so, given that the parties contemplated reaching agreement concerning “other access” and equal numbers of “uninterrupted weeks of access” for each parent during the summer holidays, consisting of alternating intervals of at least one, and possibly of two, weeks’ duration. [ 39 ] While the April 2005 Consent Order did not diminish Ms. E’s formally defined status as Child A’s primary caregiver, it does specify what amounts to a de facto shared parenting arrangement for the summers and a substantial amount of weekend and week day parenting time for Mr.

M, as “access parent”, during the balance of the year. [ 40 ] As I have previously noted, it is plain that both time and events have overtaken the April 2005 Consent Order. During the six years that have passed since it was entered, Child A has grown from infancy, through toddlerhood, into an eight-year-old schoolboy. The demands and requirements of his school day particularly have eclipsed all but a small portion of Mr. M’s week day parenting time with Child A.

For the reasons I have given above, I am amply satisfied that that constitutes a material change in circumstances since the making of the April 2005 Consent Order for the purposes of s. 20 if the Family Relations Act . I so find. [ 41 ] Counsel for Ms. E emphasises the part of the B.D. decision concerning material changes in circumstances that states that a change justifying variation must be unforeseen and unforeseeable by the judge making the original order. I agree with him that Child A’s eventual attainment of school age was eminently foreseeable at the time the April 2005 Consent Order was made.

However, the fact that the parties could not agree on common sense adjustments to Mr. M’s specified access when Child A reached school age could not reasonably be anticipated. Their inability to agree effectively apportioned almost all of the consequential effects of Child A’s attainment of school age—in terms of lost parenting time—to Mr. M. That, I am quite sure, was wholly unforeseen and unforeseeable by Judge Pothecary at the time the court made the April 2005 Consent Order.

After all, in 2005 she had before her a primary caregiver with ample parenting time with Child A who was consenting to an order that also conferred ample parenting time, both on alternating weekends and during multiple days during the week, upon the child’s father. That order also envisioned even greater parenting time for the father during holiday periods. That is what Ms. E and Mr. M agreed, in a consent order, would be the distribution of parenting time with Child A between them. How could Judge Pothecary have foreseen that, once the boy became of school age, Ms.

E, as primary caregiver, would change course and withhold her consent to access changes aimed at preserving the general intent of the April 2005 Consent Order in terms of distributing parenting time equitably across both parents? In truth, it is Child A’s attainment of school age, coupled with Ms. E’s unwillingness to adjust specified access to take account of that development, that constitutes the unforeseen and unforeseeable “material change in circumstances” in this case. [ 42 ] Mr.

M has pressed—I am sure, at times, with too much persistence and too little patience—to make up for at least some of the parenting time that has been lost to him. Small concessions have been granted him by Ms. E from time to time but, overall, the evidence confirms that she has been reluctant to enlarge Mr. M’s actual access to Child A and when she has found him becoming overly forceful in his requests for more of that parenting time, she has retracted concessions previously granted and purported to invoke the strict terms of the April 2005 Consent Order against Mr.

M. [ 43 ] I say “purported to invoke the strict terms” because, read as a whole, the April 2005 Consent Order confers very liberal access rights indeed upon Mr. M. In taking the position that subsequent events—the advent of school—should erode only Mr. M’s parenting time with Child A, Ms. E’s approach overall does not at all reflect the parties’ original intentions as embodied in that consent order. Rather, the April 2005 Consent Order—as she has misconstrued it—has become an instrument of control in her hands and not a blueprint for ensuring that both Ms. E and Mr.

M are able to make their important contributions to Child A’s upbringing. Consider, in this regard, the following passage from Ms. E’s testimony at trial: “Q My original question was, have you not gone back to the original court order several times and -- and said it's a 3:30 pick-up?

A In the past, I have, because things started getting aggressive, and for my own safety and [Child M]'s, to keep things from being dominated by one side, [Mr. M]'s, I enforced the court order for protection so that -- [MR. M]: Your Honour, sorry, it was a simple yes or no question. A Actually it wasn't. MR. NUDEL: She's entitled to, Your Honour -- THE COURT: She's entitled to answer it in full. You can't cut her off. You have to let her finish. A Things started getting aggressive with [Mr. M], as they always do. They always fall apart when we try and come to conclusions with things, like this recent scheduling.

And the reason I enforced the 3:30 court order is actually on Mr. Nudel's advice when I first saw him, because things were just not going well with us and he was basically saying you pick him up this time this day, this time this day. And it was for protection, because I -- it was different from day to day. I never knew what was going on. That's the only reason I went back to the court order, on Mr.

Nudel's advice.” Transcript , February 24, 2011, pp. 14-15 (See also, pp. 15-20) [ 44 ] I pause to note that, notwithstanding the inflammatory references to aggression, protection and safety found in the foregoing passage, there was no evidence placed before me at trial to suggest that Mr. M has ever used physical force inappropriately with Ms. E. [ 45 ] In any event, the evidence as a whole persuades me that, rather than working reasonably and cooperatively with Mr. M to re- adjust his specified access to take account of new circumstances, Ms. E has throughout been grudging and ungenerous in her responses to Mr.

M’s attempts to see more of Child A. That is the case even though she acknowledges that Child A does not get as much time with his father as he should: Transcript , February 24, 2011, p. 23. [ 46 ] For his part, Mr. M has undoubtedly, at times, been less than mannerly and civil in his efforts to deal with what he believes to have been an entirely unacceptable erosion of a substantial portion of his parenting time with Child A. I also recognise that, faced with a small residue of the parenting time he had before, he has not always made his best efforts to return Child A on time, after access visits.

While I cannot endorse all of his methods for dealing with the problem, I do agree with Mr. M that the erosion of his access to Child A over the past several years has indeed been entirely unacceptable. Power Manoeuvring Based on Old Grievances [ 47 ] I view the controversy in this case as having its origins mainly in grievances that date back to the difficulties that Ms. E and Mr. M encountered when they were a couple. I make no findings as to whether those grievances are justified.

What I do find is that, unaccountably, they survive to the present and they are affecting, in detrimental ways, the manner in which the parties deal with one another today surrounding their respective parenting responsibilities for Child A. Power is wielded with respect to access arrangements without regard to the larger picture and what will best serve the interests of Child A. While both parties are guilty of engaging in such power manoeuvring, I am bound to say that on the evidence it is clear that Ms. E has engaged in it most assiduously.

She had done so by setting up resistance to most of the efforts that Mr. M has made to make up in his parenting time with Child A what the school calendar and her own intransigence have taken away. [ 48 ] That Ms. E’s present conduct is still actuated by past grievances and a belief that she bent too often and too much to Mr. M’s will in the past came through clearly in her testimony at trial. In the passage from the trial transcript that I have extracted below, Ms. E attempted to justify a recent, unilateral decision to cut off all face-to-face contact between herself and Mr.

M at transitions by implementing a new practice of parking outside Mr. M’s house at pick-ups and simply sounding her car horn to summon Child A at pick-up time. She switched to this practice without first alerting either Child A or Mr. M to it. When pressed during cross-examination regarding the wisdom of that questionable approach to managing conflict at transitions, and the motivation lying behind it, Ms. E invoked past history of conflict between herself and Mr. M dating back 10 years.

However, she could not point to any contemporary instances of yelling, being controlled or being belittled in her attempt to justify the unilateral change. “Q You informed [Child A] that you were going to pull into the driveway and just honk the horn? A Yes, I did. Q You informed [Child A] to tell his father that? A No, I did not. Q Did you tell his father that? A No, I did not. Q So you left it to a seven-year-old boy to inform his father that -- A No, I did not. Q -- oh , by the way, mom's honking the horn today and not coming to the door? A No, I did not.

It's pretty clear, when I honk the horn, that I'm sitting there, that he just needs to come out. He knows. Q Would it not have been a good idea for you to inform, via email or text message, that the contact was not going to happen

anymore, that you will just be pulling into the driveway, instead of leaving it up to a seven-year-old to tell his father? A I didn't leave it up to a seven-year-old to tell his father. Q Did you tell his father? A I didn't need to. The way things were, [Mr. M], I didn't want any contact with you whatsoever. I'm tired of being yelled at. I'm tired of being belittled and controlled. It's been 10 years. It's enough. It's done. Q When was the last time -- A I don't want that around my child. Q When was the last time you could recall that there was any yelling done?

A You make me -- you make me feel anxious every single time I have to go to your house, because of the past history that we have. It'll never go away. THE COURT: Can you ask the question again, please, [Mr. M]? [MR. M]: Q When was the last time you can recall that there was any yelling done? A It's not always about yelling. You know that. It's about dirty looks. It's about smirking. THE COURT: Can you ask the question again, please, [Mr. M]? [MR. M]: Q When was the last time -- A I don't recall. Q -- you recall that there was any yelling done? A I don't recall. Q So it hasn't been recent? A I don't recall.

Q You just testified that you're sick of all the yelling, did you not? A No, I did not. I said I'm sick of all the -- yeah, I'm sick of the 10 years of being yelled at and controlled and made to feel tiny. No, I'm done. It's not good for our son to be around and it's not good for me. I made that decision, and I have that right.” Transcript , February 24, 2011, pp. 33-34 (See also, p. 32) [ 49 ] It is evident to me that, while Ms.

E does care deeply for Child A and, at her core, she wishes to create the best conditions for his healthy growth and development, her day-to-day behaviour surrounding access issues, as illustrated above, is too often dictated by the aforementioned grievances and a desire on her part to avenge the past and exert control over Mr. M. This has led her to conduct herself in relation to Mr. M’s legitimate desire to recover lost parenting time with Child A in a manner that, more than anything else, is characterised by reflexive denial. That approach has, not surprisingly, generated increased conflict with Mr.

M and a corresponding deprivation of Child A’s entitlement to derive the maximum benefit from the parenting input he is entitled to receive from both of his parents. [ 50 ] It is trite law that access rights belong to children. Ms. E’s refusal to find ways to cooperate with Mr. M in making up for the loss of his parenting time with Child A that was occasioned by his attainment of school age has amounted to a denial of a substantial portion of the access rights that the April 2005 Consent Order conferred.

It is true that, in the ordinary course, when children attain school age they spend less time with their parents. That is an unavoidable feature of the life cycle of every family, whether intact or not. But equity, and proper recognition of the importance of assuring that both parents are able to make their respective contributions to children’s upbringing, require that the loss of parenting time occasioned by the onset of school years be distributed much more symmetrically than Ms. E has permitted it to be here. Because she remains caught in the dark undertow of past grievances with Mr.

M, she has insisted upon having almost all of the loss of parenting time that has resulted from Child A’s school obligations come off Mr. M’s side of the parenting time ledger. That tactic has defeated the clear intent of the April 2005 Consent Order and the court’s expectation that a meaningful role for Mr. M in parenting Child A through regular and sustained contact would be preserved. [ 51 ] Ms. E gave numerous rationales for her refusal to entertain more than very modest and fleeting increases in Mr.

M’s after-school parenting time, and for her unwillingness even to consider shared parenting as a model by which she and Mr. M might raise Child A in the coming years. Inconsistencies in her evidence, together with her tendency to exaggerate and embellish, left me persuaded that those rationales were driven more by “baggage” from the past and the power politics in her present relationship with Mr. M than by genuine concerns she has about what would be best for Child A. I offer only a few examples below.

Overtiredness [ 52 ] Ms. E made dozens of references in her testimony to Child A being overtired by reason, mainly, of the time he spends in the car being shuttled back and forth between her home and that of Mr. M. She invoked, as a secondary reason for this fatigue, her allegation that Mr. M has no standards and does not impose any meaningful limits on Child A’s behaviour when he is with Mr. M, including appropriate bedtimes. [ 53 ] I am sceptical of Ms. E’s evidence in this regard.

If Child A’s overtired state was responsible, repeatedly, for sleepiness at school, missed school attendances and missed opportunities to play with children and engage in extracurricular activities, then surely there would have been attendance logs that could be filed as exhibits and independent witnesses who could have been called to verify her contentions in this regard. No such evidence was tendered by Ms.

E and I draw an adverse inference from her failure to bring verifying documents or call any teacher, classroom aide, sports coach or other independent witness to testify under oath regarding what she said is the boy’s perpetually overtired condition and its effects upon his academic and social progress and performance. [ 54 ] One undeniable feature of the current status quo is the fact that Child A must regularly make back-to-back trips in the car to and from his father’s home in Maple Ridge. Ms.

E complained bitterly about the effect of that repetitive driving on Child A’s stamina, yet, by generally refusing to entertain any of Mr. M’s suggestions about alternative schedules and approaches to access in the wake of Child A attaining school age, she has left no option but to have the boy ferried back and forth from Mission in the space of the hour or two that remains, after school, of what once were six-hour, midweek access intervals. In short, a goodly measure of the oppressive character of the driving about which Ms. E complains can be traced to her own insistence that Mr.

M’s midweek access be confined to the stub end of the former six-hour interval that remains after the school day has concluded. [ 55 ] I also consider that in attributing such negative effects to the driving that is necessary to give effect to Mr. M’s access rights, Ms. E applies a different standard from the one she applies to the driving that she and her boyfriend do when she takes Child A to his house in Surrey to spend Mr. M’s off weekends there. For example, under cross-examination on that subject Ms.

E testified that she saw no problem with a recent weekend when it was necessary for her to travel back and forth with Child A, four times between Mission and Surrey: Transcript , February 24, 2011, p. 46. [ 56 ] Both parents acknowledge that it is undesirable for Child A to spend excessive amounts of time in cars but it must not be forgotten that it was Ms. E who moved to Mission from the community—Maple Ridge—where she and Mr. M resided when they were together and where Child A resided with them for the first year and a half of his life. Mr. M remains in Maple Ridge. Ms.

E had her reasons for moving to Mission—among them the fact that her parents moved to that community shortly after her separation from Mr. M —but, nevertheless, the distance that now separates her home from Mr. M’s home is, at bottom, distance that Ms. E chose to put between them. This impairs to some degree her ability to invoke that distance, and its concomitants, to fuel an argument for denying Mr.

M more parenting time with Child A. [ 57 ] As the evidence unfolded, it became clear that most of the extracurricular activities that Child A has participated in—the ones she says he is often too tired to attend or benefit from—were set up by Mr. M: Transcript , February 24, 2011, p. 13. Remarkably, they were all arranged by him to take place in Mission. There is very little in the way of organised sports or other such structured hobbies that Ms. E has arranged for Child A and some of the testimony at trial dealt with Ms.

E’s decisions to hold back from requiring the child to follow through and continue with some of those sessions that were set up by Mr. M based, in part, upon the boy’s alleged fatigue and, in part, upon his alleged lack of interest. “Q When it comes down to after-school activities, did I not put [Child A] into soccer when he was five? A Yes, you did. Q That didn't go so well, did it? A No, because he was too tired. Q Well, did he not also say that the coach at the time was putting a little bit too much emphasis on too many drills for children of five years old? A No. He was five. He did not raise that issue, no.

Q He barely made it through half a season, did he not? A That's right. Q At the end of the year, he really wanted to go to the final games and get his medal, did he not? A That's right. Q So he was still interested in the soccer, but -- A No, he was interested in the medal. Excuse me. THE COURT: Do you want to try your question again, [Mr. M]? [MR. M]: Q So he was still interested in the soccer, but did not appreciate, or I would rather say, did not fully want to -- to do all the practice involved before the games? Was it not that reason?

A He just didn't want to play soccer. I can't explain it any more. He just didn't want to play soccer. He'd lost interest in it. Tried it, didn't like it. Q When it came down to skating, he wanted to do that, did he not? A That's right. Q I did sign him for that, as well, did I not? A That's right. Q Out of 13 sessions, he missed four, did he not? A He did. Q Every reason for that, being tired, was it? A Yes, as you know.” Transcript , January 4, 2011, pp. 45-46 (See also, Transcript , February 24, 2011, p. 13) [ 58 ] Thus, Ms. E’s assertions about Child A’s missed opportunities to engage in extracurricular activities due to tiredness lose credibility in the face of evidence that: (

a) most of those activities were set up in her community of Mission by Mr. M; and (

b) she herself has been less than diligent about keeping Child A involved in those activities. [ 59 ] I have difficulty understanding Ms. E’s claim that Mr. M shows bad judgment and poor skill in parenting Child A, including poor judgment in ensuring that he get his needed sleep. She seems to be content to have Mr. M take responsibility Child A for some access time, including overnights—her new proposal sets out exactly when—and she does not express any concerns about the deleterious effects that continued access at that level would have upon Child A’s behaviour or development.

Rather, her concerns are raised only in relation to Mr. M’s past efforts to get more mid-week parenting time over the past few years, and in opposition to the shared parenting regime that Mr. M is now urging upon the court for the future. I would have thought that if Mr. M was as broadly deficient in judgment and good parenting skills overall as she portrayed him to be, Ms. E would have raised those deficiencies as a general issue concerning the proper scope of his role in the boy’s life and not selectively to: (

a) justify a past substantial curtailment of Mr. M’s access; and (

b) oppose a movement toward future shared parenting. [ 60 ] Ms. E’s indictments of Mr. M’s parenting skill and judgment lose still more of their force when consideration is given to some of the evidence she gave exposing lapses in her own parenting skill and judgment. For example, more than once she stated in her testimony that she has seemingly delegated some of the decision-making about whether Child A should spend more parenting time with Mr. A to eight-year-old Child A himself, saying that Child A should decide: Transcript , February 24, 2011, pp. 21, 50.

That, plainly, is an inappropriate question to settle upon the small shoulders of a child possessing the life experience and maturity of an eight-year-old. Like the evidence she gave about her tendency to ask Child A “quite often” as to whether he would like to spend more time at his father’s house ( Transcript , February 4, 2011, pp. 23, 50), this testimony reveals an inappropriate pattern on Ms. E’s part of drawing Child A directly into her adult conflict with Mr. M and putting the boy in the invidious position of having to declare his loyalties as between the adult combatants.

General tendency toward exaggeration and embellishment [ 61 ] Ms. E’s testimony revealed a widespread tendency to exaggerate and embellish in areas where she believed to do so would assist her case or diminish Mr. M in the eyes of the court. [ 62 ] When being examined about Mr. M’s timeliness, Ms. E did not say that he is sometimes late, or often late. She said that he is “always late”: Transcript , January 4, 2011, p. 21. When being examined about Child A’s performance on homework assignments during his weekends, she did not say that Mr. M sometimes fails to follow through.

She maintained, at least until pressed on the point, that Child A “doesn’t do any homework at [Mr. M’s] house”: Transcript , January 4, 2011, p. 39, emphasis added. And when questioned about whether Child A has ever asked to spend more overnights with Mr. M, she did not say “sometimes” or “once in a while”, she said “No, he hasn’t”. She made that point several times. Only when pressed did she concede that he does ask to do that “occasionally”: Transcript , February 24, 2011, pp. 28, 49-50. [ 63 ] Viewed in the round, Ms.

E’s evidence at trial—particularly given her frequent concessions when pressed—gained no traction in persuading me that Mr. M has been, or is, a hopelessly unreliable parent. [ 64 ] Ms. E’s descriptions of Child A’s overtiredness—which she attributes to the shuttling he does back and forth between households —were melodramatic and hyperbolic. She justified keeping him out of extracurricular activities, or not keeping him committed to them, and not setting up play dates with friends and neighbours, by invoking tiredness that she lays at Mr. M’s feet. Ms.

E testified that it takes days for Child A to recover from the fatigue that results from the weekend and paltry weekday access time he now has with Mr. M: Transcript , February 24, 2011, p. 42. In her words during examination-in-chief, after he spends a weekend with his father “it takes [Child A] until Wednesday to get back on a normal schedule”: Transcript , January 4, 2011, p. 21. The evidence as a whole did not support these extravagant disparagements of Mr. M and his parenting or of Child A’s general condition.

[ 65 ] I consider Ms. E’s critical reactions to the late nights that Child A spent on New Year’s Eve and on his father’s birthday to be excessive and unreasonable. [ 66 ] The evidence persuades me that Child A spent an enjoyable time on New year’s Eve with his cousins and extended family. His waking hours reached well past his normal bedtime, to be sure. But New Year’s Eve is neither an ordinary night nor a school night. Some accommodation must be made for that and Ms. E is not willing to make it—I believe in order to portray Mr.

M in a negative light. [ 67 ] A similar analysis applies, in my view, to the unique occasion of Mr. M’s birthday and the opportunity that he had to take Child A to an NHL hockey game. The December 2010 hockey outing was in the nature of a “one off” event in the year’s calendar and on the evidence Child A had a positive experience with his father on his father’s birthday and still got eight hours sleep—between 11:00 p.m. and 7:00 a.m., his normal waking time. Moreover, I am perplexed by Ms. E’s testimony that she strongly recommended that Mr.

M keep Child A home from school the day after the hockey game on the presumption that he would be too tired to participate. Is it reasonable to presume that a child will be unable to participate in his classes after a night of eight hours of sleep and keep him home from school on the basis of that presumption and nothing more? I do not believe it is. Even if it is true that Child A was sent home early the following day, I believe it reasonable for Mr.

M to have presumed the opposite—namely, that a child who has had a late night but still logged eight hours of sleep will likely be able to take the benefit of the following day at school. [ 68 ] Ms. E exaggerated in other ways as well. For example, she made much of her contention that Child A’s homework never gets done when he is at his Mr. M’s house on access weekends—testimony that reflects poorly on Mr. M. When pressed, however, Ms. E acknowledged that she was aware that homework does get done during Mr. M’s access time: Transcript , February 24, 2011, pp. 39-40.

Inconsistent posture on the alleged deleterious effects of separation [ 69 ] When she gave her testimony in opposition to Mr. M’s proposal of week on/week off shared parenting, Ms. E was emphatic that one compelling reason why the court should decline to order shared parenting is that Child A’s life would be disrupted if he were to be separated from her for more than two days at a time. In her own words: “[Child A] gets a lot of separation when he's away from me for more than two days at a time, and he doesn't like to go on extended times.

It's disruptive to him.” Transcript , February 24, 2011, p. 31 [ 70 ] That was her position even though, a few minutes earlier in her testimony, she outlined a proposal for future Christmas access in which she and Mr. M would each have Child A for an entire week: Transcript , February 24, 2011, p. 28. That was her position even though the proposal she now places before the court contemplates alternating, two-week periods with herself and Mr. M during summer holidays: Transcript , January 4, 2011, p. 3. [ 71 ] Ms.

E’s testimony that Child A will suffer in some way if “he’s away from [her] for more than two days at a time” is also not reconcilable with the original terms of the April 2005 Consent Order which, as I have noted, contemplated alternating, one-week—and possibly two-week—stretches during which Child A would spend time separately with each of his parents over summer holidays. The provisions governing summer access and up to two-week separations were agreed to by Ms. E when Child A was barely two years old, almost six years before the trial of this matter.

Inconsistent posture on maintaining a Mission residence [ 72 ] Ms. E gave great prominence in her testimony supporting her proposed access regime, and in her testimony opposing Mr. M’s shared parenting proposal, to the importance of keeping Child A well- and continuously embedded in the Mission community.

Indeed, she went so far as to say that it is now necessary that the doctor/patient relationship that has existed between Child A and his Port Coquitlam physician since birth must be disrupted so that, for reasons of convenience, he might be set up with a new physician in his home community: Transcript, January 4, 2011, p. 27. [ 73 ] Ms.

E referred to the length of time he has lived in Mission, the school he now attends, the friends he had made, and so forth as features of a stable life plan for Child A that is already badly disrupted by the current access regime and that would be wholly turned on its head if Child A spent alternating weeks with Mr. M and his family in Maple Ridge. [ 74 ] To some extent the foregoing evidence was undermined by Ms. E’s admission that she has moved four times herself since arriving in Mission (although she has found new basement suites or houses to occupy in Mission each time).

I am not privy to all of the circumstances giving rise to the moves but it cannot be denied that, even though he has remained in Mission for most of his life since the age of two, Child A’s living arrangements there have not been a model of stability. [ 75 ] Much more important however, was Ms. E’s acknowledgement that she has recently considered moving with Child A to Langley or Surrey.

That admission cuts against all of the spirited testimony she gave concerning the many reasons why it is essential that Child A not be disengaged from his Mission roots and connections even to the extent that a week on/week off pattern of shared parenting would require. Here is her evidence-in-chief about the possible move: “Q Now, in terms of -- I heard [Mr. M] say that there's a chance you're going to move? A It's been discussed. It's a possibility, but there's nothing been decided about. Q And if there was a move, where would a move be to?

A We've been considering Langley, which would -- Langley or Surrey, which would -- he would still be going to school wherever I lived, so there still would be a driving distance there.

Q But there's nothing concrete in -- A There's nothing concrete, no. There's just discussions .” Transcript , January 4, 2011, p. 26 [ 76 ] Startlingly, when cross-examined about those discussions, Ms. E flatly denied giving the evidence above, stating that she remembered stating in her evidence-in-chief that she “had no intention of moving”. What follows is the portion of her testimony, during cross- examination, that contradicts what she said when being examined in January of this year by her own counsel, Mr.

Nudel , about discussions that were then afoot about a possible move to Langley or Surrey: “Q So your decision, though, since last court date, there was still a bit of an up in the air about you possibly moving to Langley, was there not? A No, I believe I said I had no intention of moving . Q So you're staying in Mission for good basically? A Well, [Child A]'s in school. Yeah. He likes it there. He has friends there. We're settled there . I have no problems being there. Q So a 25-kilometre commute from [Child A]'s school to my home is still deemed too far? A Yes.

You could always move closer. [Child A] is in school there, so if you wanted to move closer, there's that possibility is open to you.” ( emphasis added) Transcript , February 24, 2011, p. 43 [ 77 ] Ms. E’s testimony on the subject of a possible move to Surrey or Langley during her direct examination cannot be reconciled with her testimony on that subject under cross-examination. The emergence of this inconsistency on a key topic was very revealing. It showed the court that, in terms of her own planning, Ms.

E is not committed at all costs to preserving Child A’s associations with his friends, school, classmates and the like in Mission.

Her willingness to entertain the possibility of a move on her part, with Child A, to Surrey or Langley reflects her recognition that circumstances in her own life could, one day, necessitate a move to a different community and that, if they did, the total disengagement from Mission and its associations, though disruptive, would not be as cataclysmic an event for Child A as she sought to portray when arguing against even the partial disengagement that alternating weeks in Maple Ridge and Mission pursuant to shared parenting with Mr. M would bring about.

ANALYSIS REGARDING POSSIBLE TRANSFER OF FILE TO ABBOTSFORD [ 78 ] Very little was said by anyone at trial with respect to Ms. E’s application to transfer these proceedings to the Abbotsford registry of the Provincial Court. In that regard, Mr. Nudel submitted the following on the applicant’s behalf on the first day: “… I think what you're going to hear is you're going to hear evidence to the fact that she lives in Mission. He lives in Maple Ridge. I would argue a balance of convenience is Abbotsford, being closer for both.

I do know of case law -- I didn't bring it with me -- but I do know of case law that seems to suggest that, of course, the community closer to where the child resides makes sense that that's where the file -- the court file be. Transcript , January 4, 2011, p. 4 [ 79 ] I take judicial notice of the fact that, contrary to what Mr. Nudel submitted, the Abbotsford courthouse is much closer to Mission, where Ms. E resides, than it is to Maple Ridge, where Mr. M resides. There is no “balance of convenience” argument therefore available to him. What the application really seeks is an order moving the file closer to Ms.

E and further away from Mr. M. I have been given no principled reason why that should be done. Moreover, since Child A will henceforth reside equally in Maple Ridge and Mission, the case for moving the file to Abbotsford is even weaker. [ 80 ] It was Ms. E who first filed originating process in these proceedings, as applicant, back in 2004. She did so in Port Coquitlam. Soon thereafter she chose to move with Child A from Maple Ridge to Mission, and she has been content to return periodically to Port Coquitlam to deal with issues arising on her file from to time ever since.

I have not heard either evidence or arguments sufficient to persuade me that moving the file to Abbotsford would be a worthwhile or productive step to take at this time, particularly as there are steps that remain to be taken to address the ancillary effects of the substantive orders I am making that, as the judge seized of the matter, I must hear. DISPOSITION [ 81 ] Based upon all of the foregoing: (

a) Ms. E’s application to vary the access arrangement to conform with her proposal as outlined in paragraphs 9-10 of these reasons—a proposal that, if implemented, would further reduce Mr. M’s parenting time with Child A—is dismissed. As I have noted, time and circumstances have already produced an unacceptable reduction in Mr. M’s parenting time with Child A and Ms. E’s proposed order would reduce it even further; (

b) Mr. M’s cross-application to substitute for the current access regime a Friday-to-Friday, week on/week off shared parenting arrangement is allowed. That regime will afford both Ms. E and Mr. M roughly equal parenting time with Child A and, in contradistinction to the present arrangement, the loss of parenting time with him that is attributable to school will be roughly symmetrical as between the parties; and

(

c) Ms. E’s application to transfer the file for this litigation from Port Coquitlam to Abbotsford is dismissed. [82] While I shall deal here in a narrative way with the other elements of my decision and omnibus order, the terms of the omnibusorder proper are set out formally in

Schedule “A” to these reasons for judgment. [83] I will say that I have not come quickly or easily to the conclusion that a shared parenting arrangement should govern from thispoint forward. For that arrangement to function properly and for Child A’s benefit, Ms. E and Mr. M will need to improve their conflictmanagement and communication skills significantly. [84] I acknowledge the existence of early authorities in which the courts required evidence of a high standard of cooperation betweenseparated parents before making shared parenting orders.

But more recent authorities interpreting those cases in the light of decisionslike Robinson v. Filyk (1996), (BC CA), 28 B.C.L.R. (3d) 21 (C.A.)—such as L.K.G. v. M.M.M., (BC SC), [1997] B.C.J. No. 1662 (S.C.) (QL), Jordan v. Jordan, [2001] B.C.J. No. 1600 (S.C.) (QL), D.F.Z. v. S.B.Z., [2009] B.C.J.No. 1099 (Prov. Ct.) (QL) and A.E.E. v. L.L., [2009] B.C.J. No. 1883 (Prov.

Ct.) (QL)—acknowledge that the strictness of the earlierapproach has been relaxed, opening the door to joint custody/joint guardianship/shared parenting regimes in a broader range of cases. [85] It remains the law, of course, that where there is seemingly intractable conflict between separated parents, coupled with aninability to communicate effectively in order to deal with the practical, day-to-day necessities of providing separately for the child who istheir joint responsibility, shared parenting regimes will not be ordered.

Where conflict is so severe as to paralyse the ability of parents toprovide healthy, parallel environments for a child that each foster reliable contact with, and respect and affection for, both parents, courtsrecognise that shared parenting is doomed to failure and they will therefore not order it. [86] But I do not believe that this is such a case. The evidence has persuaded me that while the way forward will tax the abilities andgoodwill of both Ms. E and Mr.

M, they do have the ability within themselves to make shared parenting work so long as they are bothable to rise above their differences and give the provision of healthy and happy environments for Child A at both of his homes theprominence in their dealings with him and each other that it deserves. I am bound to say that while both parents have challenges toovercome in this regard, it is Ms. E who has the most work ahead of her. But I hasten to say, as well, that Ms.

E impressed me assomeone who can and will meet those challenges with maturity, fair-mindedness and a commitment to make shared parenting work. [87] To put it in terms of s. 24 of the Family Relations Act, I believe, on the evidence I have heard and seen, that both Mr. M and Ms.E have the capacity to provide environments for Child A in which his need to be nurtured by both parents will be both fostered andrespected. I am satisfied that—with some judicious encouragement and guidance from a professional skilled in conflict management andcommunications—both Ms. E and Mr.

M can and will subordinate their differences to the greater good of creating healthy conditionsunder which Child A can thrive in both of his homes, receive the education and training he needs as a developing youngster, beencouraged in both locations to love and respect each of his parents, and not have his health and emotional well-being compromised bythe perpetuation of adult conflict. [88] If I am wrong in my assessment of the evidence and the characters of Ms. E and Mr.

M, and if the shared parenting regime that Iam ordering is subverted by the continuation of power games and control-driven manipulations—that is, if my faith in the ability of Ms.E and Mr. M to live up to the demands and challenges of shared parenting is misplaced—then, upon further application, the court willlikely be called upon to reassess the fundamentals in the parenting equation for Child A, including custody, guardianship and primaryresidence. [89] Both of the parties have separately referred, in their testimony, to their desire for clear structure going forward in thearrangements for Child A.

The formal terms of the omnibus order that is found attached as

Schedule “A” to these reasons respond tothat. Some provisions deal with issues that in the past have proven to be flashpoint issues (such as birthdays and other special days). Ibelieve that by fairly apportioning Child A’s time between the parties on such occasions, the way forward will be clear and possibleirritants will be removed. [90] Driving and its associated effects upon Child A have been flashpoint issues up to the present.

In dealing with the issue oftransitions I have stipulated in the omnibus order that the parties identify a neutral, public place at a point approximately half waybetween Mission and Maple Ridge where weekly transitions can occur. Such an arrangement will distribute at least the transition-relateddriving equally between Mr. M and Ms. E. There will be other driving requirements having to do with Child A’s ongoing schoolplacement in Mission and his connections with friends and extracurricular activities there.

It is inevitable that the burden of providingtransportation in that latter regard will fall more heavily upon the shoulders of Mr. M than it will upon those of Ms. E.

However, Ibelieve that if the gains in improved conflict management and communications that I am anticipating do in fact occur, then it should liewithin the ability of the parties to work out concrete plans governing those transportation needs that will be fair and reasonable in all thecircumstances. [91] Shared parenting attracts an entirely different mechanism for dealing with the issue of child support than does a configurationthat designates one parent as the child’s primary caregiver and grants to the other parenting time in the nature of “access”.

Thatconfiguration requires the “access parent” to pay Guidelines child support to the primary caregiver. The shared parenting order that I ammaking in this case redistributes Child A’s time between Mr. M and Ms. E’s households in a roughly even way, leaving neither as ChildA’s primary residence. As such it separates the child support analysis from the mandatory application of the Guidelines table amounts,making child support discretionary: see s. 9 of the Federal Child Support Guidelines—adjusted as to wording by the Child SupportGuidelines (British Columbia) (B.C. Reg. 61/98)—and Green v.

Green, (2000) 2000 BCCA 310 , 75 B.C.L.R. (3d) 306(C.A.). If this case follows the usual pattern, a calculation will ultimately be performed in which the guideline amounts associated withthe incomes of both parties will need to be seat off against one another, with the better paid party paying the difference to the lesser paidparty. [92] While the possibility that the issue of child support would need to be revisited, depending upon the outcome of Ms. E’sapplication and Mr.

M’s cross-application, arises inferentially from the matters before me, neither party has addressed that issue withevidence or argument and, indeed, the financial disclosure that needs to be made to enable a proper inquiry into child support has not yet

been made. The parties will therefore need to make the required financial disclosure and appear before me again to deal with that outstanding issue in the near future. In the meantime, I will make an interim order requiring Mr. M to begin paying a reduced amount of child support to Ms. E to cover the time between the delivery of this judgment and a final ruling on child support at a future date. To the extent that the ultimate ruling requires that a catch-up payment be made by Mr. M for underpayment, or credit be granted to him by Ms.

E for overpayment, those refinements will be dealt with at the future hearing. [ 93 ] Inasmuch as a great deal of the evidence on both sides was directed at the issue of preserving stability in Child A’s relationship with his community and school—with Ms. E arguing for the maintenance of the school placement and residence in Mission and Mr.

M giving assurances that he did not intend to disrupt that relationship except to the extent that a shared parenting arrangement might alter it —I order that neither Child A’s school placement in Mission nor his residences in Mission and Maple Ridge may be changed without further order of the court. OMNIBUS ORDER [ 94 ] Based upon all of the foregoing, I make an omnibus order addressing: (

a) the issues raised by Ms. E in her application; (

b) the issues raised by Mr. M in his cross-application; and (

c) the ancillary issues that have arisen, incidentally, in the course of my rulings upon the issues expressly raised by the parties. [ 95 ] The terms of that omnibus order are set out in

Schedule “A” which is attached to and forms part of these Reasons for Judgment. [ 96 ] Before closing I wish to say that it has been necessary for me to acknowledge and speak plainly about some of the failings of both Ms. E and Mr. M that are germane to the decisions I have been called upon to make in this case. I regret the need to do so. Nevertheless, as I have also said, I have judged both Ms. E and Mr. M to be individuals who have sufficient intelligence, humanity and commitment to Child A's overall well-being to rise above their differences and past mistakes and make their shared parenting of him work in the coming years. __________________________ Thomas S. Woods, P.C.J.

SCHEDULE “A” TERMS OF OMNIBUS ORDER 1) Ms. E’s application to vary the Consent Order of Judge Pothecary dated April 5, 2005 (the “April 2005 Consent Order”) to prescribe specified access on the part of the respondent, Mr.

M, to Child A: a . from Wednesdays after school until the beginning of school on Thursdays, weekly; b . from Fridays after school until Sundays at 7:00 p.m. on alternating weekends; c . for one half of school summer holidays in alternating two-week segments; and d . for one half of school spring breaks; is dismissed; 2) The provision in the Interim Consent Order of Judge Dossa dated August 31, 2004, providing that Child A shall reside primarily with Ms. E is cancelled; 3) Mr. M’s application to vary the April 2005 Consent Order to provide for shared parenting by Mr. M and Ms.

E of Child A on a Friday-to-Friday, week on/week off basis (the “Shared Parenting Cycle”) is allowed; 4) Mr. M’s first “on week” within the Shared Parenting Cycle shall: a. commence at 4:00 p.m. on Friday, August 12, with the exchange of Child A to occur at a neutral, public location approximately midway between Ms. E’s home in Mission and Mr. M’s home in Maple Ridge (the “Neutral Midway Point”); and b . conclude at 4:00 p.m. on Friday, August 19, with the exchange of Child A to occur at the Neutral Midway Point; 5) Ms.

E’s first “on week” within the Shared Parenting Cycle shall: a . commence at 4:00 p.m. on Friday, August 19, with the exchange of Child A to occur at the Neutral Midway Point; and b . conclude at 4:00 p.m. on Friday, August 26, with the exchange of Child A to occur at the Neutral Midway Point; 6) The “on weeks” for Mr. M and Ms. E (collectively, the “Parties”) as contemplated by the Shared Parenting Cycle shall alternate in the foregoing fashion until further order of the court; 7) Ms. E shall facilitate reasonable telephone contact between Child A and Mr. M during her “on weeks” and vice versa;

8) The Shared Parenting Cycle and its associated exchange days and times shall, subject to other terms in this order concerning special days and occasions, govern generally and the Parties shall use their best efforts to conform strictly to the Shared Parenting Cycle. Temporary changes to Child A’s movements back and forth between the parties’ households necessitated by situational requirements shall occur rarely and only with the Parties’ advance consent.

The Party who seeks a temporary change to the Shared Parenting Cycle to accommodate a legitimate situational requirement shall notify the other Party of that request as soon as reasonably possible and the responding Party shall not withhold consent to the temporary change unreasonably; 9) In each year, in the event that the Shared Parenting Cycle allocates these days differently, Child A shall spend: a. At least three hours on Father’s Day and Mr. M’s birthday with Mr. M; and b. At least three hours on Mother’s Day and Ms. E’s birthday with Ms. E; and c.

At least two hours on Child A’s own birthday with each of Mr. M and Ms. E; 10) In odd-numbered years, Child A shall spend Hallowe’en evenings with Ms. E and in even-numbered years Child A shall spend Hallowe’en evenings with Mr. M; 11) During the Christmas season, in odd-numbered years Child A shall spend the time between 6:00 p.m. on December 24th and 3:00 p.m. on December 25th with Mr. M. In even-numbered years Child A shall spend the time between 6:00 p.m. on December 24th and 3:00 p.m. on December 25th with Ms.

E; 12) During school spring breaks, in odd-numbered years Child A shall spend the first half of the break with Ms. E and the second half of the break with Mr. M. In even-numbered years Child A shall spend the first half of the break with Mr. M and the second half of the break with Ms. E; 13) The arrangements prescribed in this order for Father’s Days, Mother’s Days, Mr. M’s birthdays, Ms.

E’s birthdays, Child A’s birthdays, Hallowe’en , Christmas school breaks and spring school breaks shall prevail notwithstanding that the Shared Parenting Cycle may allocate those days differently; 14) The Parties shall cooperate reasonably with one another with respect to vacation and other plans that require that Child A travel with a Party outside the province of British Columbia. That cooperation shall include, but will not be limited to, the provision of written consents for Child A to travel, assistance with passport applications, consents for immunisations and the like.

At least seven days prior to departure from the province with Child A, the travelling Party shall provide the non-travelling Party with proof that travel medical insurance is in place, complete travel itinerary information and emergency contact numbers; 15) Neither Ms. E nor Mr.

M shall change Child A’s places of residence in Maple Ridge and Mission, nor his school placement in the Mission school district, without further order of the court; 16) The Parties shall use their best efforts to deal civilly, constructively, fairly and effectively with one another with respect to the matters—mainly relating to Child A’s care—that require them to interact.

They shall make as much use, as possible, of e-mail and text messaging as a means of passing information back and forth regarding Child A’s needs and the practical requirements that arise from the Shared Parenting Cycle, and they shall retain in their possession electronic and/or paper copies of the resulting e-mails and text messages; 17) Ms. E shall strive to raise , and not diminish, Mr. M in Child A’s esteem and Mr. M shall strive to raise, and not diminish, Ms. E in Child A’s esteem.

The parties shall shield Child A from any conflict that may, despite their best efforts at managing conflict and dealing civilly, constructively, fairly and effectively with one another, still arise between them; 18) Commencing not later than September 30, 2011, the Parties shall enrol and participate in, and complete, a series of joint sessions with a communication trainer/counsellor for the purpose of improving their ability to manage conflict and communicate with one another civilly, constructively, fairly and effectively.

The purpose of the joint communication training/counselling is to improve the Parties’ ability to meet Child A’s needs and shield him from the harm that results from parental conflict.

To the extent that such joint communication training/counselling must be paid for, the Parties shall jointly bear the expense of the same in proportion to their respective gross annual incomes; and 19) Commencing on September 1, 2011, and continuing thereafter on an interim basis until the issues of child support arising consequentially from the ordering of the Shared Parenting Cycle for Child A are resolved finally, the provision of the order of Judge Dossa dated October 21, 2004 requiring that Mr. M pay to Ms. E, by way of child support for Child A, the amount of $404 per month is varied to provide that Mr.

M shall pay interim child support of $200 per month (“Interim Child Support”); 20) Mr. M shall make financial disclosure in Form 4, fully completed and properly sworn and incorporating all stipulated attachments plus, in addition, a listing of all sources of his income for 2011 and his earnings from each to the date of filing. Mr. M shall file the original of his financial disclosure materials with the court and deliver a filed copy of the same to counsel for Ms. E not later than September 16, 2011; 21) Ms.

E shall make financial disclosure in Form 4, fully completed and properly sworn and incorporating all stipulated attachments plus, in addition, a listing of all sources of her income for 2011 and her earnings from each to the date of filing. Ms. E shall file the original of her financial disclosure materials with the court and deliver a filed copy of the same to Mr.

M not later than September 16, 2011; 22) The Parties shall attend before the Judicial Case Manager of the Provincial Court at Port Coquitlam forthwith for the purpose of scheduling a half-day hearing to occur before Judge Woods at the first available opportunity during or after October, 2011, for the purpose addressing the outstanding issues regarding child support for Child A;

23) Ms. E’s application to have these proceedings transferred to the Abbotsford registry of the Provincial Court is dismissed; and 24) The requirement that Mr. M endorse this order to signify his approval as to its form is dispensed with.