F.S. v. C.O. Date:, 2015 BCPC 416

Citation: F.S. v. C.O. Date: 20151210 2015 BCPC 0416 File No: F9301 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: F.S. APPLICANT AND: C.O. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for F.S.: M. Lecovin

Counsel for C.O.: L. Murphy Place of Hearing: North Vancouver , B.C. Date of Hearing: December 10, 2015 Date of Judgment: December 10, 2015 [ 1 ] THE COURT: The lovely baby K. was born to Mother and Father as a result of a casual relationship. They dated, to use that term, and Mother unintentionally, without planning, became pregnant. [ 2 ] She was as surprised, I presume, at that event as Father was, because she was taking birth control pills and at times they were, in addition, using other methods of birth control.

In any event, nature took its course and they are now mother and father to K. [ 3 ] From the beginning, both of them evidenced some doubts about their preparedness. They were expressed in different ways. I doubt there are many people in their circumstances, faced with that life-altering event, a child coming to them as a surprise, who would not have some questions about what might be the best way forward. [ 4 ] There was consideration, in Father's mind in particular, of an abortion. I do not find he was pressing and persistent in that regard with respect to Mother.

The texts speak very clearly of the fact that it was, if you will, up for discussion. Mother determined she was going to carry the baby to term and on they went. [ 5 ] Throughout her pregnancy, as best he was able to because Mother limited his involvement, Father showed a sincere interest in her pregnancy. He was present at the birth and he respected Mother's wishes about when he would be there. He has attempted to develop a relationship with his son from the moment his son was born.

Mother has stood in the way of that. [ 6 ] Father's intentions in this regard could not be more clear given that within seven weeks of the birth, he was already in court asking for the court to intervene to allow him appropriate parenting time with his child. [ 7 ] Mother has been parsimonious, to say the least, in parceling out his access to his child as she has seen fit. She is 33 and frankly she is a bit too old to be treating their baby as though it is her property. This is reflected in her speech. She continually refers to the baby as "my baby" and it is not her baby.

The baby has two parents who have equal rights to the child and, most importantly for my purposes, K. has a right as an autonomous human being to his own relationship with each of his parents.

It is not for Mother to decide, as it is not for any mother alone to decide, what that relationship will be because it is the child's right and the court is here to enforce the child's right. [ 8 ] Mother continues to make statements such as, "We have no relationship" or "We only had a casual relationship." This ignores the fact they are now the parents of a child and have a long future ahead of them, working together to raise K. [ 9 ] It is very unfortunate that during these very formative months of K.'s life, and he is only just six months old now, that Father has only had, and only when he has been able to, two hours a week to bond with his child.

Mother holds the child if the child acts out. Mother holds the child to feed it. I gather she allows Father to hold the child only when the child is calm. [ 10 ] We know that during these early months it is very important for a child to see their parents frequently, so that they can learn their smell, the sound of their voice, the way they breathe, and once their little eyes can focus, start recognizing their face. Through this, we form attachments and those attachments are extremely important to our emotional development over our entire lives. [ 11 ] Father has an unusual reaction to stress.

He becomes physically ill. He becomes nauseous and vomits. He has no control over this physical condition. He continues to work and hold down jobs. He is an entrepreneur in his part time. He struck me as an extremely decent, loving and competent person who is deeply interested in fathering K. [ 12 ] Mother is a diabetic, who also faces significant health concerns that may well impact her ability to care for the child. They each have those challenges. All of us have some kind of challenge and very few people get through life without one.

Neither of those challenges impacts their ability to parent K. [ 13 ] Father seems to have had to deal with this issue for some period of time and it seems to be under control. [ 14 ] Father apparently has used marihuana and smokes cigarettes. Mother has quit smoking cigarettes. Whatever Father's marihuana use was, it was not significant enough to prevent Mother from wishing a more intimate relationship with him when they were dating. She said that on a couple of occasions.

So I infer that although now she says to the court his marihuana use is some kind of issue which could affect his parenting, it was not that big an issue to her when they were dating. [ 15 ] Father strikes me as a sensible chap who will not smoke marihuana in the presence of his baby or have the care of his baby while he is under the influence of marihuana. Similarly, Mother has stopped smoking and stopped drinking, as most sensible women today do when they become pregnant and while they are breastfeeding.

I expect Father will adopt the same attitude with respect to both alcohol and marihuana and cigarettes. [ 16 ] The money that goes up in smoke with cigarettes for Father is a cost he can ill afford, and he should quit. [ 17 ] I have sympathy for Mother, Ms. O. All good mothers are possessive over their children. There is just no question. That is what we want to see. We want to see mothers who are jealous of their children and want their children close to them and want their child in their care. It is a very difficult thing in these situations where a baby has to leave mother's care.

[ 18 ] It is wrenching, I think, to have to pass your baby away out of your view and out of your care. I think all mothers find that an extremely difficult thing to do, but mothers do it all the time. They have for time eternal and so they will in the future. Not all mothers have the privilege of being with their babies throughout their infancy. [ 19 ] Mother's attitude is best reflected in the fact that she even opposes Father being granted guardianship over this child. Under s. 39(3)(

c) of the Family Law Act , one basis for awarding guardianship is where, although the parents have not lived together, the father or the other parent has regularly cared for the child. I cannot read that statutory provision, such that a mother's unreasonable refusal to allow a father regular access so as to "regularly care for the child" should be allowed to defeat a biological father's application for guardianship when they meet all other criteria. [ 20 ] Mr.

S. has filed as Exhibit 1 and 2 the documentation showing that there is no bar to his guardianship. [ 21 ] I have to give primary consideration to the best interests of K. over his life. Whatever bumpy road the relationship took between these parents up to the time of his birth, as counsel for Mr. S. put to Mother, "Well, but now you are parents. All of that is historical. All of it happened in the moment, prior to the decision to go forward." [ 22 ] Indeed, Father bought some of the supplies Mother would need for the child.

He has had to beg her just so that family who visited from out of town and out of the country could meet his son. [ 23 ] He has not even had the opportunity to have his baby in his home on a single occasion. All of his contact with his child up to now, except for one occasion, has been in public, in a coffee shop or in parks. It is hard to comprehend, frankly, how Mother saw this as suitable access or parenting time for Father. [ 24 ] K. is currently breastfeeding, as Mother just said in her examination. He is a very healthy baby. He could have been a baby who was raised entirely without breast milk.

For five days Mother did not feed him her breast milk. She is now able to breastfeed again. On that occasion, the child consumed another mother's breast milk. It is time for K. to transition to formula and solid food, so that his Father can begin exercising reasonable and generous parenting time with K. There is apparently no medical reason why the child cannot make that transition at this point. [ 25 ] We are coming up to the Christmas holidays, although K. will be blissfully unaware of all the foofaraw involved in Christmas, if the parents even celebrate Christmas.

The holiday season, in any event, it is an extremely meaningful time for many, simply because of all the traditions and things that go on. [ 26 ] It is important that some extra time be given to Father in his home or in his mother's home, so that he can get caught up in terms of bonding appropriately and thoroughly with his child. [ 27 ] I am going to stand down briefly so that counsel can talk. I am happy to have you come back, but I am thinking of almost daily contact for brief periods of time. Mother is not working. Father has a reasonably normal schedule, I gather, or at least a predictable schedule.

There is no reason why, in all these circumstances, he cannot begin seeing his child very frequently over the next while, and if it is inconvenient for Mother, that will not concern me at this point in time in these circumstances. [DISCUSSION FROM 4:16 P.M. TO 4:19 P.M.] (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [DISCUSSION RE ACCESS FROM 4:39 P.M. TO 4:51 P.M.] [ 28 ] I will leave it to counsel to try to work this out according to Father's schedule. So on the days where he is working the long hours, one hour, on the days he is off, three hours. That way it can be more flexible around Mother's

schedule and her appointments, whatever they may be. [ 29 ] MS. MURPHY: Your Honour, so are you saying that this has to be daily? [ 30 ] THE COURT: For the time being, I think it should be. This child has seen very little of his father, very little. I commented that I find it very surprising that Mother has considered -- Sometimes he has not even had two hours a week with his baby since his baby's birth. He is a relative stranger to his baby and that is just not acceptable. There is catching up that needs to be done. [ 31 ] This is the holiday season. This will be intense.

Baby is going to have to get used to not having Mom. He is going to have to get used to being with Dad, and that is why I think it should be intensive over this period of time. It is going to be difficult for Dad to keep up that pace, but that will change because he will start getting longer periods with the child as we move forward and the child is weaned. [ 32 ] MS. MURPHY: And I am assuming then, there would be days off. Because this does not give my client any time to go away or -- [ 33 ] THE COURT: Yes, absolutely. [ 34 ] MS. MURPHY: -- visit relatives or anything, right.

[ 35 ] THE COURT: Yes. But as far as I know, she has not got a lot going on between now and Christmas. She is not employed, she does not go back to work until May. Dad is employed. [ 36 ] So what I would like to do is have you come back in January and we can see how things are going if you need to come back in January. [ 37 ] And I am sure you can explain to your client, Ms. Murphy, that I will view failure to comply with the spirit of this order very dimly given what has gone on so far. She simply must accept that Father is not going to disappear.

He is going to be involved in the child's life for as long he is alive and as long as the child is alive. [ 38 ] MS. MURPHY: Well I am gone from the 18th to the 4th, so I think perhaps if my friend could send me the

schedule and the scheduled times we've worked out until the 26th. If he can send me the suggested times then we can try and work it out. [ 39 ] THE COURT: Yes and try and work it into January. [ 40 ] MS. MURPHY: Yes. [ 41 ] THE COURT: And, you know, it is indeed onerous for Mother to make herself available every single day. That is not going to continue on indefinitely.

But I want it to continue on for at least a month or so, so the child has a good chance to get to know his father the way he should know his father. [ 42 ] I will give you leave to come back before me at any time if you cannot work out an ongoing schedule. I expect that once the child is weaned, Father will be having overnights at his own place. [ 43 ] I am finding him to be a guardian, if that was not clear. So I am viewing that they are both guardians under the Act. [ 44 ] This is Father's parenting time. It can occur at his mother's or at his own home, depending on the convenience of the parties.

So, for example, the short ones I can see happening at his home because Mother is only waiting an hour. [ 45 ] MS. MURPHY: Well, could we say such agreed place? Because he did mention previously about maybe going and having a meal somewhere, so maybe if it's only an hour, you know. [ 46 ] THE COURT: Yes, wherever. It does not have to be in a home, it can be wherever Father chooses it to be, within reason. But what I am saying is he can choose whether it is at his house, his mother's house, but that should be dependent on what is convenient for all the parties, whether it is rush hour, whatever it may be.

Yes? [ 47 ] F.S.: Is that time alone with K.? [ 48 ] THE COURT: Yes. It is time alone. [ 49 ] MS. MURPHY: I think though, it is my understanding from things Mr. S. had suggested previously that if he invites her to come, that does [indiscernible]. [ 50 ] THE COURT: No. No, it is up to him. And like I say he might want her there. [ 51 ] MS. MURPHY: And it may be if it is just an hour, her family might say, "Do you want to just come up here" if it is only an hour. [ 52 ] THE COURT: What we want here is to move towards a naturalized, organic relationship for K. with the two families.

I have not heard a word to suggest that the families do not get along.

It would appear, in fact, that Mother and Father are capable of getting along and so I would hope that everyone concerned with K.'s upbringing are going to put aside what are quite natural feelings of possessiveness or jealousy and recognize that you all have to work together for his mental wellbeing and emotional wellbeing and development over time. [ 53 ] It sounds to me like there are two sets of grandparents here who are reasonable, rational, healthy people who can assist with this and I hope to hear that this is all working out according to the way it should have from the beginning, which is as much contact with Father as possible with the long view being that these parents are going to co-parent this child.

How that co-parenting will work out and numbers are not the issue, so whether it is exactly 50, whether it is 60/40, none of that matters in the long view. What matter is this child has healthy, loving, constructive time with both his parents, meaningful time with both his parents. [DISCUSSION RE LAST NAME OF CHILD FROM 4:58 P.M. TO 5:01 P.M.] [ 54 ] I will, then order that it be according to the provisions of s. 4(1) of the Vital Statistics Act and it will be in alphabetical order, O.S., unhyphenated. And you know, it does not matter.

Legally you can identify yourself by anything you want so, you know, Mother is free, if she is travelling with the child to refer to him as O. Father is free to refer to the child as S. But his legal surname will be O.S. [ 55 ] MR. LECOVIN: Sorry, was there an order as to pick ups and drop offs? I mean, my client is just as capable of picking up and dropping off. I don't know if anyone put the -- [ 56 ] THE COURT: I think it is at the convenience of the parties. To be arranged. [ 57 ] MR. LECOVIN: Okay.

[ 58 ] THE COURT: You know, at the times -- his minimal parenting time I have set out over this period of time. It is to be a minimum of one hour a day, up to three hours a day, daily for the next 30 days, to be arranged between the parties. Pick up and drop off to be arranged between the parties. The location where Father will exercise his parenting time is at Father's discretion. Mother may be present at Father's discretion. I think that covers all of that. (REASONS CONCLUDED)