M.M. v. K.W. Date:, 2015 BCPC 212

Citation: M.M. v. K.W. Date: 20150709 2015 BCPC 0212 File No: F9434 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.M. APPLICANT AND: K.W. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing on her own behalf: The Applicant, M.M. Appearing on his own behalf: The Respondent, K.W. Court Recorder: A. Warner

Transcriber: S. Wilson Place of Hearing: Port Coquitlam, B.C. Date of Hearing: July 9, 2015 Date of Judgment: July 9, 2015 [ 1 ] THE COURT (ORALLY): On July 7th of 2015, leave was granted to K.W. (“Mr. W”) to have a Notice of Motion, also filed on that date, heard today, July 9th. [ 2 ] The Notice of Motion relates to a dispute between the parties as to how Mr. W and M.M. (“Ms. M.”), parents of the child, Child A, will allocate summer holiday time as between them with Child A. [ 3 ] Ms. M and Mr. W were before the Court in 2011 at a lengthy trial before Judge Dossa.

That trial covered the following dates: August 10, 2010, September 8, 2010, October 7, 2010, January 14, 2011, May 10, 2011, and August 26, 2011. At the conclusion of that lengthy trial, Judge Dossa made a comprehensive order.

It is a thoughtful, practical, forward-looking order indeed, giving the parties a blueprint from which to operate going forward so that conflict might be permitted to subside and so that the parties' conflicted relationship would have the least possible detrimental effect upon Child A in the future. [ 4 ] Sadly, these parties, like many parties to family law disputes, continue to inflict harm on their child to the extent their conflict rages on, unabated. Mr. W and Ms. M cannot fool themselves into thinking that their endless bickering with each other does not compromise the quality of life for Child A.

Their conflict with each other ought to take second place to the creation of a healthy, happy, unconflicted environment for their young child to grow up in, but as this monument they have created in the Provincial Court demonstrates -- this being the 169th motion or application that has been filed -- Child A's ultimate happiness and well-being takes a very distant second place to this couple's seeming inability to step out of their battle dress and start behaving like parents instead of like warriors. [ 5 ] There can be no question that this endless battling between the parents has harmed their daughter, and unless and until they each climb down from their high horses and start thinking like parents they will continue to degrade the quality of their child's life to the point where she may emerge permanently scarred as a young adult. [ 6 ] Judge Dossa's 2011 order plainly contemplated these problems and Judge Dossa -- in area after area after area -- prescribed mechanisms intended to take these adults off the battlefield and give them tools to sort out the most basic and simple requirements.

The reality is that the parties live in separate households but they have a child who spends time in both.

That reality requires communication, it requires cooperation, and it requires a baseline ability on the part of the adults to be able to work with each other to achieve practical objectives for the benefit of Child A. [ 7 ] It seems that whenever there is an opportunity for cooperation and problem-solving that might get these parties past an impasse, they decline to choose the practical and problem-solving approach and they embark on yet another skirmish and thereby they chip away, day-by-day, week-by-week, month-by-month at their child's quality of life. [ 8 ] It is a disgrace that Child A should be required to live in a no-man's-land between these two adults.

Their behaviour in this courtroom today shows that they have lost all sense of decorum, and of propriety. Their commitment to getting off a good one at each other's expense propels them to behave like squabbling children in a playground, even in a courthouse, and let it not be forgotten that it is the courthouse to which they return over and over and over again to have someone at public expense solve their problems. [ 9 ] So I consider it my duty and my responsibility to admonish both of these parties. I am not going to single out one or the other for any particular emphasis.

Just as it takes two people to cooperate and work their way through problems to a reasonable and sensible solution, it takes two people to fan the flames of endless conflict.

Both of these parties have demonstrated today in the clearest possible way that their enthusiasm for fighting with each other and trying to blacken each other's names and diminish each other in the perception of the Court is far more important to them than making provision for a proper and high quality upbringing for their child. [ 10 ] In what seems to have been a vain hope, Judge Dossa (as I said) pronounced a very thoughtful and sensible and carefully designed order.

It contains within its guardianship provisions the requirement that where significant decisions involving the child are to be made, and where the parties are obliged to try to reach agreement, they must before coming back before the Court first attempt to have any disagreement overcome through a process of mediation. [ 11 ] Judge Dossa made that order on October 31st of 2011 and in blatant contravention of the terms of that order, the parties continue to make their periodic visits to the courthouse asking for this and that and the other conflicted matter to be sorted out for them. [ 12 ] Judge de Couto was confronted with an appearance by these parties of that kind some time ago and he made a very emphatic and clear order that reminded the parties of their obligation to mediate their differences before coming to Court.

He prohibited them from returning to Court until they had done so. Notwithstanding that order, Mr.

W made an appearance earlier this week and gained access once again to the Court to solve the problem that I am hearing about today, that being the problem of Child A's summer holiday plans. [ 13 ] I could in these circumstances have simply sent the parties packing, and told them, "You have no business being here, not having first stopped at the office of the Family Justice Counsellor and sought the assistance of the Family Justice Counsellor to mediate this latest dispute." I will say that I gave very serious consideration to doing just that but I realize and I recognize that in this unique situation, with time ticking away during the summer and the opportunity for this child to have whatever enjoyable time she is capable of having with each of her parents during her summer holidays slipping away, something needs to be done to salvage what can be salvaged

of this summer. [ 14 ] The fact that we are in a situation where something has to be salvaged at the eleventh hour falls directly at the feet of Mr. W and Ms. M. They were furnished with a practical, workable, sensible mechanism for working out summer holiday planning and neither of them took serious steps to invoke it. So now they find themselves part way into the summer, back before the Court against Judge de Couto's order, once again handing their problem over to a judge to solve. That too is a disgrace. [ 15 ] How did Judge Dossa prescribe summer holiday planning should be done? She did so in very, very clear language. Paragraph 13 of her order of August 31st of 2011 says this: (

b) The parties shall exchange their holiday schedules on an ongoing basis by January 31st of every year commencing January 31st of 2012. After the schedules are exchanged, the parties shall agree upon the holiday

schedule with the child by no later than February 14th of every year. (

c) Each party shall be entitled to have a minimum of two weeks of holiday time with the child in July and two weeks in August of each year. [ 16 ] There you have it: a simple, straightforward, sensible, practical mechanism. [ 17 ] Mr. W says he provided Ms. M with his preferred dates, not within the deadline of January 31st, but a couple of days later. Ms. M denies that she received them. Mr.

W says he has proof that she received them, but what he relies upon is a defective affidavit of service that does not identify the recipient and it does not identify the basis upon which the person claiming to have effected service knew who he or she was serving. So the record is unclear. [ 18 ] This mechanism was created for the benefit of these parties and more importantly, for the benefit of Child A, to create a smooth, simple, functional tool by which holiday planning could be worked out. These parties cannot even agree on whether or not Mr. W delivered his preferred dates to Ms.

M and the material before the Court is equivocal on the point. [ 19 ] The mechanism contemplates that after having received materials from each other by January 31st, the parties were under another duty and that duty is to agree with each other on what the holiday

schedule with Child A will be by Valentine's Day, February 14th. [ 20 ] Mr. W says he did not receive anything at all from Ms. M either by January 31st or at any other time until very, very recently. But he did not take any steps to prompt her or say, "Ms. M, you know we have to agree on the holiday scheduling by February 14th and I don't have anything from you. Can I please get that material so that we can sit down, compare our schedules and work something out?" [ 21 ] Ms. M makes reference to some challenges that she faces by reason of the approval process for holidays through her workplace.

However, she does say that she did know what she could get in the way of summer holidays by late February. But she did not supply that information to Mr. W, according to him, until a matter of days ago and when asked when she supplied it, Ms.

M said she could not say, she just did not know. [ 22 ] So here Judge Dossa furnishes the parties with a practical and sensible tool to arrive at consensus and remove at least one source of irritation between them, one source of psychological harm to Child A, and neither of them engaged it, neither of them worked within it, neither of them showed any interest in actually making use of the tool. Hence they obtained leave to appear before the Court this morning and have the Court do the job for them.

This is utter failure on the part of two adults to do what good common sense and fair-minded, reasonable parenting instincts would suggest is completely straightforward. [ 23 ] To take account of what Ms. M says about challenges that she faces in getting her holidays approved, I do think that the mechanism that is built into Judge Dossa's August 31, 2011 order needs to be adjusted slightly. I am, accordingly, going to modify paragraphs 13(

b) and (

c) for the years 2016 and following. The new language shall be as follows. For sub-paragraph 13(b): (

b) The parties shall exchange their holiday schedules on an ongoing basis by March 15th of every year commencing March 15th, 2016. After the schedules are exchanged, the parties shall agree upon the holiday

schedule with the child by no later than March 31st of each year. [ 24 ] And sub-paragraph 13(c): (

c) Each party shall be entitled to have a minimum of one week of holiday time with the child in July and one week in August of each year or such further number of weeks as they can agree. [ 25 ] It is, I pause to say, entirely within the parties' ability -- through the exchange of their holiday schedules and through a sensible and fair-minded discussion -- to come to an agreement with each other that each will have more than one week in each of those months but they are going to have, through the exercise of exchanging and comparing schedules, to come to agreement on those additional weeks. [ 26 ] Reasonable people acting reasonably should have no difficulty arriving at consensus on that, but that is going to require engagement of the mechanism of the kind that did not happen here. [ 27 ] Now I turn to the summer vacation

schedule for 2015. We are talking about that on July 9th of 2015 when in fact some of the vacation activities have actually happened. [ 28 ] I am going to allocate vacation weeks as between the two parties, mindful of the fact that Mr. W has already had the week commencing on June 29th. I am going to state the weeks which each of the parents will have with Child A in Monday-to-Sunday date ranges.

[ 29 ] Summer holiday scheduling then for 2015 will look like this (and to the extent that weeks are not mentioned, they are simply governed by the ordinary parenting time distribution that governs at times other than summer holidays): • Mr. W shall have Child A from Monday, July 20th to Sunday, July 26th. • Ms. M shall have Child A from Monday, July 27th to Sunday, August 2nd. • Mr. W shall have Child A from Monday, August 10th to Sunday, August 16th. • Ms. M shall have Child A from Monday, August 24th to Sunday, August 30th. • Ms. M shall have Child A from Monday, August 31st to Sunday, September 6th. [ 30 ] Bearing in mind that Mr. W had Child A for the week of June 29th, that

schedule allocates three weeks each to the parties. [ 31 ] I note, pointedly, that that

schedule simply selects from the preferred choices of each of the parties -- which they listed before the mid-morning adjournment -- those which are not in conflict. For example, Mr. W gets Child A from Monday, July 20th to Sunday, July 26th. That is a week that Mr. W wants but it is not on the list of those that Ms. M has said she wants. The same can be said about all of the other weeks that I have just allocated. [ 32 ] From this it can be seen that it was entirely within the ability of the parties to sit down with their schedules and come up with the

schedule I just ordered without the Court's assistance. If the parties are so invested in conflict that they could not simply look at the dates they gave me today and choose the ones that are not in conflict between them, they could have gone to a Family Justice Counsellor and the Family Justice Counsellor could have pointed that out. [ 33 ] If they had followed Judge de Couto's order, they would have done that.

But they are far more interested in trying to win points in a battle before the Court than in getting a practical job done and it is that which drove Judge de Couto to say, "Do not come back to this courthouse on any matter in dispute unless you have attempted and failed to mediate it." Judge de Couto's order continues to apply. [ 34 ] I make it a further term of the order that the requirement that the parties endorse the order to signify their approval as to its form is dispensed with. [ 35 ] You will receive copies at the order at your addresses for delivery in the coming days. [ 36 ] M.M.: So that means I can pick Child A up today? [ 37 ] THE COURT : (Indiscernible –loud noises). [ 38 ] K.W.: I have one other thing to save a lot of court time -- we have the issue of number 14 -- with regards to holidays there's a passport: "Ms.

M shall apply and obtain a passport for the child" and that has not been done with the order – [ 39 ] M.M.: Can't afford it. [ 40 ] K.W.: -- and my family wishes to take Child A at Christmastime. I don't wish to come back into the courts. [ 41 ] THE COURT : That's right. And if you do come back into the Court and you haven't been to a mediator and tried to work it out, you will be sent away. [ 42 ] K.W.: So, so I can deal with all these other issues through a mediator first, we'll do that and then hopefully again I'll – I'd like another attempt at mediation. [ 43 ] THE COURT : You're not welcome here, Mr.

W or Ms. M, to sort out your problems in circumstances where you have not already tried to work them out by way of mediation as your order specifically provides. [ 44 ] You have a duty and a responsibility -– I mean it's extraordinary in itself that you can't agree on basic things just through the exercise of fair-minded negotiation. But if you can't, then you have to go to someone for help and that's the mediator and that's what's prescribed in the order that Judge Dossa made, which was reinforced and restated by Judge de Couto.

If at the end of today's appearance you are already talking about more matters that you want the Court to decide without having mediated them, then what have you been -– has nothing penetrated over the last two hours? Ms. M, there's a lot of body language coming from you and nodding of the head and shaking and so forth; you are in no better position than Mr. W to claim to have operated within the context of what the order requires. These parties -- [ 45 ] M.M.: He makes all the applications. [ 46 ] THE COURT: -- you are – [ 47 ] M.M.: He makes all the applications. He drags me away from work.

He puts Child A through this. He does this. You judges allow it. You allow his applications, you allow it. I'm disgusted. [ 48 ] THE COURT: Do you want to stop? Do you want to stop now? [ 49 ] M.M.: You guys damaged our daughter, you allowed him for ten years to do this to her. You allow him over and over again to bring me here and lose money – [ 50 ] THE COURT: M.M., it is time for you to stop now.

[ 51 ] M.M.: -- you do this. You don't know me – this is what you did. [ 52 ] THE COURT: Madam Registrar – [ 53 ] M.M.: You did, you did this. [ 54 ] THE COURT: Mr. Sheriff, Mr. Sheriff, you go back there. [ 55 ] M.M.: I'd like to leave now and go get my daughter. I am going to go get my daughter now. You're a cruel person and I don't like you. You totally disgust me. [ 56 ] THE COURT : We are adjourned. (ORAL REASONS FOR JUDGMENT CONCLUDED)