IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           J.V.G. and E.T. were in a relationship from approximately September 2009 to June 2010.  They have a child together, A.V.T., who was born on [omitted for posting], after the relationship had ended.  By all accounts, A.V.T. is a bright and independent child who is adored by both sides of her family.

[2]           There have been disputes about parenting arrangements since A.V.T. was born.  The current arrangements are in place as a result of a final order made by the Honourable Judge Frame on March 14, 2013.  That order grants J.V.G. access on alternating weekends and one overnight each week.

[3]           J.V.G. has applied to vary Judge Frame’s final order to allow him to share parenting time equally with E.T., to “recalculate” child support based on each parent having equal parenting time and to “examine” his arrears as assessed by the Family Maintenance Enforcement Program (“FMEP”).  E.T. has counterclaimed and seeks various orders mainly to do with financial matters.   

[4]           As directed by the Honourable Judge Hewson at the parties’ first appearance, at this stage, I am to determine the threshold issue of whether there has been a material change in A.V.T.’s needs or circumstances since Judge Frame’s order.  If so, then a further hearing will be held to deal with the merits of J.V.G.’s application to vary the current parenting arrangements.

[5]           According to Judge Hewson’s direction, I am also to determine whether to grant E.T. an order enforcing Judge Frame’s order regarding child care expenses.

[6]           The issues before me are:

[7]           Before turning to my analysis, I will first set out some additional background information.

[8]           Judge Frame’s written Reasons for Judgment set out the early parenting arrangements made by the parties regarding A.V.T.  I will not repeat the details of those arrangements here.  Since July 2012, various orders have been made regarding parenting arrangements and financial issues.  These orders warrant some attention and I summarize them below.

[9]           On July 18, 2012, a final consent order was made at a Family Case Conference (“FCC”) that made the parties joint guardians, granted E.T. primary residency and granted J.V.G. reasonable access that included Tuesday evenings as well as time during the day on alternating weekends.  The FCC Order did not specify any overnight access for J.V.G.  The FCC Order also provided that J.V.G. would pay E.T. $500 per month in child support and $140 per month to retire child support arrears which were fixed at $1,400.  Issues of overnight access and special expenses were scheduled to be back before the court for review on October 17, 2012.

[10]        On October 17, 2012, the parties filed a final consent order which provided that, commencing September 1, 2012, J.V.G. would pay E.T. special expenses of $300 per month for child care and 62% of further special expenses approved in writing by both parties in advance.  The issue of overnight access and the amount of arrears accrued on account of special expenses was scheduled for a one day hearing on March 6, 2013.

[11]        The March 6, 2013 hearing was held before the Honourable Judge Frame.  On March 14, 2013, Judge Frame issued written Reasons for Judgment.  Judge Frame awarded J.V.G. additional access, including 5:00 p.m. on a weekday of J.V.G.’s choosing to 5:00 p.m. on the following day plus, after a brief transition period, on alternating weekends from 5:00 p.m. Fridays until 7:00 p.m. Sundays.  The increased access was close to what J.V.G. had been seeking. 

[12]        Judge Frame awarded J.V.G. a right of first refusal to care for A.V.T., “including all day on any day he has holidays or other days off from work and E.T. is working or otherwise unavailable to care for (A.V.T.).”

[13]        Judge Frame did not reduce J.V.G.’s child support arrears, set his child care arrears at $1,500, ordered that J.V.G. retire these arrears at a rate of $100 per month and, effective April 1, 2013, varied J.V.G.’s obligation to pay child care expenses by requiring J.V.G. to pay 62% of the actual child care expenses incurred by E.T. as supported by a receipt.

[14]        On October 7, 2013, J.V.G. filed his application to vary his access and child support payments and reduce his arrears.  E.T. believes that J.V.G.’s variation application is financially motivated and she opposes any variation to Judge Frame’s final order on the basis that there has been no material change in A.V.T.’s needs or circumstances since Judge Frame’s order was made.  As indicated above, E.T. counterclaims for, amongst other things, enforcement of Judge Frame’s order regarding child care expenses.

[15]        Section 47 of the Family Law Act, SBC 2011, c. 25 (the “FLA”) provides as follows:

[16]        Though the FLA is relatively new legislation, both the predecessor Family Relations Act, RSBC 1996, c. 128 and the Divorce Act, RSC 1985, c. 3 contain a similarly worded threshold test requiring, broadly speaking, that a change in circumstances must be established before an order regarding parenting arrangements can be varied.  It continues to be the case that not every change will meet the threshold.  There must be a material change.

[17]        Though decided in the context of a custody dispute under the Divorce Act, the leading case on the threshold issue of “material change” remains Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, in which McLachlin J. (as she then was), for a majority of the court, described what is needed to establish a material change at paragraphs 12 and 13:

[18]        In N.A.W. v. L.S.W., 2012 BCSC 1075, at paragraph 17, Mr. Justice Barrow wrote about a number of important policy reasons behind the material change threshold:

[19]        In Gray v. Wiegers, 2008 SKCA 7, the Saskatchewan Court of Appeal adopted comments from Impey v. Thompson, 2003 SKQB 167 which identified a further policy reason behind the threshold question, namely that “(f)ew parties have the financial resources to be repeatedly in court re-litigating custody and access issues.”

[20]        In this case, J.V.G. argues that the threshold test has been met because:

[21]        I will deal with each of these arguments in turn.

[22]        E.T. testified that she has recently taken a new job as a mental health worker with her schedule alternating from one week to the next.  She will be working Fridays from 7:00 a.m. to 4:00 p.m. and Saturdays from 8:00 a.m. to 8:00 p.m. one week and Thursdays from 8:15 a.m. to 5:00 p.m. and Fridays from 1:00 p.m. to 11:00 p.m. the next week.

[23]        While this represents a change for E.T., there was no evidence that this change will affect her ability to meet the needs of A.V.T.  The change in E.T.’s work schedule will, in my view, have no material effect on A.V.T.  E.T.’s new work schedule may provide increased opportunity for J.V.G. to exercise the rights of first refusal that Judge Frame awarded to him to care for A.V.T. when E.T. is not available to do so but is not a material change that would allow the court to consider J.V.G.’s application to vary the current parenting arrangements.

[24]        A.V.T. was two years and three months old at the time that Judge Frame made her order.  A.V.T. just recently turned four years old.  J.V.G. argues that A.V.T. “is an exceptionally bright girl, and is developing at a more rapid rate than the average child”.  J.V.G. argues that A.V.T.’s increased ability to express herself and to sleep alone at night as well as the fact that she is now “potty trained” and generally more independent amount to a material change in A.V.T.’s needs or circumstances.

[25]        The evidence on A.V.T.’s development, and in particular whether her development is significantly more advanced than other children of her age, was limited.  I do not doubt that A.V.T. is very bright and it may be true that she is developing more quickly than her peers but there is nothing in the evidence to suggest that she is so far ahead of her peers that her needs and circumstances are truly exceptional. 

[26]        The circumstances relied on by J.V.G. are somewhat similar to those relied on by the plaintiff in B.D. v. L.K., 2004 BCSC 455.  In that case, three years had passed since an evaluation of the child had been completed by a Dr. Elterman and two and a half years had passed since Mr. Justice Curtis had made a final access order.  Mr. Justice Ehrcke dismissed the argument that the passage of time amounted to a material change.  Mr. Justice Ehrcke reasoned at paragraph 21 as follows:

[27]        In Gray v. Wiegers (supra), the Saskatchewan Court of Appeal made the point at paragraph 25 as follows:

[28]        As contemplated by this passage from Gray, there are a number of cases in which the passage of time has resulted in a material change.  For example, in R-P.T. v. D-P.T., 2013 BCSC 732, Mr. Justice Pearlman varied a custody order made in 2008 from an arrangement where the child spent alternating years with each parent (one of whom lived on Vancouver Island and the other of whom lived in the Lower Mainland) to the child living primarily with her mother.  The child was nine and a half at the time of the original order and 14 at the time of the hearing.  With the passage of time, the child’s “need for stability and continuity in her school and social life” was considered to be “a change in her condition, needs and circumstances that materially affect(ed) her.”  Mr. Justice Pearlman also held that how the child’s needs changed was not foreseeable.  (See paragraphs 66 and 67.)

[29]        Similarly, in Legien v. Legien, 2012 SKQB 326, six years had passed since the original order.  The child had entered high school and wished to play hockey at an elite level.  The Court found a material change in the child’s needs and varied the original order to meet those needs by granting primary residency to the father.

[30]        In my view, the changes in A.V.T. identified by J.V.G. are well within what Judge Frame must have expected when she made her final order.  Though not specifically expressed in her Reasons for Judgment, Judge Frame must have expected that a bright two and a half year old child would become more independent, be able to sleep alone, be able to express herself better and become potty trained over the course of the next couple of years.  Even if I accept that the changes in A.V.T. have occurred somewhat faster than the average child, I cannot conclude that the changes themselves were unexpected or otherwise outside the norm.  In short, the developmental changes in A.V.T., do not amount to a material change.

[31]        I accept whole-heartedly that J.V.G.’s increased time with A.V.T. has allowed him to become a better parent and has resulted in a closer bond between them.  I have no doubt that this has been good for both J.V.G. and A.V.T.  I also accept that one of the reasons behind J.V.G.’s application for increased parenting time with A.V.T. is to further strengthen his relationship with her.  J.V.G. and his mother are Ojibwe.  J.V.G. understandably and appropriately emphasizes the importance of the time he and his mother spend with A.V.T. in ensuring A.V.T. lives and learns her Ojibwe culture.

[32]        The evidence from J.V.G. and his witnesses satisfies me that J.V.G. is a loving and attentive parent.  J.V.G. appropriately cares for A.V.T.’s asthma and eczema by ensuring she regularly takes her “puffer” and by applying cream to her skin.  J.V.G. baths, dresses and cooks for A.V.T.  He reads to A.V.T. and puts her to bed.  J.V.G. ensures A.V.T. is active, including by participating in culturally significant Aboriginal activities such as drumming, smudging and attending pow-wows.  J.V.G. also appropriately disciplines A.V.T. by speaking to her or using “timeouts”.

[33]        The evidence also satisfies me that, apart from a period of time from July of 2013 to February of 2014 (which I will discuss in greater detail under the heading of “Alienation” below), A.V.T. has been and is comfortable with J.V.G. and affectionate towards him.

[34]        Though the quality of E.T.’s parenting is not in issue, I pause here to note that the evidence establishes that E.T. is an excellent parent.  I also note that, while E.T. is not Aboriginal, she has a Bachelor’s degree in Aboriginal Social Work, reads to A.V.T. about her Aboriginal culture and involves her in culturally significant activities such as drumming lessons at the local Friendship Centre.  J.V.G. acknowledges that A.V.T. has a “strong attachment” to E.T.

[35]        Judge Frame made a final order granting increased access to J.V.G.  Judge Frame made the order that she felt was in A.V.T.’s best interest.  One of Judge Frame’s objectives was clearly to build a stronger attachment between A.V.T. and her father in a way that would increase A.V.T.’s exposure to her Aboriginal ancestry and culture.  Insightfully, Judge Frame even ordered that A.V.T. spend every Aboriginal Day with J.V.G.

[36]        The evidence establishes that Judge Frame’s order has worked.  A.V.T. has a stronger attachment to her father.  She is a healthy, bright and active child.  She is benefitting from her participation in various culturally significant activities. 

[37]        J.V.G. submits that, since he has been able to establish a closer bond with A.V.T., it would be in A.V.T.’s best interest to increase his parenting time with A.V.T. to be equal to E.T.’s parenting time.  At this stage, I am not to determine what parental arrangements would be in A.V.T.’s best interest but only whether there has been a material change in her needs or circumstances which, in the words of Madam Justice McLachlin (as she then was) in Gordon v. Goertz (supra), “was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.” 

[38]        In this case, not only did Judge Frame foresee a better bond between J.V.G. and A.V.T., creating that better bond was her intention.  Accordingly, the success of Judge Frame’s order does not establish a material change that would allow the court to consider J.V.G.’s application to vary the current parenting arrangements. 

[39]        On July 17, 2013, an incident occurred at E.T.’s parents’ home when J.V.G. was there to drop off A.V.T.  Words were exchanged between J.V.G. and E.T.’s father in the home and the two went outside.  By all accounts, they almost came to blows.  The evidence conflicts on who initiated the confrontation and on whether A.V.T. witnessed the events. 

[40]        For my purposes, I do not need to assign “blame” for the July 17, 2013 incident and I decline to do so.  Also, it is not important for me to determine how much of this event A.V.T. witnessed.  I am satisfied that whether or not A.V.T. witnessed any part of the confrontation, she was certainly aware of the conflict and was probably distressed by it. 

[41]        Following the July 17, 2013 incident, reports were made to the RCMP as well as to the Ministry of Children and Family Development (the “MCFD” or “Ministry”).  On the recommendation of a Ministry social worker, E.T. took A.V.T. to see a paediatrician named Dr. Van Dyke concerning A.V.T.’s anxiety around spending time with her father and comments A.V.T. had apparently made to E.T. that J.V.G. had hit her.  Ultimately, nothing came of the reports to the RCMP and Ministry nor from A.V.T.’s appointments with Dr. Van Dyke.

[42]        J.V.G.’s evidence is that subsequent to the July 17, 2013 incident, A.V.T. became reluctant to spend time with him.  J.V.G. says that when he picked A.V.T. up, A.V.T. cried, said she was scared of J.V.G. and/or said J.V.G. was “bad” or “mean”.  According to J.V.G., A.V.T. told him that she said this because her “Mommy” said J.V.G. was “mean” and that A.V.T. should be scared of him.  

[43]        According to J.V.G., A.V.T. remained somewhat reluctant to be with him until February 2014 when he documented some of his concerns in the back and forth book he shares with E.T.  J.V.G. documented one occasion when A.V.T. said to him that he was mean to her because he “(threw) her around and hit her”.  He also documented another occasion when A.V.T. apparently saw a white truck and said “(t)hat’s Papa’s truck and he is going to smash you.”  J.V.G. says that after this entry was made there was an abrupt change in A.V.T. who returned to being much more affectionate towards him.

[44]        For her part, E.T. says that A.V.T. regressed after Judge Frame awarded J.V.G. overnight access but not as a result of the July 17, 2013 incident.  E.T. further says that J.V.G. only started making allegations about her family trying to alienate A.V.T. from him after she raised concerns with J.V.G. about A.V.T. telling her that J.V.G. hit her.  Though she does not associate the behaviours with the July 17, 2013 incident, E.T. acknowledges that she also had concerns with some of A.V.T.’s behaviours during the time period following the incident.  E.T. was concerned with A.V.T. acting aggressively towards other children at daycare and showing signs of anxiety around spending time with her father, including during transitions. 

[45]        E.T. insists that neither she nor her family “badmouth” J.V.G. in front of A.V.T., or otherwise.  She insists that she would never tell her daughter that her father was “mean” and then send her to spend time with him as that would be “cruel”.  She says she has tried to make transitions better by not being present for them.  E.T. prefers transitions to occur at daycare because she says that A.V.T. is more agitated at transitions if she is present.  E.T. says she also supports transitions by telling A.V.T. that J.V.G. is her dad and that he loves her, misses her and wants to see her.  E.T. says she employs other strategies to assist in transitions by, for example, asking A.V.T. what she thinks she will do when she is with J.V.G.  E.T. says that her strategies have helped to decrease A.V.T.’s anxiety around spending time with J.V.G.

[46]        J.V.G.’s girlfriend describes that A.V.T. tells J.V.G. she is “mad at him” if he gives her a timeout.  A.V.T. has told her daycare provider that the daycare provider was hurting her when the daycare provider was only “gently leading her to the timeout bench to calm her body”.  According to A.V.T.’s daycare provider, A.V.T. has been aggressive towards other children by, for example, pushing other children if they were playing with a toy she wanted.  E.T., however, has satisfied herself that A.V.T.’s aggressive behaviours at daycare were directed at one particular child who was aggressive towards A.V.T. and that other children of the same age at the daycare were going through a similar stage. 

[47]        E.T. described A.V.T. as “sassy” to Judge Frame.  She was described to me as being “independent” and as having “a mind of her own”.  I conclude that A.V.T. is a spirited child.  She does not like being told what to do nor being disciplined. 

[48]        I accept that A.V.T. has said to her mother and others that J.V.G. hits her.  I also accept that A.V.T. has told her father that he is “mean” and that she is “scared” of him.  Before moving on in my analysis, I want to clearly state that I do not believe that J.V.G. has hit or otherwise been “mean” to A.V.T. 

[49]        The issue for me is actually not whether the confrontation on July 17, 2013 and its aftermath establish an effort on the part of E.T. and her family to alienate A.V.T. from J.V.G.  Rather, the issue for me is whether these events have created a material change in A.V.T.’s needs or circumstances.

[50]        Though I do not need to make a finding about alienation to determine the threshold issue of material change, in my view it would be helpful for the parties for me to state my conclusion on the matter. 

[51]        While I can understand J.V.G.’s concerns about what A.V.T. says, the evidence satisfies me that this is not the result of any effort by E.T. and her family to alienate A.V.T. from her father.  As stated above, A.V.T. “has a mind of her own” and it is not uncommon for children of A.V.T.’s age to act out or say hurtful things that are not based in reality to get attention or something else they want.  My conclusion is that this is what has happened with A.V.T. 

[52]        Turning to the real issue of material change, I am unable to square J.V.G.’s argument that the events of July 17, 2013 and following have materially impaired his relationship with A.V.T. with his evidence that he has a much closer bond with her.  Even if I had concluded that E.T. and her family were attempting to alienate A.V.T. from her father, I would be forced, on the evidence of J.V.G. and his witnesses, to conclude that those efforts had failed.

[53]        In the result, J.V.G.’s has not established a material change in A.V.T.’s needs or circumstances as a consequence of the events of July 17, 2013 or any effort on the part of E.T. and her family to alienate A.V.T. from him.

[54]        J.V.G. has not established a material change in A.V.T.’s needs or circumstances since Judge Frame made her access order on March 14, 2013 and his application to vary Judge Frame’s access order is, therefore, dismissed.  That, however, is not the end of the issue because E.T. seeks an order that J.V.G. be precluded from filing a further variation application without first obtaining leave of the court.  In my view, this is warranted.

[55]        Both J.V.G. and E.T. are trained as social workers.  J.V.G. works for an aboriginal agency providing child protection services to the MCFD.  As indicated above, E.T. works in the mental health field.  Compared to the majority of family law litigants, both must have a heightened understanding of the potential for harmful consequences to A.V.T. if there is conflict in their relationship.  Both must also have a heightened understanding of the importance of stability in A.V.T.’s development.

[56]        Judge Frame admonished J.V.G., E.T. and E.T.’s parents in her Reasons for Judgment - J.V.G. for his angry and demanding demeanour, E.T. for limiting and supervising J.V.G.’s early access and E.T.’s parents for interfering in matters to be dealt with only by A.V.T.’s parents. 

[57]        Leaving aside the unfortunate events of July 17, 2013, it seems that the parties have largely taken Judge Frame’s comments to heart.  There have been transition issues but A.V.T. appears to get nothing but love and affection in both homes and her parents are, for the most part, communicating with each other much better through the use of the back and forth book ordered to be used by Judge Frame.  I commend the parties for the progress they have made.

[58]        In my view, the parties need and A.V.T. would benefit from a period of stability and peace on the issue of access.  I am, therefore, ordering that J.V.G. may not file a further application to vary Judge Frame’s order on the issue of access without leave of the court until March 14, 2016 - which is three years after Judge Frame made her order.  Of course, I am not encouraging J.V.G. to make a variation application at that time.  I expect J.V.G. to take guidance from these Reasons for Judgment and only make a further variation application if he has good grounds to believe that there has been a material change in A.V.T.’s needs or circumstances and that a variation would be in A.V.T.’s best interest.

[59]        E.T. seeks an order under Part 10, Division 6 of the FLA to enforce Judge Frame’s order that, effective April 1, 2013, J.V.G. pay 62% of E.T.’s actual child care costs each month as supported by a receipt. 

[60]        As of the date of Judge Frame’s order (being March 14, 2013), Judge Frame fixed J.V.G.’s arrears for child care expenses at $1,500 and required that he retire these arrears by paying E.T. $100 per month commencing in July 2013. 

[61]        Prior to Judge Frame’s order, E.T. registered with FMEP.  During the hearing before me, E.T. presented a “Statement of Payments Disbursed” from FMEP which shows that as of August 22, 2014, J.V.G.’s arrears stood at $4,429.84.  The statement does not separate amounts paid for child support from amounts paid for child care or arrears but the statement shows that since July 2013 J.V.G. has consistently paid $600 per month to FMEP for E.T.’s benefit.  This appears to represent his child support payment of $500 per month and his payment of arrears of $100 per month.  In some months, J.V.G. has paid slightly more than $600 per month.  These modest additional amounts are the only payments that J.V.G. has made to pay interest on his arrears and ongoing child care amounts.  J.V.G. did not challenge the data provided by E.T. from FMEP. 

[62]        Because J.V.G. has not kept current with his payment of E.T.’s child care expenses, his arrears have grown.  According to the statement from FMEP, as of August 22, 2014, J.V.G.’s arrears stand at $4,429.84.

[63]        Part 10, Division 6 of the FLA has two sections which provide enforcement mechanisms.  These sections provide, in part, as follows:

[64]        In argument, E.T. did not refer to any of these remedies and made no argument to justify resort to them.  All that E.T. requested was an order that J.V.G. make payments on his arrears according to a schedule.  E.T. argued that the order that J.V.G. pay his arrears at $100 per month has worked well.

[65]        E.T. has not actually asked for an enforcement order under Part 10, Division 6 and I will not make any order under section 230 or 231 of the FLA.  What E.T. has really asked for is a variation in J.V.G.’s obligation to retire his arrears.  In view of the fact that arrears have grown and not been reduced since Judge Frame made her order, a slight variation appears to be in order.

[66]        There are already orders in place that J.V.G. pay child support of $500 per month, 62% of child care expenses as supported by a receipt and $100 per month towards his previously accumulated arrears.  Rather than limit J.V.G.’s obligation to pay $100 per month to retire the $1,500 in child care arrears that had accumulated to March 14, 2013, I am varying paragraph 13 of Judge Frame’s order to require J.V.G. to pay any and all outstanding arrears at a rate of $100 per month until they are retired in full.

[67]        E.T. has taken the very effective step of utilizing FMEP to enforce the existing orders.  I expect J.V.G. to cooperate with FMEP and comply with the existing orders.  To do so, he must keep current with his obligation to pay his monthly amounts for child support and child care and retire any outstanding arrears at a rate of $100 per month. 

[68]        In summary, I make the following orders:

[69]        Before concluding, I turn to address the outstanding claims in the application filed by J.V.G. on October 7, 2013 and in the reply filed by E.T. on November 6, 2013.  Both parties have sought further orders dealing with financial issues.  These claims were not before me. 

[70]        I do not know but I suspect that these Reasons for Judgment address the true issues between the parties and that the remaining issues do not need to be addressed by the court.  I adjourn all outstanding claims for relief made in J.V.G.’s application filed on October 7, 2013 and in E.T.’s reply filed on November 6, 2013.  If I am incorrect in my assessment of the parties’ desire to proceed with their outstanding claims, either or both may file a Notice of Motion to bring the matter or matters back before the court for determination.

[71]        Mr. Mariona will prepare the order.  I dispense with J.V.G.’s signature on the order.