IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           These are applications by L.S. to change the residency of D.C.S., born [omitted for posting] to reside with his mother, L.S.. Presently, D.C.S. resides with his father, J.M.  At the time J.M. filed his reply, he disagreed with the application and sought to reduce L.S.’s parenting time. He has abandoned his application to reduce the parenting time. On the consent of the parties, I had interviewed D.C.S.

[2]           By order of December 19, 2012, which is a final order, Judge Cleaveley awarded J.M. sole custody. Of course, under the present regime, L.S. is a guardian of D.C.S. L.S.’s access to D.C.S. was set by that order as follows:

[3]           There was also an order for Christmas vacations which were to be with L.S. every year from 6:00 p.m. on December 24 to the end of each school vacation.

[4]           This being a final order, there has to be a material change in circumstances before I consider changing D.C.S.’s primary residence from his father to his mother. L.S. has alleged domestic violence and threats. This is not new. She made the same allegations previously. She also claimed that J.M. was using corporal punishment on D.C.S.  L.S. claimed that J.M. has not complied with the court order, he is denying her parenting time she has been allotted and he is not properly exercising responsibilities of a guardian.

[5]           J.M. said that L.S. has not exercised the parenting time she was entitled to. He acknowledges that he arbitrarily changed her parenting time because he believed that the order was to allow her father to have parenting time with D.C.S. He was clearly wrong about this but made no effort to check the court order himself. J.M. is content to make all the rules and decide when parenting time will occur.

[6]           I find that J.M. has been arbitrary and patronizing. He has exercised too much power to interpret the order as he sees fit, rather than what the court has imposed. If J.M. cannot exercise the proper responsibilities of a guardian, he will cease to have those guardianship responsibilities. This is a word of warning to him going forward.

[7]           Most of the complaints L.S. raised about J.M. are the very complaints that were in place at the time the order was made in December, 2012. In short, L.S. and J.M. were in a relationship for about three years. It ended when he punched L.S. while she was pregnant. She alleged that threats, harassment and stalking persisted after that. Since the order was made, she claims that her son heard J.M. say to I.S., L.S.’s father, that L.S. was so stupid he should have “kicked the shit out of” her. L.S. said she also hears J.M. and his wife, D.M., arguing. She said they argue about L.S. Since she is not present during the exchanges and does not speak to J.M., I cannot imagine when L.S. has these opportunities.

[8]           L.S. said that since December, 2012, every Tuesday access visit has been missed until very recently. J.M. made it clear to I.S. that he was only bringing D.C.S. to see I.S., not L.S. L.S. said she would be taking the bus from Kamloops to see D.C.S. and he would not be there.

[9]           It defies logic that a person would go for so long coming out to Merritt every Tuesday and never seeing her child without making any inquiry of J.M. about the child’s whereabouts. Even if she were too intimidated to speak with J.M., which I find she was not, she is well aware that she can bring an application before the courts. Although there have been three court appearances with respect to L.S.’s child support obligations since the order was made in December, 2012, she made no application to enforce her access. This may well be because she knew that the access had been changed to Mondays by agreement of her father with J.M. to accommodate D.C.S.’s soccer.

[10]        I.S. testified that J.M. told him the visits would be on Mondays because D.C.S. had soccer practice on Tuesday. I.S. reminded him it was supposed to be Tuesday but J.M. persisted. I.S. said that L.S. has been there for all of the Tuesday visits since January, 2014 when the Tuesdays resumed. He also claimed that she came out every Tuesday in 2013 when D.C.S. was brought Mondays instead.

[11]        I.S., who acted as the “middle man” between the parents, agreed in cross-examination that he did not ask J.M. to bring D.C.S. on Tuesdays when L.S. was there; nor did L.S. ever ask him to call J.M.

[12]        T.S., who lived with I.S. until recently, testified that he was sometimes home when L.S. would come and D.C.S. would not. T.S.’s evidence was confused, inconsistent and unhelpful. I find that it was unlikely he was home to care for D.C.S. on any of the dates or times he claimed. It is also unlikely that he was of much assistance to establish that L.S. came every Tuesday through 2013.

[13]        C.S. also testified about D.C.S. coming for Monday visits but, again, her evidence was so vague that it was not helpful.

[14]        Even when he testified, J.M. was firm that the order provided for Tuesday and Thursday visits to I.S., not L.S. It was only after a review of the file while J.M. was testifying that he realized there was no such order.

[15]        Since the Tuesday visits have resumed, J.M. said he never sees L.S. when he drops off D.C.S. Of course, he does not go into I.S.’s home so he could not say whether L.S. was there or whether she came later. He said that D.C.S. said his mom sometimes never shows up. J.M. is of the view that L.S. does not come very often on Tuesdays or Thursdays.

[16]        J.M. said that even after soccer ended, the Monday visits continued because I.S. said it was fine. He said nothing to J.M. about L.S. being concerned.

[17]        I find that I.S. agreed to the change to the Mondays. He was the appointed go-between for L.S., and J.M. was entitled to rely upon I.S.’s agreement to that change. This miscommunication was a direct result of J.M. misunderstanding the terms of the order without ever returning to it to confirm its parameters. It is also a product of I.S.’s own misunderstanding about the purposes of the visits based on what J.M. had said. However, the misunderstanding would not have persisted had L.S. made any effort at all to address the problem. I find that she did not. It comes down to a matter of communication between L.S. and J.M. They are the parents of this child. They must communicate directly to ensure that they co-parent properly.

[18]        To that end, L.S. believes that J.M. and his wife are stalking her and claimed that they have been harassing her throughout. She believed he sat outside her house for hours on end when she lived at her father’s. This past summer, she believed she was followed around by J.M. when she went for coffee with her nephew. She testified that J.M. gets verbally abusive about her to her father.

[19]        C.S. said that when they went shopping they would see a vehicle always keeping an eye on them. She said that it happened to be J.M. and D.M. She said this was a regular occurrence and she was not comfortable with it.

[20]        In addition, there was the incident in August, 2013 following the late return of D.C.S. J.M. had called I.S. the first thing in the morning to make disparaging remarks about L.S. and commented that he should “kick the shit” out of her. She said that she was afraid following this. There was a full lockdown at her office. She also called the RCMP.

[21]        L.S. said that she moved abruptly after this incident and will not now provide J.M. with her address. She is fearful of him, and of him following and watching her.

[22]        I.S. recalled the telephone call and confirmed the comments made by J.M. I.S. said this was repeated when he took D.C.S. home to J.M.  I.S. claimed that D.C.S. was scared.  I.S. said this has happened more than once.

[23]        During my interview with D.C.S., he took his responsibilities very seriously and thought about the questions that I asked him. This was a refreshing experience for a child of this age. He is only 9 and was clearly uncomfortable about speaking about his parents behind their back. However, he was honest and forthright despite his discomfort. D.C.S. appears to have no recollection of J.M. threatening L.S. to I.S. in D.C.S.’s presence.

[24]        J.M. denied he had ever been to L.S.’s place of work. D.M. said that she had attended there to serve L.S. with papers once some years ago because they did not know where to locate her. J.M. denied following L.S. at any time.

[25]        Merritt is a small community. It is entirely likely that when L.S. is out in the community, J.M. will cross her path. It is also entirely likely given the nature of the relationship between the two and their ongoing conduct toward each other that J.M. spent far too much time observing her in her actions when he did encounter L.S. in the community. That being said, I am not satisfied that J.M. goes out of his way to follow L.S.

[26]        While L.S. is now in a new, supportive and stable relationship, I do not find that there are any material changes in circumstances that favour changing D.C.S.’s living arrangements. In coming to this conclusion, I have reviewed the various topics of particular interest to L.S. and J.M.

[27]        D.C.S.’s education is a primary concern for both parents. D.M. believes D.C.S. is suffering in school. She said he is crying and gets frustrated. J.M. has refused to give L.S. information about the school. L.S. found that D.C.S. is focused and willing to do homework when with her. She finds he is doing quite well in math which he is doing online.

[28]        I asked D.C.S. about school in my interview. He likes school. His favourite subject is gym class and his least favourite is writing. D.C.S.’s report card reveals that he is essentially a “C” student. He has difficulty staying on task in math. It is recommended the parents support him at home playing games with him. There are several recommendations in the report card about supports he should be receiving at home to strengthen his abilities in each subject. Focus seems to be a big issue for him. His attendance was exceptional. I.S. observed that D.C.S. tries as hard as he can.

[29]        J.M. acknowledged that D.C.S. struggles some days and becomes frustrated with his work. They put him on the Reflex Reading Program at home which seemed to help. J.M. said that he reads together with D.C.S. and they read to his little brother. D.M. testified that D.C.S. struggled to catch up in the beginning in his primary years because he had missed so many days in Kindergarten. In fact, D.C.S. had missed a significant number of days at school while in his mother’s care, totalling 40.5 absences and 59 late arrivals. However, D.M. also observed that now the work is getting harder and he struggles more. 

[30]        D.C.S. is an average student. He struggles to be an average student. He needs to go to school, and he needs to have a support system in place that will ensure he does as much extra work as he can in order to maintain those grades. J.M. and D.M. have ensured that he has those supports.

[31]        Another of L.S.’s concerns is J.M.’s alcohol consumption. L.S.’s experience is that J.M. is a regular, abusive drinker. She noted that he had been charged four times for assault in their relationship, although not all of these resulted in convictions. L.S. has completed substance abuse programs and no longer drinks or takes any non-prescription drugs. She completed her programs one and a half years ago and attended Alcoholics Anonymous meetings. Her partner is also sober. T.S. confirmed that L.S. does not drink. He says this has been for a year or longer.

[32]        L.S. said that D.C.S. told her that J.M. still drinks. D.C.S. said he sighs when he sees it.

[33]        J.M. acknowledged that he had been sent to treatment for drug and alcohol abuse once. This was when he was also sent for anger management. He claimed that he now seldom drinks. D.M. confirmed that J.M. is not often drunk. She also said that D.C.S. rarely sees J.M. drink.

[34]        L.S. was concerned about the discipline that might be exercised in J.M.’s home. She was concerned that D.C.S. had been physically spanked because he did not want to go have his soccer pictures taken. According to D.C.S., this did happen but it was about two years ago. He told me he was more surprised than hurt. He cried because his father never did that before. Usually, according to D.C.S., his discipline is to have his iPad taken away. Previously, before he had an iPad, his Wii was taken away. Usually if he cried and would not stop, he would be shut in his room. He likened it to a “time out”. He said that his father does yell when he cannot stop crying. This, of course, is not constructive and typically produces the opposite result than the one desired.  J.M. would do well to learn other strategies for coping with D.C.S.’s distress.

[35]        J.M. denied spanking D.C.S. Given the age of the incident and the lack of impact upon D.C.S. other than surprise, J.M. has likely forgotten the incident.

[36]        It is useful to re-enforce the point that yelling is not a productive way of parenting. Nor is spanking. Corporal punishment is only tolerated at law for a very brief period of time past the age a child is a toddler, and up to the age they are a pre-teen. Before and after that, corporal punishment is simply assault. Even for the brief window in which children are in this corrective age, corporal punishment must never be delivered out of anger, but only as correction. It must not cause pain or injury. It must not be done to humiliate. Good parenting avoids it altogether.

[37]         L.S. is also upset about J.M. requiring I.S. to sign a journal logging the return times for D.C.S. J.M. is certainly free to keep a journal. If I.S. wishes to sign the journal to confirm the time he drops off D.C.S., he is certainly free to do so. However, J.M. cannot compel anyone to sign off on the journal. It is up to the parties whether they do or not. It seems that J.M. has imposed this obligation on I.S.  I.S. should not be signing that journal if he does not agree with the comments written with respect to that drop-off time. Having said that, L.S. should appreciate that a journal is a good record of when visits have happened and how they have gone. She may wish to keep her own.

[38]        Recordkeeping has been a problem for L.S. She has made some fairly extravagant claims for her costs of travelling to Merritt, totalling $4,900. She based this on a calculation that was not well thought out. She claimed a $5 fee for 50 bus trips taken on Tuesdays when D.C.S. was not available. Even if I were to find that it was at all reasonable for L.S. to claim her 50 trips where her son did not come, and she did nothing about it, this is not an accurate calculation of what she actually spent. It is a guestimate. L.S. also claimed $35 per trip for her father’s gas charges. I.S. did not charge L.S. for gas. She cannot make this claim. I am disallowing L.S.’s claim for these expenses in total. It is her claim to prove, and she has not done so.

[39]        Both parents offer an appropriate home for D.C.S. L.S. has a clean, stable home. She claimed D.C.S. sometimes comes to her in rags. She sends him home with new clothes. She and Mr. S. live in an apartment in Kamloops. Her niece, C.S., lives there as well. They are presently in a two bedroom apartment but can move to a three bedroom apartment. Presently, D.C.S. stays on the couch when he comes. L.S.’s baby sleeps with her and Mr. S.  Mr. S. also has two sons who stay with them on the weekends in bunk beds. C.S. has to move out of the apartment when the boys are visiting. The space is cramped but the parties seem to manage.

[40]        The M.s have three boys living at home, one of them being D.M.(1). The other is a younger half-sibling of D.C.S. It is a busy household with hockey and soccer going on. The M.s would like to see D.C.S. play soccer and hockey but it is difficult with the current arrangements. D.C.S. is only interested in playing hockey if he can learn how to skate first. He does want to play soccer. The M.s live on Rocky Pines Reserve in a rent-to-own three bedroom rancher style house. It is on an acre of land. There are neighbours all around.

[41]        D.C.S. told me that there is too much yard work to be done in Rocky Pines. Perhaps he needs more small boy playing time built into his routine. He prefers to stay with his mom because it is easier to go to the stores and he can visit his cousin C.S. at work. There are more things to do in Kamloops and his cousins come over after school.

[42]        More importantly, D.C.S. gets along well with his cousins in Kamloops. The same cannot be said for his step-brother, D.M.(1).  D.M.(1) is 14 years old. D.C.S. told me that D.M.(1) does bad things like stealing from his friends. D.M. argues with D.M.(1) a lot, according to D.C.S., because he swears a lot and does these bad things. The conflict is having impact on D.C.S. D.M.(1) also calls D.C.S. mean names and hits him. D.C.S. reported that the hitting happens at least every day, once or twice a day. He punches D.C.S. in the chest or the stomach, but only if no one is looking. He does it for no reason. D.C.S. wants this to stop.

[43]        I advised J.M. and D.M. of this bullying when they were in court. They are obviously aware that D.M.(1) has some challenges right now. The M.s have an obligation to protect D.C.S. from being bullied by D.M.(1). They are now aware of the problem. They were not previously aware because D.C.S. is also loyal to D.M.(1) and was reluctant to tell on him. Up to that point, D.M. denied that D.M.(1) had done anything to D.C.S. She downplayed her own issues with D.M.(1)’s foul mouth. She testified that D.M.(1) has disabilities.

[44]        Part of the problem for D.C.S. is that his parents do not communicate. The whole dispute over the Tuesday parenting time was directly related to the parents refusing to communicate with each other. L.S. prefers that J.M. go through her father. However, he has made arrangements with J.M. without consulting with L.S. J.M. was entitled to rely upon I.S. as her agent because she had designated him to do so. Although it had been suggested by a prior judge that they communicate by e-mail, they have not done so.

[45]        Similarly, there was an incident which both parties were quite fixated on about one time when D.C.S. was returned half an hour late. J.M. became quite angry about this because he had not permitted the late return. L.S. said that arrangements had been made to return D.C.S. late. Unless the parties start to communicate directly so that there can be no question about what is being discussed and decided, these communication issues will persist.

[46]        There was also another occasion when J.M. and L.S. did not discuss a matter of concern to J.M. It was a weekend for L.S. to have D.C.S. J.M. learned through I.S. that L.S. was going to be in Penticton taking a program. L.S. was planning to take D.C.S. with her. They were going to stay in a hotel and J.M. believed D.C.S. was going to be left on his own. He did not check with L.S. He did not do anything to ensure that D.C.S. would be kept safe while he was with his mother. Instead, he arbitrarily cancelled the visit. J.M. is not permitted to do this. Having primary residence of D.C.S. with J.M. does not give him the right to dictate when parenting time will happen for L.S. Similarly, it should have occurred to L.S. to tell J.M. that she was taking D.C.S. to Penticton. She is entitled to take D.C.S. where ever she wishes when she has her parenting time with him. However, it is the most basic common courtesy to tell another parent when their child is travelling.

[47]        In short, communication issues which create such significant disputes between the parties would be largely avoided if the parties learned to communicate respectfully with one another.

[48]        That being said, I do not see such a change in circumstances, nor do I find that it would be in D.C.S.’s best interest to disrupt him at this stage of his life, that warrants changing his primary residence to live with his mother. He is in a comfortable, secure home at present. He is doing well enough in school and is missing very little of it. He is engaged in social activities and is formulating community bonds. The family ties he has in Kamloops are not interrupted by his present living circumstances. While D.C.S. expressed a wish to live with his mother, it seems to be primarily because he can shop and is not disciplined as firmly as he is in father’s place. These are not reasons to change D.C.S.’s living circumstances.

[49]        L.S. wanted the Tuesday and Thursday night parenting time periods to continue but for them to be overnight. This is a reasonable request. It is also more accommodating for D.C.S. L.S. shall continue to have parenting time with D.C.S. on Tuesdays and Thursdays at 4:00 p.m. each day until 8:00 a.m. the following morning. The visits shall be in Merritt. L.S. shall deliver D.C.S. to school not later than 8:00 a.m. L.S. is cautioned that if D.C.S. is late for school on any of these days for any reason, the parenting time may have to revert back to 7:00 p.m. end time.

[50]        J.M. and L.S. shall exchange e-mail addresses within 14 days of the date of this Judgment. L.S. shall provide J.M. with not less than 24 hours’ notice if she is unable to exercise her parenting time on any given Tuesday or Thursday.

[51]        D.C.S. was satisfied to have his summertime with his parents divided evenly. He is happy whether that is one month with each parent or two weeks of each month with each parent. There was a dispute about the extra days from the end of the school year and what constituted half of the summer. This is a petty dispute which ought to have been easily resolved by the parties were they communicating properly. Going forward, L.S. shall have parenting time with D.C.S. from 4:00 p.m. on the day after the last day of school in June of each year to the 15^th day of July in June of each year. L.S. shall have parenting time with D.C.S. from the 1^st day of August of each year until 7:00 p.m. on the 17^th day of August of each year.  While this will not compensate L.S. with additional parenting time when school starts later in September, it will balance against the years when the school year starts earlier in September.

[52]        L.S. shall ensure that D.C.S. attends any extra-curricular activities for which he is enrolled in Merritt during the school year. J.M. shall not enrol D.C.S. in any activities in the summer which would fall within the parenting time set for L.S. except with her prior consent to be given by e-mail.

[53]        J.M. shall not register D.C.S. for any activities on Tuesdays and Thursday, except soccer, without L.S.’s prior written consent.

[54]        J.M. shall deliver D.C.S. to the home of I.S., subject to agreement by the parties in writing to change the exchange place, at the commencement of each parenting time visit. I.S. shall deliver D.C.S. to the home of J.M. at the conclusion of each parenting time, subject to agreement by the parties in writing to a change of exchange location. To be clear, it is not a matter for concern for J.M. what time L.S. arrives for her parenting time. I.S. has agreed to take D.C.S. at these parenting times and D.C.S. benefits from the contact with his extended family. However, L.S. is to understand that the parenting time is for the benefit of D.C.S. She must tell J.M. if she is not going to exercise the parenting time at all on any occasion so that D.C.S. is not taken to I.S.’s home. Having said that, J.M. needs to understand that L.S. is entitled to decide to have D.C.S. spend quality time with his extended family in the manner that she sees fit. He also needs to understand that L.S.’s time with D.C.S. in Kamloops is not a holiday. It is parenting time. She is entitled to continue to work while she is parenting her son. She is entitled to have caregivers look after her son while she is doing that. It is no different than if D.C.S. was in J.M.’s home.

[55]        It will assist greatly in reducing the number of conflicts between the parents if the parenting responsibilities are clearly set out as they are provided for in the Family Law Act. This was not done previously because the Family Relations Act was in place when this matter began.

[56]        Each parent shall have the parental responsibility of making day-to-day decisions affecting D.C.S. and having day-to-day care, control and supervision of D.C.S. during their parenting time.

[57]        The parents shall jointly have the parental responsibility of:

[58]        It is also necessary to make some conduct orders to encourage the parents to communicate more respectfully and cooperatively in the raising of D.C.S.

[59]        Each guardian will cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow the child to travel.

[60]        The parties will:

[61]        The parties will not:

[62]        The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the child concerning family issues or litigation.

[63]        J.M. and D.M. shall collectively ensure that D.M.(1) does not strike, swear at, belittle or otherwise torment D.C.S.

[64]        Neither parent or their partner shall use corporal punishment or yell at D.C.S. while disciplining him.

[65]        The parents shall exchange e-mail addresses through I.S. within 14 days of the date of this Judgment and shall thereafter communicate by e-mail directly.

[66]        Parenting time for L.S. shall continue in accordance with the order of Judge Cleaveley made December 19, 2012. J.M. is content to allow the Family Maintenance Enforcement Program to enforce the collection of arrears against L.S.

[67]        L.S. is presently upgrading her skills after being laid off from the employment she had when the child support order was originally put in place. She has one more year of education left. L.S. received a salary until September, 2013. She presently has priority posting with the Federal Government as a result of the layoff. It would not be with Agriculture Canada where she was employed previously, but could be with any number of different departments.

[68]        L.S. is already under a court order to produce her income tax return and notice of assessment by June 1 of each year. Her child support obligations are to be adjusted in accordance with the Guidelines, commencing the first day of July each year. There is no need to make any further order in that regard. With there now being a full year since L.S.’s child support was reduced to $100 per month, her notice of assessment for the 2014 taxation year will assist the parties in determining the appropriate amount of child support going forward. L.S. must be aware that under s. 213(2)(d) of the Family Law Act, if she fails to file the financial information in accordance with the order of December, 2012 and this order, she may be faced with penalties of up to $5,000.

[69]        If either party breaches any of these conduct orders, they should be aware that similar penalties may be imposed upon them. 

[70]        Mr. Ransome shall draw the order.