IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties to this Family Law proceeding both of whom reside in Squamish, BC, are the parents of one A., a boy, born [redacted].  They were never married and never lived together.  However, after A. was born, the Father commenced seeing A. quite regularly and also paid regular child support to the Mother.  At all material times the Mother has been the primary caregiver for A. and her home, a 2-bedroom apartment in Squamish has been A.’s principal residence.  At this time, the Mother resides on her own and has no new partner.

[2]           In Mid-October 2014, the Father met one J. and they began dating.  They later commenced living together.  In or about March 2015, J. became pregnant and on [redacted] the Father and J. had a son, one W., who now lives with them in Squamish in a house located some five minutes’ drive from the Mother’s residence.

[3]           On February 11, 2016, the Father applied for various orders as follows:

[4]           I intend in these Reasons to deal in a summary way with the facts that in my view bear on what non-financial decisions should now be made in A.’s best interests as well as those facts relevant to child support considerations.

[5]           The Mother is age 36 and first met the Father at her age 15 when they were both living together on Vancouver Island.  The Father is age 40.  The Mother moved to Squamish and in or about July 2014 commenced dating the Father.  She works as a self-employed small business person in Squamish and rents a modest sized commercial space located one block from her apartment.  She has been in business on her own for about one year.  Her mother S.N. resides in Whistler and owns and there operates a salon but also provides child care to the Mother.  S.N. lives with her husband in Whistler.  The Mother also has a sister who has two children, age 12 and 2.

[6]           The Father has resided in Squamish for some years.  He is full-time police officer employed in the Lower Mainland.  His parents are both retired and live in Saanich.  He has a sister who resides in Calgary.  He is married to one J., age 32, and she is also employed on a full-time basis with a different police force in the Lower Mainland.  At trial J. was on maternity leave until January 2017.  The Father and J. hired an au pair woman effective December 28, 2016 to assist with the care of their son W. and I think too A. when with them on parenting time visits.

[7]           As I have said, in or about July 2014, the Father and Mother commenced dating.  At one point in their short relationship the Father indicated that if their relationship continued as it was, wouldn’t it be nice if the Mother was pregnant by summer (I assume of 2015)?

[8]           The Father met J. at a charity bike ride in late September 2015 and thereafter in either late September or as late as mid-October, the Father and Mother broke up and at about this time, the Father and J. commenced seeing one another.

[9]           Shortly thereafter on October 17, 2014, the Mother learned that she was pregnant.  She and the Father discussed this news and he agreed to support her.  The Father continued to date J.  On January 9, 2015, J. met and introduced herself to the Mother at a yoga studio and the two women exchanged cordial text messages that day – the mother’s to J. in part as follows:

[10]        On January 12, 2015, J. texted the Mother in part as follows:

[11]        Based on all the evidence I heard at the trial in this matter, I believe that both women were then being sincere in these communications.  I also think that it would have been most difficult for the Mother to reach out to J. as she did.  I expect the Mother at some point felt that J. was then occupying a position with the Father that she had expected to be in herself.  I think too that J. was very alive to this issue as well.  S.N. testified that the Father had abandoned the Mother.  In truth, the evidence is that their relationship ended after he met J. and before either of them were aware the Mother was pregnant with A.

[12]        In mid-January 2015, the Mother, Father and J. met in a local restaurant quite by chance and the Father indicated to her that when she was ready to grow up and talk to her, I believe about his role as a parent to the then as yet unborn child, she should call him.  The Mother also exchanged a few words with J.  The Mother texted the Father and they agreed to meet that evening at her apartment.  She wanted to see if the Father really wanted to be part of the child’s future and to discuss her desire to have a doula, a woman she had already met in Squamish.  The Mother had her put together a package of materials for the Father’s review and signature and gave them to him.  She believed he signed the doula’s agreement re fees before the end of February and gave the papers to the doula who, I understood, agreed to call the Father.  Prior to the end of February, J. called the doula (not the Father) apparently responding to a message left by the doula for the Father.

[13]        On February 26, the Mother texted J. having learned that J. had called the doula and said she (the Mother) was not sure how she felt about this – it was the Father’s responsibility to contact the doula not hers.  J. explained that the doula had called and left a message when the Father was on shift working and that in essence to be polite, he asked J. to call the doula back while he slept.  This explanation from J. was not accepted by the Mother.  She testified that J.’s calling the doula was a problem in essence because (a) she felt the Father was trying to get J. involved with the doula and the Mother felt no one should discuss her pregnancy with the doula other than the Father and thus (b) there were “boundary issues” meaning really that from her perspective, there was no place for J. to be involved in the doula care during her pregnancy.  She testified that although the doula wanted to meet the Father and J., she was opposed to this as she wanted her pregnancy to involve only the doula and her plus the Father – not J.  The upshot of this event was that the Father never met with or paid 1/2 the doula’s fees ($475.00) and argued with the Mother by telephone telling her that in his view, she needed to understand and accept that he and J. were to be involved with the child being carried by the Mother together after its birth and expressing anger at her wanting to exclude J.  The Mother testified she never after this discussion gave the Father the doula’s invoice or asked him to pay one half.  As well she said she reminded the Father in the telephone call that the doula was all about her pregnancy and her having support.  I have referred to this event as it is the first “boundary” issue that arose between the Mother and J.

[14]        In mid-March 2015, the Mother met J. at yoga and J. invited her for coffee at a local café where they discussed the doula and boundary issues.  The Mother felt that thereafter, her communications with J. were strained but amicable.  She continued to communicate with her as she was in the Father’s life.

[15]        In March 2015 J. learned she was pregnant and in May 2015 she and the Father took the Mother to breakfast and told her their news.

[16]        A. was born on [redacted] and the Father shortly thereafter started to visit him on his days off for approximately one hour each time and as well, to pay child support.

[17]        On August 10, 2015, the Mother attended a police barbecue at the Father’s residence and brought A. along.

[18]        By September 2015, the Father commenced seeing A. on his own for one hour visits, however, not pursuant to any fixed schedule based on his availability and shift work and the Mother’s agreement.  Up until January 2016, the Father tended to see A. at the Mother’s apartment initially, then on his own, not with her present, and not pursuant to any fixed schedule for one hour visits for 2 - 3 days a week on his days off being four of every eight.  He took A. for walks.  In January or February 2016, he wanted to see his son for longer periods of time on his four days off work and made this desire known to the Mother.

[19]        This could not be arranged.  The Father became frustrated with limits on his parenting time.  He felt more appointments to see his son A. were falling through.

[20]        On or about January 7, 2016, at her mother’s suggestion, the Mother spent a night in a hotel.  Her mother wanted to begin sleep training A.  Her mother stayed the night with A.  The Mother put A. to bed between 7:00 and 8:00 p.m.  The Mother arrived at the hotel about 8:00 p.m.  She returned home at 6:45 a.m.   There is no clear evidence her mother S.N., the baby sitter, had to feed him while the Mother was away.  Certainly she was equipped to do so with a supply of pumped breast milk as needed.  The Mother did not suggest that the Father look after him as he was too young – only 6 months of age.  She had borrowed a friend’s breast pump and I understand used it to leave her mother a supply of breast milk.  Her mother also had some formula.  The Mother testified that at 6 months, babies could sleep through the night without breastfeeding.  It seems A. was not doing so in or about January 2016.  According to the Mother, he then woke up twice a night and would only go back to sleep if breastfed.  The Mother testified that because A. awakened twice each night, she was not comfortable in the Father having A. for overnight visits because there were times when the only way she could calm him was to breastfeed him.  Such overnight visits had to be introduced.  A. was very connected to her and she did not want overnight visits with his father to emotionally upset him or confuse him.  She believed A. was very comfortable with his father but felt he could not provide the level of mothering she could.  So no overnight visits then occurred and there have been none to date.  The Father wants them to occur now.

[21]        Commencing in about December 2015 or January 2016, difficulties arose between the two parents with respect to the parenting time wanted by the Father generally characterized by the Father wanting more time with A. and the Mother not being comfortable in agreeing to it and from her perspective, the Father then threatening to take her to court if he did not get his way.  Up to this point, there was no court order or written agreement and all of the Father’s visits with A. were dependent on the Mother consenting both as to date and duration.  His parenting time according to her involved juggling his shift schedule and A.’s “routing” involving specific nap times and breastfeeding.  She testified that in the early part of 2016 that she was open to the Father having more time with A.  However, she felt all she could then offer based on A.’s then needs was three-hour visits.  This offer was very much driven by A.’s then breastfeeding and nap schedule or routine.

[22]        I should state that routines are obviously important with young children.  But so too is any child’s right to know and bond with each of his parents.  Where two parents live separate and apart, the child’s routine, in my view, must take this very important consideration into account and in the result, the routine will likely end up being different from what it would otherwise be in the event the child was raised in, for example, a single parent home where parenting time visits are not in issue.  This is not only common-sense but a settled legal principle.

[23]        On the Family Day weekend, Monday, February 8, 2016, the Mother arranged to visit her parents in Whistler and did so.  She agreed that if the Father drove up to Whistler, he could see their son A.  He did so and saw A. from 3:00 - 5:00 p.m.  He also asked the Mother for her address at the drop off stating he needed it for a guardianship application.  J. was present.  The Mother’s evidence was that the Father also said words to the effect, “I have some papers I need you to sign” and told her that they would be going to court if she did not.  She further testified that J. then stepped into the discussion when she was asking the Father about the papers saying words to the effect “he should have had a lawyer a long time ago”.  The Mother attempted to explain why it was that the Father did not then have guardianship rights seemingly on the basis A. was too young.  The Mother may also have said to J. words to the effect that she (J.) was not part of the discussion.  J. testified that she was then tired of the Mother pretending that J. was not a parent and tired of the Mother not looking her in the eyes and said so.  The temperature of the discussion was rising quickly.  At some point, no doubt when both women were frustrated and angry and according to the Father, J. said words to the effect to the Mother:  “whether you like it or not, I am A’s mom too” or possibly according to the mother:  “I am A.’s mom whether you like it or not and you’d better get used to it”.  J. when testifying recalled saying something like she was going to be as much a part of A.’s life as his father.  The Mother then in response said “easy” several times holding out her hand towards J. in a stopping gesture.  J. felt the conversation ended in a relatively amicable way and the Mother merely said she walked away after J. made her comment which I find was closer to the parents’ rendition than J.’s.

[24]        On February 10, 2016, the Mother sent a text to the Father indicating that she was going to see her lawyer after the above conversation.  It said in part:

[25]        In cross-examination she said that in February, following the above discussion, she was afraid due to his age, A. might think J. was his mother if J. called herself “mom” and in effect might be confused to the identity of his real mother.

[26]        I observe that J. did not state in the Whistler meeting that she intended to have A. call her “mom” or that she would use or wanted to use such a term with him.  Nor has she testified at trial that she has any desire to use such a term or confuse A. as to the identity of his only biological mother.  The Mother’s above February 10, 2016 text statement that A. is not “anyone else’s child besides mine” is somewhat understandable in the context of the entire email but otherwise both legally and factually incorrect.  A. is their child and properly referred to certainly in the Father’s presence as “our child”.  I noted that on quite a number of occasions at trial when testifying, the Mother described A. as “my son”.  I do certainly agree with her statement that A. is not a possession.

[27]        The Mother agreed that the Father’s next visit with A. was on March 14, about a month later.  She said she had no direct communication from the Father asking to see A. from February 10 to 28^th.  This of course was because she stipulated that there be none.

[28]        The Mother engaged Mr. Chiasson in this matter on or about February 10 who sent the Father a letter on this date by email stating in part as follows:

[29]        The Mother understood that J. had contacted her lawyer’s office on or about February 13 or 14.  The Father also contacted Mr. Chiasson possibly by telephone and certainly by email on at least four occasions, namely, February 15, 18, 24 and 25 advising of his availability and requesting access visits (Ex. 11).  He appears to have received only two responses from Mr. Chiasson:  (1) on February 11, 2016:  “I will be in the office tomorrow: and (2) on February 24, 2016:  “I will contact you tomorrow morning”.  The Father gave no evidence that such a contact occurred.

[30]        On March 1 Mr. Chiasson sent a further email to the Father marked “with prejudice” as follows:

[31]        The Mother testified that these “rules” were hers and the reason they were set out was to make it clear to the Father following February 9, that in essence matters concerning A. were to be between her and the Father only and this was to go so far as dealing with drop offs and pick-ups of A.  Rule (4) above was required because in late September 2015, she had gone to the Father’s house and found A. alone with J. as the Father had gone to Home Depot and in late October or November 2015, J. had walked A. back to her place alone without the Father who was said to be napping.  I understood her to say this was a concern to her in February and March 2016 (and there is no evidence it was an issue at the time these events occurred) as she was not asked I assume by the Father if this would be alright.  Thus her problem was not with A. being with J.  She testified she was now OK with A. being alone with J. for periods of time in excess of 30 minutes if her consent for such an arrangement was first sought and granted.

[32]        The Father testified that he agreed to all of the above rules in essence as the price he had to pay to see his son, however, this consent was given on a “without prejudice” basis.

[33]        Insofar as there exists any agreement flowing from Mr. Chiasson’s March 3, 2016 letter, it ends today and the orders that I made in these reasons supercede it.

[34]        The Mother testified that following Mr. Chiasson’s letter of March 3, 2016, she received no requests from the Father to see A. between March 1 - 14.  This is not quite correct.  The Father retained counsel Ms. Stein who wrote to Mr. Chiasson on March 7 proposing two visits and the two parents exchanged emails on March 8 and 10, 2016 concerning parenting time with A. confirming the two visits on March 11 and 14, 2016.

[35]        No reasonable explanation has been offered as to why no parenting time occurred from February 9 - 28.  It is surely not acceptable for one parent, here the Mother, to tell the other through an agent acting on her behalf to contact the agent only (and not her) to arrange parenting time but have (or permit) the agent not to do it.  That said, there is not now in the application before the Court any claim under the FLA for make-up parenting time.  The only reasonable inference I can and do draw from all the evidence in this case is that the Mother withheld parenting time from the Father, not then really acting in A.’s best interests, in an attempt to take control of the situation and I think too to make a very clear strong statement to J. as part of her so doing.

[36]        I find that J.’s comments made at the above Family Day meeting in Whistler were undiplomatic and obviously ill thought out when made and only exacerbated an already difficult situation.  I also find that the Mother’s reaction while somewhat understandable was an over reaction which unfortunately has coloured the relationship between the parents and the Mother and J. to the date of the trial.

[37]        That said, I have not over-looked some of the very positive interactions between the Mother and J. before February 8, 2016 including the exchange of the above cordial text messages, J.’s evidence that she liked the Mother and hoped they could have a good relationship, the Mother’s reaching out to J. to meet and have coffee, J. and the Father sending the Mother a gift pack following A.’s birth (and the Mother’s thankyou), the Mother giving J. maternity clothes and advice, and her attending the Father’s home to show J. how to breastfeed.

[38]        I do not intend to assign blame to anyone as to why this negative turn of events occurred after the Family Day 2016 meeting.  There can be no doubt each of the three adults must share some of it or at least responsibility for why their relationships suffered thereafter.  As well, there can be no doubt that if they could all do over the meeting, that they would all conduct themselves differently.  I deal with this issue further below.

[39]        On March 7, Ms. Stein provided the Father’s 2016 work schedule to Mr. Chiasson noting that he had earlier in September 2015 provided a copy to the Mother.  It is important that this be done annually so long as the Father is exercising parenting time with the parties’ son A.  Accordingly, I order that forthwith upon receipt of his annual work schedule or any amendments thereto, that he provide a copy of same to the Mother each year until A. is 19 years of age.  There may well come a time when A. is old enough to decide for himself with which parent he chooses to reside and/or spend time.  When this occurs, this order will no longer be in effect.  This future date will likely be before A.’s age 19 is of course now an unknown.

[40]        On March 22, 2016, Ms. Stein forwarded a proposed parenting time schedule from March 22 - September 30, 2016 to Mr. Chiasson.  It commenced with time with A. on 3 of his 4 days off – two 3 hour visits and the last a 5-hour visit – all starting at 10:00 a.m. and by September 1, a visit each day off (but no overnight visits) or 4 visits of 8 hours each from 10:00 a.m. to 6:00 p.m.  In this letter Ms. Stein noted her instructions that A. was still being breastfed and suggested that if the Mother did not have a breast pump, that the Father would buy her one to facilitate the proposed schedule.  The Mother agreed she had received this proposal and indicated that the proposal was not acceptable and would not work as it would interfere with A.’s nap times.  In April 2016, she was offering the Father for the most part 2 three-hour visits on his four days off work.  The Mother did not agree to meet to mediate parenting time issues as proposed by Ms. Stein in her above March 22 letter.

[41]        The Mother seemed to testify that by proposing 2 visits on his four days off that he was somehow achieving 50% custody of A.  She said she also understood his goal was to have A. 50% of the time.

[42]        On April 19, 2016, the Father emailed the Mother asking if he could see A. on Friday and Saturday, April 22 and 23, noting he had only seen him for a total of 24 hours in the past 38 days.  The Mother responded in part on April 20 by email that with sleep/nap and eating schedule, etc. 3 - 6 works great at this time.

[43]        On April 25, she sent a further email to the Father asking him to place a baby gate at the top of his stairs and to send her a picture (of the gate) once done and asking him to communicate with her with everything he does so she could be informed in case something happened.  A follow-up email concerning the baby gate was sent to the Father on April 27.

[44]        On May 19, 2016, Mr. Chiasson sent the Father a proposed contact schedule relating to A. for the six months May to December 2016 noting that his client was returning to work full time on June 8, 2016 and therein he makes a demand that the Father pay his share of the home caregiver the Mother intended to employ thereafter for A.  The six-month schedule provided for 3 hour visits in my understanding on some of the Father’s day off.

[45]        On June 11 the Father advised the Mother that he and J. would be getting married on August 20, 2016 and asked if A. could attend the ceremony to occur he believed on a non-scheduled day as per Mr. Chiasson’s letter of May 19.  She agreed but said if the Father’s mother or sister was to be in charge of A., that she would have to talk to them personally before they picked A. up on August 20.  A. did attend the wedding without incident.

[46]        On September 15 the Father advised the Mother that he and J. were going to hire a child care provider in the coming weeks and asked if she would like to be part of the process as A. would have future interaction with her.  On September 20 the Mother responded that she did not understand this concept, requesting more details.  She was then advised that when his spouse J. returned to work, that they would be employing a live-in caregiver for their son W.

[47]        The Mother’s response on September 23 was as follows:

[48]        On cross-examination, the Mother conceded that the term “boundaries” was not the right expression and that she really should have said they needed to work on communication.

[49]        A day earlier the Father, noting A. was then 15 months old, suggested he was at the stage where visits could be extended suggesting perhaps he and A. could spend time on 3 of his days off or she could allow for longer visits on the two days she was currently allowing him.

[50]        On cross-examination, the Mother testified in essence that increased time could not then be accommodated as it would be too disruptive.

[51]        On September 24 the Mother provided the Father with an email dealing at length with A.’s daily schedule (and particularly naps) and advising him of her consultation with an infant sleep therapist in June and her decision to strictly follow the advice given so as to ultimately achieve a goal of A. sleeping through the night and having one 3-hour nap mid-day by his age 24 months.  This email describes his bedtime routine and bedtime/nurse as “SET IN STONE”.  This email concludes as follows:

[52]        There is no evidence as to the identity of the sleep therapist the Mother consulted or that she ever invited the Father to come along and provide any input or so that he could hear first-hand what the therapist had to offer potentially with the result that he and the Mother could “get on the same page” as far as A.’s sleep requirements were concerned.

[53]        The trial in fact commenced on November 3, 2016.

[54]        The Father responded to the above lengthy email on September 24, 2016 noting that A. had according to the routine described there “mid-morning snack/social time” between 11:00 a.m. and 1:00 p.m. and wondered if he could not see A. then?  I understood the Mother in cross-examination to say that such a visit would be disruptive and she did not want him being shuffled back and forth with the Father over lunch time.  My understanding of the Father’s parenting time while the trial was ongoing was that it continued to be on 2 of his 4 days off for 3 hours duration each visit with the drop offs and pick-ups occurring at the Mother’s apartment.

[55]        Before turning to the parties’ parenting time and parenting orders proposals, I want to summarize the evidence led by both the Father and Mother with respect to the following matters:

[56]        The Mother currently works as a sole proprietor with one employee in her own small business in Squamish.  Currently, her work hours on her 4 main working days, which historically have been the most lucrative, are as follows:

[57]        In November 2016, she had been in business less than one year.

[58]        She takes every Sunday and Monday off.  In her business, these days are typically not busy based on her lengthy 19 years’ experience doing her work involving for the most part providing services at appointed times.  On Mondays, she goes to the bank.  In my view, her business is one where over time, customers would build a personal relationship with her and want her over another person who might perform the same service.  The Mother agreed with his assessment in her direct evidence.

[59]        On Tuesday, she works from home doing bookkeeping or like work and banking and her employee works this day, possibly only in the evening and as well, Wednesday evenings and some Saturdays.  The Mother comes home on some work days for lunch and at times to breastfeed A.  On some days her mother brings A. to her place of business and she will breastfeed him there.  As I understood her direct evidence, if A. is awake over her 2 hour lunch break between approximately 10:30 a.m. - 12:30 p.m., that without exception on her work days she will come home for lunch and breastfeed A.  If he is not awake, she does not come home and may go to the bank and take on extra work during her lunch break.  In November 2016, A. was napping twice a day; once in the morning and once in the afternoon.  She thought that by A.’s age 25 or 26 months at the end of the summer, he would move to one nap a day and said she had no problem with his napping at his father’s home once this occurred and with the Father then having longer parenting time visits from say 9:00 a.m. to 6:00 p.m. on 2 of his 4 days off.  She also testified that on and after September 1, 2017, she would have no problem with a third party picking A. up for parenting time visits including J.  She has also said she is OK with her own mother S.N. being involved with A.’s transfers or transitions on parenting time visits, but prefers to be present herself as she and the Father can then share information about A.

[60]        She is opposed to A. now having for example one of his 2 daily naps at his father’s residence as he might not sleep properly.  This was her main concern.  If he did not, her schedule would be messed up.  On a related point, she did not feel A. would be ready for overnight visits until he was age 3 (in July 2018) and felt one a week would be sufficient.

[61]        The Mother returned to work after her maternity leave in June 2016 and pays herself $2,400.00 a month and from this, $1,050.00 per month to her mother for child care.  She was not able to estimate what income her business would generate in 2016.  She did not file at trial and may not keep monthly income and expense statements and my impression is that the clearest picture of her income as a sole proprietor will emerge in her 2016 tax return when filed which should have a completed schedule of business income earned from June 1, 2016 to December 31, 2016 together with E.I. particulars and as well, possibly particulars of any income she earned working out of her home in 2016 before opening her business.  I also agree that for purposes of this litigation, it will be important that the Mother confirm what her tips have been in 2016 and what percentage have been included in her gross business income calculation on her 2016 tax return.

[62]        I have reviewed 3 Notices of Assessment filed by the Mother as part of her two financial statements sworn on March 7 and September 27, 2016 for the tax years 2014, 2013, and 2012.  They are of limited assistance in my view in this case because during some of this time, the Mother was working for her mother in a business in Whistler, something she is not now doing.  She has provided her 2015 Notice of Assessment disclosing total income (line 150) of $26,166.00, but no tax return.

[63]        Her March financial statement lists employment income of $10,000.00, other income of $600.00, EI of $7,800.00, and net self-employment income of $17,500.00 for a total of $35,900.00 which is what she then asserted she expected her income to be in 2016.  In September, her financial statement listed other employment income of $600.00, EI of $8,970.00, and net business income of $16,800.00 for a total estimated 2016 income to be $26,370.00.

[64]        There is some evidence the Mother has done work for other services, for example, doing $300.00 work for a woman free of charge in return for free doula services.  There is no evidence this is a material part of her current business.

[65]        He works as a police constable having joined his force April 29, 2009.  He works four shifts described as Bravo, Charlie, Delta, and Echo which require him to start work at 7:00 a.m., 2:00 p.m., 4:00 p.m., and 7:00 p.m. respectively.  All shifts are 11 hours in duration save Delta which is a 12-hour shift.  He testified that he could be home in Squamish at the end of each shift which is 6:00 p.m., 1:00 a.m., 4:00 a.m., and 6:00 a.m. for the above four shifts which he always works in the above order, namely, four Bravo shifts, then four days off, four Charlie shifts and four days off and so on until his four Echo shifts (and four days off) are done when his rotation then starts again with four Bravo shifts.  He really has little time to see A. on a Bravo shift as he is working from 7:00 a.m. to 6:00 p.m. not including shift start travel time.

[66]        After a Charlie shift (2:00 p.m. - 1:00 a.m.), he sleeps until 8:00 a.m. and leaves for work around 1:00 p.m.  He thus has a 5-hour window on this work day to potentially have parenting time with A.

[67]        After a Delta shift (4:00 p.m. - 4:00 a.m.), he testified variously that he slept 10:00 a.m. to noon and left for work around 2:00 p.m.  He suggested on this shift he had a 4-hour window to see A., however this would only be correct if he arose at 10:00 a.m.

[68]        After an Echo shift (7:00 p.m. - 6:00 a.m.), he sleeps to between 11:00 a.m. to noon and leaves for work at 5:00 p.m.  Thus he has a 5-hour window of time available to potentially see A. on days he works this shift.

[69]        His 2017 shifts are referred to on Ex. 1, tab 5.  He is one team 3 and thus the colour code that applies (and is needed to read his schedule) is as follows:

[70]        He testified that he needed to sleep in after four straight days of Charlie and Echo shifts ending at 1:00 a.m. and 6:00 a.m. respectively.

[71]        His available time thus to see his son at parenting time visits is comprised of two parts:  (a) his four days off (and his holidays) and (b) the above potential times on work days after he gets up and before he goes to work.

[72]        As I understand the evidence in this case, he has not seen A. for the most part on any of his working days.  If this regime were to continue (and assuming he were to see him on the fourth day of an off work shift), A. would not again see his father for potentially a minimum of four days and possibly longer.

[73]        A suggestion was made in cross-examination that he had not offered to go to the Mother’s home to take A. out for a walk in a park during his awake time in the morning – this awake time being defined by the Mother’s current routine.  He said he had not offered to do so thus far.

[74]        In my view, wherever possible, a guardian parent exercising parenting time with a young child should be able to reasonably determine where and with whom he and the child spend the parenting time without any control or direction from the other guardian.

[75]        One of the challenges both parents in this case face, as do I, is attempting to work around two parental schedules and the Mother’s currently mandated routine for A. in setting parenting time that would be in A.’s best interests and which would allow him to have a good relationship with each parent and bond with each, which is a most important right that A. has as part and parcel to his parenting time right.  It must be remembered that at the moment, the Father must work these shifts so as to earn income from which to pay child support.  So too must the Mother work to support both herself and A.

[76]        He testified that his current salary at trial in November 2016 was $92,000.00 and that he anticipated working one only mandatory overtime shift in the summer of 2017, but did not explain what his additional income would be for such a shift.  He provided a letter from the payroll department of his force (May 2, 2016) indicating that his gross biweekly pay was $3,532.80 or $91,852.80 per year.  His 2014 and 2015 CRA Notices of Assessment disclose the following:

[77]        His financial statement sworn on May 4, 2016 states his anticipated income in 2016 will be $92,964.62, being the total of the amounts on his 2015 T4 slip ($91,933.97) plus interest and other investment income of $1,030.55.  His December 29, 2016 financial statement estimates his 2016 income to be $104,671.41.  This includes net rental income of $4,048.66 and gross rental income of $7,500.00.  I had understood the basement suite in his home was to be rented from March 1, 2016 onward or 10 months to year end for $15,000.00 and I therefore assume the gross rent figure is 50% of the total gross rent as he is a one-half owner of the residence in question.

[78]        He acquired the home in which he now resides in early December 2015.  After purchase, he created a non-legal suite in the basement incurring approximately $7,000.00 of construction related costs.  He commenced renting this suite in March 2015.  The monthly rent generated is $1,500.00.  His 2016 tax return must be filed by April 30 this year and will disclose a schedule of rental income.

[79]        I order that a copy of this tax return when filed be forthwith provided to the Mother and not later than May 15, 2016 together with all notices of assessment and reassessment he receives for 2016 from Canada Revenue Agency forthwith on receipt of same.  This will be a reciprocal order and the Mother will do likewise in 2016.  This usual order will continue each and every year with each parent making the above disclosure to the other so long as A. remains a child under the FLA and either party pays or contributes to child support for A.

[80]        J. is 33 years of age.  She commenced living with the Father in January 2015.  In April 2012, she obtained full-time employment with a police force and is on one of four teams of officers or “watches” and works as does the father 4 shifts or days on and then has 4 days off.  Each four day working block of time involves her doing 2 day and 2 night shifts.  The day shifts typically commence at 6:00 a.m. or 7:00 a.m. and end 11.5 hours later at 5:30 or 6:30 p.m.  The night shifts are 11 hours in length can start variously at 4, 5, 6 or 7:00 p.m.  She too has her schedule for 2017 and testified that every work week (or block of 4 shifts) would be identical but on November 7, 2016 when she testified, she had not yet been assigned to a shift for 2017.  Nonetheless, she said that there was some overlap in her and the Father’s shifts and that in an 8-day cycle they would typically have 3 days off together and there are as well 3 days when they will both have work shifts scheduled and I was not told these shifts would necessarily be similar to one another.

[81]        Following W.’s birth on [redacted], she was off work on maternity leave and returned to full time work on January 4, 2017.  The nanny S. was hired to assist with W. primarily on days when both parents were working and her principal assigned duty was and is to insure that W. and if helping at all with A., are safe.  She testified that she did not foresee S. providing child care assistance when she or the Father were off work at home.  S. would in essence not be paid on these days.  J. did not foresee S. helping with looking after the two boys A. and W. on her own in the near future.

[82]        She agreed that she did not now care for A. alone (I expect due to the rules the Mother asked Mr. Chiasson to set out in his March 22, 2016 letter), but admitted perhaps A. had been with her for five minutes when the Father was not present.  In my view, it is frankly both unrealistic and unreasonable to imagine that A. will not be alone with J. in future even if the Father is off shift and at home.  If he cuts a lawn, washes a car, paints a bedroom or does any other domestic chore, surely if A. is on hand and up, he most likely would be supervised by some other adult.  That is simply the way of things.  And it is no answer to have only short visits and expect on every one the Father’s sole, exclusive and only focus will be on A.

[83]        J. testified that on visits A. and his half-brother W. do interact with one another and were learning to discover each other.  On one occasion in January 2016, she and/or the Father took a video of the two little boys interacting with one another and somehow shared it with the Mother.  To some extent they now play together and J. felt they were learning to be brothers.  This in my view is a very important relationship to be both encouraged and fostered by both parents and J.  It is a truism that long after the parents and J. are gone, A. and W. will remain half-brothers one would hope sharing a strong filial bond.

[84]        J. testified that her hope for the Father’s relationship with A. was that they develop a father/son bond and that A. learns from his father and that the two share things that fathers and sons do together.  She hoped that A. would have the same relationship with the Father as W. did.  She described the Father’s relationship with A. from her observations.  He was always engaged with A, was calm and sensitive to his needs, loved him, and was really proud of his relationship with A. which he really valued.  The evidence of the independent neighbour witnesses called on the Father’s behalf at trial fully corroborated this testimony given by J.

[85]        Lastly, J. testified about the Mother.  She described her as a great mother and person.  Sadly initially in cross-examination the Mother when asked about this testimony and whether it changed anything in her current view of J., said that before February 2016 when she alleged J. had said to her:  “I’m A.’s mom” and that the Mother needed to get over it (words to this effect), that she would have believed this statement J. made.  After, she was confused and needed more time to get over her feelings.  Very positively, however, she testified that she accepted that J. was now part of the equation and believed that J. meant what she said.  But still her gut told her to be cautious, that there was something she still did not trust (I understood about J.) after the above comments.  J. described their early relationship in quite positive terms.  She said when she first met the Mother, she was quite surprised at how friendly she was.  She testified I find with some sensitivity that when she first met the Mother, she expected it was an emotional experience for her, but not that she would be angry but that it would be upsetting for her to meet her former partner’s new partner.

[86]        Currently she said their relationship almost does not exist and it seemed the Mother neither liked her nor wanted her around and she felt most of the time to be alienated from the whole situation.  She could not understand why the Mother seemed to insist that she not refer to herself as A.’s step-mom (or words to this effect) when that was her role and in essence, our society would understand her to be such.  On this point I understand that while J. thinks of herself as such (and was never asked by Mr. Chiasson at trial to explain just what this term meant to her) she would never refer to herself as A.’s mom, has agreed not to use the terms “step-mom or step-mother” in A.’s presence and understands and believes she has no parenting or other rights over A.  J. expressed concern that the Mother mostly now ignored her and turns away from her when she is present.  She believes, as do I, that there has been a lot of misunderstanding that had developed from a few things she had said in the Mother’s presence.  She was still hopeful that she and the Mother could develop a good relationship.  In my view, this is a central and material core issue in this case and one that absolutely must be if not resolved, greatly improved upon and at the earliest possible date if all adults in this matter are truly interested in acting in A.’s best interests.  I will have more to say on this crucial issue below.

[87]        The Mother testified that A. awakens between 5:30 and 6:00 a.m.  Her mother S.N. said he awoke at 6:30 a.m.  She then nurses him.  He plays and has some toast.  S.N. said the Mother nursed him at 7:45 a.m. just before she left for work.  The evidence is unclear as to whether A. is now nursed once or twice on a work day by the Mother before she leaves for work.  My sense is once only.

[88]        She leaves for work at about 8:00 a.m.

[89]        S.N. said A. napped for 2 to 3 hours from 8:30 a.m. onward awakening between 10:30 and 11:00 a.m.

[90]        She dresses him and gives him a mid-morning snack which takes about 20 minutes.

[91]        S.N. described the hour from 11:30 a.m. to 12:30 p.m. as A.’s active or playtime before lunch at 12:30 p.m.

[92]        Sometimes S.N. took him for a walk or to the library in this active time.  Sometimes S.H. takes A. to the Mother’s shop where she nurses him.  Sometimes the Mother came home and nursed A. at home.

[93]        The Mother testified that If A. was awake, she came home for lunch and fed him.  I understood her to say this occurred without exception, however, there seemingly would be an exception if S.N. brought A. to her shop.

[94]        The Mother’s time off work on a work day is two hours between 10:30 a.m. and 12:30 p.m. when she returns to work.

[95]        After A.’s lunch at 12:30, he has a quiet time and a nap generally from 1:00 p.m. to 3:00 p.m.  From 3:00 p.m. to 6:00 p.m. is said to be A.’s best time and this is when the Father comes and picks him up for parenting time visits, however, only on 2 of his 4 days off said by the Mother to be 50% of his days’ off.

[96]        The Mother said if A. sleeps past 3:00 p.m., the parenting time visits (and pick-ups at her apartment) start later.

[97]        S.N. said dinner is usually at 5:00 to 5:30 p.m.  At 6:00 p.m., the “set in stone” bedtime routine commences.

[98]        The Mother testified that mostly when A. returned from his visits with his dad, he settled easily.  She liked to have 45 minutes to put him down.  I understood S.N. helped with this regime as well.  The Mother nursed A. before he went to bed at 7:00 p.m.

[99]        Both the Mother and S.N. said that in November 2016 A. was still awakening at night.

[100]     On Thursdays and Fridays (the Mother’s two 12-hour days) she testified that after putting A. down, she typically returned to work at 7:15 p.m. and saw one or two more clients and typically came home no later than 9:00 p.m.

[101]     The Mother testified about these 2 long work days, Thursday and Friday, when describing her proposed parenting time schedule (Ex. 9) which I shall come to.  These long days were days when her services were in demand and she said she could and had to generate as much income as she could on these days without interruptions, save for lunch and going home to breastfeed A.  She said on these 2 days A. was not available to spend parenting time with his father due to her schedule.  I confess I did not when I first heard this evidence apprehend the logic behind it and do not now.  Clearly on Ex. 9 no Thursdays or Fridays are offered for visits whether or not the Father has the time off work.  Later in her direct evidence, when she was explaining that it would in her opinion be OK for the Father to see A. for 9 hours at a stretch (if A. was napping only once a day), she seemed to say that then it would likewise be OK for the Father to have such visits on Thursdays and Fridays but with a precondition.  The precondition was that he would contribute to the full amount of her child-care costs ($1,050.00 a month) and not seek to reduce it (I understood on the above basis that S.N. was not needed on his days off) – because her mother had hired someone to work for her in Whistler and needed a certain amount of money – her cost being said to be $60.00 a day.

[102]     I do not understand why in the Mother’s view at this time Thursdays and Fridays are not available days to set parenting time visits, but they would be at the end of this summer.

[103]     There is no evidence the Father was consulted by the Mother when the above routine was being put in place or asked to provide any input.

[104]     The Mother testified that at some point prior to her return to work in June 2016, she told the Father that her own mother S.N. would be providing child care for A.  She called her mother to testify.

[105]     S.N. described herself as a salon administrator, part-owner of a Whistler salon, and daycare provider.  A. is her only client.  Her service is provided thru “(omitted) Mobile daycare”.  She helped out as many mothers do following A.’s birth.  The Mother needed local Squamish daycare and did not want A. cared for outside her home so her mother S.N. agreed to drive down from Whistler and stay with her and A. from Wednesday morning departing Saturday afternoon.  I understand that S.N. provided a similar service to her other daughter also a single mother for approximately one year.

[106]     S.N. charges $1,050.00 per month which is said to be the subsidized rate in Squamish for 4 days care.  Each month commencing in June 2016, she submits an invoice to the Mother and it is paid by the Mother with thus far no contribution from the Father.  He testified that he had been asked to contribute but had not done so because he was at home on many days that S.N. provided such care and could have done so free of charge.  He agreed that daycare was needed for A. when both he and the Mother were working.  He also testified that the Mother had not suggested he provide child care for A. on his days off and that he had not discussed this idea with either the Mother or S.N.  Ms. Stein however commented on this issue in her letter of June 6, 2015 to Mr. Chiasson as follows:

[107]     On occasion when A. awakens in the night, S.N. has assisted and would “get up with him” so the Mother could sleep.  S.N. did not clarify exactly what she did to assist in getting A. back to sleep but did say more recently as I understood her evidence, A. is not normally fed in the middle of the night but will nurse with the Mother if distressed.  Their current goal is to try to get A. to sleep through the night.  In addition, they have a second goal:  A. will have one nap only during the day from 11:00 a.m. to 2:00 p.m. and she guessed this could be achieved in 3 to 6 months from November 14, 2016, the date she testified at trial.  She guessed based on her experience having had two daughters that as he got older, say age 3 to 4, A. would forego this single nap altogether.  That was a third goal.

[108]     In order to provide this daycare 4 days a week, S.N. testified that she had to hire a woman to work in her salon Wednesday to Saturday to do her front and reception job and that she pays her $14.00 an hour; she did not say for how many hours.

[109]     It is not clear that this woman hired to do apparently reception duties only at an hourly rate on 5 days from Tuesday to Saturday is a full-time employee of S.N.’s salon.  S.N. did testify that this woman was not salaried and suggested she paid her for the 6 to 8 hours she gave up in her own business to care for A. and that based on her 16 years’ experience working in Whistler, if you want to keep someone to work for you, you need to hire them full-time.

[110]     In cross-examination, S.N. explained that she worked all day Monday at her business, worked in the office and at home on Tuesdays, and did payroll every second Saturday. 

[111]     I note there was no evidence offered by S.N. or the Mother as to the hours this above employee worked from Tuesday to Saturday, what she did, what she was paid and whether or not she was prepared to work fewer or different hours if S.N. spent less time in Squamish caring for A.  There is no evidence as to what revenue if any this employee brings into the business.  There is no evidence what S.N. paid (or earned) had she worked in the business Tuesday to Saturday.  Thus I am in no position to attempt to calculate what S.N.’s actual cost is in providing daycare for her grandson A. from Wednesday to Saturday either in terms of the real cost to her of her employee or income foregone by her in not being in her salon working these days.

[112]     Nor is there any evidence as to the implications of orders I might make on A.’s daycare requirements and costs.  For example, if he was to be with his father for a day S.N. now cares for him, would S.N. then work in Whistler?  Would she charge her daughter less than $1,050.00?  Are other daycare providers available in Squamish?  Would they work in the Mother’s home and on what basis at what cost?  This point was touched upon by Master Baker in Vargas, 2007 BCSC 679, at para. 26 and 27.

[113]     S.N. testified that from her observations, A. needed a lot of sleep during the day.  She expressed a concern that if A. were not to forego daily naps that he could be irritable and it might affect his sleep at night.

[114]     She said that on two occasions when her daughter (the Mother) was at work, the Father had obtained A. from her and that he was pleasant.  She said she would be prepared to assist on transfers of A. to the Father in future.  She did not say she would not do so with J. or some other responsible adult.  Other than this, she said she really had no relationship with the Father.  Feeling that the Father had abandoned her pregnant daughter and feeling a lot of angst over the situation, she wrote to the Father’s mother H. in December 2015 and eventually she and her husband met the Father’s parents in Squamish.

[115]     S.N. testified concerning her observations of A.’s “dairy sensitivity”.  A. does not eat milk, cheese or formula.  Her youngest daughter was affected by the same condition.  S.N. testified that it is usually outgrown by age 4 based on her own experience as a mother of a child with this condition.  She suggested that if A. ate dairy products, it resulted in symptoms of a drippy nose, congestion, and resultant stomach gas and pain.  On one evening in January 2016, her daughter spent a night in a local hotel and was away from A. approximately 12 hours.  She tried to give A. some formula at some point and said he got a stomach upset.  She and the Mother had tried several times to administer formula to A. without success.  They have as well tried but not for very long goat’s milk, soy and coconut milk, all of which cause A. to gag which she described as a fearful thing.

[116]     She gave some hearsay evidence that A.’s doctor (also W.’s doctor) had recommended that they keep A. on breast milk due to his sensitivity to dairy products.  A. has not to her knowledge been diagnosed with any specific condition, e.g., an allergy, causing his sensitivity to dairy products.

[117]     The Mother said she had tried what she called met milk and a product called “isomilk” with A., both apparently without success.  This was in December 2015 or January 2016.  She does not eat dairy products I believe on the advice of her doctor who is a strict vegetarian.  The Mother testified that A.’s doctor wondered why she was trying these products when they lacked fat and said breast milk was the best thing for A. to his age 2 as it was good for his brain development.

[118]     This is very substantially hearsay evidence.

[119]     Generally S.N.’s evidence was that the Mother in November 2016 breastfed A. once or twice in the morning before leaving for work, once around noon when the Mother came home from work or she walked with A. to her place of business, and once before bedtime at 7:00 p.m.  A. nurses for 20 to 25 minutes in total each time.

[120]     The Father testified that while he had not discussed A.’s reaction to dairy products with the Mother, that she had told him that he could not eat dairy and if he did, that he would have a severe reaction so they do not feed him such products including the formula that they might be giving W.

[121]     The Father said that he understands that the Mother’s main reason for limiting his visits with A. to only three hours is her need to breastfeed him.  He testified that she had never given him another reason.  He said that they had asked the Mother to use a breast pump so as to express her own milk.  He felt she had either not responded to this request or rejected it; he could not recall why.  He said that he was prepared to feed A. his mother’s expressed breastmilk or that on his days off if he had A. in his care, she could come to him to breastfeed A. as necessary or he would go to her.  I note that all adults involved with A.’s care drive and that the Mother has a 2-hour lunch available to her on her work days and now regularly attends at her own home to breastfeed A. or does so in her shop.  On January 16, 2016 when A was 6½ months of age, she in texting the Father she assumed from her apartment advised she would be at his residence (where he now lives) to pick up A. in 5 minutes.  The Father had then been caring for A. while she attended a yoga event.  Thus I conclude if A.’s breastfeeding at the Father’s residence was to occur in future, it would not be a long trip for the Mother to make nor would a trip from his residence to her business.

[122]     Finally, the Father testified that the Mother had told him she intended to breastfeed A. to his age 3 years, but gave no reason as to why she wished to do this.  He had not been told this date had anything to do with A.’s difficulties with dairy products.

[123]     I should mention that the Father submitted various photographs of his home and I find it is a perfectly acceptable place for him to exercise any parenting time of any duration.  I was impressed with his own evidence and the evidence of his neighbours as to the child-friendly ambiance of the residential environment where he lives in Squamish.

[124]     The Mother has helpfully prepared a proposal for the months of January to December 2017 based on her understanding of the Father’s days off work as per Ex. 1, tab 6 earlier provided to her.  It includes parenting time only on his days off and on its face, makes no offer of time on special days, e.g., Father’s Day or on extended holiday – in this latter case because the mother is now of the view that it is too soon for the Father to have overnight visits.

[125]     Using the month of March 2017 as an example and based on the Mother’s evidence, she believes it would now be in A.’s best interests to see his father on 8 separate occasions for 3 hour visits each to be between 3:00 p.m. and 6:00 p.m.  A. will be 20 months old on March 1, 2017.  Thus he would see his dad in March on his days off (but not on Thursdays or Fridays this month or in any other month in the entire year (2017)) – for 24 hours in total including his travel time to and from the pick-ups and drop offs at the Mother’s residence in Squamish.  March and September have the fewest proposed visits.  The average number of visits offered from May 1 to December 31, 2017 is 10.6 visits per month or 31.8 hours of parenting time per month.

[126]     The Mother said she would be available to do pick-ups and drop offs with the Father on all Sundays through to Wednesdays and Saturdays, but not Thursdays and Fridays.  Part of her proposal included her expressed need for child care each Wednesday to Saturday inclusive.

[127]     Based on all evidence in this case and particularly that of the Mother, I think it fair to say that this proposal is based on the following assumptions or beliefs on her part:

[128]     The orders she seeks incorporate Ex. 9 discussed above (parenting time) and are as follows:

[129]     I have carefully reviewed all of the Mother’s closing written submissions and indeed the Father’s counsel’s reply thereto.

[130]     I do not intend to comment on very many of them.  None are supported with case law nor any useful extracts from helpful articles such as those referenced in the Father’s submissions.  The Mother through counsel does not take issue with any of the important early childhood development concepts or principles set out therein.  Nor does Mr. Chiasson objects to my considering them.  So I will assume she agrees with all of them.

[131]     Mr. Chiasson (at p. 2) asserts that the Father has allowed/encouraged his spouse J. to assert her title as being “A.’s mom” and “step-mom” directly to the Mother in their various discussions.  This is as I have said a huge issue for the Mother and one that needs to be overcome and put behind her sooner rather than later.  I agree that J. denied ever referring to herself as A.’s mom and that the Father was not cross-examined on this point.

[132]     Mr. Chiasson submits (p. 6) that J. confronted the Mother stating that she should get used to the idea that J. was A.’s mother also.  I agree that J.’s evidence was that when she interjected in the parenting day meeting at Whistler on February 8, 2016 trying to clarify what the guardianship application was all about – and was told by the Mother that she was not part of it, J. then responded with words to the effect that she was tired of the Mother ignoring her and pretending that she was not part of things.  J. is of course very much part of things simply because she is the Father’s wife and lives with him daily.

[133]     Simply put, the Father’s proposal is to see his son A. as often as he can as soon as possible both during his days off and for overnight visits as often as he can.

[134]     He described himself as a loving, caring individual and a father wanting to have a great influence on A. as he grows up.  His aspirations for A. include his growing up knowing his dad is there for him, sharing milestones with his dad, and generally being a good example for him.  He testified that he thought it important to see A. often when A. was young to permit him to bond with his father so he could “solidify these aspirations”.  I will assume for purposes of these reasons that the Mother has similar aspirations to the Father.  Both are clearly good, competent, and responsible citizens and love A. very much and despite their differences, each wants what is best for him.  There is no evidence in this case to suggest otherwise.  They merely differ as to what would be in his best interests.

[135]     His plan is set out in Exhibit 4 covering the months of November 2016 to May 2017.  Very generally, his proposal sets out more monthly visits each month in turn.  By my calculation, he proposes 40 visits in the three months March to May 2017; whereas the Mother’s plan amounts to 29 with no overnights; whereas his includes 11 overnights by my count with the first one to have started on Thursday, January 12, 2017, but on the assumption I think when the proposal was created that a “ramping up” period would have been completed in most of November and all of December 2016.  This did not occur owing to the delay following the trial in counsel providing helpful written submissions and my drafting these reasons.  Thus I have in these reasons focussed on March 2017 as the month where if there are to be changes, they would start then.

[136]     The Father’s proposal has visits occurring on Thursday and Friday – the Mother’s long work days, a few morning visits (from 8:00 a.m. to 12:30 p.m.) and as well some longer visits (8:00 a.m. - 6:00 p.m.) and some afternoon visits (12:00 p.m. - 6:00 p.m.).  I understand that this proposal takes into account both his days off in 2017 and shift start times when working as set out above and his requirement for sleep after night or graveyard shifts.

[137]     The assumptions upon which his proposal is based as I understand his evidence are:

[138]     Ms. Stein notes that Dr. Kelly’s work has been quoted with approval in at least these cases:

[139]     This need to bond is referred to by Baker J. in reasons dealing with an interim application in Usova v. Harrison, 2009 BCSC 1640, a case involving a firefighter working 4 days on/4 days off and his 18-month old daughter in para. 63 as follows:

[140]     When this case later went to trial in front of Allan J., 2010 BCSC 723, this experienced judge had a similar point of view to that above of Baker J. in para. 36 of her reasons before concluding that at age 2, overnight visits between the father (a firefighter) and his daughter should immediately commence:

[141]     Simply put, the submission made by Ms. Stein on behalf of the applicant Father is that considering only A.’s best interests, including all the s. 37 FLA factors (and I have done so for purposes of these reasons and consider those set out in s. 37 (a), (c), (e), and (f) to be the most important in this case) that he should have expanded parenting time with his father.  Dealing with s. 37(c) of the FLA:  “the nature and strength of A.’s relationship with significant persons in his life” – she asserts that the Father has been and is such a person and refers at para. 25 of her submission to an article by Dr. G. Knier, “The Importance of Fathers”, wherein she summarizes research on the role that fathers play in their children’s lives as follows:

[142]     Ms. Stein further submits that pursuant to s. 37(e) of the FLA, A.’s need for stability, that this in fact requires an order that insures A.’s need to have frequent contact with both parents without long absences in between.  She again refers to Dr. Kelly’s above article found in the Family and Conciliation Courts Review, Vol. 38, No. 3, July 2000, at para. 306-66 as follows:

[143]     Ms. Stein made the following important submissions as part of her closing argument dealing with parenting time and sharing of parenting responsibilities:

[144]     I agree with this submission.  Parenting time (contrary to the Mother’s assertion in February 2016) is not a privilege which the Father can exercise, nor one that the custodial parent, here the Mother, can grant or provide or not to him as she sees fit.  Rather it is a right of the child and one which the custodial parent here should both promote and facilitate in her child’s best interests.

[145]     Ms. Stein goes on to say:

[146]     I agree with these latter submissions.

[147]     The Father’s position on parenting orders and parenting time is succinctly set out by Ms. Stein as follows:

[148]     I have above identified one issue with respect to item 3 and Ex. 4 being the interim parenting time schedule.  There has thus far been no “ramping up” period which is not uncommon in cases of young children where increased parenting time is sought and granted including overnight visits.

[149]     As to item 3, the Father also proposes that special days or “Important Parenting Days” during the year be shared as per Ex. 10 herein.  I will return to this below.

[150]     Firstly, I make the joint guardianship order consented to by both parties.  The terms of this order will be as set out by Allan J. in Usova v. Harrison, 2010 BCSC 723, at para. 45, with all necessary changes save clause (e) shall be replaced with an order that:

[151]     I also order that the parental responsibilities referred to in Section 41 of the FLA will be shared equally by the parents.  I make a further related order:

[152]     Having considered only the best interests of A. and all the evidence presented at trial and accepting as I do that the Father has a sincere interest in being an important influence in his son’s life and a true father in every sense of this word both now and in future, I make the following parenting time orders to commence Monday, March 6, 2017:

[153]     I should state that I am not all convinced that the Mother has made a current concerted effort to express her own breast milk so that on a parenting time visit, a quantity of same could be provided to the Father for A. to ingest while in his care.  I also note there is no expert evidence or any non-hearsay evidence that (a) it is now in A.’s best interests to continue to be breastfed (and I also note he is well past the age when most small children are weaned) or (b) that there is now no non-dairy supplement sold in B.C. that would be suitable for A.’s consumption.  I make the following order:

[154]     So there is no misunderstanding on this point by this last order, I mean simply that if the parents agree that A. should be breastfed, and the Father for example takes him to the Mother to do so and the whole experience takes 35 minutes, these 35 minutes is to be added to his parenting time with his son.

[155]     I make the following additional or “important parenting day” orders (as per Ex. 9) on the understanding that these will supersede the above orders only as necessary to give them full effect.  Thus if Mother’s Day was to fall on a day when the Father had parenting time with A. pursuant to the above orders, A. would be with his mother all day and overnight.  If A. was otherwise with his father for parenting time for the duration of the special visit, no change would be required.

[156]     As to Christmas, the parents do not agree as to when A. should be with each parent.  For cultural reasons, December 24 is important to the Mother, however, I understood the Father to say that Christmas Eve had some significance to him as well due to his German background, a dinner on Christmas Eve being part of it.  In my view, Christmas should be shared on the same basis by each parent in alternating years.  Hence, I order:

[157]     I am not of the view that A.’s travel with either parent should in any way be restricted.  It is nonsense in my view for either to have to ask the other if he or she can take A. outside Squamish, for example, to see a parent in Whistler or on Vancouver Island.  The only possible basis for the order sought by the Mother that the Father was not to travel outside of Squamish without her consent is, in my view, to seek a form of unwarranted control over the Father.  There is no evidence that he or his current spouse are other than capable, competent parents as is the case with the Mother.  There is no evidence that he has threatened to move with A. to some far-away place.  I do not now propose even to make an order that each parent advise the other of all travel plans they have outside Squamish.  But I think it would be a very good and polite thing to do.  This is an area of joint parenting where the old adage applies:  “What is good for the goose is good for the gander”.  If there is any difficulty on this front in future, I would be minded to make an order to enforce simple politeness and indeed the “Golden Rule”.

[158]     As to transitioning A. to the Father, I have said above that in my view the Mother over-reacted to what J. said on Family Day 2016 and as well, that perhaps J. might have both acted differently and used different words.  It is very much in A.’s best interests big time that these two women get along and get back to where they once were before February 8, 2016 as soon as possible.

[159]     A. will be spending time in the presence of both women.  The Mother is deluding herself if she thinks J. will not be providing some measure of care for A. going forward just as would occur in the event the Mother re-partnered in future.  The Father’s current reality is that J. is very much part of his life and rather than remaining estranged and untrusting of one another, surely it is best for A. for both the Mother and J. to be on the same page so to speak as to what he needs and enjoys as a little boy.  The Mother and J. now need to reconcile.  Perhaps shortly after they receive these Reasons the two could meet for coffee.  Perhaps this meeting could commence with a sincere apology from each to the other for her part in causing the current state of affairs to be followed with a commitment from each to always try to do what is best for A.  No judge can tell two adult women how they should conduct themselves especially where one is not a party to the litigation.  If the above suggestion won’t fly, perhaps the two can agree to be involved in counselling to help out in the now much needed process.

[160]     I accept the Mother’s counsel’s closing submission that she would be amenable to counselling with both the Father and J. as a very positive and constructive commitment made on her part in good faith.  I am now hopeful that without a court order, the parents and J. will undertake such counselling as they believe will facilitate resolving any of their issues.  In my view, for counselling to be effective, all parties to be involved must want it, consent to it, and agree to do it in good faith and give it their best shot so to speak.  I do not reject the idea of making an order in future as necessary on point.

[161]     I come back to transfers.  I order that they will all occur at the Mother’s residence unless the parties agree in writing otherwise.  I can envision that they might also occur at her place of business, in a public place, or even at the Father’s residence when the Mother or S.N. attends.  I order that the Mother need not be present at transfers and that A. can be transferred to or from among others, S.N. as well or to or from the Father or J.  I do not require the Father (as proposed by the Mother) to be present at all transfers after April 1, 2017.  J. is a police officer and mother of a young child.  She is an entirely suitable adult to pick up or drop off A. and capable of being given or giving a current report as to his needs by or to or to the Mother or S.N.  I do however order that all transfers of A. be to the Father alone only in March 2017.  J. and the Mother thus will have one month to work out their issues.  I hope it will not take that long to do so.  I thus order that commencing on April 1, A. therefore can be transferred by the Mother, S.N. or any other adult chosen by the Mother, e.g., her dad to either the Father, or J. or the two of them together or either of the Father’s parents.  I trust the Father will take some care and use his common-sense after April 1 not to orchestrate a transfer scenario of the kind the Mother said she found threatening historically.  To be abundantly clear on this point the Mother will nominate who provides A. at the start of any Father’s parenting time visit and receives him at the end, but solely the Father will nominate who will receive A. and return him at the end of the visit.  For now, his nominees are himself and/or J. or one or both of his parents.

[162]     I decline to make the order sought that A.’s care is not to be transferred to a third party in excess of 30 minutes and that the Mother is to be informed of this before it is to occur on any basis.  Again this is really a form of unwarranted control that the Mother for reasons not really articulated at trial seemingly wants over A. or the Father or J.  I am of the opinion that as competent capable parents when A. is in the care of either, he or she can and will make safe proper decisions as to how A. is cared for.  As necessary, this issue can be addressed on a review.  Thereat I would likely, if an order is called for, make it a mutual one, fully reciprocal for each of A.’s parents.

[163]     I decline to make the order sought that J. will not use the term “mom” or “step-mom” in the presence of A. as she is not a party to the action.  I suspect in any event, knowing what she now knows, J. will decline from doing so.  Perhaps if she and the Mother agree to meet as suggested above, this could be an agenda item and the two could agree on how A. might refer to J. perhaps simply using her given name.

[164]     Further I order that there will be a review of all parenting time and related orders made herein and only in the event one or both parents request same and only after August 1, 2017 before the Honourable Judge Dyer and only at a family case conference.  One issue that may be canvassed thereat is whether or not the Father’s parenting time should in A.’s best interests be further increased to an equal regime as requested in his application.  I am not now of the view that this should occur and the Father now have 50/50 time with A., but nor should the Father on a future review, if one is held, be required to establish a material change in circumstances before seeking to have more parenting time including as sought in his initial application.  Thus, the above parenting time and related orders should only be regarded as interim orders.  I should also state that if a review before me at a family case conference is not successful in the sense that no consent order can be made, then the parties will nonetheless still be required to mediate the outstanding issue, or if a parenting coordinator is retained, use him or her, and failing agreement, only then will either party be at liberty to seek a further review of any parenting time or related orders in Court at a hearing.  I also order that the Honourable Judge Dyer shall not be seized of any other future court applications or hearings in this matter.

[165]     I have not been asked to make a parenting time order for a vacation for A. with his father or mother.  I appreciate he is now only 20 months old and this idea may be premature.  I am however of the view that each parent should going forward have such time with A. even if it might result in an interruption to their respective parenting time as ordered above.  I trust as appropriate they can agree on this issue and if not, it perhaps might be dealt with at a future review.

[166]     The Mother proposes I make an order that the parties jointly retain the services of a parenting coordinator to review and set up an annual parenting calendar for the parties to follow.  The Father is not averse to this idea, but seems to suggest that first he and the Mother would attempt to mediate their differences or I suppose attempt at a family case conference in front of me to resolve same.  It is not at all clear to me that both parties fully understand what would be entailed in their retaining a parenting coordinator, for example, the cost, how the cost would be “jointly” shared, and just what the coordinator would be empowered to determine and whether his or her decisions would be final.  Insofar as such a coordinator if empowered to make a binding decision for the parties could alleviate their need to attend court, this avenue is clearly worth exploring.  I am not now in the circumstances of this case prepared to make an order on point.  If the parties agree on the need for same in future, it may be that no order would be required in any event before they retain me.

[167]     I turn now to the financial issues in this case.

[168]     The Mother seeks an order for retroactive child support to July 1, 2015 both a table amount and for GL7 expenses in her counterclaim filed March 9, 2016 indicating that he was then paying her $915.00 per month.  The precise orders she seeks are set out in Mr. Chiasson’s closing submission:

[169]     The Father’s evidence was that he anticipated his 2016 income to be $104,671.41 (see Father’s financial statement sworn December 29, 2016).  I assume all figures shown on the statement at page 3 under “annual income” will appear on his 2016 tax return when filed or something close to them.  The net rental income amount was helpfully calculated by his accountant E.H.  I find that his current guideline income for 2017 is $104,671.41 for purposes of calculating a table amount of child support.

[170]     I order that commencing on the first day of January 2017 and on the first day of each month thereafter, so long as the child A. is a “child” as defined by s. 1 and 146 of the FLA and resides with the Mother more than 60% of the time, that the Father shall pay child support to the Mother in the amount of $959.00 per month until further order of the Court.  He will provide post-dated cheques in this amount for the months of March to December 2017 inclusive to the Mother by March 1, 2017, and on or before December 29, 2017, 12 post-dated cheques for the year 2018 and so on each year thereafter.

[171]     In addition to the above disclosure order relating to the exchange of tax returns and notices of assessment, I order that on or before March 31 of each year, commencing in the year 2017 and so long as the Father is required to contribute to any Guideline 7 expense for A., that the Mother provide to the Father a complete annual financial statement disclosing all her income and expenses for her business for the prior year and a separate listing of all tips she received in the prior year and a written statement as to whether all, some or none are included in her business income figure, and if so, how much.

[172]     I really have received no meaningful submission from the Mother as to the order I should make with respect to her claim for a sharing of this expense starting I assume June 1, 2016 to date or for say 8 months to the end of February 2017.  I do not of course have the Mother’s 2016 tax return with its information as to her gross and net business income, whether or not her tips are included, line 150 total income for 2016, and the manner in which she may have claimed a deduction for child-care expenses she paid to her mother S.N. each month said to be $1,050.00 per month.  There is a discrepancy in her 2016 projected income figures on her two financial statements, the latter (at September 2016) being materially less by $9,530.00 than the former filed in March.  She has provided no financial statements for her business and no information with respect to the tips she receives as part and parcel of the services she performs for some customers.  I have no idea how Mr. Chiasson calculated his proposed 80/20 proportionate sharing of, I assume, only child-care costs which both parties seem to agree at least as to part are a proper Guideline 7 extraordinary expense.  In any event, the Father’s counsel does not agree to this percentage sharing.  Thus the real issue I am asked to decide seems to be what is the proper amount for his monthly contribution.

[173]     I have considered Ms. Stein’s interesting reply submission on point filed January 6, 2017 wherein she invites me to make various assumptions based on information (not before the Court as evidence in a paper exhibit) found on the Mother’s Facebook page as to services her business provides and fees charged for same.  It is not clear when these fees were posted by the Mother and whether they are still current or may have changed since June 2016 when the Mother returned to work after A.’s birth and the expiry of her maternity leave.  Ms. Stein asks me to make assumptions as to the number of paid hours the Mother worked each week having regard to the fact that her business was open Wednesday to Saturday for a total of 35 hours.  The Mother should have records as to the paid hours at least in the form of revenues earned by her business or sales of products and services.  None of this was produced by her at the trial in November 2016.  She of course bears the onus of proving this claim.

[174]     Rather than simply dismiss her claim as unproven, I believe particularly in light of my following comments, the fairer course is to adjourn this claim pending her making the full financial disclosure to the Father ordered in these Reasons for the tax year 2016 and in addition (and I now order) providing him with some form of financial statement in 2017 to say June 15, 2017 disclosing all her business income and expenses and all her tips from January 1, 2017 to June 15, 2017.  Once that factual information is in hand, hopefully the parties can resolve this outstanding claim.  I tend now to agree in light of Guideline 7(3) that the deductibility of such expenses and tax saved by the Mother as a result are factors that should be considered in ultimately assessing his proportionate share as well as are the amount of universal child-care benefits received by the Mother under Schedule III s. 3.1(b) of the FCSG’s.  I also order that the Mother produce written particulars of this benefit from June 1, 2016 to June 15, 2017 to the Father in two ways:  (a) June 1 - December 31, 2016 by March 30, 2017 and (b) January 1, 2017 - June 15, 2017 by June 30, 2017.

[175]     Commencing in June 2017, A. will be spending a number of overnights with his father.  Depending on the answers to and evidence relating to the many questions I raised above, including potential changes to S.N.’s child-care schedule in Squamish and related fees as a result of my parenting time orders, there may be a change in the amount of monthly child care the parents require for A. in the event they are both working.  The basis upon which J. or the Father’s au pair S. might help out with A. should, in my view, be discussed as part and parcel of the above attempted resolution of this issue – both arrears and ongoing monthly contribution from the Father.

[176]     If the parties are unable to resolve this GL7 claim and the ongoing monthly amount, they can apply once all ordered financial disclosure herein has been made at a hearing before me and I will hear them in Court and consider the evidence led or filed by each and make a decision on these outstanding child care issues.

[177]     What of the period January 1, 2017 to June 15, 2017?  Based on the evidence I have heard and the orders I have made, A. will still be residing substantially with the Mother and will as long as S.N. is providing child care be paying her $1,050.00 each month.  In my view it is no answer for the Father to say that A. would be cared for by him when he is not at work in this period and therefore, he should pay nothing until this matter is finally resolved either by agreement or before me at a hearing.  I find that he should contribute something towards this ongoing monthly cost in the above period upon the Mother first providing paid child care invoices to him.  Taking into account her probable 2016 income and other relevant facts and on a without prejudice basis, I order that this contribution be $400.00 per month for the above time period to June 15, 2017 and he will pay it on the 15^th of January 2017 and on the 15^th day of each month thereafter to June 15, 2017.  If the Father’s share is less than $400.00 per month, any overage will be a credit to his account and if his share is more than $400.00 per month, an order for arrears can be made in future.

[178]     Finally, Ms. Stein will have carriage of preparing the order in this matter.