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C.J.A. v. E.M.A., 2017 BCPC 224 (CanLII)

Date:
2017-07-18
File number:
F9610
Citation:
C.J.A. v. E.M.A., 2017 BCPC 224 (CanLII), <https://canlii.ca/t/h522l>, retrieved on 2024-03-28

Citation:      C.J.A. v. E.M.A.                                                          Date:           20170718

2017 BCPC 224                                                                             File No:                     F9610

                                                                                                        Registry:  North Vancouver

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

C.J.A.

APPLICANT

 

AND:

E.M.A.

RESPONDENT

 

 

 

 

RULING ON APPLICATION

OF THE

HONOURABLE JUDGE J. CHALLENGER

 

 

 

 

Appearing on his own behalf:                                                                                               C.A.

Appearing on her own behalf:                                                                                               E.A.

Place of Hearing:                                                                                    North Vancouver, B.C.

Dates of Hearing:                                                                                      June 12, 13, 28, 2017

Date of Judgment:                                                                                                   July 18, 2017


[1]           This ruling concerns an application by the parents for a determination of parenting time.

[2]           Both parents are healthy, educated, employed, and well able to properly care for the children.  Mother is a social worker and Father is now employed in the tech industry.  There are three children:  a female, age 17 and two males, ages 14 and 11. 

[3]           The issues between the parents and which the Court needs to address arise primarily from Father’s absence for three years and three months while he worked abroad.  The parents separated in the spring of 2015 prior to Father returning to reside full time in Canada in early 2016.  The relationship began breaking down after he left and Father understandably avoided spending all of his time in the family home for the approximately three months he was in Canada each year.  Thus, the children were facing a significant change in their life circumstances upon his relocation back to Canada. 

[4]           Father took the position that his time away had no impact on his relationship with the children.  I find he failed to consider whether his time away had had an impact on the children’s relationship with him.  He relied on an informal agreement reached at the time of separation to support that as soon as he had established a suitable residence upon his return, parenting time should have been shared equally.  Mother, who had been much more intimately involved with the children on a day-to-day basis, believed it was in the best interests of the children that there be a gradual move to shared parenting time and that in any event the youngest child was not comfortable being away from her for more than a few days at a time.  It is this difference in their points of view which led to the matter being litigated in court. 

[5]           The children have thrived under the care of both their parents throughout their lives and for the past nearly five years under their mother’s primary care.  They continue to thrive under the current parenting time schedule which involves spending every second weekend with their father and having a mid-week evening visit each week.  Each is an excellent student.  The middle child is particularly gifted and is now pursuing self-directed study to allow him to complete two grades in one year.  They are all bi-lingual in French and English.  They each have many interests and engage in various activities.  The parents agree their children are well adjusted and are bonded to each parent and to each other.  The Views of the Child Report (the “Report”) supports this.

[6]           In the Report the oldest child suggested that she and her siblings should remain together for parenting time.  She understood that “equal time is being sought” but queried whether greater time away from their mother would be in the best interests of her younger brothers.  The middle child was also aware his father desired equal parenting time.  However, he “likes the existing schedule and is also amenable to changing it” but desires flexibility.  The youngest child was noted to be shy and quiet.  He also said he likes the existing schedule and was reticent about a week on/off schedule believing it to be too much time away from one parent.

[7]           Mother impressed me as a very calm, reasonable, and thoughtful person who is emotionally mature and self-aware.  Despite the challenges of co-parenting during the time Father has been back in Canada and the conflicts that have arisen, she has been able to make child centered decisions.  She was exceptionally fair and consistent in her evidence.  Father evidenced a quite different personality type.  I find he is someone who tends to “interpret” the communications of Mother and his children to accord with his perspective rather than to truly “hear” what is being expressed.  I do not intend to go into detail in setting out my reasons for this finding other than make the following observations: 

         The conduct of Father relating to the trip to Australia taken by Mother and the children was inexcusable and irrational.  I conclude he acted as he did as a reprisal to Mother due to resentment about the trip.

         In the fall of 2016, Father suggested the middle child should be seriously punished for declining to participate in parenting time with his father.  On a later occasion in the early spring of 2017, the same child was experiencing emotional distress and wished to stay with his mother.  Father reacted by telling the child he would go to court to get an order to force the child to go with him for his parenting time.

         Father maintained throughout the hearing that the Report reflected a clear desire by the children for a week on/off or equal parenting regime.  This is not an interpretation based on reason but rather is the result of his desire.

         At the end of the evidence, I was satisfied that this was the rare case where the children, as a group, had sufficient emotional and intellectual maturity to advise the Court directly about what they saw as an ideal parenting time schedule for them.  It was made clear to the parents that they should meet as a family and convey my desire for this information which I would consider but which would not be determinative.  It was also made clear that both parents should convey to the children that they should not be influenced by any position taken by their parents previously and that the parents would accept and embrace any arrangement they came up with.  Father did not follow the Court’s direction.  He advised the children there would be a change, which was a mistaken interpretation of the comments I had made.  Furthermore, this served to remove the status quo from the children’s consideration.  Thereafter, based on an erroneous interpretation of something Mother said, he suggested to the children that Mother had submitted a fraudulent schedule to the Court and insisted that the eldest child provide him with another version.  According to Mother, the child was upset and confused about this.

[8]           In the circumstances, I am unable to give significant weight to the schedule proposed by the children as I infer it is the result of an attempt to appease their Father rather than a reflection of their sincere views.  However, it does evidence a desire for minimal changes between households.  I find, on all the evidence, that the views of the children in the Report should be given significant weight.  I find that, considering all of the factors set out in s. 37 of the Family Law Act respecting the best interests of the children, they should enjoy their time with each parent as a group and the needs of the youngest child, who will be most impacted, should inform my decision.  I also find that the current parenting time the children enjoy with their father should be increased in order to foster their relationship with him.

[9]           I am confident that Mother will continue to foster a full and respectful relationship between all the children and their father.  Based on all the evidence, I find Mother should have the final say in any disputes over parenting responsibilities. 

[10]        I hope that Father will engage in self-reflection and pursue counselling to address his reactivity which leads him to misinterpret the words and deeds of Mother and the children.  He needs to accept the love his children have for him and their profound attachment to him.  He needs to focus more on the quality of the time he spends with them rather that the quantity.  I expect that, over time, the family will achieve a natural and easy relationship in which the children feel free to spend time with each parent according to their own needs and desires.  I expect this is a family that will go on to share and enjoy together the many life events their futures hold for them such as graduations, birthdays, weddings, and other family events.

ORDER

[11]        The parents are deemed to be guardians of the children.

[12]        The parents will share parenting responsibilities.  Each parent will have the obligation to discuss with the other parent any significant issues relating to the care of the children and make best efforts to reach an agreement.  If they are unable to agree, they must attend to a Family Justice Counsellor or other mediator to attempt to mediate the issue and come to an agreement.  If they are unable to come to an agreement following mediation, Mother shall make the decision.  Father may seek a review of Mother’s decision in court.

[13]        Father will have parenting time every second weekend from Thursday after school to Monday mornings.  If the Monday is a statutory holiday or Pro-D day, his time will be extended to Tuesday morning.

[14]        Father may have further parenting time as agreed to between the parties in consultation with the children.

[15]        Father will have parenting time of at least one hour on each of the children’s birthdays if practicable to do so and the children agree.

[16]        Father will have parenting time on Father’s Day from 10:00 a.m. to 8:00 p.m. regardless of whether it falls on his regular weekend.

[17]        Mother will have parenting time on Mother’s Day from 10:00 a.m. to 8:00 p.m. regardless of whether it falls on Father’s regular weekend.

[18]        Father and Mother will have parenting time of at least three hours on their respective birthdays.

[19]        Each parent is entitled to one two-week period of parenting time each summer break.  The parties will notify each other of their choice of weeks by no later than April 30th of each year.  If the weeks chosen conflict and the parties are unable to agree to alternate weeks, Father’s choice of weeks will have priority in 2018 and Mother’s choice will have priority in 2019, alternating yearly thereafter.

[20]        Christmas holidays shall be shared on an alternating yearly basis with Father having from the last day of school to noon on December 25th in 2017 and Mother having from noon on December 25th to the commencement of school.

[21]        Spring break shall be shared on an alternating basis with Mother having the first week in 2018.

______________________________

The Honourable Judge J. Challenger

Provincial Court of British Columbia