IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Applicant, G.K.P., and the Respondent, R.S.P., are the parents of a young son named H.S.P. H. was born on [omitted for publication]. On January 8, 2018, the parties consented to an order which set the terms of one another’s parenting time with H. The order set a two-week rotating schedule for the Respondent’s parenting time and a sharing of parental responsibilities. The order also fixed the amount of child support that the Respondent was to pay the Applicant.

[2]           Six months later, on July 9, 2018, the Respondent brought this application to increase the amount of his parenting time. That application was amended in October at which time he also asked for an order cancelling his arrears of child support. The Respondent had filed a Reply disagreeing with what the Respondent was asking for. At the time of the hearing of this application, the Applicant was self-represented. She now asks for an order cancelling the Respondent’s parenting time altogether.

[3]           At the trial of this matter, both parties testified and so did each of their mothers. The Respondent’s niece also testified. Both of the parties as well as their mothers testified in the Punjabi language, with their evidence translated by certified court interpreters. Following is a summary of the evidence presented at the hearing of this matter, a review of the applicable law, and reasons for making the order that will be made.

[4]           The Applicant is 33 years old and the Respondent will be 40 years old later this spring. They were both born in India. The Respondent came to Canada in September of 1999. In January of 2012 he married the Applicant in India. It was an arranged marriage and was the second marriage for the Respondent. After the marriage the Respondent remained in India for a month and a half before returning to Canada. The Applicant was not yet able to reside in Canada for immigration reasons, and the Respondent visited her three more times before the Applicant was able to come to Canada. It was on one of these visits in 2014 that their child was conceived. The child was born [omitted for publication] and he remained in India with the Applicant.

[5]           The evidence of the parties differs on how well they got along after their wedding. The Respondent maintains that they got along very well and that everyone was very happy. The Applicant claims that arguments soon began because the Respondent was not happy with the dowry that he had received from the Applicant’s family.

[6]           According to the Applicant, contact between the couple was infrequent during the time that she was in India and he was in Canada. The Applicant applied to come to Canada as a permanent resident, but she claims that the Respondent frustrated her efforts by refusing to come to India for her interview with the immigration authorities. Eventually the Respondent was allowed to come to Canada and she and the child did so in January of 2017.

[7]           The parties also disagree about how they got along when the Applicant arrived in Canada. The Respondent recalls that they got along well for the first month. The Applicant testified that the marriage seemed doomed from the start. She testified that the Respondent told her that he missed his ex-wife and that he accused her of getting pregnant to “trap” him. When the Applicant came to Canada, almost all of her family was still living in India. She and the Respondent lived in a home with the Respondent’s parents, his brother and his brother’s family.

[8]           The Applicant was able to find work in Canada and the child was cared for by the Respondent’s family while the Applicant was at work. The Applicant says that she and the Respondent argued over a number of things. She says that he wanted her to put her wages into a joint bank account with him, but that she did not trust him and did not want to do this. The Respondent says that the Applicant was unhappy and threatened to commit suicide unless he gave her a divorce. He said that this concerned him because the Applicant’s father had taken his own life, and he was worried that the Applicant would do the same. The Applicant acknowledges that her father had done so, but she blames this on the Respondent, saying that before she married the Respondent, her father was a happy man. She also said that the Respondent “kept throwing [her father’s suicide] in my face”.

[9]           An incident occurred in the family home sometime in late June of 2017 that ultimately led to the parties’ separation. As with much of what happened, the parties each gave a different version of what had happened in this incident. According to the Respondent, he was sitting at the kitchen table enjoying a cup of tea as the Applicant was having trouble using the microwave. The Respondent says that he made a joke about the Applicant’s difficulty and she became upset. He says that the Applicant went upstairs briefly, but soon came back downstairs where he was. He says that the Applicant threw a shoe or a sandal at him, causing him to spill his tea.

[10]        The Applicant on the other hand says that it was the Respondent who was violent with her, and says that he had once thrown his tea at her. She says that he then came after her, chasing her into the bedroom and held her down on the bed and tried to choke her. She says that she picked up a sandal and hit the Respondent with it to defend herself.

[11]        The Respondent’s twenty year-old niece was present at the time of the incident described by the Respondent. She claims that she did not witness the start of the argument between the parties that day, but that she heard the two of them arguing and came downstairs. She testified that she did see the Applicant throw a shoe at the Respondent, causing him to spill his tea.

[12]        A month later, on July 22, 2017, the Respondent went to the Abbotsford Police Department to report this incident. He told the police officer who interviewed him that he waited to report this incident, hoping that he could reconcile his differences with the Applicant, but that since then the Respondent was continuing to talk about wanting to kill herself. At the hearing of this application, the Respondent produced a number of recordings in which an angry-sounding Applicant is demanding a divorce. In one of these recordings, she can be heard saying “I want a divorce. I don’t want to live. I say it to your face. I want a divorce, I don’t want to be living, I don’t want to live with you.”

[13]        The police made the decision to arrest the Applicant for assault. They attended the parties’ residence and the Applicant was arrested for assault. She was not permitted to return home and called a cousin of hers who lived in Surrey for assistance. She did not see her child for a week.

[14]        Shortly after the Applicant was arrested, the charges against her were reviewed by Crown Counsel and on July 25, 2017, a stay of proceedings was directed for the charge of assault that had been brought against the Applicant.

[15]        On July 28, 2017, the Applicant brought an ex parte application in which she applied for a protection order against the Respondent. The application was supported by an affidavit in which the Applicant alleged a number of incidents in which she claimed that the Respondent had been violent, both with her, and on one occasion with the child. She said that the Domestic Violence Unit of the Abbotsford Police assisted her in having her son returned to her. The Honourable Judge P. D. Gulbransen of this court granted the ex parte application and a Protection Order was made pursuant to section 183 of the Family Law Act, prohibiting the Respondent from contacting or communicating with the Applicant and ordering that the Respondent’s contact with the child was to be supervised by a professional supervision agency. The Applicant testified that she took the child to live with her in Surrey.

[16]        An order was made on August 22, 2017, by the Honourable Judge Brownstone of this court, prohibiting either party from changing the residence of the child to a location outside of the Fraser Valley region of British Columbia without a court order or mutual consent. The Respondent had a series of professionally supervised visits with the child in September of 2017. The reports from the visit supervisor are unremarkable, in that they do not suggest any inappropriate behaviour on the part of the Respondent. The Applicant disputes the reports from the supervisors, and she accused the supervisors of drinking during one of the visits. There does not appear to be any supporting evidence for this accusation on the part of the Applicant.

[17]        On October 17, 2017, the Respondent obtained an order removing the requirement for his parenting time to be supervised and fixing the Respondent’s parenting time with the child to be every Saturday from 10:00 a.m. to 6:00 p.m. Subsequently on December 5, 2017, the parties agreed to a consent order in which the Respondent was found to have an annual income, for the purposes of the Federal Child Support Guidelines, in the amount of $37,808. He was ordered to pay the Applicant $356 per month for the support of the child on the first day of each month, commencing on December 1, 2017.

[18]        On January 8, 2018, the parties attended to a Family Case Conference and they appeared to reach a Final Consent Order. The terms of that order gave parenting time to the Respondent on a two-week rotating schedule. During the first week, he was to have parenting time from Saturday at 10:00 a.m. until Sunday at 2:00 p.m. During the second week his parenting time would be from Sunday at 5:00 p.m. until Monday at 12:00 p.m. The order also found the parties to each be a guardian of the child, and it required them to share all parental responsibilities, with the Applicant having the right to make any decision that the parties disagreed on, and with the Respondent having the right to have those decisions reviewed by this court. The parties were also required to exchange their income tax information on an annual basis.

[19]        At the Family Case Conference, the Respondent was represented by an experienced family counsel who enjoys a good reputation with this court. In her evidence at this hearing, the Applicant was disparaging of her counsel and claimed that her counsel had forced her to agree to the consent order made at the Family Case Conference. This statement is not a credible one. This statement, and her assertion that one of the professional visit supervisors was drinking during a visit, raise serious concerns about the Applicant’s credibility in this case.

[20]        The Applicant says that she does not want the child to see the Respondent and says that when the child turns eighteen years of age, he can decide where he wants to live. She says that she is not asking for any additional child support. She testified that her mother has recently arrived here from India to help her look after the child. She also has a cousin and other relatives in Surrey to help her to look after the child. In cross-examination she suggested that she intends to refuse to follow a court order that requires the Respondent to have parenting time with the child.

[21]        The Respondent testified that his parenting time with the child goes well and that the child is happy visiting with his side of the family. His parents, his brother and sister-in-law, and their three children all have a good relationship with the child.

[22]        The Respondent testified that he recently had an accident in which he suffered neck and shoulder injuries which prevent him from working. He testified as to what he says his doctor has told him, but no medical reports or other supporting documents or verification of these injuries were produced at trial.

[23]        In his application to change the order made at the pre-trial conference, the Respondent asked for it to be changed such that in the first week of the two week rotation, his parenting time would be from Saturday at 10:00 a.m. until Tuesday at 11:00 a.m., and in the second week it would be from Sunday at 5:00 p.m. until Wednesday at 11:00 a.m. On the first day of the trial in this matter, his counsel advised that the Respondent was changing his request and was now asking for parenting time on a “week on, week off” schedule or on some other variation of equal parenting time. No notice of this was given to the Applicant prior to trial, and while the Respondent’s counsel insists that this is not “trial by ambush”, it is hard to see it any other way, given that these trial dates were set last September and a pre-trial conference was held on February 19, 2019. Counsel says that there has been a change of counsel for the Respondent since then, which he says justifies the last minute change of relief sought.

[24]        Presently the exchanges of the child are taking place in Surrey at the Applicant’s home because she does not have a driver’s license or a vehicle to transport the child. The Respondent sees this as unfair and asks for the exchange of the child to take place at some mid-point between their two residences. He blames the Applicant for moving the child to Surrey, though it is unclear where else she was supposed to go to live after the police were called and she was ordered to leave the family home.

[25]        Each of the parties’ mothers testified at the hearing of this matter, but they did little to help resolve this matter. The Respondent’s mother became disruptive during the Applicant’s testimony and was ordered to leave the courtroom. During her own evidence she testified that she did not witness any assaults between the parties and was critical of the Applicant for wanting to have control of her own Permanent Residency card. She also testified that when the family was together in India, everyone was happy and there were no arguments.

[26]        The Applicant’s mother testified that she did witness the Respondent assault the Applicant when the couple were in India. She also says that the couple argued a lot and there was a lot of name calling between them. She testified that when the Applicant would call her from India, she would be crying on the phone.

[27]        The Applicant last filed a Financial Statement on September 19, 2018, in which she swore to have an annual income of $24,288 from her job as a factory worker. The Respondent filed a Financial Statement in December of 2017 in which he swore to have an annual income of $38,466 from his employment as a window and door installer. He filed a subsequent Financial Statement on March 22, 2019 in which he says that he has been unemployed since August of 2018 and gives his annual income as $6,000. He has not provided any updated Income Tax information since his Notice of Assessment for his 2017 income, which put his income for that year at $45,803. No T-4s, pay stubs or other subsequent income information is included in his most recent financial statement.

[28]        The Applicant asks for an order ending the Respondent’s visits with the child. When asked why she thinks this is in the child’s best interests, she says that she does not want the child to pick up the Respondent’s bad habits, and she is afraid that his family will turn the child against her. She says that she relocated to Surrey because she had no place else to go after she was arrested, and she has family support there, whereas she has none in Abbotsford. She is not asking for additional child support and even offered to forego receiving any child support if she was allowed to change the order so that the child would not have to see the Respondent. She said that she would respect a court order, and it was unclear what she meant when she gave a contrary indication during her cross-examination.

[29]        The Respondent asks for an order that parenting time with the child be shared equally or in some other ratio that will not require the Respondent to pay child support. He also asks for an order giving him all parenting responsibilities for the child and adjusting the child support, based on imputing an annual income to him of $15,000 and to the Applicant at $30,000. He also asks that the exchange of the child be shared equally in some fashion. Alternatively, if the Respondent is required to drive to have parenting time with the child he asks for a monthly “travel discount” in the amount of his child support, reducing it by $150 per month.

[30]        In determining what is in the best interests of this child, there are a number of impediments in making a proper assessment, given the large credibility gap between the parties. Because almost all of the witnesses testified in their first language using interpreters, it is even more difficult to assess credibility. The Applicant has made statements about her lawyer forcing her to agree to an order and about a visit supervisor who was drinking. These statements are not credible. She has said in cross-examination that she would not follow a court order giving parenting time to the Respondent, but says in her summation that she would do so. Her ex parte application for a protection order is suspect, coming only after she herself was charged with a criminal offence.

[31]        There is also reason to doubt much of what the Respondent is saying. His complaint to the police about an assault by the Applicant was not proceeded with and was promptly rejected by Crown Counsel, presumably because his complaint did not meet the standard for charge approval. He claims to be too injured to work and speaks of getting medical advice, but has not produced any medical report or even any accident report supporting this claim. He has also not provided any current financial information such as his most recent pay information. While he appears genuine in wanting to have more time with his son, his requests for more time seem to be framed with the ulterior motive of having to eliminate his obligation to pay child support to the Applicant. The high level of conflict between the parties and their families puts this child in a difficult position.

[32]        Section 37 of the Family Law Act directs that when a court is making an order respecting guardianship or parenting arrangements for a child, the court must consider the best interests of the child. To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, and the section specifically directs the court to look at a number of factors. The first of these is the child's health and emotional well-being. In this case, all of the parties described this little boy as a happy and healthy child. While most of the evidence of the parties was focused on criticism of the other parent, nothing in the evidence suggests that the child’s health would suffer in the care of either parent.

[33]        There is a concern about the child’s emotional health. Specifically, both of these families seem to be intent on disparagement of the other. The Applicant believes that the child should have no contact with his father until he is an adult. The Respondent’s family, especially his mother, presents a real risk of wanting to disparage the Applicant and her family. The Respondent’s niece on the other hand appears to be a good influence on the child. The family dynamic has the potential to create real problems for this child as he grows up. Presently he appear to love both of his parents. But if each continues to foster hate for the other, it will create serious emotional issues for the child because in each home he will be made to feel as if showing love for one parent is somehow being disloyal to the other. The parties will have to learn to protect the child from their conflict. If they don’t, they will be seriously harming this child’s development and jeopardizing their own relationship with him.

[34]        The next consideration is the child's views, unless it would be inappropriate to consider them. This is one of those cases where it would be inappropriate to do so because of the child’s age.

[35]        In considering the nature and strength of the relationships between the child and significant persons in the child's life, it appears that H. has built a relationship with both grandmothers, as well as with his cousins on the Respondent’s side. It is in his best interest for all of these relationships to be maintained. In that way, if the families continue to be critical of one another, as H. grows up he will be able to form his own conclusions, based on how those family members treat him and how the things he is told about his family members matches how he sees them behave.

[36]        Another consideration is the history of the child's care. Thus far in his young life, he has primarily been in the care of the Applicant, though he has had other caregivers as well, such as his grandparents. In this case each parent is proposing a drastic alteration in the status quo, with the Applicant wanting the child to have no contact with the Respondent and the Respondent wanting to have the child in his care for half of the time. It is up to each of these parties to show how such a significant change is in the best interests of this child, who is not yet five years old. Their reasons for wanting these changes seem to be rooted more in their feelings towards each other than in any clear benefit to the child.

[37]        The Family Law Act directs that there should be a consideration of the child's need for stability, given the child's age and stage of development. H. is at a critical age as he is making the transition into school attendance. The Applicant has made plans for the child to attend a school in her neighbourhood, and that plan seems to be a feasible one. Shared parenting as proposed by the Respondent is always difficult for school aged children where the parents live in different cities. This consideration militates against the drastic change that the Respondent is calling for in this case.

[38]        Under the order of Judge Arthur-Leung, both parents have been found to be guardians of this child, and both currently share parental responsibilities. Although the parties are unable to relate respectfully towards one another, as individuals each appears capable to exercise his or her responsibilities. Each requires support from their respective families, but this is not a case where either party should be disqualified from or have a reduced role in caring for this child because of a lack of capacity to parent.

[39]        The impact of any family violence on the child's safety, security or well-being, is a relevant factor to take into consideration in this case, but it is also a difficult one to assess because of the significant credibility issues. Each party has alleged the other to be violent, but in each case the allegations made seem to be unsupported by independent evidence. The Applicant obtained a Protection Order against the Respondent based solely on her own allegations. The Respondent was able to have the Applicant charged criminally for assault based mainly on his word alone. The independent evidence is limited to recordings of the Respondent sounding enraged against the Applicant, as well as the Respondent’s niece seeing the Applicant throw a shoe at the Respondent. The only allegation of any harm to the child is contained in an affidavit from the Applicant, and its reliability is suspect.

[40]        It seems clear in this case that neither party has any desire to harm the child. Their anger is directed at one another. It does not appear to impair either party’s ability to care for the child or to meet the child's needs.

[41]        This case calls for a consideration of the appropriateness of requiring this child's guardians to cooperate on issues affecting the child. Clearly they cannot agree on much, and their intense dislike for one another affects their ability to parent. There is also a danger in giving one parent too much power over the life of this child, given the potential for parental alienation that exists here. The wisest course of action appears to be that steered by Judge Arthur-Leung in which the parties shared parental responsibilities, with the child’s primary caregiver being the “decider”, but with those decisions always being subject to the scrutiny of the court if other parent disagrees with them.

[42]        Section 38 of The Family Law Act calls for an assessment of any past family violence, including: 

[43]        As stated earlier, this assessment is made difficult in this case because of problems with the credibility of each of the parties. What does seem clear is that any family violence is more likely to occur if the parties are living together, something that will not take place here. Each party is now out of the control of the other and there is no evidence suggesting that either party has any intention of physically harming this child. There is a clear risk of emotional harm to the child that comes from both parents by each of them wanting to disparage the other parent.

[44]        A consideration of all of these factors leads to two conclusions. Firstly, the Respondent should have more parenting time with the child, but his parenting time should not increase as drastically as he wants. It has not been demonstrated how this much of a disruption in the child’s life would be in the child’s best interests. This will especially be so when the child begins school. It would be better for there to be little change in the current weekend parenting time, but for the Respondent to have the child for longer times during traditional holiday periods. These longer periods will allow the bond between the Respondent and the child to strengthen as a measure against any efforts by the Applicant to undermine that relationship.

[45]        Accordingly, the current weekend visits will continue. However, the Respondent will be afforded additional parenting time during the Easter long weekend, over the summer months and during the Christmas vacation. Default times will be fixed in this order, as it is unlikely that the parties will be able to directly negotiate times more conducive to their schedules. However, if at some point an outbreak of reasonableness occurs, these times can be changed by mutual agreement.

[46]        The Respondent’s application to cancel arrears and reduce child maintenance will be dismissed for several reasons. Firstly, it appears from the limited financial information that has been disclosed, the Respondent has been underpaying child support for 2018. The current child support order is based on income he swore he was making in 2017 that was underreported. His income records show that he earned at least $7000 per year more than he swore to in that financial statement. Based on an income for 2017 of $45,803, he ought to have been paying $431 per month, not the $356 that he has been paying.

[47]        A party who seeks to reduce child support or cancel arrears has to make full disclosure to the court. Child support is the right of a child and the obligation of a payor parent and cannot be reduced or cancelled simply because a party asks the court to take his or her word for it. Here not only has the Respondent failed to produce his 2018 income tax information or his most recent payroll information, he has also not provided any medical reports to support his claim that he cannot work because of his bad back. This is far below the standard expected when a parent wants to stop supporting his child. This, along with the Respondent wanting at least 40% of the parenting time, gives further support for the notion that, for the Respondent, the money is what is important to him, not the child.

[48]        The Respondent’s request for an order reducing his child support by $150 each month to compensate him for driving is also dismissed. When the Respondent was ordered to leave the family home, her options were limited, and she was forced to go where she had some family support. When the Respondent agreed to sponsor the Applicant for immigration purposes, he expressed a willingness to take on certain responsibilities for her support. His request to reduce his child support by $150 per month is a crass attempt to make his child pay for him to be able to get to his own parenting time. The child support is the child’s right and it is the child who loses if the Respondent is able to deduct his costs. Once again, by making this request, it appears that what really matters most to the Respondent is the money, not the child.

[49]        Finally, the Respondent has asked for police enforcement of his parenting time to be ordered. This is a remedy that is used sparingly, because it can be disconcerting to children, and because it strains police resources. The Respondent’s concern in this case is understandable, given the Applicant’s comments about wanting to cut off contact between the child and the Respondent and her inconsistent comments about whether she will follow the order that is now being made.

[50]        In her summation, the Applicant indicated that she would abide by a court order for parenting time. For the time being, there will not be police enforcement ordered. However, if the Applicant refuses to comply with the order now being made, not only can the Respondent apply for police enforcement, but he can also apply for a change in the parental responsibilities and for greater parenting time. The Applicant would be foolish to deny the Respondent his parenting time because by doing so, she would risk losing a lot of what she has been given by this court. It has been found that it is in H.’s best interest to have a relationship with both of his parents. If the Applicant intends to deny the child a relationship with the Respondent, then it may not be in his best interests to continue to reside primarily with her.

[51]        For the foregoing reasons, the following order is now made: