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S.R.B. v. N.J.D.B., 2021 BCPC 218 (CanLII)

Date:
2021-08-26
File number:
F2031882
Citation:
S.R.B. v. N.J.D.B., 2021 BCPC 218 (CanLII), <https://canlii.ca/t/jhzg3>, retrieved on 2024-03-28

Citation:

S.R.B. v. N.J.D.B.

 

2021 BCPC 218

Date:

20210826

File No:

F2031882

Registry:

Vancouver

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

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

 

 

 

 

BETWEEN:

S. R. B.

APPLICANT

 

AND:

N. J. D. B.

RESPONDENT

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE W. LEE



 

Counsel for the Applicant:

T. Thakur

Appearing on their own behalf:

N. J. D. B.

Place of Hearing:

Vancouver, B.C.

Dates of Hearing:

May 4 - 6, August 5 and 6, 2021

Date of Judgment:

August 26, 2021


INTRODUCTION

[1]         S.R.B and N.J.D.B. are the parents of two children, the first born in 2015 and the second born in 2017. In between the birth of the children, they married in 2016 and then separated in the summer of 2020.

[2]         The children reside primarily with S.R.B. Because of various court orders, N.J.D.B currently has parenting time with the children as follows:

a)   From Wednesday after school, or Wednesday at 5 p.m. if there was no school, to Thursday at 7:45 a.m.

b)   From Saturday 10 a.m. to Sunday noon.

[3]         The primary issues I must resolve are as follows:

a)   Parenting Time – S.R.B asks that the current parenting time schedule remain in place. N.J.D.B seeks equal parenting time.

b)   Parental Responsibilities – S.R.B asks for an order that she have all parental responsibilities or alternatively the final say in any disputes about parental responsibilities. N.J.D.B asks to have the final say in the exercise of parental responsibilities.

c)   Child Support – S.R.B. seeks child support based on N.J.D.B.’s income of $74,694 and a Child Support Guideline amount of $1,159 starting October 1, 2020, the first month after she filed her court application. N.J.D.B. says the children are well cared for and he opposes paying any child support. N.J.D.B.’s Financial Statement also refers to making a claim of hardship.

d)   Expenses – S.R.B asks N.J.D.B. to contribute to a proportionate share of the child care costs based on their respective incomes. N.J.D.B. currently pays $415 a month toward current costs and says this is sufficient.

e)   Communication – S.R.B seeks an order for respectful communications. N.J.D.B. did not make any submissions about this.

f)     No Contact – S.R.B seeks an order that N.J.D.B. not to attend any place where S.R.B was. She does not ask for this order to extend to the children. N.J.D.B. did not make any submissions about this.

WITNESSES

[4]         I heard from the following witnesses:

1.   S.R.B

2.   M.G., the mother of S.R.B.

3.   N.J.D.B.

4.   T.A.D, a friend and neighbour of S.R.B.

5.   A.B, a family friend

6.   D.B., who is married to N.J.D.B.’s sister

7.   Dr. Eric Cattoni, the family doctor for N.J.D.B., S.R.B. and the children

BACKGROUND

[5]         The parties met sometime in 2012 and began to live together sometime in 2013 or 2014. Their first child was born in 2015. They married in 2016 and their second child was born in 2017.

[6]         S.R.B said that arguments between the parties became more frequent starting in 2016. She said N.J.D.B. frequently used profanity when speaking to S.R.B. including repeated derogatory name-calling.

[7]         N.J.D.B. concedes that he frequently swears. He attributes this to being an “East Coaster”. N.J.D.B.’s regular use of profanity was quite evident during the course of the trial. Often, litigants appearing in court are careful about how they present themselves. N.J.D.B. had no such concerns. He repeatedly swore while in court and had no qualms about using derogatory language aimed at S.R.B or her lawyer. At times, I cautioned N.J.D.B. about his language but this had no effect. N.J.D.B.’s brother-in-law, D.B., said that swearing was simply part of N.J.D.B.’s vocabulary and he said to N.J.D.B. that his manner of speaking was “like we are hearing your thought processes out loud.”

[8]         S.R.B testified that she found N.J.D.B.’s frequent swearing and name-calling to be intimidating, although she also concedes that N.J.D.B. has never been physically threatening to her. She did describe two incidents that occurred in 2016 where N.J.D.B. punched a hole in a wall and threw a glass to the ground.

[9]         S.R.B. agrees that N.J.D.B. would never physically harm the children. She said that N.J.D.B. does swear at them and is concerned about any psychological harm.

[10]      The parties separated in July 2020. N.J.D.B. says there was a short-lived reconciliation when the parties went camping. S.R.B recalls this camping trip occurred prior to the separation, and says there was no reconciliation. Regardless, it is clear that by August 2020, the parties had indeed separated.

[11]      At the time of separation, the parties were living in a suite in the home of S.R.B.’s grandmother. N.J.D.B. did not actually move out until approximately September 21, 2020. Prior to moving out, N.J.D.B. had insisted that the parties agree on a parenting arrangement, but that did not occur.

[12]      After N.J.D.B. moved out, S.R.B filed an application to this court on September 23, 2020 seeking orders relating to guardianship, parental responsibilities, parenting time, child and spousal support, a protection order, and a conduct order. At trial, S.R.B. did not pursue the requests for spousal support or a protection order.

[13]      Also on September 23, 2020, S.R.B made a without notice application before Judge Bakan and obtained an order which I summarize as follows:

1.   Neither party is to remove the children from Vancouver, BC without the consent of all guardians or court order

2.   N.J.D.B. is to communicate with S.R.B only as follows:

a.   By text or email for the purposes of arranging parenting time, facilitating exchanges as agreed upon 24 hours in advance and making decisions relating to the children,

b.   While attending a mediation or a court-related appearance, and

c.   Communication through legal counsel.

3.   N.J.D.B. is not to attend at or near any place regularly attended by S.R.B or the children, including any residence, place of employment or education, or daycare facility without S.R.B.’s written permission or court order.

4.   The parties are to conduct themselves in such a way as to put the best interests of the children first.

[14]      On October 14, 2020, N.J.D.B. filed a Reply and Counterclaim.

[15]      On November 2, 2020, Judge Phillips amended the September 23, 2020 order by consent to say that both parties, and not just N.J.D.B., would now only communicate:

a)   by text or email to arrange parenting time, facilitate exchanges and make decisions about the children,

b)   while attending a mediation or a court-related appearance, and

c)   through legal counsel.

[16]      All other terms of the Sept 23, 2020 order were to remain in effect until the next hearing date.

[17]      A number of later consent orders changed the parenting time schedule. As of the date of trial, N.J.D.B. had parenting time with the children as follows:

a)   From Wednesday after school, or Wednesday at 5 p.m. if there was no school, to Thursday at 7:45 a.m.

b)   From Saturday 10 a.m. to Sunday noon.

Mental Health Concerns

[18]      During the course of the trial, N.J.D.B.’s mental health was frequently discussed. N.J.D.B. has dealt with mental health issues since he was young. Dr. Cattoni confirms that N.J.D.B. was diagnosed as Bipolar 2, which is characterized by fluctuations in mood from low to high, and differs from a diagnosis of Bipolar 1, where manic episodes will occur.

[19]      Dr. Cattoni prescribed N.J.D.B. medication called escitalopram to deal with his low moods and amitriptyline to help him sleep and deal with migraines.

[20]      Counsel for S.R.B reviewed N.J.D.B.’s PharmaNet records. She suggested that there are times when N.J.D.B.’s prescriptions would have run out had he taken them daily as prescribed. N.J.D.B. denied this. The PharmaNet records do indicate that on some occasions the number of days between prescription refill dates was greater than the number of pills prescribed. Even if this was the case, there was no evidence that this led to changes in N.J.D.B.’s mental health or behavior.

[21]      N.J.D.B. also admitted that there were times when he had thoughts of suicide, such as after the September 23, 2020 order of Judge Bakan. However, he said that this was never to the extent where he made plans for suicide. Dr. Cattoni’s clinical record for October 8, 2020 confirms that N.J.D.B. did not display any “desperate thinking” or thoughts of hurting himself or others. I accept that having suicidal thoughts and having an actual plan to commit suicide are different matters.

[22]      I am not satisfied that N.J.D.B.’s mental health should play any part in my decision about parenting arrangements.

Recreational Drug Use

[23]      N.J.D.B. confirmed that at times he has used marijuana and “magic mushrooms” on a recreational basis. He said that on those occasions, S.R.B would act as the “sober parent” and be responsible for any driving or child care.

[24]      There is no indication that N.J.D.B.’s recreational drug use has been detrimental to the children. If anything, it appears that the recreational usage has always occurred responsibly. I do not consider this a relevant factor when deciding the issue of parenting arrangements.

ANALYSIS

Guardianship

[25]      As both parties are the biological parents of the children and they resided together with the children, the Family Law Act presumes that they are guardians of the children. I will therefore order as follows:

The court is satisfied that S.R.B and N.J.D.B. are the guardians of the children under s. 39(1) of the Family Law Act.

Parental Responsibilities and Communications

[26]      S.R.B asks for an order that she have all parental responsibilities or alternatively the final say in any disputes about parental responsibilities

[27]      N.J.D.B. asks to have the final say in the exercise of parental responsibilities.

[28]      Based on s. 37 of the Family Law Act, the best interests of the children is the paramount consideration for the court when making decisions about parenting arrangements. I have no doubt that either parent will consider what is best for the children when making decisions about them. My concern is whether there is any ability for the parents to work together in making those decisions because of the ongoing conflict between them.

[29]      N.J.D.B. describe his communication style as being assertive. Counsel for S.R.B described his method of communication as bullying and a form of family violence.

[30]      Section 1 of the Family Law Act provides a definition of “family violence” as follows:

"family violence" includes, with or without an intent to harm a family member,

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(e) in the case of a child, direct or indirect exposure to family violence;

[31]      N.J.D.B.’s method of communicating rises above “mutual unpleasantness” as referred to in Morgadinho v. Morgadinho, 2014 BCSC 192 at paragraph 60. This is demonstrated by the evidence of the discussions between the parties, N.J.D.B.’s text messages and even his comments in court. In my view, his manner of profanity-laced communication goes beyond assertiveness and is aggressive in nature. I find that this is a form of family violence.

[32]      I draw support for the finding that verbal abuse can be a form of family violence from the following cases:

D.L.J. v. R.T.C., 2017 BCPC 188 at paragraph 47

S.A.W. v. P.J.W., 2019 BCPC 376 at paragraphs 79 to 80

N.M.A. v. K.D.L., 2018 BCPC 1879 at paragraph 41

G.G. v. J.C., 2020 BCPC 32 at paragraph 49

[33]      The inability of the parties to communicate without argument and, more importantly, N.J.D.B.’s manner of communication, causes me tremendous concern. If the parties are to co-parent, they must be able to communicate. If they cannot communicate, then the appropriate answer is for one parent to have all the parental responsibilities. As I attribute a large part of the problems to N.J.D.B.’s manner of communicating, I would be inclined to order that S.R.B have all parental responsibilities. However, there are some measures I can take to attempt to improve communications and reduce the opportunity for argument. To that end, I will be making a conduct order that requires all communications to be in writing when dealing with parenting issues. The parties can agree to verbal communications if the agreement is made beforehand in writing, which agreement can be withdrawn at any time. There will also be certain exceptions, such as during a court appearance.

[34]      My hope is that by limiting the level of contact that the parties have with each other, the opportunity for arguments will be lessened.

[35]      If the parties are unable to agree on any parenting decisions, then S.R.B will have the final say. I make this order for two reasons. First, S.R.B is not the primary source of the communication problems. Second, by allowing S.R.B to have the final say, I am hopeful that N.J.D.B.’s discussions with S.R.B will be more constructive and focused on the best interests of the children, rather than on criticism, insults and name-calling.

[36]      Each party must still advise the other in writing about any significant matters that affect the children, including any change in school, any medical treatment for a serious condition and any changes that may affect either party’s parenting time.

[37]      If N.J.D.B. objects to any decision made by S.R.B, he may apply to court for a review of the decision.

[38]      Both parties are entitled to receive from third parties any health, education or other information, except in relation to health care provided pursuant to s. 17 of the Infants Act. This provision relates to the situation where an infant consents to medical treatment.

[39]      Both parties are entitled to receive any notice that a parent or guardian is entitled or required by law to receive.

Parenting Time

[40]      S.R.B. asks that the current parenting time schedule remain in place. She says that N.J.D.B. has never cared for the children longer than for a day. She cited various times when N.J.D.B. was caring for the children and then asked S.R.B to look after the children so that he could have a break. S.R.B. said that N.J.D.B. would become mad if she was unable to care for the children immediately.

[41]      These incidents occurred when the parties were still living in the same home. There were no similar incidents since the parties moved into separate homes.

[42]      N.J.D.B. attributes his need for a break from the children to his smoking habit and his need for a cigarette.

[43]      N.J.D.B. asks for equal parenting time. He says that a week on – week off schedule would not be appropriate given the young ages of the children. He suggests an alternating two day or three day schedule for each parent.

[44]      N.J.D.B. does not pose a risk to the children and S.R.B does not suggest it. She is concerned that he displays anger toward S.R.B in the presence of the children. I think that can be addressed by conduct orders and minimizing the contact between the two parents. I am satisfied that N.J.D.B. should have increased parenting time. His strongest wish is to see the children and I believe the children want a greater involvement with their father.

[45]      No one believes that a week on-week off schedule is appropriate given the children’s young ages.

[46]      The reality is that S.R.B has been the children’s primary caregiver in the past. N.J.D.B.’s time with the children since separation has been limited. I find that it would be in the best interests of the children that a move towards increased parenting time be gradual. As the children get older, the parties can apply to court for a review of the parenting time schedule based on the best interests of the children.

[47]      I will order the following parenting time schedule:

Commencing Monday September 6, 2021, N.J.D.B. will have parenting time on the following four-week repeating schedule:

For week 1, as follows:

a)   From Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Thursday at 7:45 a.m.

b)   On Saturday from 10 a.m. to Sunday at 12:00 noon.

For week 2, as follows:

a)   on Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Saturday at 12:00 noon

For week 3, as follows:

a)   On Tuesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Thursday at 7:45 a.m.

b)   On Saturday from 10 a.m. to Sunday at 12:00 noon.

For week 4, as follows:

a)   on Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Saturday at 12:00 noon.

[48]      S.R.B. shall have all other in-person parenting time, except that N.J.D.B. may have such additional parenting time, whether in person or by some method of communication, as agreed to in writing with S.R.B.

[49]      For the purposes of parenting time exchanges, N.J.D.B. will:

a)   pick up the children at their school or the home of S.R.B. if the children are not in school.

b)   drop off the children at their school or daycare, or at the home of S.R.B if the children are not attending school or daycare.

[50]      During one parent’s parenting time, the other parent will be entitled to contact the children by way of a video or telephone call. The parties may agree in writing when the calls will occur but if there is no written agreement, then the calls will occur at 7:30 p.m. on the days that each parent may contact the children for a minimum of 10 minutes each. As with the in-person parenting time schedule, the schedule for telephone and electronic communication will also be on a four-week rotating schedule until further order of the court or the written agreement of the parties.

[51]      For ease of reference, I have added an Appendix to this decision that displays N.J.D.B.’s in-person parenting time schedule and the video or telephone parenting time schedule for both parties.

[52]      The parties may apply to review this schedule on or after July 1, 2023. I considered an earlier review date but the contentious nature of this file suggests to me that a longer break would be helpful for all involved.

Child Support

[53]      S.R.B. seeks child support of $1,159 a month starting October 1, 2020 based on the Child Support Guidelines and N.J.D.B.’s income of $74,694.

[54]      N.J.D.B. says the children are well cared for and he opposes paying any child support. N.J.D.B.’s Financial Statement also refers to making a claim of hardship.

[55]      As set out in section 3 of the Child Support Guidelines, the payment of child support in accordance with the Guidelines is mandatory. In some circumstances, a court may adjust the amount payable. One such circumstance is if a support payor would suffer undue hardship if required to pay the Child Support Guideline amount: see s. 10 of the Child Support Guidelines.

[56]      N.J.D.B. set out a claim of undue hardship in his Financial Statement filed October 14, 2020. He referred to his student loan debt showing payments of $633.17 a month and his credit card debt with payments of $250 a month. N.J.D.B. did not provide any other evidence with respect to this claim of hardship and he did not testify in support of the claim. N.J.D.B. did refer to some family debts in his testimony. However, he did not give any evidence of the circumstances listed at s. 10(2) of the Child Support Guidelines. This section sets out circumstances that may cause undue hardship, including the presence of an unusually high level of debt reasonably incurred to support S.R.B or the children prior to separation or to earn a living. There was also no evidence before me that any hardship N.J.D.B. would suffer if he paid child support would be severe or extreme: see Kelly v Kelly, 2011 BCCA 173.

[57]      In my view, N.J.D.B. has not shown he would suffer under hardship if he were required to pay child support in the amount set by the Guidelines.

[58]      N.J.D.B.’s T4 Statement of Remuneration Paid for the taxation year 2020 shows employment income of $74,694.78. It also shows union dues of $1,378.22 which I must deduct from his income to arrive at an amount for the purposes of the Child Support Guidelines: See section 1(g) of Schedule III to the Child Support Guidelines. This results in an income of $73,316.56, which I will round off to $73,317.

[59]      I find that N.J.D.B.’s income for the purposes of the Child Support Guidelines is $73,317 and he is obligated to pay child support of $1,138 a month for the two children. Ongoing payments will commence September 1, 2021 and continue on the first day of each month thereafter so long as the children are eligible for support pursuant to the Family Law Act.

[60]      The application of S.R.B. was filed on September 23, 2020. The usual start date of any support order is after a person receives notice of the application. I was unable to locate an affidavit of service in the court file showing when S.R.B.’s application was served on N.J.D.B., but the court records show that N.J.D.B. filed documents with the court on October 14, 2020. As such, he was aware of the proceedings by that date.

[61]      The obligation to pay child support will therefore commence November 1, 2020. The support arrears for the period November 2020 to August 2021 total $11,380.00 ($1,138 x 10 months). N.J.D.B. will pay off the arrears at the rate of $50 a month starting September 1, 2021 until the arrears are paid off in full, which payment will be in addition to the regular monthly support payments.

Expenses

[62]      In order to make an order regarding the proportionate sharing of expenses, I must first determine S.R.B.’s income. S.R.B. is currently employed at [omitted for publication] in a temporary position and is paid $4,200 a month or $50,400 per annum.

[63]      S.R.B.’s T4 Statement of Remuneration Paid for the taxation year 2020 set out union dues of $1,103.39. I do not have an update for 2021 union dues so I will assume the amount is the same. I adjust S.R.B.’s income by deducting the union dues in accordance with Schedule III of the Child Support Guidelines to arrive at an income amount of $49,297.

[64]      S.R.B.’s position is temporary and has been extended in the past. The position is only certain until August 22, 2021. At that time, [omitted for publication] may extend the position further. Alternatively, [omitted for publication] may post the position for a permanent placement and S.R.B. would be required to apply for the position.

[65]      Given this uncertainty, S.R.B. invites me to impute her income at $44,000 per annum, the income she was earning prior to obtaining her current position. I do not accept that submission since it ignores the reality that S.R.B. is currently earning a higher income.

[66]      S.R.B. also has a business making children’s clothing but her evidence is that the sales revenue has varied as follows:

2018   $2,469.89

2019   $3,503.29

2020   $1,704.40

[67]      S.R.B. has had no gross revenues in 2021 to date as most of her clothing sales come from craft fairs, which have not been held due to the COVID-19 pandemic.

[68]      Over the years, it appears that the amount of expenses S.R.B. has incurred in making the clothing has exceeded her revenues such that she has not made any net business profit. Therefore, I will not include any amount of business income into S.R.B.’s overall income.

[69]      Taking the above into account, I find that S.R.B.’s annual income is $49,297.

[70]      S.R.B. seeks to have N.J.D.B. contribute to a share of the day care costs based on their respective incomes. Section 7 of the Child Support Guidelines deals with special or extraordinary expenses. Section 7(1)(a) states:

 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time

[71]      In assessing whether the parties should be sharing responsibility for s. 7 expenses, I must consider the necessity of the expense and its reasonableness. The child care expenses are required to enable S.R.B. to work. N.J.D.B. has been making a contribution toward the child care expenses since prior to their separation and so he recognizes, at least to some degree, the necessity of the expense.

[72]      S.R.B. testified that she receives a subsidy for the daycare costs. As a result, the amount payable for full-time care for the youngest child is $780 a month.

[73]      A letter from [omitted for publication] dated April 20, 2021 states that the monthly fee for the oldest child is $257.

[74]      In my view, these amounts are reasonable.

[75]      In the summer months, the oldest child does not have child care since he is only registered for before and after school care. S.R.B. has resorted to using her vacation time or enrolling the child into activities in lieu of child care. Those activity costs have been as follows:

Pedalheads

July 5-9, 2021- $502.95 (full day)

July 26-30, 2021- $502.95 (full day)

August 3-6, 2021 – $231 (half day)

UBC Bike Hike

August 16-20, 2021 - $218 (half day)

August 30-September 9, 2021 - $218 (half day)

[76]      N.J.D.B. takes issue with these costs citing his limited means. He also takes issue with S.R.B. incurring the costs without asking him beforehand. S.R.B. said she did ask N.J.D.B. if he had any vacation time over the summer, to which there was no reply. She did not go further by asking N.J.D.B. if he could care for the oldest child while she worked. S.R.B. said she was hoping to avoid further argument and that she would ask the court to resolve this issue.

[77]      I am not prepared to order N.J.D.B. to share in these costs. It would have only been proper for S.R.B. to ask N.J.D.B. beforehand if he could contribute to the costs. It also would have been prudent to explain why the costs were necessary and to ask if N.J.D.B. could assist with child care in any way. I am cognizant of S.R.B.’s wish to avoid further argument. Despite this, I am not prepared to impose on N.J.D.B. an obligation to pay a debt of which he was not aware.

[78]      The issue of summer day camps costs may still arise next year. S.R.B.’s counsel suggested that the parties should have to agree on sharing any other section 7 expenses. That is a reasonable approach and should apply to any future summer day camp costs as well.

[79]      Based on N.J.D.B.’s income of $73,317 and S.R.B.’s income of $49,297, N.J.D.B. will be required to pay 60% of the children’s child care costs and S.R.B. will pay 40% of those costs. This will commence September 1, 2021.

[80]      Starting September 1, 2022 and continuing on September 1 of each year thereafter or at any time there is a change in the care costs, S.R.B. is to provide N.J.D.B. with an update about the amount of the costs.

[81]      The parties may agree in writing on any other expenses, which shall be shared a 60/40 basis.

Non-Removal

[82]      S.R.B. consents to an order to delete the term of the September 23, 2020 order of Judge Bakan that neither party is to remove the children from Vancouver B.C. without the consent of the other guardian or further court order. As this was an order term obtained on a without notice basis by S.R.B, I will remove that order term.

[83]      N.J.D.B. asked for an order that S.R.B. not leave British Columbia with the children. N.J.D.B. has not filed an application for such an order and I heard no evidence in relation to this. As such, I decline to consider this request.

Communication

[84]      S.R.B. asks to continue the existing order regarding communications set out in Judge Phillip’s November 2, 2020 order.

[85]      N.J.D.B. did not make any submissions about this.

[86]      The terms of this order are intended to limit communications and thus avoid the potential for further arguments between the parties. This remains an ongoing objective and so this order, made pursuant to s. 225 of the Family Law Act, will remain in effect.

[87]      As I discussed earlier, my order contemplates written communications only when dealing with parenting issues. The parties may still agree in writing to permit verbal communications about parenting issues. However, in any communications, whether written or verbal, the parties are required to refrain from any negative comments, including the use of obscenities and name-calling. This includes any communications that may occur in front of the children and in any location where the children are likely to hear the discussion.

[88]      The order restricting communications will also be subject to certain exceptions, such as during court appearances or in cases of an emergency.

No Contact

[89]      Judge Bakan’s September 23, 2020 order contains a provision that N.J.D.B. not attend any place where S.R.B. or the children were. S.R.B. asks that this order remain in place only with respect to her, and not the children.

[90]      N.J.D.B. did not make any submissions about this.

[91]      As with the order limiting the parties’ communication, this term limits the parties’ contact with each other and seeks to reduce the potential for further arguments. I accept that N.J.D.B.’s manner of communication creates a reasonable apprehension of fear on the part of S.R.B., even absent any physical threats. This term will remain in place as it relates to S.R.B. only. As the children reside primarily at S.R.B.’s home, the order will still permit N.J.D.B. to attend the home to pick up or drop off the children without breaching the conduct order. There will also be other exceptions such as during any emergency, medical appointments or school meetings involving the children. These exceptions are intended to ensure that neither parent is excluded from certain important events or occurrences. The parties may also agree on further exceptions.

Best Interests

[92]      Judge Bakan’s order included a term that the parties put the children’s best interests first and to encourage the children to have a good relationship with each parent. Neither party made submissions about this term. The intent of the order is to attempt to foster a better relationship between each parent and the children. As this remains in the best interests of the children, this term will remain in effect.

The Conduct of S.R.B.’s Counsel

[93]      During the course of the trial, N.J.D.B. accused Ms. Thakur, counsel for S.R.B., of being unethical and unprofessional. Having observed Ms. Thakur during these proceedings, I disagree with his view without reservation.

[94]      I am guided by the Law Society of British Columbia’s Code of Professional Conduct, which includes this statement about the obligations required of a lawyer:

2.1-3(d) A lawyer should treat adverse witnesses, litigants and counsel with fairness and courtesy, refraining from all offensive personalities. The lawyer must not allow a client’s personal feelings and prejudices to detract from the lawyer’s professional duties. At the same time, the lawyer should represent the client’s interests resolutely and without fear of judicial disfavour or public unpopularity.

[95]      Section 7.2-9 of the Code states:

7.2-9 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must:

(a) urge the unrepresented person to obtain independent legal representation;

(b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and

(c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.

[96]      It is a difficult task being the one lawyer in a high conflict, emotional family litigation. It is also a difficult task to represent your own client to the best of your ability, which is expected of all lawyers, and yet to be fair to an unrepresented litigant.

[97]      I have noted in a number of Ms. Thakur’s emails to N.J.D.B. that she told him that she was representing S.R.B. only and could not give legal advice to N.J.D.B.

[98]      In court before me, Ms. Thakur was fair and balanced and at no time sought to take advantage of N.J.D.B. despite his lack of a lawyer.

[99]      In my view, Ms. Thakur acted throughout the proceedings with fairness, courtesy and honesty. Simply put, there is no basis for N.J.D.B.’s unfair allegations against Ms. Thakur.

ORDER

[100]   I order as follows:

[101]   The orders of Judge Bakan made September 23, 2020 and Judge Phillips made November 2, 2020 are cancelled.

Guardianship

[102]   The court is satisfied that S.R.B. and N.J.D.B. are the guardians of the children under s. 39(1) of the Family Law Act.

Parental Responsibilities

[103]   Pursuant to s. 40(2) of the Family Law Act, S.R.B. and N.J.D.B. will share equally all parental responsibilities for the children as set out in s. 41 of the Family Law Act:

a)   Making day to day decisions affecting the children and having day to day care, control and supervision of the children;

b)   Making decisions about where the children will reside;

c)   Making decisions respecting with whom the children will live and associate;

d)   Making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location;

e)   Making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the children are aboriginal, the children's aboriginal identity;

f)     Subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children;

g)   Applying for a passport, licence, permit, benefit, privilege or other thing for the children;

h)   Giving, refusing or withdrawing consent for the children, if consent is required;

i)     Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

j)     Requesting and receiving from third parties health, education or other information respecting the children, except in relation to health care provided pursuant to s. 17 of the Infants Act;

k)   Subject to any applicable provincial legislation;

                              i.   Starting, defending, compromising or settling any proceeding relating to the children; and

                           ii.   Identifying, advancing and protecting the children's legal and financial interests;

l)     Exercising any other responsibilities reasonably necessary to nurture the children’s development.

[104]   Parental Responsibilities must be exercised as follows:

a)   S.R.B. and N.J.D.B. will have the obligation to advise each other of any matters of a significant nature affecting the children;

b)   S.R.B. and N.J.D.B. will have the obligation to discuss with each other any significant decisions that have to be made concerning the children, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare, and the obligation to try to reach agreement on those decisions;

c)   In the event that S.R.B. and N.J.D.B. cannot reach agreement on a significant decision despite their best efforts, S.R.B. will be entitled to make those decisions and N.J.D.B. will have the right to apply for directions on any decision considered to be contrary to the best interests of the children, under s.49 of the Family Law Act.

Parenting Time

[105]   Commencing Monday September 6, 2021, N.J.D.B. will have in-person parenting time on the following four-week repeating schedule:

a)   For week 1, as follows:

                                i.   From Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Thursday at 7:45 a.m.

                              ii.   On Saturday from 10 a.m. to Sunday at 12:00 noon.

b)   For week 2, on Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Saturday at 12:00 noon

c)   For week 3, as follows:

                                i.   On Tuesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Thursday at 7:45 a.m.

                              ii.   On Saturday from 10 a.m. to Sunday at 12:00 noon.

d)   For week 4, on Wednesday at the end of the children’s school, or at 5 p.m. if there is no scheduled school, to Saturday at 12:00 noon.

[106]   S.R.B. shall have all other in-person parenting time, except that N.J.D.B. may have such additional parenting time, whether in person or by some method of communication, as agreed to in writing with S.R.B.

[107]   For the purposes of parenting time exchanges, N.J.D.B. will:

a)   pick up the children at their school or the home of S.R.B. if the children are not in school.

b)   drop off the children at their school or daycare, or at the home of S.R.B. if the children are not attending school or daycare.

[108]   Commencing Monday September 6, 2021, the parties will have parenting time with the children by way of telephone or electronic communication to occur at 7:30 p.m. each day for a minimum of 10 minutes each on a four-week repeating schedule as follows:

a)   For week 1:

                                i.   N.J.D.B.: Monday, Tuesday and Friday

                              ii.   S.R.B.: Saturday

b)   For week 2:

                                i.   N.J.D.B.: Monday, Tuesday and Sunday

                              ii.   S.R.B.: Thursday and Friday

c)   For week 3:

                                i.   N.J.D.B.: Monday and Friday

                              ii.   S.R.B.: Wednesday and Saturday

d)   For week 4:

                                i.   N.J.D.B.: Monday, Tuesday and Sunday

                              ii.   S.R.B.: Thursday and Friday

[109]   The alternating four-week parenting time schedule will continue until further order of the court or the written agreement of the parties.

[110]   N.J.D.B. will be responsible for picking up and dropping off the children during parenting time exchanges. When the exchanges occur at the home of S.R.B., N.J.D.B. will send a text message or email to S.R.B. to notify her if he is delayed in attending at her home.

[111]   The parties may apply to review the parenting time schedule on or after July 1, 2023.

Child Support

[112]   N.J.D.B. is found to be a resident of British Columbia and is found to have a guideline annual income of $73,317.

[113]   N.J.D.B. shall pay to S.R.B. the sum of $1,138 per month for the support of the children, commencing on September 1, 2021 and continuing on the 1st day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further court order.

[114]   The arrears of support payable by N.J.D.B. to S.R.B. for the period November 1, 2020 to August 1, 2021 are fixed at $11,380 (10 x $1,138) as of August 31, 2021.

[115]   N.J.D.B. shall pay to S.R.B. towards the arrears of support and in addition to the regular monthly support, the sum of $50 per month starting September 1, 2021 and continuing on the 1st day of each month thereafter until the arrears are paid in full or further order of the court.

Expenses

[116]   S.R.B. is found to be a resident of British Columbia and is found to have a guideline income of $49,297.

[117]   N.J.D.B. shall pay to S.R.B. his proportional share for the children’s special or extraordinary expenses. The parties’ respective proportional shares are N.J.D.B. 60% and S.R.B. 40%.

[118]   The following expenses will be special or extraordinary expenses:

a)   the child care costs of each child, and

b)   such other expenses as agreed to in writing by the parties.

[119]   Commencing September 1, 2021 and continuing on September 1 of each year thereafter so long as the children are in child care, S.R.B. will provide to N.J.D.B. written confirmation from the child care provider of the monthly amount owing for child care.

[120]   If the amount of child care costs should change at any time, S.R.B. will send to N.J.D.B. written confirmation from the child care provider of the new child care costs within 7 days after S.R.B. has received notice of the change in child care costs.

Conduct

[121]   Under s. 225 of the Family Law Act, and subject to this order, when dealing with any parenting issues, including parenting time, parenting time exchanges, the exercise of parental responsibilities, or exchanging information about the children, the parties shall only communicate in writing, including by text or email.

[122]   The parties are not required to communicate in writing in the following circumstances:

a)   While attending a mediation, court appearance, case conference, hearing or trial in a court action where they are compelled by law to attend or where they are a party.

b)   Through legal counsel or a family dispute resolution professional.

c)   During parenting time exchanges so long as there are no discussions of parenting issues, including parenting time or parental responsibilities.

d)   During any emergency that directly or indirectly affects the children.

[123]   The parties may agree in writing to have communication with each other about parenting issues through any means other than in writing, but either party is at liberty to withdraw that consent at any time, in which case the requirement for written communications will resume immediately.

[124]   Pursuant to s. 227 of the Family Law Act, N.J.D.B. must not go to any place where S.R.B. lives, works, attends school, worships, or happens to be. If N.J.D.B. sees S.R.B., he must leave her presence immediately without any words or gestures. The exceptions to this order term are as follows:

a)   When N.J.D.B. picks up or drops off the children at the home of S.R.B., in which case N.J.D.B. shall remain on the street in front of the home while the children leave or enter the home.

b)   While attending a mediation, court appearance, case conference, hearing or trial in a court action where they are compelled by law to attend or where they are a party.

c)   During any emergency that directly or indirectly affects the children.

d)   During any medical treatment or any school meetings or events involving the children.

e)   Such other occasions as agreed to by the parties in writing.

[125]   The parties shall:

a)   put the best interests of the children before their own interests;

b)   encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent’s partner, if any, in a positive and respectful manner;

c)   make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children or in any location where the children are likely to hear them; and

d)   make a real effort to refrain from the use of profanities or derogatory name-calling when communicating with each other, including any communications in front of the children or in any location where the children are likely to hear them.

[126]   I direct Ms. Thacker to draft the order for filing with the court. The Provincial Court Family Rules do not require N.J.D.B. to sign the draft of the order and so there is no need to dispense with his signature on the form of the order.

 

 

_____________________________

The Honourable Judge W. Lee

Provincial Court of British Columbia

S.R.B v. N.J.D.B.

Appendix A – Parenting Time Schedule

 

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week 1

N.J.D.B. – video or phone call at 7:30pm

N.J.D.B. – video or phone call at 7:30pm

Start when school ends or at 5PM if there is no school

End at 7:45am by dropping off the children at school, daycare or home

N.J.D.B. – video or phone call at 7:30pm

Start at 10am

 

S.R.B. – video or phone call at 7:30pm

End at noon

Week 2

N.J.D.B. – video or phone call at 7:30pm

N.J.D.B. – video or phone call at 7:30pm

Start when school ends or at 5PM if there is no school

The children remain with N.J.D.B.

 

S.R.B. – video or phone call at 7:30pm

The children remain with N.J.D.B.

 

S.R.B. – video or phone call at 7:30pm

End at noon

N.J.D.B. – video or phone call at 7:30pm

Week 3

N.J.D.B. – video or phone call at 7:30pm

Start when school ends or at 5PM if there is no school

The children remain with N.J.D.B.

 

S.R.B. – video or phone call at 7:30pm

End at 7:45am by dropping off the children at school, daycare or home

N.J.D.B. – video or phone call at 7:30pm

Start at 10am

 

S.R.B. – video or phone call at 7:30pm

End at noon

Week 4

N.J.D.B. – video or phone call at 7:30pm

N.J.D.B. – video or phone call at 7:30pm

Start when school ends or at 5PM if there is no school

The children remain with N.J.D.B.

 

S.R.B. – video or phone call at 7:30pm

The children remain with N.J.D.B.

 

S.R.B. – video or phone call at 7:30pm

End at noon

N.J.D.B. – video or phone call at 7:30pm