B.K. v. J.B.

2015 BCSC 1481 B.K. v. J.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.K. v. J.B., 2015 BCSC 1481 Date: 20150821 Docket: E132511 Registry: Vancouver Between: B.K. Claimant And J.B. Respondent Before: The Honourable Madam Justice H. Holmes Reasons for Judgment Counsel for the Claimant: Jill L. Chapin Counsel for the Respondent: Stephen Glanzberg Written submissions of the Claimant: Received June 24, 2015 Written submissions of the Respondent: Received June 25, 2015 Place and Date of Hearing: Vancouver, B.C. June 4, 2015 Place and Date of Judgment: Vancouver, B.C. August 21, 2015

INTRODUCTION [1] J.B. seeks a variation of an interim order concerning the parenting time he has with the parties' son D., who is nearly four years of age. Mr. B. lives in Calgary, and is able to come to Vancouver once or twice per month to see D. The existing order, made by Gerow J. by consent at a judicial case conference on January 5, 2015, provides for Mr. B. to have parenting time on one week's notice at least once per month for up to three consecutive daytime visits, with further parenting time as the parties agree. [2] Mr. B. seeks a variation of that order to provide explicitly for overnight parenting time during the three-day periods. He also seeks a variation of, variously, that order and two other interim orders to permit him to take D. outside the Province of British Columbia, and to modify the times for his Skype visits because of a change in his work schedule. [3] The parties' marital relationship was a common law one, and accordingly the various interim orders and this application are made under the BC Family Law Act. [4] The application requires a consideration of the threshold to be passed by a party seeking variation of an interim order concerning parenting made under the FLA, as well as the test that applies. Mr. B. submits that both the threshold and the test are supplied by s. 216 of the FLA, which appears in Part 10's "Division 4 − General Orders the Court May Make". Ms. K. submits that the threshold and the test for the application are in s. 47, and not s.

216. Section 47 appears in Part 4 ("Care of and Time with Children") in "Division 2 − Parenting Arrangements". [5] The parties also disagree about whether Mr. B.'s application passes the applicable threshold, and, if it does, whether the order should be made.

1. WHAT THRESHOLD APPLIES TO AN APPLICATION UNDER THE FLA TO VARY AN INTERIM ORDER RE PARENTING? The "Compelling Change of Circumstances" Standard [6] In their main submissions on the application, counsel addressed the case authorities which indicate that there should be a "compelling change of circumstances" before an interim order will be varied before trial. Martinson J. outlined this approach and set out some of the reasons for it in Hama v. Werbes (1999), 66 B.C.L.R. (3d) 120 (S.C.): [8] The litigation process in this province is generally designed to resolve, at a trial, disputes between parties who are not otherwise able to resolve them. Family law disputes too often get bogged down on interim applications. Time and money that could be better used for other purposes, are spent dealing with them. Interim applications can also "add fuel to the fire" in acrimonious disputes. This can be particularly detrimental to any children who are involved in the dispute. [9] Day to day matters, such as who has the children when, and how living expenses will be paid, do need to be resolved on an interim basis. [10] Steps must also be taken to preserve the parties' legal interests until the trial. Various orders and injunctions are available for this purpose. In the family law context, s. 67 of the Family Relations Act is one remedy that serves this purpose. [11] These are, however,

short term solutions, needed to provide a bridge between the filing of the claim and the trial. [12] If trial judges are not to get bogged down on interim applications, they certainly should not get bogged down on applications to vary interim orders. Therefore, interim orders, once made, should only be varied when there is a compelling change of circumstances, such that one or both parties would be seriously prejudiced by waiting until trial. [7] The approach thus described and explained in Hama developed under the former Family Relations Act, which has now been replaced by the FLA. The FLA in s. 216 now specifically addresses the variation of interim orders. The former FRA expressly provided in s. 9 for interim orders to be made, and in s. 20 for the variation of orders generally, but did not set out in the detail which appears in s. 216 of the FLA the considerations and factors that are to govern an application for variation of an interim order. [8] After reserving judgment on this matter, the Court requested further submissions concerning the potential application of s. 216, as well as concerning sections 47 and 215 of the FLA. The Court is grateful for the detailed written submissions counsel provided in response. The Potentially Applicable FLA Provisions [9] Section 216 as a whole relates to interim orders generally, and subsections (3) and (4) to their variation (or

suspension or termination): 216 (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for. (2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order. (3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists: (a) a change in circumstances has occurred since the interim order was made; (b) evidence of a substantial nature that was not available at the time the interim order was made has become available. (4) In making an order under subsection (3), the court must take into account all of the following: (a) the change in circumstances or the evidence, or both, referred to in subsection (3); (b) the length of time that has passed since the interim order was made; (c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement

between the parties; (d) whether a trial has been scheduled; (e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [10] Section 216 should be read in conjunction with s. 215, which provides for the variation (or suspension or termination) of orders generally: 215 (1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made. (2) A court may not change, suspend or terminate an order made under Part 5 [Property Division] or 6 [Pension Division] except as provided under those Parts. [11] Section 47 of the FLA provides for the variation (or suspension or termination) of orders relating to parenting arrangements, without stating expressly whether those may include interim orders: 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. [12] It should be noted also that s. 37(1), which I will quote below, requires a court making an order respecting parenting to consider only the best interests of the child. Mr. B's Position [13] Mr. B. submits that s. 216 applies by

virtue of its clear terms. The orders in issue are interim orders, and therefore necessarily made under the authority in s. 216(1), and the application is to "change, suspend or terminate an interim order made under subsection (1)" and is therefore necessarily made under s. 216(3). Mr. B. submits that s. 216(3) and (4) therefore provide the basis on which this application should be determined. As a result, the Court must consider whether there is a change of circumstances (s. 216(3)(a)) or new evidence of a substantial nature (s. 216(3)(b)) since the time of the orders in issue, and, if there is, must consider the factors set out in s. 216(4) in making an order that varies the interim order. [14] Mr. B. submits that the application of s. 216 must also take account of s. 37(1), which requires a court making an order concerning parenting to consider only the best interests of the child. He made no submissions about precisely where, in the analysis under s. 216, that consideration will take place. [15] As I will discuss later, Mr. B. submits that s. 216(3) is engaged in this case, and that the factors in s. 216(4) all favour his position and should lead the Court to vary the interim orders in the manner he suggests. [16] Mr. B. submits also that s. 47 provides an additional basis for the order he seeks. He submits that in allowing a court to change, suspend, or terminate "an order" respecting parenting arrangements, s. 47 necessarily allows for the variation of interim orders, as well as final orders. He submits that the same changes, new evidence, and circumstances as support variation under s. 216 also support variation in this case under s.

47. Ms. K.'s Position [17] Ms. K. submits that this application should be determined under s. 47 of the FLA, with reference also to s. 37(1), and not under s.

216. She submits that by its terms, s. 216 applies only where other provisions in the FLA do not, and also that s. 216 appears to be incompatible with Part 4 of the FLA, which deals with the care of children and time with them, and includes s. 37(1) and s.

47. Ms. K. acknowledges that case authorities have applied s. 215 without reference to s. 47, but submits that they appear to have done so erroneously, although nonetheless to have applied the correct threshold test. [18] Ms. K. submits in the alternative that if the Court determines that s. 216 does apply, Mr. B. has not met the threshold required by that section, because, except in relation to the times for his Skype visits, Mr. B. has established no "compelling" or "material" change of circumstances to support a variation. [19] The parties agree that, as the case authorities make clear, the "change in circumstances" required by s. 216(3)(a) − and, indeed, s. 215 and s. 47 − must be a material change in circumstances, even though the provisions themselves do not explicitly say so. See Jellis v. Jellis, 2014 BCSC 375; and J.D.C. v. K.L.M.F.C., 2014 BCSC 2182. Discussion [20] I am unable to agree with Ms. K. that s. 216 cannot apply in the face of s. 47. [21] Ms. K. submits that s. 216 can apply only where other provisions in the FLA do not, because s. 216 begins with the phrase "[s]ubject to this Act". She submits that since s. 47 provides specifically for applications to vary orders concerning parenting arrangements, s. 216 cannot provide another basis for varying (or suspending or terminating) such an order, including an interim order. [22] However, the phrase "[s]ubject to

this Act" appears only in s. 216's first subsection, which gives a general authority to make an interim order where a final order is sought. On the grammar of the section, the phrase's effect does not carry through to s. 216(2) or the following subsections. The phrase thus has no effect in s. 216(3), which deals with the variation or termination of interim orders made under the general authority in s. 216(1). An application, such as this one, to vary an existing interim order relies on the authority in s. 216(3) and (4), and not on that in s. 216(1). [23] Furthermore, a reading of s. 216 as a whole indicates an intent that the authority to make interim orders be exercised in accord with the rest of the FLA, and not in isolation from the FLA's other provisions or only if no other FLA provision addresses the matter. Subsection (2) directs that interim orders are, to the extent practicable, to reflect the requirements and conditions of the FLA that apply to final orders. That direction would be meaningless if the authority in s. 216(1) or (3) and (4) were intended to be unavailable if other provisions in the FLA address the particular subject matter. [24] Ms. K. submits that s. 216(3) and (4) may be incompatible with the general principles in Part 4 of the FLA. In particular, s. 216(4) requires the court to take into account factors relating to the parties themselves (such as

potential prejudice to their positions in the litigation), while s. 37(1) (in Part 4) restricts the court to considering only the child's best interests when making an order concerning parenting: 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. Ms. K. submits that an order to vary an interim parenting order is an "order" that must be made in accordance with s. 37(1). She reasons that such an order therefore cannot also reflect the numerous factors set out in s. 216(3) and (4) which extend beyond the best interests of the child. [25] However, the incompatibility Ms. K. identifies does not arise if, as I conclude must be the correct approach, the authority in s. 216(3) and (4) is viewed and applied in the light of s. 216's purpose. [26] Section 216 provides for interim orders, which inherently allow for stop-gap measures pending trial. As D. Smith J.A. explained in Fitzgibbon v. Fitzgibbon, 2014 BCCA 403 at para. 22, interim orders are designed primarily to maintain the status quo and to provide short-term solutions until issues regarding the best interests of a child can be fully canvassed at trial. [27] As s. 216(2) directs, a court making an interim order must do so in accordance with the requirements or conditions more

generally applicable to the subject matter, but only "to the extent practicable". In relation to interim orders concerning parenting, the court will therefore have careful regard to the best interests of the child, to the extent that those interests can be discerned from the evidence on the application. However, it will not usually be "practicable" to conduct a complete consideration of those best interests within the inherently limited context of an interim application. [28] Where a court is asked to exercise the authority under s. 216(3) by varying (or suspending or terminating) a parenting interim order already made, the court can properly start from the assumption that the interim order reflected the child's best interests insofar as those could be discerned at the time of the previous order. It is for this reason that s. 216(3) and (4) focus the court's attention on whether there is a change or new evidence since the previous order, and, if there is, on the factors in s. 216(4). Those factors relate mainly to the timing of the application to vary in relation to the previous interim order and the trial; the purpose of the interim order; and the potential adverse effects on the parties of varying or not varying the interim order. [29] The factors for consideration under s. 216(3) and (4) thus do not expressly include the best interests of the child. Consistently with the

long-standing approach, on interim applications, of protecting the status quo and providing short-term solutions until a closer and more complete examination is possible at trial, they require the court to focus on what, if anything, has changed or emerged since the interim order was made, and to consider whether the new facts or evidence warrant a further change over the short-term. In the circumstances to which s. 216(3) and (4) apply, a full assessment of the child's best interests is not usually possible. [30] But although the child's best interests are not as such among the s. 216(4) factors, they permeate the analysis under s. 216 in the following ways. [31] First, and as I have noted, the interim order sought to be varied will have been made in accordance with the child's best interests to the extent practicable (through the effect of s. 216(2) and s. 37(1)). [32] Second, a change in circumstances or new evidence will not be material, or sufficient to engage s. 216(3), unless it relates to the child's best interests. This is because the parenting issue in question will ultimately be determined solely on the basis of the child's best interests. [33] Third, some of the s. 216(4) factors implicitly require some consideration of the child's best interests, particularly since, as noted above, the order sought to be varied will have been made with the child's best interests

firmly in view. These factors include: "the change in circumstances or the evidence, or both, referred to in subsection (3)" (s. 216(4)(a)); and "any potential adverse effect, on a party or a child of a party, of either making or declining to make an order . . ." (s. 216(4)(e)). [34] On the interpretation of s. 216 I have outlined, s. 216(3) creates a threshold for an application to vary an interim order. If there is a material change in circumstances or new evidence of a substantial nature and the threshold is therefore reached, the court will determine the application according to the factors in s. 216(4). The provisions of s. 216 therefore provide the complete basis and framework for an application to vary an interim order. [35] As I have explained, I am not persuaded that where the interim order sought to be varied relates to parenting, then s. 216 is displaced by s. 47. [36] Nor, in my view, does s. 47 provide an alternative basis for an application to vary an interim order. It is true that the FLA includes no definition of "order" or other provision to expressly restrict the application of s. 47 to final orders. However, s. 216 provides expressly and specifically for the making and variation of interim orders, and the scope of s. 47 should be considered in that light. When two statutory provisions are in conflict, and one of them deals specifically with the matter in question, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. See Pierre André Côté, The Interpretation of Legislation in Canada, 4th ed (Scarborough: Carswell, 2000) at p. 331; and Brenner v. Brenner, 2010 BCCA 553 at para. 37.

2. SHOULD THE INTERIM ORDER BE CHANGED TO ALLOW FOR OVERNIGHT VISITS AND REMOVAL FROM BC? Is the s. 216 Threshold Passed? [37] Mr. B. submits that s. 216(3) is engaged in this case because there is both a material change in circumstances (s. 216(3)(a)), and new evidence of a substantial nature (s. 216(3)(b)). [38] Mr. B. submits that there is a material change in circumstances in that D. has asked for more parenting time with Mr. B. He submits that material change is found also in the simple passage of time since the January 2015 order, coupled with what he submits to be the unreasonableness in Ms. K.'s unwillingness to agree, over that period, to increase his parenting time to include overnights. [39] Mr. B. submits that there is new evidence that Ms. K. has now stopped breastfeeding. He submits that it should therefore be inferred that D.'s attachment to her is less close than it was, and that Mr. B.'s parenting time should be extended to allow the father-child relationship to develop and strengthen. [40] For the reasons given above, a change in circumstances or new evidence sufficient to engage s. 216(3), in an application to vary an interim parenting order, must be material to the best interests of the child. On this application, I am not satisfied that there has been a material change since the interim orders that bears on D.'s best interests. I will explain. [41] On the

evidence in this application, the interim orders took account of Ms. K.'s position that D. witnessed and may have experienced family violence, and is suffering effects. Ms. K. says she nonetheless supports Mr. B.'s relationship with D., but she is concerned that parenting time be handled cautiously, to allow for the healing of damage to D.'s relationship with Mr. B. caused by the family violence. [42] In brief overview, Ms. K. details family violence that began in approximately 2010 and continued until the end of the parties' common law relationship in August 2013. She deposes that on numerous occasions, Mr. B. directed anger or physical abuse toward her, sometimes to the point of choking her. Many of those occasions took place in D.'s presence. Sometimes D. was the focus of the argument that erupted into violence. [43] Ms. K. is less certain about whether D. has also been the direct target of family violence by Mr. B. since the end of the common law relationship. However, on the basis of certain observations she has made and a comment from D., she advocates prudence until a proper inquiry and determination can be made. [44] In addition to the effects of any family violence Mr. B. may have directed at D. himself, Ms. K. is in any event concerned about the effects on D. of the family violence he witnessed Mr. B. directing at her. [45] Ms. K. describes recent behaviour by D. that

gives cause for concern that he may be experiencing one or both of these types of effect. She deposes that D. has been increasingly whiny and unusually aggressive after parenting time with Mr. B. She also deposes that D. has long voiced opposition to going for parenting time with Mr. B. While it is not of itself unusual or necessarily of significance or concern that a young child tells one parent that he does not want to go for parenting time with the other, D.'s resistance to parenting time with Mr. B. has escalated to near-hysteria, Ms. K. deposes, and continues through to the time of Ms. K.'s affidavit in late April 2015. This reaction on D.'s part also coincides generally with the nightmares and sleep disturbances D. frequently experiences, Ms. K. deposes. [46] This interim application is not the occasion for a consideration of whether or not the family violence took place as Ms. K. deposes - and I make no such finding concerning that matter. Nonetheless, the evidence gives some cause for concern that D. may have been affected in the way and for the reasons Ms. K. gives. In the larger context, this in turn diminishes the extent to which D.'s reported request for overnights with Mr. B., the end of breastfeeding, and the simple passage of time may be viewed as a material change in circumstances or new evidence of a substantial nature since the interim orders. [47] Mr. B.

denies the family violence Ms. K. alleges, and describes himself as mild-mannered, calm, and patient, but he also blames Ms. K. for making him angry at various times. He implicitly acknowledges that some form of violence took place, by deposing that it was always Ms. K. who initiated any physical altercation. By his own account, the relationship was tumultuous, and altercations often led to Ms. K. leaving the place of the dispute and taking herself into a public place. [48] Mr. B. deposes also that Ms. K. is motivated in her approach to the parenting arrangement by a need to exert control for its own sake. He submits that the concerns she raises that D. is struggling with the effects of family violence he has witnessed or experienced should be dismissed for that reason. [49] While I make no findings about whether the alleged family violence took place or had the effects Ms. K. describes, I find no basis in the evidence on this application to disregard her stated concerns. Mr. B.'s own evidence provides no such basis, much of it revealing little more than an attitude of disrespect and blame toward Ms. K. [50] The issues of whether D. is suffering effects of having witnessed or experienced family violence, and, if he is, how the parenting arrangement may best ameliorate those effects, should be determined as soon as possible in a trial. [51] With those issues unresolved at this

stage, D.'s request to Mr. B. for overnight parenting time and the end of breastfeeding, together with the simple passage of time, do not amount to a material change in circumstances or new evidence of a substantial nature concerning D.'s best interests since the interim orders. In the context of the unresolved issues, the changes and the new evidence on which Mr. B. relies in this application are relatively insignificant. [52] Mr. B. has not established a material change in circumstances or new evidence sufficient to engage s. 216(3). Do the s. 216(4) Factors Favour a Variation? [53] Since, as discussed, Mr. B.'s application does not pass the threshold created by s. 216(3), it cannot succeed. [54] There is therefore no need to consider the factors set out in s. 216(4). Conclusion [55] Concerning overnight parenting, Mr. B. has not established a material change in circumstances or new evidence of a substantial nature, as required by s. 216(3). His application to vary the interim order to allow for overnights must therefore fail. [56] It follows that Mr. B.'s application to vary the interim orders to allow him to take D. outside the Province of British Columbia also fails. There is no suggestion that Mr. B. wishes to take D. outside the province during daytime visits.

3. SHOULD THE INTERIM ORDER BE VARIED TO CHANGE THE TIMES OF MR. B.'S SKYPE VISITS WITH D.? [57] Concerning Mr. B.'s Skype time with D., Ms. K. agrees that circumstances have changed since the January 2015 order because Mr. B. now has a summer work schedule that will not allow for Skype or regular phone calls at the times indicated in the order, and that a variation of the interim order is warranted. I agree that this amounts to a material change, in relation to the Skype visits, that engages s. 216(3). [58] The only dispute concerns the precise timing of the Skype visits. It is a relatively minor dispute, and I will resolve it without making express reference to each of the s. 216(4) factors, although I have considered them. [59] Mr. B. will be working on Tuesdays through Fridays from 3:00 p.m. to 7:00 p.m. (Pacific Standard Time, which is 4:00 p.m. to 8:00 p.m. in Calgary, where Mr. B. works). He therefore proposes Skype calls at 7:00 p.m. on Tuesdays and Fridays, instead of on Wednesdays at 4:45 p.m. and Fridays at 5:00 p.m. as the order currently provides. He proposes that the Skype calls on Sundays at 5:00 p.m. remain unchanged. [60] Ms. K.'s only concern about the proposed changes for the times of the Skype calls during the week is that they may interfere with D.'s bedtime, which is at 7:00 p.m. Ms. K. notes also that Mr. B. often makes his calls later than the indicated

time. [61] In my view some accommodation may be necessary on each party's part, because no other times (than 7:00 p.m.) seem to be viable for Skype calls during the week. Ms. K. runs a daycare in her home, and one may assume has obligations to other children, as well as to D., during the daytime hours. It seems reasonable in the circumstances for D.'s bedtime to be adjusted by 10-15 minutes, with his wake‑up time in the morning correspondingly delayed. [62] Mr. B. will therefore have parenting time by Skype or telephone on Tuesdays and Fridays at 7:00 p.m., as well as on Sundays at 5:00 p.m., provided that these calls do not disrupt D.'s peaceful transition from his daytime activities to his nighttime sleep. In no event, except with the previous agreement of Ms. K., is Mr. B. to call D. after 7:10 p.m. If this arrangement proves disruptive to D., or unworkable for one or both of the parties, they may agree on a different schedule or may reapply concerning this particular matter.

SUMMARY OF ORDERS MADE [63] Mr. B.'s application for variation of the January 2015 interim order to allow for overnight parenting time is dismissed. [64] Also dismissed is Mr. B.'s application for variation of that order and other interim orders to allow him to take D. outside the Province of BC. [65] Mr. B.'s application to vary the January 2015 interim order to change one of the days and the times of his Skype parenting time during the week is allowed on the terms set out above. [66] As I indicated during counsel's submissions, Ms. K.'s application for Mr. B. to be fined for inadequate production of documents is adjourned generally, with liberty to reapply if the documents have not been produced within 10 days of these reasons. [67] Concerning costs, my preliminary view is that Ms. K. has achieved substantial success in relation to Mr. B.'s application for variation of the interim orders (except in relation to his Skype visits), while Mr. B. has (to date) achieved substantial success in relation to Ms. K.'s application for a fine. On that basis, my preliminary view in relation to the costs of the proceedings on June 4, 2015, viewed as a whole, is that Ms. K. should have one-half of her costs. However, if the parties wish to make submissions in support of a different order concerning costs, they may make the necessary arrangements with Supreme Court Scheduling within 21 days

of these reasons, and in any event before entry of the order reflecting these reasons. In any such application concerning costs Mr. B. is not at liberty to renew his application for special costs, because he addressed that matter in his evidence and submissions on June 4, 2015, and in my view failed to establish the egregious conduct on which his application is based. "The Honourable Madam Justice H. Holmes"