B.M.B. v. C.L.B.
- Citation
- 2004 BCSC 630
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 10 May 2004
- Posture
- Family Law Custody and Access / Notice of Motion to Vary Prior Orders (motion)
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 10 May 2004
- Posture
- Family Law Custody and Access / Notice of Motion to Vary Prior Orders (motion)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court granted the motion in part, allowing the children to attend the wedding visit from August 15–23, 2004 subject to conditions tailored to protect their welfare: the father's partner must be generally present in Tofino and accessible; alcohol consumption by the father limited to the equivalent of four standard drinks on the day before and the day of the wedding; a responsible adult designated as primary caregiver during that time; the daughter provided a working cell phone and the ability to return early if uncomfortable; mandatory counselling for the children paid by the father with restrictions on his access to reports and questioning. These conditions satisfy the best interests standard informed by the psychologist's report.
Court disposition
Motion granted in part subject to specific conditions
Orders
- The children, M. and B., may be with Mr. C.L.B. in Tofino for the purpose of attending the wedding and related events from August 15 to August 23, 2004, inclusive (the "wedding visit").
- Ms. C.M. shall generally be present during the wedding visits as she would be if the children were visiting her and Mr. C.L.B.'s home. By "generally present" I mean in the Tofino area and accessible to either child as they might expect if in the custody of a parent.
- Mr. C.L.B. may consume alcohol on the day before and the day of the wedding, not in excess of the equivalent of four six ounce glasses of wine, or four one and one half ounce portions of liquor or four bottles of beer each day. A responsible adult shall be designated as the children's primary caregiver during this time.
- M. shall be provided by Mr. C.L.B. with a cell phone that works in the Tofino area and M. shall be free to call her mother, Ms. B.M.B., at any time. Mr. C.L.B. will facilitate her returning home prior to the scheduled end of the wedding visit if M. is uncomfortable.
- The children shall attend counselling prior to attending the wedding visit. Mr. C.L.B. shall be responsible for paying the reasonable costs of the counselling. He shall pay the counsellor(s) directly within two business days of the receipt of the account(s) for the counselling. He is entitled to know the name, qualifications and the hourly fees of the counsellor(s). After the initial consultation(s) Mr. C.L.B. is entitled to an estimate of what is estimated as the frequency of continued consultation(s). He is not entitled to refuse payment without leave of the court because he wishes Mrs. B.M.B. to engage another, or less costly counsellor. Nor is Mr. C.L.B. entitled, without leave of the court or consent, to have access to any reports generated by the counsellor(s). Nor shall he question the children about the nature of the consultation(s) or any therapy involved.
02
Material facts
Parties
B.M.B.
Plaintiff Counsel: M. EllisC.L.B.
Defendant Counsel: D. MarzbanAmounts and remedies
- Visit Duration Days: 9
- Allowed Alcohol Ounces Per Day: oz 24
03
Procedural history
Posture
Family Law Custody and Access / Notice of Motion to Vary Prior Orders (motion)
04
Questions and positions
Legal issues
- 01
Whether to vary prior custody/access orders to permit the children to attend the father's wedding in Tofino from August 15 to August 23, 2004
- 02
Whether to permit the father to consume alcohol during the visit and, if so, under what limits
- 03
What protective conditions (counselling, caregiver designation, communication access) are required to safeguard the children during the visit
Party arguments
- Applicant
- The applicant (father) requested variation of prior orders to allow the two children to attend his wedding and related events in Tofino from August 15 to August 23, 2004 and to permit him to consume alcohol during that time.
- Respondent
- The respondent (mother) opposed or raised concerns about the children's welfare if the variation were granted and sought protective conditions including limits on alcohol use, mandatory counselling, maintained access to the mother and designation of a responsible caregiver.
05
Court’s reasoning
Legal principles
- 01
Common law / Family law principles (Family Relations Act / Family Law Act and judicial precedent)
Best interests of the child is the paramount consideration
- 02
Supreme Court jurisdiction and practice under family law statutes and precedent
Court has discretion to vary prior orders where variation is consistent with children's welfare
- 03
Child welfare principles and family law doctrine
Parents have responsibility to ensure a safe caregiving environment, including limitations on substance use when children are present
06
Ratio, limits and disposition
Ratio decidendi
The court granted the motion in part, allowing the children to attend the wedding visit from August 15–23, 2004 subject to conditions tailored to protect their welfare: the father's partner must be generally present in Tofino and accessible; alcohol consumption by the father limited to the equivalent of four standard drinks on the day before and the day of the wedding; a responsible adult designated as primary caregiver during that time; the daughter provided a working cell phone and the ability to return early if uncomfortable; mandatory counselling for the children paid by the father with restrictions on his access to reports and questioning. These conditions satisfy the best interests standard informed by the psychologist's report.
Obiter and limits
- The phrase 'generally be present' is defined as being in the Tofino area and accessible to the children as they would expect if in a parent\u2019s custody.
- The father is not entitled to access counselling reports or to question the children about therapy without leave of the court.
Court disposition
Motion granted in part subject to specific conditions
- The children, M. and B., may be with Mr. C.L.B. in Tofino for the purpose of attending the wedding and related events from August 15 to August 23, 2004, inclusive (the "wedding visit").
- Ms. C.M. shall generally be present during the wedding visits as she would be if the children were visiting her and Mr. C.L.B.'s home. By "generally present" I mean in the Tofino area and accessible to either child as they might expect if in the custody of a parent.
- Mr. C.L.B. may consume alcohol on the day before and the day of the wedding, not in excess of the equivalent of four six ounce glasses of wine, or four one and one half ounce portions of liquor or four bottles of beer each day. A responsible adult shall be designated as the children's primary caregiver during this time.
- M. shall be provided by Mr. C.L.B. with a cell phone that works in the Tofino area and M. shall be free to call her mother, Ms. B.M.B., at any time. Mr. C.L.B. will facilitate her returning home prior to the scheduled end of the wedding visit if M. is uncomfortable.
- The children shall attend counselling prior to attending the wedding visit. Mr. C.L.B. shall be responsible for paying the reasonable costs of the counselling. He shall pay the counsellor(s) directly within two business days of the receipt of the account(s) for the counselling. He is entitled to know the name, qualifications and the hourly fees of the counsellor(s). After the initial consultation(s) Mr. C.L.B. is entitled to an estimate of what is estimated as the frequency of continued consultation(s). He is not entitled to refuse payment without leave of the court because he wishes Mrs. B.M.B. to engage another, or less costly counsellor. Nor is Mr. C.L.B. entitled, without leave of the court or consent, to have access to any reports generated by the counsellor(s). Nor shall he question the children about the nature of the consultation(s) or any therapy involved.
Source and reliance status
Supreme Court of British Columbia · 10 May 2004
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Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 10 May 2004
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.M.B. v. C.L.B., 2004 BCSC 630 Date: 20040510 Docket: F991342 Registry: Vancouver Between: B.M.B. Plaintiff And C.L.B. Defendant Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for the plaintiff M. Ellis Counsel for the defendant D. Marzban Date and Place of Hearing: Written Submissions No Oral Hearing Held [1] By Notice of Motion filed January 22, 2009, Mr. C.L.B. asks for an order varying my order of October 11, 2002 and that of Mr. Justice Ralph dated November 17, 2000, to allow the two children of the marriage to be with him in Tofino from August 15 until August 23, 2004 when he celebrates his wedding to Ms. C.M.. He also asks that he be allowed to consume alcohol during that time. [2] After reviewing the written submissions of counsel and the report of Dr. M.C. Korpach dated April 13, 2004, I rule as follows: 1. The children, M. and B., may be with Mr. C.L.B. in Tofino for the purpose of attending the wedding and related events from August 15 to August 23, 2004, inclusive (the "wedding visit").
2. Ms. C.M. shall generally be present during the wedding visits as she would be if the children were visiting her and Mr. C.L.B.'s home. By "generally present" I mean in the Tofino area and accessible to either child as they might expect if in the custody of a parent.
3. Mr. C.L.B. may consume alcohol on the day before and the day of the wedding, not in excess of the equivalent of four six ounce glasses of wine, or four one and one half ounce portions of liquor or four bottles of beer each day. A responsible adult shall be designated as the children's primary caregiver during this time.
4. M. shall be provided by Mr. C.L.B., with a cell phone that works in the Tofino area and M. shall be free to call her mother, Ms. B.M.B., at any time. Mr. C.L.B. will facilitate her returning home prior to the scheduled end of the wedding visit if M. is uncomfortable.
5. The children shall attend counselling prior to attending the wedding visit. Mr. C.L.B. shall be responsible for paying the reasonable costs of the counselling. He shall pay the counsellor(s) directly within two business days of the receipt of the account(s) for the counselling. He is entitled to know the name, qualifications and the hourly fees of the counsellor(s). After the initial consultation(s) Mr. C.L.B. is entitled to an estimate of what is estimated as the frequency of continued consultation(s). He is not entitled to refuse payment without leave of the court because he wishes Mrs. B.M.B. to engage another, or less costly counsellor. Nor is Mr. C.L.B. entitled, without leave of the court or consent, to have access to any reports generated by the counsellor(s). Nor shall he question the children about the nature of the consultation(s) or any therapy involved. "T.J. Melnick, J." The Honourable Mr. Justice T.J. Melnick
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