A.H.B. v. C.L.B.

2012 BCSC 1930 A.H.B. v. C.L.B. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.H.B. v. C.L.B., 2012 BCSC 1930 Date: 20121219 Docket: E92972 Registry: Kelowna Between: A.H.B. Claimant And C.L.B. Respondent Before: The Honourable Mr. Justice Bowden Reasons for Judgment Counsel for the Claimant: N.J. McDougall C.E. Maltesen The Respondent: In Person Place and Date of Trial/Hearing: Kelowna, B.C. July 30-31, August 1-3, September 26-28 and October 11, 2012 Place and Date of Judgment: Kelowna, B.C. December 19, 2012 I. introduction [1] In these matrimonial proceedings the main issues are custody of the child, E., who was born on August 13, 2007, and appropriate parenting arrangements. Of particular relevance to the parenting arrangements is the fact that E.'s mother, the claimant, who has primary care of E., resides and works in Salmon Arm, while her father, the respondent, resides and works in Kelowna. The claimant seeks spousal and child support plus a contribution towards s. 7 expenses. The parties have agreed upon the division of their property. II. Background [2] The parties met in 2005 when they worked together at an investment firm in Vancouver. They moved to Kelowna in October 2006 because the claimant wanted to return to her hometown and be with her family in Kelowna. The respondent was also interested in skiing in the Kelowna area. [3] In January 2007, the claimant informed the respondent that she was pregnant. They decided to marry and moved into a basement suite at the respondent's parents' residence in Vernon. They married in April 2007. [4] The respondent has a Bachelor of Commerce degree with majors in accounting and finance. He began training with the Bank of Montreal in Vernon, with a view to moving to a BMO branch in Salmon Arm. The claimant was employed by Westwood Electric in Vernon and commenced maternity leave in May 2007. [5] In July 2007 the parties moved to Salmon Arm where the respondent had been posted as a commercial account manager with BMO. The claimant remained on maternity leave and received employment insurance. [6] After E.'s birth, there was some evidence regarding who visited the hospital, who held the baby and the interaction of the parties with the nursing staff. The behaviour of both parties appeared to be fairly typical of new parents interacting with family members during a very emotional event. In any event it has little bearing on these proceedings. When the claimant went home, the respondent took two weeks off work and helped her care for the baby. [7] The claimant's mother travelled to Salmon Arm to help with the new baby. The claimant's evidence was that her mother and the respondent had an argument that led her mother to be uncomfortable in the respondent's presence. She said that the respondent did not like her mother. The respondent says that he considered his relationship with his mother-in-law to be fairly typical and he did not dislike her. He did not consider that there was any incident that would have caused her to dislike him. [8] The claimant said in the early stages of caring for E. she and the respondent did not share child care on a 50-50 basis. She did not say what the relative percentage of child care was between them. As the respondent was working at BMO on a full-time basis the claimant was the primary caregiver until they arranged for daycare. [9] In general it appeared that the claimant and respondent shared child care and domestic duties during the years that they lived together. In light of their work schedules it did not appear from the evidence that either of the parties bore an unreasonable burden in caring for E. and looking after household chores. [10] The claimant painted a picture of the respondent as being rather self-centered and lazy. She said on weekends he would often go skiing or snowboarding. She also said that when he came home from work each weekday he would have a nap on the couch, sometimes while holding E. My impression from the respondent's testimony is that he is hard-working and successful at his job with the bank. This is confirmed somewhat by the salary he receives. The respondent also explained that he frequently went skiing with E. He said that in both the 2010-2011 and 2011-2012 ski seasons he took E. skiing about 24 times. [11] For Christmas of 2007 the claimant said she wanted to go with the respondent and E. to one of their parents' homes. They had spent Christmas of 2006 at the respondent's parents' residence. She said that the respondent did not want to take E. on the highway during the winter so they stayed in Salmon Arm. It is not clear why their parents did not travel to Salmon Arm. [12] The claimant said that by January 2008 things were not going well between the parties. This seems to be in part attributable to the difficulties they were experiencing with E. who was prone to be colicky. The claimant also said that she did not see her family enough. She thought that the reason seemed to be that her mother had experienced an argument with the respondent and did not want to face the possibility of another. It is not apparent that the claimant communicated her views about the marriage and missing her mother to the respondent. [13] At the same time it is clear that the claimant had problems in her relationship with her mother. She said they were estranged for a time when she had moved to Vancouver. During cross-examination the claimant said that around Christmas of 2010 she overheard an argument between the respondent and her mother in the kitchen. She said she was angry that they were arguing in front of E. and went to the kitchen. She then admitted to either head butting her mother or pushing her with the front of her body. She acknowledged that E. was present at the time. [14] The claimant appeared to be somewhat housebound with the new child until the respondent suggested that she go to the gym. She followed his advice and met some friends there. When she attended the gym she either put E. into daycare or the respondent provided the necessary care. [15] There is conflicting evidence as to how the parties managed their financial affairs. In the early part of her testimony the claimant said that they did not discuss financial matters and each looked after their own. As the trial progressed, the claimant said that the respondent controlled their finances. She gave an example of going to a movie and dinner with a friend and said the respondent gave her a fixed sum of money for the evening. The respondent denies this and says that they each had access to their joint bank account. The evidence indicates that while initially the parties maintained separate bank accounts, soon after they were married they combined their funds in a joint bank account to which they both had access. Each of them also had a VISA credit card. [16] Any concerns about their relationship with their parents seemed to be cast aside when E. had her first birthday in August 2008. Both parties' parents attended. Again for Christmas in 2008 they visited with both of their parents and all seemed to be well among them. [17] In September 2008 the claimant took on part-time employment at Shoppers Drug Mart. She worked three days a week, usually Friday, Saturday and Sunday. On those days the respondent looked after E. The claimant said that she was happy to get back into the work force. [18] In January 2009, the claimant started working full time as a teller at BMO in Salmon Arm, where the respondent was employed. She said she was excited about going back to full-time work although she did not like the teller's position. E. was enrolled in daycare. The claimant said the respondent was not sure how they could afford daycare but she insisted on proceeding with E.'s enrollment and started taking E. to daycare when she worked. The respondent's evidence, which I find more compelling, was that he was supportive of her new job because her extra income would be available to pay for the daycare. I also note that when she applied for the teller's position, he delivered her resume to the bank. [19] The claimant described a period of time from the summer of 2008 until the spring of 2010 when the respondent was studying for his CFA, which I understand to be a Chartered Financial Analyst designation. She described the respondent as studying intensely before the exams in 2009 and 2010 and spending less time with her and E.. She agreed that the respondent was ambitious and was seeking to improve his position and perhaps increase his salary but complained that he was not spending enough time with her and E. when he was studying. It does not strike me as unusual that the respondent had to devote study time away from his family to advance his career. [20] The claimant tended to describe the respondent as quite controlling in respect of her activities. However, she said that on occasion she would go to Vernon on her own and shop for a couple of hours. When she went on these shopping trips the respondent looked after E. [21] In the summer of 2009 the respondent took a position with BMO in Vernon and commuted from Salmon Arm. He left the family home early each working day to drive to Vernon. The claimant took E. to daycare before going to her job in Salmon Arm. On Fridays when the claimant worked late, the respondent would pick up E. from daycare upon his return from Vernon. [22] In the fall of 2009, the parties decided to sell their residence in Salmon Arm and move to Vernon. They hired a person known to the claimant as their real estate agent. They listed their home in September 2009 and received two offers but a sale was not concluded because an acceptable price was not reached. The respondent was able to obtain a relocation package from his employer and the house was re-listed in December 2010. It was sold with a possession date of February 25, 2011. [23] Although the claimant's testimony tends to paint the respondent as a self-centered and controlling individual of whom she was occasionally afraid, at Christmas time in 2010 she sent a poem or letter to the respondent expressing her love for him. This suggests that she may have exaggerated some of her testimony regarding the respondent's behaviour prior to that time in order to achieve her objective of obtaining sole custody of E. and restricting the access of the respondent. [24] By January 2011 it appears that both parties knew that their marriage was not doing well. The claimant indicated her intention to leave the respondent and on February 18, 2011 she left and moved to an apartment in Salmon Arm. The respondent was offered his current position with BMO in Kelowna and he accepted the position. It was an unusual separation in that it seems that the respondent moved in with the claimant for a few days until he moved to Kelowna. [25] The seriousness of their separation is also brought into question because they continued to see each other as a family from time to time after they separated. For example, they went skiing to Big White together late in February or March of 2011, and in June 2011 they went as a family to Tofino for a vacation. [26] After their separation until August 2011, the respondent had mid-week access to E. one day a week and access on three long weekends each month from Thursday evening until Sunday evening. [27] Issues appeared to arise in August 2011 when the claimant says that the respondent became belligerent on the phone with her and started sending numerous emails regarding access. The respondent denies being belligerent but did send emails regarding access after the claimant unilaterally reduced his access time. The claimant also says that she noticed E. becoming more emotional. She said that access three weekends a month was generous. On cross-examination she said that she had put an end to mid-week access because "there was no need for it". She unilaterally limited the respondent's access to two weekends each month. She also said that between August and December 2011 she did not want the respondent picking up E. at daycare. [28] The claimant testified that in August 2011 she hurt her back and initially could not drive E. to see the respondent in Kelowna. She agreed on cross-examination that this occurred before she changed the access arrangements. It appears that thereafter she did not transport E. to Kelowna for the respondent's access visits except on the occasion of her birthday when she took E. to him. [29] On cross-examination the claimant said that she regularly makes the trip from Salmon Arm to Kelowna two or three times a month to see her family whether or not E. is with the respondent in Kelowna. The inference I draw from that is that the claimant was not willing to assist the respondent in his access to E. [30] There was some testimony from the claimant about E. wetting her bed after some visits with the respondent. There was no expert evidence as to why this had occasionally occurred and I am unable to make findings regarding the cause of her bed-wetting. The claimant is quick to blame the respondent for what she describes as E.'s emotional problems and her occasional bed-wetting. However, the Court does not have the benefit of expert opinions regarding these matters which may be rooted in a myriad of sources and, indeed, may be age-appropriate. The claimant admitted that she had not sought any professional advice about E.'s bed-wetting. Indeed, around this time when she and the respondent attended a pediatrician for about an hour regarding E.'s asthma, she did not mention E.'s bed-wetting to the doctor. [31] The evidence of some of the witnesses called by the claimant indicates that the respondent is somewhat of a bully, in the emotional rather than physical sense, in his dealings with other adults including some of the staff at his former place of employment in Salmon Arm and some of the staff at the daycare facility. In my view that evidence did not establish that the respondent acted improperly when he was around E. There were some occasions when he and the claimant argued in front of E. which they both should have avoided but the evidence does not satisfy me that he improperly treated E. while he lived with the claimant or since their separation. [32] There was some evidence that E. was unhappy when she would leave the claimant to visit with the respondent but there is also some evidence from the respondent that she was unhappy when she had to leave him to return to the claimant. In my view, that is not a surprising reaction for a five-year-old child whose time is divided between two loving parents. [33] Matters of some significance transpired between the parties around November 8, 2011, which was a Tuesday. In the morning, the claimant informed the respondent by text message that E. was ill. By text, the respondent asked if E. would be at daycare and he could pick her up. The claimant testified that "unfortunately" she took E. to daycare when she was sick and was going to take her to the doctor later in the day. In her testimony the claimant explained that E. wanted to play with her friends and it was not unusual for parents to take sick children to daycare. The respondent sent a text message to the claimant that he would pick E. up from daycare about 12:45 p.m. He travelled from Kelowna to Salmon Arm and picked E. up from daycare. After that he took E. to a doctor and obtained an inhaler to assist her and watched over her for the rest of the week while she was ill. The claimant testified that she was confident that E. was in good hands with the respondent and she did not see E. again until the following Sunday when the respondent returned her to the claimant. [34] The claimant testified in cross examination that the respondent has not missed any access visits except one day in February 2012 when she returned from a trip to Mexico during which time E. was in the care of the respondent. It appears that he did not pick up E. on the Tuesday following that trip after having her in his care for the preceding 10 days while the claimant was in Mexico. With respect to the trip to Mexico, the claimant testified that when she was away and not caring for E., the respondent was the next person she would turn to for E.'s care. [35] Recently, E. spent just over a week with the respondent. They went to Mable Lake with his parents for two days and spent the rest of the time in Kelowna. There is no evidence of any problems regarding E.'s care during that visit. In her testimony, Gwendolyn Brown, who has observed the respondent with E. at the lake over the past two years, describes E. as a happy girl who appeared to love her father very much. She testified that the respondent was very kind and patient with E. and never raised his voice at her. [36] The respondent's mother testified that any interaction she observed between the respondent and E. was very good and that he always looked after her needs. She referred to the weekends when she would see the respondent with E. after they had been skiing and weekends at the lake during the summer time. She said that E. was always very affectionate towards the respondent and E. said that she loved him many times during their visits. [37] The respondent takes no issue with the parenting skills of the claimant. The claimant says that the respondent was not a good father because he did not have time to spend with E. and was not a dedicated father. [38] I am unable to accept the evidence of the claimant that the respondent was not a good father. In stark contrast to the negative views she expressed about the respondent is her testimony that when she travelled to Mexico for a vacation and her sister's wedding early in 2012, she left E. with him, saying that when she could not look after E., he was the next person who could. The claimant clearly considered the respondent to be a responsible and loving parent when she left E. in his care during her vacation. [39] From watching his demeanour in Court and listening to his testimony I am satisfied that, while he tends to be somewhat domineering and, perhaps, controlling of adults he deals with including, at times, the claimant, the respondent appears to be a caring and concerned parent who has the best interests of E. at heart. While at times it seems he has been overly demanding of staff at E.'s daycare, in my view it has been with E.'s best interests in mind. [40] At the present time custody and access are governed by a consent order signed by Master Young on December 28, 2011, and orders made by Justice Rogers on May 8, 2012. [41] In ordering a balanced pick-up and drop-off regime, Justice Rogers noted that the access regime settled by the consent of the parties established minimum access and not the only access times. He also stated at para. 29: the primary residence parent has a duty to the child to make him or her ready for access and to encourage and facilitate the child's participation in access. This is one of a parent's responsibilities to the child; it is not a hardship. When looked at from the proper perspective, that is from the perspective of what is good for the child, driving a child partway to the start or end of an access visit is not different than driving the child to and from piano lessons, football practice or, for that matter, school. [42] Late in the trial the respondent testified that he had rented an apartment in Salmon Arm so that he would have a residence there when he was caring for E. He testified that his work arrangements were flexible enough to allow him to continue to work in Salmon Arm even though his office is in Kelowna. [43] The claimant is currently employed at the Shuswap Hospital as an assistant to the hospital manager and performs administrative duties. She says she enjoys her job at the hospital and there is the prospect of a promotion at some unknown time in the future. She has been seeing another man in Salmon Arm since August 2011. [44] As Justice Rogers said, the Federal Child Support Guidelines' definition of income is based on the most recently filed T1 income tax return of a party. For the purpose of calculating spousal and child support I find the claimant's income to be $34,202. The respondent testified that his income for 2012 will be $86,700 and a bonus for this year will probably be paid in January 2013. However, for the purpose of calculating support payments under the Guidelines, I find the respondent's income to be $109,731, which reflects his reported income in his T1 for 2011. [45] The respondent has paid varying amounts of child support since their separation but the claimant says that he has not been paying in accordance with the Guidelines. Since their separation the respondent has also paid some expenses on behalf of the claimant including the costs of their vacation to Tofino and the claimant's car repairs. III. Analysis [46] In deciding the issues in this case, the primary consideration is the child's best interests. Section 24 of the Family Relations Act, R.S.B.C. 1996, c. 128, states: 24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the child including any special needs for care and treatment; (b) if appropriate, the views of the child; (c) the love, affection and similar ties that exist between the child and other persons; (d) education and training for the child; (e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. (1.1) The references to "other persons" in subsection (1) (c) and to "each person" in subsection (1) (e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child. (2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child. (3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part. (4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2). [47] I am satisfied that both parties are loving parents and capable of properly caring for E. I expect that they are capable of agreeing on most of the important issues relating to the raising of E. With this litigation behind them, it is hoped that the bitterness between them will subside and they will work more closely together to further E.'s best interests. In my view it is in the child's best interests that the parties have the joint custody and joint guardianship of E. under the Joyce Model regime. [48] In determining parenting arrangements I have considered that the maximum contact with both parents is generally in the best interests of the child, and in this case there is no evidence that leads me to conclude that each parent should not have the maximum access that is practical in the circumstances. [49] The parenting arrangements must also account for the distance between the parties' residences. The arrangements should also take into consideration the importance of the child remaining in a stable environment while she is attending kindergarten in Salmon Arm. In my view it would not be in E.'s best interests to move to Kelowna during the period of time that she is attending school in Salmon Arm. [50] In order to maintain a stable family environment while at the same time providing E. with the maximum access to each of her parents, the arrangement that best achieves her best interests is shared parenting. Under this arrangement, provided that each party maintains a residence in Salmon Arm, E. will reside with each of them for one week, alternating one week with the claimant and one week with the respondent. [51] Because the respondent now has a residence in Salmon Arm, this arrangement will allow E. to continue living in Salmon Arm with each of her parents for one week at a time while she is attending kindergarten. Unless the parties otherwise agree in writing or by email, E. must continue to reside in Salmon Arm from Monday to Friday each week that she is enrolled in kindergarten. After kindergarten on Fridays and before kindergarten commences on Mondays either party will be free to travel with E. as they see fit during the week that they have the care of E. [52] As the respondent has testified that he has flexible working arrangements with his employer, I do not expect that the requirement for him to reside in Salmon Arm during the week that he must care for E. and while she is attending kindergarten, will negatively impact upon his income. [53] In the event that during the time that E. is attending kindergarten the respondent does not have a residence in Salmon Arm, then the parenting arrangements shall revert to the access regime specified in the orders of Master Young on January 5, 2012, unless the parties otherwise agree in writing or by email and until the respondent re-establishes a residence in Salmon Arm. The parenting arrangements during the summer school vacation and on statutory holidays shall remain as specified in these reasons. [54] When E. completes her kindergarten year in June of 2013 then, subject to the arrangements that will be specified for summer vacations, during the respondent's parenting week she may reside with him in Kelowna. On alternate weeks when she is cared for by the claimant, E. shall continue to reside with the claimant in Salmon Arm. [55] In the fall of 2013, when E. returns to school, she must again reside in Salmon Arm, at least during the weekdays while attending school, and with each party for alternating weeks as described in para. 50. [56] The arrangements described in the preceding two paragraphs shall continue in subsequent years. [57] During E.'s summer vacation, each of the parties shall have the care of E. for an additional week such that E. can reside with each of them for a period of three consecutive weeks. It will be left to the parties to arrange the extra week between them in a fair and reasonable manner. [58] For Christmas and Easter, the claimant and respondent shall have access to E. in alternating years. The Christmas holiday period shall be considered to be from December 22 until January 2. For the Christmas holiday this year, the claimant shall have the care of E. [59] These parenting arrangements contemplate the claimant continuing to reside in Salmon Arm and the respondent continuing to reside in Kelowna, but with a secondary residence in Salmon Arm. While either party is free to change his or her residence, they must give 60 days' notice to the other party of any intended change of residence from where they presently reside. This includes a change by the respondent from either his Kelowna residence or his Salmon Arm residence or both. [60] As the B.C. Court of Appeal said in Falvai v. Falvai, 2008 BCCA 503, at para. 40: In today's world, individuals rarely live their entire lives in the same community in which they are born. We exist in a far more mobile society. Work demands often requires families to move; some require one parent to work in a community apart from where the family lives. [61] While it was made in a different context, that statement may well apply to the parties in this case. Their residences will likely change over the next few years and it is hoped that they will agree to reasonable changes in these parenting arrangements that are in E.'s best interests. No order of this Court can contemplate the possible changes in living arrangements of the parties in the future. If there is a change in those circumstances the parties should reconsider the arrangements described in this judgment and do their best to agree in writing or by email to changes that will best suit E.'s needs. [62] As E. will be residing with the claimant from December 22, 2012 until January 2, 2013, these new parenting arrangements shall commence on Friday, January 4, 2013. On that Friday, the respondent shall have access to and the care of E. until the following Friday. E. shall be picked up by the respondent at the end of her school day on January 4, 2013, and returned to the claimant by 6:00 p.m. on the following Friday. Thereafter, the parties shall alternate weeks with E. in their care and with the same pick-up and drop-off regime. It shall be the responsibility of the party who will have the care of E. to pick her up at the beginning of their week and drop her off at the end of that week. [63] The parenting arrangements described are subject to the following specific arrangements: 1) E. shall alternate visits with each party for the school Spring Break with the first visit in 2013 to be with the respondent. 2) E. shall alternate her visits with each party on her birthday each year. Her birthday on August 13, 2013, shall be spent with the respondent. 3) Each party shall have the care of E. on their respective parent's day, namely, Mother's Day or Father's Day. 4) Each party shall have reasonable telephone access to E. while she is in the care of the other party. 5) If either party intends to travel outside the Okanagan area of the Province of B.C., he or she shall notify the other party by email of the intended destination and the purpose of the journey two weeks before the trip takes place. [64] With regard to child support based on the shared parenting arrangement and pursuant to the Child Support Guidelines, the amount of child support payable by the respondent is $690 per month. This amount shall be payable by the respondent to the claimant commencing January 1, 2013, and on the first day of each month thereafter. No order for retroactive child support is made. [65] With regard to spousal support, the Spousal Support Advisory Guidelines indicate that at the low end spousal support should be $1,210 per month and $1,954 at the high end. In deciding that the respondent shall pay to the claimant the amount of $1,210 per month I have considered that the claimant's expenses will be reduced under a shared parenting arrangement. I have also considered the additional expenses faced by the respondent by acquiring a second residence in Salmon Arm. By so doing, not only is the respondent able to share parenting with the claimant but his ability to pay spousal support should be enhanced and is more likely to be maintained at the current level than if he were to move to Salmon Arm because of the negative impact of such a move on his employment income. [66] The parties shall bear any s. 7 expenses equally. [67] There will be no order restraining the respondent from communicating with the claimant, as sought by her. Not only would such an order be incompatible with the joint custody and guardianship order that I have made, the evidence does not suggest that any such order is reasonably necessary. [68] As success in these proceedings is divided, no award of costs is made. "Bowden J."