D.C.D v. R.J.P.C.

2014 BCSC 2420 D.C.D v. R.J.P.C.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.C.D v. R.J.P.C., 2014 BCSC 2420 Date: 20141222 Docket: E112408 Registry: Vancouver Between: D.C.D Claimant And R.J.P.C. also known as J.P. Respondent Before: The Honourable Madam Justice Ballance Reasons for Judgment Counsel for the Claimant: C.R. McQuillan Respondent Appearing in Person: J.P. Place and Date of Trial: Vancouver, B.C. August 19-23, 26 and 28, 2013, November 8, 2013, November 21, 2014 and December 11, 2014. Place and Date of Judgment: Vancouver, B.C. December 22, 2014 I. introduction [1] The principal contentious issue in this family law case is the parenting of the parties' young daughter, R. The usual financial matters are also in dispute, as well as the claimant's obligation to provide child support for the respondent's biological son, K. II. background · Early Days [2] The claimant, Ms. D., was born in Québec in 1979. The respondent, Mr. P., was born in Peru in 1974, and immigrated to Canada in or about 1996. [3] The parties met while they were both working at Costco and began dating in the summer of 2000. In addition to working part-time at Costco, Mr. P. was studying electrical engineering at BCIT, also on a part-time basis. [4] Mr. P. is the eldest of five siblings of a close-knit family. When he met Ms. D., he was residing in a home in North Vancouver along with several members of his family. At the

time, Mr. P.'s young son, K., from an earlier short-lived marriage, lived with his mother in North Vancouver. [5] In the fall of 2000, Ms. D. returned to Montréal to continue her post-secondary education. The following January she returned to British Columbia and began living with Mr. P. in the family residence in North Vancouver. [6] In the summer of 2001, the parties moved into their own apartment near Mr. P.'s family residence. In the ensuing school year, Ms. D. attended the University of British Columbia as a full-time student and worked part-time at a coffee shop. Her parents covered the costs of her education. The evidence establishes that she and Mr. P. contributed equally to their day-to-day expenses. [7] I accept Ms. D.'s evidence that Mr. P. found his studies at BCIT to be challenging and encountered difficulty with the courses. Although there was also some problem related to having to repay his student loan, I find that, primarily due to the difficulties he experienced with the course demands, Mr. P withdrew from school in 2003. Thereafter, he assumed a full-time position at Costco. He distinguished himself as a hard worker and, before long, began to move up the ranks. [8] Ms. D. completed her undergraduate degree at UBC in 2004 and was accepted into the Master's program for speech-language pathology. It was an intensive two-year course of study. Largely for Ms. D.'s

convenience, the couple decided to move to Vancouver to be in closer proximity to UBC. Ms. D. obtained student loans and established a personal credit line and continued to receive assistance from her parents to cover the cost of her post-graduate studies. · Events in 2005 and 2006 [9] The summer of 2005 was an exciting time for the parties. After Ms. D. finished her first year of the Master's program, they purchased a one-bedroom condominium in Richmond. To facilitate the purchase, Mr. P. withdrew $6,000 from his RRSP and applied it as the down payment. Ms. D. drew against her line of credit in approximately the same amount and used those funds to pay for the legal expenses and other transaction closing costs. [10] The parties married that summer in Québec on August 27, 2005. After the wedding, they continued their pattern of sharing household living expenses approximately equally. More specifically, they each deposited an agreed and largely equal amount into a joint bank account on a monthly basis and used those funds to cover their joint expenses. They also maintained separate bank accounts from which they would make personal purchases. [11] In this timeframe, Mr. P. would typically see his son, K., once or twice per week, usually on the weekend. [12] Ms. D. successfully completed her Master's degree in 2006. She soon landed a job as a speech pathologist at Sunny Hill Health

Centre. In the meantime, Mr. P. had transferred from the Costco in Richmond to the downtown Vancouver store, and within a year or so became the manager of the food court division. His promotion had a significant impact on his work schedule. He was expected to work evenings that coincided with many events at the local arena, and was sometimes called in to work on his days off. · Arrival of R. [13] The parties' daughter, R., was born on May 2, 2007. Ms. D. took an 11-month maternity leave. Upon returning to Sunny Hill, she worked three days a week for the first year, and thereafter resumed her full-time hours. R. was cared for at an in-home daycare on the days both parties worked. When she was about three years old, R. was enrolled in the daycare at Ms. D.'s place of work at Sunny Hill. [14] According to Ms. D., on Mr. P.'s days off, he would lounge on the couch in his pyjamas watching television and eating fast food for the better part of the day. She testified that he seldom tidied up or performed other chores around the house, even when she left him with a list of tasks that required attention. Her testimony was supported by the evidence of her father who made similar observations of Mr. P. during the times he visited from Québec. [15] Although I accept the accuracy of Ms. D.'s testimony in general terms, I find she overstated it so as to depict Mr. P. unfavourably as a "couch

potato". The fact is that he suffered from sleep apnea and insomnia and those sleep disturbances periodically caused him fatigue. He also has a history of anxiety and struggles with depression, which he now treats with anti-depressant medication. I find that those medical difficulties, as opposed to sloth, were often at the root of the "lazy" behaviour complained of by Ms. D. There is no cogent evidence that his daytime fatigue or even his laying about the house on his days off would interfere with his ability to appropriately parent R. or in any way put her at risk. [16] Despite Mr. P.'s denial, I accept Ms. D.'s testimony that the variability of his work schedule became a source of conflict after R. was born. From her perspective, the main problem was that his schedule lacked predictability and made it difficult to know much in advance when Mr. P. would be at home which hampered the planning of family outings and a consistent sharing of parental tasks. While I accept that Ms. D. genuinely found Mr. P's work schedule to be frustrating and problematic, I conclude that, in reality, the fluctuations in his shifts were not as frequent or as unpredictable as she considered them to be. [17] As a result of the combination of Mr. P.'s work schedule, his fatigue and his medical conditions and, to a limited extent, his belief that domestic duties are within the domain of the women in

the marriage, the burden of meal preparation and the other household tasks fell mainly to Ms. D. I find that she also spent more time than did he, feeding, bathing and generally parenting R. That was particularly the case when she was on maternity leave and for the time that she worked only three days per week; however, the pattern continued even after she resumed her duties full-time. The parties' marriage after R.'s birth might be characterized as traditional in that sense, if it were not for the fact that Ms. D. worked full-time (other than when she was on maternity leave and a graduated return to work) and contributed financially to the household in approximately equal terms. · Sale of Richmond Condominium [18] The parties eventually sold their condominium which netted them approximately $60,000 in profit. According to Mr. P.'s mother, and I find, that they used a portion of their funds to pay down their respective student loans. They also applied some of the proceeds toward the purchase of a duplex in Richmond (the "Duplex") with Mr. P.'s brother, M.P. The parties own 50% of the Duplex and M.P. owned the other one-half interest. I accept Ms. D.'s evidence that she had expected M.P. to bring a roommate aboard, but instead, Mr. P.'s mother and his other siblings, in varying combinations and at various times, eventually took up residence there. I accept Mr. P.'s evidence

that, although his father spent a considerable amount of time at the Duplex, he maintained a separate residence in North Vancouver. [19] Mr. P. was used to residing in a boisterous household with extended family. However, Ms. D. was not, and the lack of privacy proved challenging for her. Over time, she became weary of the household situation and, at her urging, the couple moved into a nearby housing cooperative (the "Co-op") in January 2010. [20] Mr. P. gave inconsistent and implausible testimony about Ms. D.'s reasons for wanting to leave the Duplex. On the one hand, he conceded that together they had discussed the lack of personal privacy, but in the next breath he said that she had never raised any concerns about that issue and had not given him a direct reason for wanting to move out until sometime after they had done so. He criticized her for "running away" instead of insisting that he install a privacy wall. This was one of many instances displaying Mr. P.'s propensity to cast blame the way of Ms. D. without assuming any responsibility for the role he may have played in the particular situation. Along with several other aspects of his testimony, it also served to taint his credibility. [21] A few months after the parties relocated to the Co-op, they sold their interest in the Duplex to Mr. P.'s mother. According to Ms. D., the parties suffered a considerable financial

loss on the sale by settling for payment of only $25,000 from Mr. P.'s mother which would enable them at least to pay their debts. Ms. D. claims she was taken by surprise when they met with the lawyer to sign the transfer papers and she discovered they would only be receiving $18,000. She testified that Mr. P. assured her that they would be paid the $7,000 shortfall, however, that did not come to pass. Mr. P. testified that the real estate market at the time was at a low point. He explained that they agreed to sell their interest for $18,000 and that Ms. D. had been provided with the legal papers showing that was the purchase price well in advance of going to the lawyer's office and he denies that his mother short-changed them by $7,000. When Mr. P.'s mother testified as a witness, however, neither side questioned her about this issue. [22] All things considered, I find Ms. D.'s testimony on the point to be more consistent with the probabilities of the situation, and I prefer it over Mr. P.'s version. · Separation - June 30, 2011 [23] Ms. D. eventually grew unhappy in the marriage. She says she found Mr. P. to be increasingly controlling in a variety of ways, including insisting on "sexual paybacks" in exchange for his agreement that she could do certain things she enjoyed. Her dissatisfaction culminated when Mr. P. forbade her to stay overnight in a hotel room with girlfriends

as part of a "stagette" party. She testified that he raised the issue in R.'s presence and punctuated his disapproval by kicking one of R.'s toys. Ms. D. could not "get past" that incident and came to the realization that the relationship was no longer healthy. She decided to end it. [24] Ms. D. wanted her father by her side when she informed Mr. P. that she was leaving the marriage and flew out from Québec to provide his moral support. She also arranged for her father-in-law to be present, who suggested that she inform Mr. P. gently by saying that they "needed to take a break". [25] Mr. P. says he was blindsided and shocked by his wife's decision to leave. At the same time, however, he acknowledged that she had repeatedly asked him to attend marriage counselling which he had declined, preferring that they try to "talk it through". He also agreed that in the six months leading up to the separation, he had considered Ms. D. to be cold, distant and indifferent to him, and had accused her of having an extramarital affair. [26] Whether or not Mr. P. saw the breakup coming, it is clear that he was initially devastated by Ms. D.'s decision. They separated on June 30, 2011, with Ms. D. and R. remaining in the Co-op and Mr. P. returning to the Duplex. Soon after, Mr. P. took a two-month stress leave from work. · Parenting in the Early Aftermath of Separation [27] During the first month

or so of separation, Mr. P. made concerted efforts to reconcile with Ms. D. His conduct toward her vacillated between emotional pleas for reconciliation and angry outbursts. At Ms. D.'s suggestion, the parties attended counselling together a few times to help Mr. P. understand that, as far as she was concerned, the separation was permanent. [28] Ms. D. took it upon herself to control Mr. P.'s visitations of R. Although a pattern quickly emerged, whereby he would have to seek her permission in order to see his daughter, Ms. D. was generally cooperative and agreed to most of Mr. P.'s requests. [29] An informal arrangement developed that typically had R. with her father two evenings and one overnight each week. That schedule worked satisfactorily in the initial month of separation when Mr. P. was seeking to reunite with Ms. D. When it became apparent to him that the marriage was truly over, he began to express his desire to have 50% parenting time, to be exercised on alternate days. In a good faith attempt to accommodate Mr. P., Ms. D. agreed to a daily exchange of R. That parenting model was manageable in the short-term, when Mr. P. was on leave from work. [30] An unfortunate incident occurred on August 1, 2011, while Mr. P. was still on stress leave. Each party gave a different version of the unfolding of events that evening. With Mr. P.'s knowledge, Ms. D. and her father had

taken R. on a holiday to Victoria for a few days. The parties had agreed that R. would be dropped off with Mr. P. upon their return. Ms. D. thought it best and believed the parties had agreed that R. would see her father for only a few hours because it had been a tiring trip for R. She said that when they arrived at the Duplex, Mr. P. had changed his mind and insisted that R. be left with him for the night, which Ms. D. did not agree to. She was attempting to buckle R.'s seatbelt to take her home but was impeded by Mr. P. who was attempting to release R. from her car seat. [31] The exchange between the parties became heated and at one point Mr. P. placed his hands on Ms. D.'s shoulders to restrain her from leaving. Her father interceded and demanded that Mr. P. not touch his daughter. R. began to cry. At some point, Mr. P. threw the car keys onto the upper balcony of the Duplex. His father retrieved them and handed them over to Ms. D.'s father. By now, emotions were running high and Mr. D. swore at his son-in-law while Ms. D. called the police. Ms. D.'s recollection of the incident was supported by the testimony of her father. [32] Mr. P. testified that before the Victoria trip, he had repeatedly made it known to Ms. D. that he wanted more time with R. He claimed he never agreed that R. would only stay two or three hours with him when she returned from Victoria. His

understanding was that she would be spending the night, given that she had been with her mother and grandfather for three days straight. He testified that when he reminded Ms. D. of their prior agreement that R. remain overnight, her father went "ballistic" and approached the edge of the fence "ready to fight". [33] My impression is that Ms. D. and her father exaggerated the nature and intensity of Mr. P.'s misconduct that evening, and that reflected poorly on their credibility. Ms. D. approached the situation as though she had a greater legal entitlement than did Mr. P. to decide where R. should spend the night. Both she and her father failed to see that, in all the circumstances, Mr. P.'s request for an overnight visit with his daughter, whether it was pre-planned or not, was neither unreasonable nor contrary to R.'s best interests. [34] Commendably, the mutual desire of the parties to avoid another nasty confrontation led them to participate in mediation with a family justice counsellor in order to iron out a clear schedule of parenting time. With the counsellor's assistance, they negotiated a memorandum of understanding dated August 10, 2011 (the "MOU") with respect to the parenting of R. The MOU endorsed equal parenting time based on a one-week on, one-week off schedule, usually with Wednesdays as the transition day. [35] The exchange was to take place at R.'s daycare at

Sunny Hill. In Ms. D.'s view, that schedule, and especially Mr. P.'s collection of R. on Wednesdays at 5:00 p.m., would not be feasible once his leave came to an end and he returned to work. I find that, despite her misgivings, she agreed to the terms of the MOU on the belief that any kind of a schedule was an improvement over the existing approach and because she wished to minimize the opportunities for conflict with Mr. P. [36] That summer, Mr. P. told Ms. D. he wished to move back into the Co-op. She was happy to vacate it and relocate closer to Sunny Hill and, to that end, she found an apartment in Vancouver in mid-August 2011. Mr. P. never did re-occupy the Co-op. The deposit of approximately $2,100, which Ms. D. had paid from her funds, was eventually returned to Mr. P. She testified that he reneged on his promise to repay the deposit to her. Mr. P. did not recall making that agreement with Ms. D.; however, I find that he did. Presumably, as a means of justifying his retention of the deposit monies, he pointed out that he was required to pay the rent for the Co-op for two months, ending in November 2011. The point he appears to have missed is that the incurrence of the rental expense was his own doing, in that it was a direct result of his stated intention to move back to the Co-op and his subsequent decision not to do so. [37] Mr. P. returned to work in late August or

early September 2011. He said that the act of taking a stress leave, in conjunction with other workplace problems that he had complained about to Ms. D. before the separation but did not specify at trial, created friction between him and his manager. During the first month or so of his return, Mr. P. adjusted his schedule to enable him to leave work at 4:30 p.m. and collect R. from the daycare on his days. Although he attempted to downplay the problems that later surfaced, I am persuaded by Ms. D.'s evidence that he was routinely unable to collect R. on Wednesdays before the daycare closed. Over time, her concerns about Mr. P. not being able to adhere to the parenting arrangements contained in the MOU were realized. Conflicts between the parties inevitably arose. [38] The parties attended a judicial case conference on September 19, 2011. At that time, they agreed to joint custody and joint guardianship on an interim basis and to share equally the s. 7 expenses, including R.'s daycare costs. Until then, Ms. D. alone had shouldered all of the daycare expenses. · Parenting after Change in Ms. D.'s Employment [39] In October 2011, Ms. D. landed a long-sought after position as a speech pathologist with the Richmond School Board. It was an ideal job for a working parent of a school-aged child because her hours and days of work corresponded to those of teachers with school holidays

off. As did teachers, she worked on professional development ("Pro-D") days. [40] Also in October, the parties agreed that physical possession of R.'s clothes and toys would be split between their two households, and that K.'s belongings would go to the Duplex. Each party had already taken the furniture they wished from the Co-op and were entitled to an equal share of the proceeds from the sale of the remaining furniture. Their agreement was subsequently put into written form and signed on December 10, 2011. [41] The parties agreed to switch R.'s daycare to one located in Richmond, effective November 2011. That daycare closed at 5:30 p.m. and posed an even greater difficulty for Mr. P. to get R. on time due to its further distance from his place of work. Ms. D. offered to pick up R. at 4:00 p.m. and keep her at home in Vancouver until Mr. P. was able to collect her there. At first, he baulked at the suggestion and tried to make do by calling on his family members for assistance. However, he subsequently suggested that on his days, Ms. D. deliver R. to the Duplex and leave her with whatever adult family member might happen to be there. Ms. D., I think reasonably, would not agree to his proposal. [42] By the spring of 2012, Mr. P. recognized the clear advantage in having Ms. D. pick up R. from daycare on his days and take her to Ms. D.'s home to await pickup by him after work.

Ms. D. complained of times when Mr. P. insisted on collecting R. as late as 7:30 and 7:45 p.m., which was after R.'s then bedtime of 7:00 p.m., simply because it was "his day". Only on the occasions that Mr. P. had to work late into the evening, would he agree to leave R. overnight with her mother. Mr. P. conceded that there were a few instances when he arrived to collect R. at 7:15 or 7:30 p.m., but denied he was ever as late as 7:45 p.m. I do not have confidence that his evidence is accurate. [43] Mr. P. believes that Ms. D. deliberately established an excessively early bedtime for R. in order to create difficulties for him. The evidence does not support his accusation. Instead, it shows that R. experienced chronic sleep difficulties and that, on at least two occasions while in her father's care, she had fallen asleep in class. While R.'s bedtime had been between 7:30 and 8:00 p.m. during the marriage, after separation Ms. D. had brought it forward to 7:00 p.m. because they had to leave the home earlier in the morning and it remained essential that R. have approximately 11 hours of sleep each night. Collecting R. at 7:30 or as late as 7:45 p.m. and then driving her to the Duplex to spend the night resulted in too late a bedtime for a little girl suffering from sleep disturbances and cannot be said to have been in her best interests. [44] In March 2012, the parties agreed to

give the other the first opportunity to care for R. in the event that they were unable to do so for more than two hours during their respective parenting time. This agreement was borne out of Ms. D.'s concerns over Mr. P.'s tendency to leave R. with his extended family members when he was not able to care for her rather than to first check on Ms. D.'s availability. [45] It was apparent from Mr. P.'s testimony that he was under the misapprehension that the right of first refusal was meant to prohibit his family from looking after R., even when Ms. D. was at work and unavailable. That was clearly not the case. The evidence indicates that Ms. D. breached the agreement on at least one occasion and Mr. P. did so slightly more often. · Ms. D.'s Purchase of the Richmond Condominium [46] In May 2012, Ms. D. purchased a condominium in Richmond (the "Condominium") near to R.'s school. The purchase price was $299,900. She was able to do so by securing a mortgage in the amount of $235,000 and by borrowing the sum of $60,000 from her father. [47] The loan from her father was paid to her in two instalments. He first provided her with a cheque for $15,000 in December 2011. On May 19, 2012 he wrote a second cheque to his daughter on his own mother's account for $45,000. The evidence establishes that since 1992, Mr. D. has managed his mother's financial affairs. He testified, and I find, that

his intention was to repay his mother when he was in a position to liquidate certain of his own investments. On the same day that he wrote the cheque on his mother's account, he signed a written acknowledgement of his indebtedness to his mother. [48] Both Mr. D. and his daughter convincingly testified that the $60,000 was in the nature of a loan and was not a gift to Ms. D. Their evidence was not assailed in cross-examination and no cogent evidence to the contrary was called. [49] Mr. P.'s closing submission to the effect that these loans were a deception or a sham was influenced by his misunderstanding of the evidence. In any case, I conclude the loan to Ms. D. from her father was genuine, and that Mr. P.'s allegations suggesting otherwise are groundless. [50] Also baseless was Mr. P.'s theory that Ms. D. had purchased the Condominium, which is located in south Richmond, as a deliberate ploy to live further away from his work and thereby make it more difficult for him to exercise his parenting time with R. · Triggering event [51] The triggering event, in the form of an s. 57 declaration, occurred by way of consent order made June 4, 2012. · Events throughout the summer of 2012 [52] Starting in September 2011 and continuing until Mr. P. changed his job in August 2012, he typically had Fridays off. The evidence establishes that on the majority of those Fridays, he left R. in

daycare - often for the better part of the day and occasionally for the entire day. He explained he did so in order to free up time to attend appointments with his family doctor, chiropractor, massage therapist, and his acupuncturist. Clearly, his entire day would not have been occupied by those appointments, and he did not attend all or even most of them on any one Friday or every Friday. [53] R. was set to start at a francophone kindergarten located in Richmond in September 2012. Several weeks earlier, in July, Ms. D. applied for an order that R.'s principal residence be with her and that Mr. P.'s parenting time be confined to his days off which, at the time, were Fridays and Saturdays. I am satisfied that the main impetus for her application was the ongoing difficulties the parties were experiencing in negotiating the inevitable weekly alterations to the MOU, largely caused by Mr. P.'s work schedule, together with her perception that the changes routinely being made to the MOU were causing instability for R. [54] On July 23, 2012, the Court confirmed that the MOU schedule was to remain in place and added a proviso that if Mr. P. was to collect R. by 6:30 p.m. and that if he was more than 10 minutes late, the arrangements would shift to the model sought by Ms. D. The parties also consented to an order for the sharing of holiday time. [55] In the summer of 2012, Mr. P. stepped

down as manager of the food court at Costco and accepted a significantly lower paying position at Costco as a shelf stocker. His initial hourly wage was $21.85, corresponding to approximately $45,448 annually, which was roughly $20,000 less than he had been earning in his managerial position. Mr. P.'s shift started at 5:15 a.m., which meant that he could not take R. to school on his parenting days during the week. He announced to Ms. D. that, given his new work schedule, he would pick up R. after school every day of the week and that Ms. D. could then collect R. from him on her days at 5:30 p.m. He intended to keep R. overnight on his weekdays. [56] Mr. P.'s unilateral plan contemplated that R. would be shuffled between the two homes virtually every day. Ms. D. considered that it was it too disruptive for R. and virtually eliminated her quality time with R. during the week. The parties were not able to resolve Ms. D.'s objections. [57] Consequently, on September 14, 2012 Ms. D. re-applied for and obtained the order she had sought during the previous July hearing (the "2012 Parenting Order"). Specifically, it was ordered that R.'s primary residence be with her mother and that Mr. P.'s parenting time be after school Tuesday until he dropped her off at school on Thursday mornings. As well, he had Fridays after school until 7:00 p.m. The Court also stipulated that the weekly access

schedule could be revisited in the event that Mr. P.'s hours or days of work were to change. The 2012 Parenting Order has remained in place since its pronouncement. [58] In about December 2012, Mr. P. transferred to the electronics department at Costco as a sales associate. His shift is ordinarily from 6:00 a.m. until 2:30 p.m., five days a week, with Wednesdays and Thursdays off. The evidence indicates that Mr. P. frequently asked that the 2012 Parenting Order be modified to align with changes to his work schedule. He complained that Ms. D. sometimes refused to accede to his requested adjustments and that her unwillingness to do so is not in R.'s best interests. [59] Ms. D. testified that she has been as cooperative as she reasonably can, with R.'s best interests in mind, but that Mr. P.'s requests are often communicated at the last minute and cannot always be accommodated. She pointed to his reluctance and even outright refusal to provide her with his work schedule at all or sufficiently in advance as a major impediment to being able to facilitate his repeated last-minute alterations. [60] The evidence indicates that Mr. P. is not provided with his work timetable more than seven or ten days before its implementation, posing a limitation on how far in advance he is able to notify Ms. D. of changes to it. Even so, there is merit to Ms. D.'s complaint. Citing a misguided

suspicion that Ms. D.'s requests to know his schedule were motivated by her desire to "keep tabs" on him, Mr. P. routinely failed to supply Ms. D. with his schedule in a timely way, and he frequently demanded that she agree to adjustments to the 2012 Parenting Order with inadequate notice beforehand. That said, in reviewing the evidence, including the voluminous email strings between the parties, I conclude that in a small number of these instances, Ms. D., likely acting out of a sense of sheer frustration, refused to accommodate Mr. P. purely because his request was late in the day and not because R. was otherwise occupied, or with her best interests necessarily at the forefront. · Additional Comments about Credibility [61] Throughout my Reasons, I have referred to the compromised credibility of each of the parties with regard to certain features of their testimony. As I remarked in M.S.G. v. S.K.R., 2014 BCSC 1344 at para. 414: Family law lends itself to highly-charged emotions in an environment of anger and distrust. The non-legal issues often loom large and, in the minds of the parties, are indistinguishable from and are oftentimes of greater importance than, the disputes that matter from a legal standpoint. It is not uncommon for the parties' personal feelings to manifest in unfortunate conduct outside of the courtroom, and in a tendency towards exaggeration, juvenile

behaviour and unreliable recounting of events at trial. I find that to be an apt description of the situation here. [62] Although the credibility of each party was compromised, Mr. P's credibility on material matters was significantly more impugned than was Ms. D.'s and found him to be an unimpressive witness on several fronts. III. position of The parties [63] I will summarize the parties' respective positions under the appropriate subject headings below. IV. LEGAL PRINCIPLES AND DISCUSSION · Parenting of R. [64] In their pleadings, the parties sought relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as well as the Family Relations Act, R.S.B.C. 1996, c.

128. Although this action was commenced before the Family Law Act, S.B.C. 2011, c. 25 ("FLA") came into effect, its provisions concerning the guardianship and parenting of R. apply. [65] There is an overlap between the concept of custody under the Divorce Act and the concept of guardianship under the FLA. This is because encompassed within the expanded notion of guardianship under the FLA are most, although not all, of the bundle of rights inherent in custody, as that term is understood under the Divorce Act. [66] In M.A.G. v. P.L.M., 2014 BCSC 126, Fleming J. discussed the interplay between the statutory concepts of custody and guardianship at paras. 42 and 43: [42] The concept of guardianship in the FLA, which came into force in March 2013, now includes the concept of custody: the terms custody and access are no longer used. In Rashtian v. Baraghoush, 2013 BCSC 994, reconsideration allowed 2013 BCSC 2023 (on other grounds), Mr. Justice N. Smith considered how and whether to make orders for custody under the Divorce Act and guardianship under the FLA. Where operational inconsistency exists, the doctrine of paramountcy applies and orders must be made under the Divorce Act: Spiers v. Spiers (1995), 15 B.C.L.R. (3d) 148 (S.C.); Hansen v. Mantei-Hansen, 2013 BCSC 876. Declining to comment on the extent to which any differences between the two statutes can or need to be reconciled,

Smith J. made an order for custody under the Divorce Act, supplemented as necessary by orders under the FLA (including guardianship and shared parental responsibilities). In other words he did not find orders pursuant to the FLA to be operationally inconsistent with the custody order under the Divorce Act. [43] Pursuant to s. 39 of the FLA, each parent, while together and after separation, is a guardian of the child, unless otherwise agreed or ordered. Under s. 40(2), each guardian may exercise all parental responsibilities with respect to the child, in consultation with the child's other guardian(s), unless to do so would be inappropriate or unreasonable in the circumstances. Section 40(3) provides for the allocation of parental responsibilities between guardians by agreement or order based on the best interests of the child, as defined by the factors set out in s.

37. There are no presumptions regarding the allocation of parental responsibilities, including no presumption of an equal or shared allocation: s. 40(4). Parents who are guardians also exercise parenting time with their children. A parent who is not a guardian has contact instead. [67] The weight of the authorities support the proposition that custody orders made under the Divorce Act and guardianship orders under the FLA are able to co-exist. Accordingly, it is open to the court to all make orders for custody and access under the Divorce Act, supplemented by orders relating to guardianship and parenting responsibilities under the FLA, that are not operationally incompatible with the orders made under the federal Divorce Act: Hansen v. Mantei-Hansen, 2013 BCSC 876. [Hansen]; Rana v. Rana, 2014 BCSC 530; E.D.A. v. M.A.A., 2014 BCSC 1084. [68] Under each statute the only consideration for the court is the best interests of the child: Hansen at para. 93; B.D.M. v. A.E.M., 2014 BCSC 453. [69] Section 16 of the Divorce Act empowers the court to make orders for custody of and access to the children of the marriage. In designing a custody order, the child's best interests are determined by reference to the child's condition, means, needs and other circumstances (Divorce Act, s. 16(8)). It is a highly sensitive and highly individualized inquiry that examines the relevant circumstances

of the particular child, including the ability of his or her needs and the ability of the parents to satisfy them, with the objective of ensuring that, to the extent possible, the child is raised in a loving and emotionally and physically healthy environment: H. v. K., 2008 BCSC 660 at para. 212; F.K. v. M.K., 2010 BCSC 563 at para. 151. [70] Evidence concerning the past conduct of the parent is irrelevant unless it relates to the person's ability to act as the child's parent (s. 16(9)). [71] In making an order for custody or access under the Divorce Act, the court is directed to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. To that end, the Court must consider the willingness of the person for whom custody is sought to facilitate such contact (s. 16(10)). While maximum contact is a mandatory consideration, the principle is not absolute. It is open to the court to place limitations on contact when they are in the best interests of the child: Young v. Young, [1993] 3 S.C.R. 4. [72] Joint custody is routinely ordered even where there is intense conflict and acrimony between the parents, provided the court is satisfied that the joint arrangement is in the child's best interest: Robinson v. Filyk, 28 B.C.L.R. (3rd) 21 at para. 22; T.(V.E.) v. T.(C.E.), 2009 BCSC 444 at

para. 92. [73] Similarly, the FLA stipulates that the court exclusively consider the best interests of the child when making an order respecting guardianship and parenting arrangements (the latter term meaning the allocation of parenting responsibility or parenting time, or both between the guardians). The essential but non-exhaustive list of factors for consideration is found in s. 37(2). They are: (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in

his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [74] Not surprisingly, these same considerations inform the analysis of the best interests of the child in a custody dispute under the Divorce Act: A.B.Z. v. A.L.F.A., 2014 BCSC 1453 at para. 175. [75] An order cannot be said to be in the best interests of the child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being: s. 37(3). The conduct of the parent is only relevant "if it substantially affects the factors set out in s. 37(2), and then only to the extent that it does so: s. 37(4). [76] One of the factors to be taken into account in the determination of the best interests of the child under s. 37(2) is the existence of family violence. Family violence is a widely defined concept under the FLA. Section 38 provides guidance to the court when conducting an assessment of family violence as part of the larger enquiry of the child's best interests. The factors identified in s.

38 are meant to yield a nuanced assessment of the risk posed by such violence in recognition of the fact that not all acts which constitute family violence are the same, or will produce the same impact on a child. [77] Section 38 of the FLA states: For the purposes of section 37(2)(g) and (h) [best interests of child], a court must consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [78] Mr. P. had long advocated for equal parenting time between the parties. As the trial neared an end, however, he shifted to a more strident position and argued in favour of an arrangement that would have R. with him five days per week. Ms. D. asks that R.'s primary residence be with

her and that Mr. P. have parenting time one or two overnights per week, possibly with an additional few hours after school on Fridays. She also seeks an order that Mr. P. pay her child support pursuant to the Federal Child Support Guidelines, SOR/97-175, from October 1, 2012 onward, plus an equal sharing of s. 7 expenses. [79] Mr. P. argued that, despite his attempts to co-parent and establish "open and transparent" communication, Ms. D. has persisted in setting "booby traps" in his path, thereby undermining the effective co-parenting of R. My assessment of the evidence indicates that, for the most part, it is Mr. P. who has posed a greater hindrance to co-parenting on a cooperative and consultative model. He has regularly comported himself on the footing that he ought to be able to do whatever he pleases with R. during his parenting time, without the need to consult with, much less inform, Ms. D. [80] In terms of his general parenting capabilities, the evidence indicates that he was oftentimes guided by his intense conviction, approaching a fixation, that the parties should have equal time with R. or, to put it more accurately, that Ms. D. not have any more time with R. than did he. His mindset made him prone to adopt inflexible and reactionary positions that were less about what was in his daughter's best interests, than they were in ensuring that she was not in her mother's

care on "his time". The lack of consultation and poor communication between the parties concerning their daughter's activities were also sticking points. I will refer to a handful of instances emblematic of Mr. P.'s stubborn refusal to look beyond his parental "rights" and to thoughtfully consider his daughter's best interests. [81] One such example occurred in November 2011, when R.'s maternal grandmother was visiting from Québec and Mr. P. refused to allow R. to spend any additional time with her mother and grandmother. It was only with the intervention of counsel that he finally agreed to permit R. to spend time with her grandmother on "his days" when she would otherwise have been in daycare. [82] There was also the disagreement about R.'s gymnastics class. Before the 2012 Parenting Order was in place, by which Mr. P. was granted parenting time after school on Fridays until 7:00 p.m., R. had been participating in a gymnastics class held on Fridays from 5:00 to 6:00 p.m. Mr. P. was unhappy about the fact that R.'s class fell on "his day". When it came time to re-enrol her in early 2013, he signed her into a Monday evening class that fell on Ms. D.'s parenting time and did not finish until after R.'s bedtime. [83] Around the same time, and unaware that Mr. P. had done so or was about to do so, Ms. D. enrolled R. in a Sunday morning session with her little friend from her

previous class, which Ms. D. had coordinated with the friend's mother. Mr. P. would not agree to the Sunday morning class because it was held on his parenting time. In turn, Ms. D. objected, validly I would add, to the late hour of the Monday evening class that he had organized. Mr. P. was prepared to agree that R. attend the session Monday afternoons, however, its timing presented a difficulty for Ms. D. in transporting R. to class. To smooth things over, she ended up capitulating and agreeing that R. could attend the Monday afternoon class during her parenting time, which posed some personal inconvenience to Ms. D. [84] Another example can be found in Mr. P.'s enrolment of R. in a spring soccer league. Without first speaking to Ms. D., he signed her into a program with sessions on Saturday (Ms. D.'s parenting time) and Wednesday (his parenting time). Ms. D. did not oppose taking R. to soccer on Saturdays but did object (I would say reasonably) to the lack of any consultation with her in advance. [85] A similarly revealing stance adopted by Mr. P. in connection with parenting matters was that Ms. D. could take R to a birthday party on his parenting day, provided that the "lost" time be made up to him. [86] Mr. P.'s recent enrolment of R. in the school bus program without first discussing it with Ms. D., or even telling her once it was underway, is also illustrative of the

point. [87] Mr. P. has routinely failed to appreciate that R.'s participation in fun-filled activities and spending time with her maternal grandparents when they visit from Québec are for her benefit, and not Ms. D.'s, and that it is inevitable they will sometimes fall on his day. [88] All things considered, Ms. D. has shown reasonable flexibility in attempting to accommodate Mr. P.'s scheduling changes and parenting time requests. Her communications with Mr. P. have been mostly cordial. In the few number of instances that she has refused to facilitate his requested modifications to the schedule, the tone of his written communications has been juvenile and sometimes needlessly inflammatory, telling her, for example, that she is mentally unstable and should seek psychiatric help. [89] Mr. P. went to great lengths, even enlisting R.'s assistance, to show that R. was sleeping on an unsafe bunk bed at her mother's home. His accusation was based on wrong information about R.'s bed, and was soundly refuted by Ms. D. She explained, and I find, that R. sleeps in a safe and age appropriate low-loft bed, with a one foot safety railing and a storage space underneath for her toys. [90] Mr. P.'s last minute about-face, shifting from seeking an order for equal parenting time to an order for a primary residence with limited access for Ms. D., is deeply troubling. He offered no rationale

behind it and, more crucially, was not able to highlight a cogent explanation as to how such an arrangement would be in his daughter's best interests. When pressed as to the reasons for his significant turnabout, his primary motivation appeared to be that the cost of school bus R. takes from his home is free, whereas the before and after school care program, in which she is presently enrolled, is not. He also testified to the effect that he would be a superior "administrator" of R.'s quality time. His purported reasons reflect what Mr. P. considers preferable for his own convenience and advantage, and are not beneficial to R. [91] Mr. P.'s allegation and the testimony of his friend, Diana Vasquez, to the effect that Ms. D. is "homophobic" and disapproved of his brother's sexual orientation was unpersuasive and improbable on the evidence. [92] The position taken by Mr. P. at trial in relation to his former father-in-law, Mr. D., was extreme and shows that Mr. P. holds a grudge. Accusing him of being a "troglodyte", "xenophobic", "homophobic", and mentally ill, Mr. P. asserts that R. requires protection from her grandfather and, therefore, his future interactions with her should be limited and supervised. Mr. P.'s submissions were disturbing, not only because they were groundless, but because it was obvious that they were in retaliation for Mr. D. testifying against him at trial.

After all, Mr. P. had never raised concerns of this nature prior to trial and had never objected to R. visiting her grandfather both here and in Quebec during the marriage or prior to trial. [93] Although Ms. D. expressed valid criticisms of Mr. P.'s parenting capabilities and his approach to shared parenting, some of her stated concerns lacked merit, others were trivial and a small number were founded on an overstated factual premise. [94] Features of Mr. P.'s parenting that fall into the category of legitimate concerns (supplementary to those already mentioned), include the late bedtime he allows R., his lack of diligence in reading and passing along school notes to Ms. D. and, at least in the early aftermath of separation, referring to the marriage break-up in R.'s presence in highly inappropriate terms. [95] Additionally, Ms. D. testified that during the marriage, Mr. P. confided that his father had disciplined him with a belt when he was a youngster and that he believed it had instilled in him a sense of strength. She recounted an incident where Mr. P. struck his son, K., with a belt behind closed doors. She says that afterwards she comforted K. and expressed her disapproval to Mr. P. According to her, Mr. P. dismissed her concerns, saying that it was up to him to decide how to best discipline his son. Mr. P. testified that he had only ever threatened to punish K. with a

belt if he "didn't straighten out" and denied having resorted to it. Mr. P.'s mother testified that she had never seen her son physically discipline either K. or R. [96] The fact that Ms. D. did not report the incident to the Ministry of Child and Family Development did not persuade me that she ought not to be believed about the belt incident. That Mr. P.'s mother knew nothing about her son striking K. with a belt is not surprising and certainly not conclusive. As far as Mr. P. disciplining K. with a belt is concerned, I accept Ms. D.'s version of the incident. Even on her evidence, Mr. P.'s act of physical aggression - while certainly not excusable - was an isolated incident. There is no suggestion that Mr. P.'s misconduct happened again, much less that it was a regular occurrence or that he engaged in other or more subtle forms of family violence. The single event of him kicking R.'s little toy in R.'s presence during the August 1 incident, occurred at a time when he was on stress leave and functioning below his usual standard and, in any event, does not amount to family violence. [97] I will next touch on a sampling of Ms. D.'s less credible assertions of Mr. P's deficient parenting skills. [98] On balance, the evidence does not support a finding that Mr. P. is an aggressive man or has an "anger management" problem, as urged by Ms. D. Nor do I consider that his temperament

poses any kind of detriment to R. Additionally, the preponderance of the evidence does not indicate that Mr. P. suffers from long-standing "mental health" conditions, as suggested by Ms. D. [99] As I have noted, for many years, Mr. P has suffered from anxiety and depression, which are now treated by medication. His symptoms overtook him for some months in the immediate aftermath of, and in reaction to, the separation, and he suffered from overwhelming stress in February 2013, as the first trial date in this proceeding approached. Otherwise, there is an absence of any cogent evidence that Mr. P.'s psychological or emotional condition has significantly adversely impacted his functioning. Notably, the evidence is inconclusive that, even at his lowest point, his anxiety and depression interfered with or compromised his capacity to appropriately parent his daughter. Put another way, there is no nexus established between Mr. P.'s psychological frailties and any troubling deficiency in his parenting. [100] In reaching this conclusion, I am cognizant of Ms. D.'s evidence, which I accept, that over the years, Mr. P. experienced anxiety and, at least once, displayed symptoms that she perceived as being consistent with a panic attack, when she would take R. to Québec to visit her family. I would add that the "panic attack" episode occurred before Mr. P. started to take his medication and

note that Ms. D. testified that things were "a lot better" during the last trip to Québec. [101] Ms. D. voiced several worries about the suitability of Mr. P.'s residence. She complained that it was in a constant state of incomplete renovation and in need of repair, that it housed as many as six or seven adults at one time, with televisions in every room including R.'s bedroom and was simply too chaotic an environment in which to raise R. Her evidence was corroborated in part by her friend J.G., although she had not been at the Duplex for a long while. [102] It is my view that Ms. D. and J.G. overplayed the negative aspects of their observations of the premises and of the household at the Duplex. [103] A number of independent witnesses credibly described the Duplex's inviting large backyard with a spacious play area, pool, swing set and toys for R. Although R. had initially shared a bedroom with her father and K. when he was there, she has had her own bedroom for more than a year. It is filled with books and toys and is decorated in a welcoming and age-appropriate way. She has a separate indoor play area and access to the rest of the home. There has not been an ongoing turnover of relatives or others at the Duplex along the lines described by Ms. D. An improvised room, separated by a pull-curtain which was constructed for use as the bedroom for a young relative who visited from

Miami for three months to attend university, has since been used by Mr. P. as his own bedroom. The old cars parked in the driveway that J.G. found to be eyesore, provide an enjoyable hobby for Mr. P. who tinkers on them with his father. [104] I do not endorse Ms. D.'s thinking that Mr. P.'s parenting is flawed because he and R. watch television or a video together at bedtime rather than read a story. The take-away point is that they spend special father and daughter time together in a perfectly acceptable way before R. goes to sleep. That said, however, Mr. P. can be faulted for failing to ensure that R. adheres to an appropriately early bedtime. [105] Ms. D.'s complaints that R. does not have her own toothbrush when she is at her father's home or that the food she is served when there is unsuitable were simply not borne out by the probabilities of the evidence. [106] The evidence establishes that the Duplex is a loud and busy place but the noise and dynamic is that of a loving extended family. R. has a significant and loving attachment to her paternal grandmother and auntie who reside at the Duplex and to her half-brother, K., who is there frequently. It is a clean, safe and nurturing home for R. when she is with her father. [107] There is no question that both parents love R. and want her to thrive in life. While they are each loving parents and are generally able to make

good choices in R.'s interests and offer appropriate guidance in her upbringing, Ms. D. has been the more consistently child-centered parent of the two. From a practical standpoint, her work hours are such that she is always able to take R. to daycare and collect her relatively soon after the school day ends. The majority of her parental decisions are influenced by the goal of ensuring a minimum of disruption and greater predictability and stability in R.'s daily life. I am satisfied that Ms. D. is more likely and more able overall than is Mr. P. to place R.'s interests ahead of her own and at the forefront when making parental decisions into the future. [108] An order for sole custody to either parent is unwarranted and carries the potential of perpetuating the conflicts between them, which would not align with R.'s best interests. Neither parent has presented a convincing case to justify depriving the other of custodial rights as a means of serving R.'s best interests. [109] On the totality of the evidence and assessing, as my exclusive concern, what I consider to be in R.'s best interests, I conclude that the parties should continue to have joint custody and be their daughter's joint guardians. [110] There will be an order for joint custody under the Divorce Act, with R.'s primary residence to be with Ms. D. and access/parenting time to Mr. P. on the terms set out below: 1.

It is not in R.'s bests interests to alternate between her parents' homes on a daily or weekly basis. Additionally, given the unsettled nature of Mr. P.'s future employment, it is not possible to tie his access/parenting time to his days off from work. All things considered, I consider it to be in R.'s bests interests that a shared parenting regime be in effect ,which gives her father access/parenting time each week, on a two-week alternating schedule during the school year and shared holidays. as set out below. In week one, Mr. P. will have access/parenting time with R. from after school on Wednesday until Saturday at 4:00 p.m. In week two, he will have access/parenting time with R. from after school on Thursday until Sunday at 10:00 a.m. The two-week cycle will then repeat. Week one of the new arrangement will commence after the Christmas break on Wednesday, January 7, 2015. The location to exchange R. on the Saturday and Sunday transitions will be at the Duplex, unless the parties mutually agree in writing and in advance to an alternate location. At the exchange, R. is to be ready, at the appointed hour and escorted by an adult from the front door of the Duplex to Ms. D.'s vehicle. To be clear, Ms. D. is not required to present herself at the front door of the Duplex in order to collect R. The parties are free, but are in no way obligated, to agree to modifications of this schedule, in R.'s best interests.

2. The parties had agreed to share the Christmas school break in alternate years and they continue to favour that schedule. R. spent the 2013 Christmas break with her father. She is to spend the entire 2014 Christmas break with her mother, alternating to spend it with her father in 2015 and so on.

3. The parties also agree, and it is ordered, that R.'s other holidays are to be shared as follows: Summer Vacation · The first two weeks of July each year will be spent with Mr. P.; · The next four weeks will be with Ms. D.; · The seventh week will be shared between the parents in accordance with week one of the regular parenting schedule that permits Mr. P. access from after school (in this case being 3:00 p.m.) on Wednesday until 4:00 a.m. on Saturday; · The last two weeks of August will be with Mr. P. Spring Break · R. will spend the entire spring break with one parent in alternate years, commencing with her mother for spring break in 2015.

4. Each parent shall have reasonable telephone access to R. while she is with the other parent, not to exceed more than one telephone call every other day, except in the case of a genuine emergency.

5. Each parent may enrol R. in not more than one extracurricular activity during each school year. In addition, they are each entitled to enrol her in one activity in the weeks that she is with them during their summer vacation time as set out above.

6. Both parents must take all reasonable steps to ensure that when R. is with them she attends the activities she is enrolled in, regardless of whether or not such parent enrolled R. in that particular activity.

7. In the circumstances of this case, a two-hour window within which to invoke a right of first refusal is too short and I consider it to be neutral in terms of R.'s best interests. The parties ought to be able to leave R. with an appropriate caregiver for more than two hours. A four-hour duration is appropriate. Accordingly, in the event that one party (called, "Parent 1") is not able to have R. for a period of four continuous hours or more during his or her allotted parenting time, he or she is to forthwith notify the other parent (called, "Parent 2") by text message reasonably in advance. Parent 2 is entitled to have R. with him or her during the period that Parent 1 is unavailable. In order for Parent 2 to exercise his or her entitlement, he or she must notify Parent 1 by text message of his or her intention to have R. within 12 hours of receiving the initial notification from Parent 1 and, in any case, reasonably in advance of when the period is to commence.

8. Each parent will have the same duties, rights, responsibilities, and input in respect of R., except for those responsibilities of everyday parenting that go with the physical care and control of R., which are to be exercised by each parent during his or her respective time with her.

9. If either parent has a change in his or her email address, cell phone number or residential address, that party will provide the new contact information to the other as soon as it is reasonably practicable.

10. Neither parent shall discuss this proceeding with or in the presence or within earshot of R.

11. In the event of the death of one party, the surviving parent shall have sole custody of R.

12. Each parent has the obligation to discuss with the other parent any significant decisions that have to be made concerning R., including significant decisions about her health (except emergency decisions), education, religious instruction and general welfare. In the event that, despite their best efforts, the parties cannot reach agreement with respect to any significant decision concerning R., Ms. D. will have the right to make such decision and Mr. P. will have the right to apply for an order respecting any decision that he considers contrary to R.'s bests interests.

13. Each party has the right to obtain information concerning R. directly from third parties including, but not limited to, teachers, counsellors, medical professionals and third-party caregivers.

14. Each parent has the obligation to promptly and fully advise the other parent of any matters of a significant nature affecting or potentially affecting R. [111] Subject to the foregoing, in the capacity as R.'s joint guardians, each party may exercise the parental responsibilities set out in s. 41 of the FLA, provided that his or her doing so conforms with my order under the Divorce Act for joint custody and primary residence to Ms. D., and does not present any operational inconsistency with any order that I have made under the Divorce Act. · Ms. D.'s Claim for Child Support for R. [112] In 2012, Ms. D.'s income for purposes of the Guidelines was $66,291, and was expected to be about the same in 2013. Until Mr. P. forwent his managerial position at Costco in 2012, he and Ms. D. earned a similar level of income. The last time he acted as a manager at Costco for a full year was in 2011 and his line 150 income that year was $65,617. As mentioned, in late 2012 Mr. P. applied for a demotion to a shelf stocker and later became a sales associate in the electronics department. As a result, his wage fell to $21.85 per hour, which annualizes to approximately $45,448. [113] Mr. P. has been applying for more remunerative positions within Costco. His goal is to be reinstated at a managerial level. The evidence of his former boss indicates that his objective may not be achieved for years

to come, or may never be realized. [114] Ms. D. is satisfied that Mr. P. is making sufficiently diligent attempts to secure better paying employment consistent with the level he previously enjoyed as a manager. For that reason, she no longer seeks an order that a higher income be imputed to him for child support purposes. [115] Prior to trial, Ms. D. had repeatedly asked Mr. P. to contribute to R.'s support. She formally sought an order for support in her application that was to be heard at the same time as Mr. P.'s application on February 13, 2013 to adjourn the previous trial date. Her application was not heard due to the lack of court time. She now requests an order that she be paid child support from October 1, 2012, being the first month following the pronouncement of the 2012 Parenting Order. [116] The factors that inform the exercise of judicial discretion to make or dismiss an award for retroactive child support were reviewed by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC [D.B.S.]. They are: 1. the circumstances surrounding the failure to seek support earlier; 2. whether the payor parent's conduct, in this case Mr. C.'s conduct, is blameworthy in the sense that he preferred his own interests over R.'s right to an appropriate amount of support; 3. R.'s past and present circumstances, and specifically her standard of living; and 4. whether a retroactive

award would cause Mr. P. financial hardship. [117] No single factor is determinative. In D.B.S. the court noted that retroactive awards are discretionary, but they are not exceptional. The essential principle is that parents have a joint financial obligation to support their children commensurate with their income. In circumstances where a parent's obligation is unfulfilled, the court may order retroactive support: S.M. v. V.V., 2014 BCSC 565 at para. 104. [118] While there is clearly no justification for Mr. P.'s prolonged failure to pay support, R.'s standard of living has not been adversely affected as a result. I find that, on balance, a retroactive award to the date of the 2012 Parenting Order would pose a true financial hardship upon Mr. P. in his current circumstances. I find this to be the case even though I consider some of the expenses claimed by him on his latest financial statement to be plainly unreasonable and unrealistic. [119] Weighing the applicable factors in light of the evidence of this case, I conclude that Mr. P ought to be responsible for child support payments from the start of the trial until December 1, 2015 at the rate of $415, which is the table amount under the Guidelines based on his income of $45,448, for a total of $6,225. [120] With the implementation of the shared parenting arrangement effective January, 2015, I conclude that the simple set-off

formula articulated in Contino v. Leonelli-Contino, 2005 S.C.C. 63, would be the fairest and preferable method of determining the amount of child support payable by Ms. D. pursuant to s. 9 of the Guidelines. Ms. D.'s child support obligation commencing January 1, 2015, and continuing on the first day of each month thereafter until further court order, is calculated as follows: Table support payable based on an income of $66,291 $617 Less: Table support payable by Mr. R. based on an income of $45,448 $415 Amount payable by Ms. D. $202 [121] Ms. D. is entitled to set-off against her obligation to pay child support, the $6,225 amount owing to her by Mr. P. [122] The parties are responsible for R.'s extraordinary expenses under s. 7 of the Guidelines in proportion to their respective incomes. [123] They shall exchange complete copies of their tax returns, with all supporting documentation, by May 31 each year and provide each other with copies of all assessments and reassessments (if any) within ten days of their receipt from CRA. [124] In addition, Mr. P is to promptly advise Ms. D in writing of the particulars of any change of job, including a change in his income. · Mr. P.'s Claim for Child Support for K. [125] Mr. P. seeks an order for child support for K. pursuant to s. 147 of the FLA. [126] Section 147 imposes a duty on a stepparent to provide support in respect of a

stepchild. The stepparent's duty is secondary to that of the stepchild's natural parents to provide financial support. Section 147(4) is a key provision. It stipulates that a stepparent's duty to pay support arises only if he or she contributed to the stepchild's support for at least one year, and the proceeding seeking an order against the stepparent was started within one year after the date the stepparent last contributed to the stepchild's support. [127] Expenditures by the stepparent on behalf of the stepchild that are trivial in nature or are sporadic or in the character of gestures of occasional generosity or kindness may not qualify as contributions that attract a duty to support: Smart v. Wiewior (1990), 28 R.F.L. (3d) 225 (BCCA); McConnell v. McConnell, 2007 BCSC 748. [128] Mr. P. initiated his claim for child support for K. in his Counterclaim filed on April 18, 2013. There is no evidence whatsoever that within the year preceding the filing of his pleading, Ms. D. had made any kind of financial contribution toward K.'s financial support. Mr. P.'s claim for child support in favour of K. brought under the FLA is out of time. [129] The corresponding provisions of the Divorce Act do not appear to impose such a time limitation. Section 2(2) of that statute provides that in order for a stepparent to be liable for child support, he or she must "stand in the place of a

parent" in relation to the stepchild. For the purposes of the Divorce Act, the point in time at which to assess whether such a parental relationship exists is when the family functioned as a unit and not after the couple's separation: Chartier v. Chartier, [1999] 1 S.C.R. 242 at para. 36 [Chartier]. [130] The determination as to whether a person stands in the place of a parent requires an assessment of the nature of the relationship between the stepparent and stepchild, with reference to the relevant factors, which include but are not limited to: a) whether the child participates in the extended family in the same way as would a biological child; b) whether the person provides financially for the child (depending on ability to pay); c) whether the person disciplines the child as a parent; d) whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; and e) the nature or existence of the child's relationship with the absent biological parent. (Chartier, at paras. 38-39.) [131] Once a person is found to stand in the place of a parent under s. 2(2), that relationship cannot be unilaterally withdrawn by the stepparent: Chartier at para.

32. Where a stepparent is found to stand in the place of a parent, the court will look to s. 5 of the Guidelines to determine what, if any, child support should be ordered, taking into account, among other things, the natural parents' legal duty to provide financial support: Dutrisac v. Ulm, 2000 BCCA 334 at para. 202; H.(U.) v. H.(M.W.), 2008 BCCA 177 at para. 38. [132] K. was 12 years old when the parties separated. [133] Mr. P.'s evidence is that Ms. D. entered into the relationship on the understanding that she would assume the role of K.'s mother and that she did so until they separated. According to him, she cruelly abandoned K. when she left the marriage and has essentially neglected him ever since. [134] I do not accept Mr. P.'s testimony to the effect that Ms. D. abandoned K. after separation. Rather, I find that in the early days of the separation, Mr. P. refused to allow K. to spend any time alone with Ms. D., despite her repeated requests to see him. Ms. D. reluctantly respected Mr. P.'s wishes because K. was "his son". It was Mr. P. who kept K. from Ms. D. after the separation and planted the seed in his son's mind that Ms. D. wanted nothing to do with him. [135] Ms. Vasquez said that K. called Ms. D. "Mommy D." and Mr. P.'s mother testified along similar lines. The fact that K. referred to Ms. D. by that affectionate term is to be expected of a young boy in a

blended family situation. Of itself, that mode of address is insufficient to conclude that Ms. D. represented to K. or others that she was assuming actual parental responsibility for K. [136] The evidence indicates that during the course of the parties' relationship, K.'s natural mother had sole custody of him and, for most of that time his primary residence was with her. Once K. was in elementary school, he increasingly spent more time with Mr. P. and his side of the family. It was commonplace for a member of Mr. P.'s family to collect K. from school and look after him until his mother picked him up when she got off work. Starting in about 2009, it was not unusual for K. to stay overnight at the Duplex during the week and, later, at the Co-op. K.'s mother is of Japanese descent and K. spent most summers in Japan with her family. He also holidayed frequently in Florida with Mr. P.'s sister and his cousins. [137] Until the summer of 2013, Mr. P. was paying monthly child support to K.'s mother, in the amount of $240. Mr. P. testified that at some point shortly before the trial, he had been granted "full custody" of K. by the Ministry of Child and Family Development due to some "issues" with K.'s mother, about which he did not elaborate. Particulars of the current arrangement with K. and how it came about were murky at best and Mr. P.'s testimony conflicted on a material point

with the testimony of his mother. He said that K. now lives with him all the time, whereas his mother testified that K. lived with Mr. P. at the Duplex "most of" the time. It was Mrs. P.'s recollection that K. began living at the Duplex most of the time in 2013 or so. [138] The current situation between K. and his mother is oddly vague on the evidence. There is no evidence to suggest that before 2013, the relationship between K. and his mother was fractured or that she was not discharging her parental duties. As mentioned, she had been K.'s primary caregiver and until very recently received child support from Mr. P. As well, there is no evidence about the income or financial circumstances of K.'s mother, or the extent of her financial support in favour of her son. [139] There is also no cogent evidence that Ms. D contributed directly or indirectly toward K.'s financial support, other than in the sense that K. would have derived incidental benefits from being at the Duplex household and, subsequently, at the Co-op and accompanying them on everyday outings when he was not at his mother's. The evidence cannot reasonably sustain a finding that Ms. D. ever provided financially for K. within the meaning of the case authorities, nor did she discipline K. Indeed, when she objected to Mr. P. punishing K. with a belt, he told her that the disciplining of his son was his business. [140]

In considering the totality of the evidence in the context of the relevant factors, viewed objectively, I conclude that Ms. D. did not, at any time, stand in the place of K.'s parent within the meaning of s. 2(2) of the Divorce Act. It follows, therefore, that she has no legal obligation to provide child support for K. [141] Mr. P.'s claim for support for K. is dismissed. · Division of Family Assets and Allocation of Debt [142] The parties' assets are very modest and consist mainly of their respective RRSPs and pensions. [143] It is Mr. P.'s contention that they should each retain their respective RRSPs and pension contributions. Ms. D. proposes an equal division of those assets based on contributions during the marriage up to the date of separation. [144] Mr. P also wants to receive one-half of the trade-in value of the Kia automobile that Ms. D. disposed of after separation, as well as compensation for a one-half interest in the items of jewellery he had given to her during their relationship. Under the heading, "Other Property Claims" in his Counterclaim, he alleges an interest in the Condominium and seeks a compensation payment in respect of it in the amount of $150,000. At the date of separation, Mr. P. was carrying about $30,000 in debt. He asserts that it was incurred for a family purpose and that Ms. D should be held equally liable for it. Ms. D. opposes all such

orders. · General Principles [145] Spouses are presumptively entitled to an undivided one-half interest in each of the family assets. This presumed equality can only be displaced where the court is satisfied that an equal division would be unfair having regard to the following criteria set out in s. 65(1) of the FRA: (a) the duration of the marriage; (b) the duration of the period during which the spouses have lived separate and apart; (c) the date when property was acquired or disposed of; (d) the extent to which property was acquired by one spouse through inheritance or gift; (e) the needs of each spouse to become or remain economically independent and self-sufficient; or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse. [146] The pivotal issue is whether an equal division would be unfair and not whether an unequal division would be fair: Mann v. Mann, 2009 BCCA 181; Whitaker v. Whitaker, 2010 BCCA 248. The onus of proof rests on the spouse seeking reapportionment: W. v. W., 2005 BCSC 1010. [147] Only the factors laid out in s. 65 are to be taken into account in assessing whether an equal division would be unfair, and all of them must be considered: Girard v. Girard (1983), 33 R.F.L. (2d) 79 (B.C.C.A.); Kovacic v. Kovacic, 1999 BCCA 564. Where the court concludes that

based on the statutory factors an equal division would be unfair, it must determine the extent of any reapportionment with exclusive regard to those same considerations: S.B.M. v. N.M., 2003 BCCA 300. [148] The parties' family debts are also to be considered in assessing the fairness of the division of property: Stein v. Stein, 2008 SCC 35. The statutory authority for doing so is rooted in s. 65(1)(f): Mallen v. Mallen (1992), 11 B.C.A.C. 262, 65 B.C.L.R. (2d) 241 (C.A.) [Mallen]. Whether or not a particular debt is family debt depends on whether there is a discernible nexus between the debt itself and some family purpose or benefit. A debt incurred to acquire a family asset, to discharge a family burden, or to maintain the family, will likely be considered a family debt. That is not necessarily the case where the funds were used entirely for the personal benefit or purpose of the spouse who borrowed them: Mallen at p. 4; Bryan v. Chapman, 2011 BCCA 278 at para.

43. Debts incurred by one or both spouses before the triggering event are not required to be approached in the same way in every case. [149] The party alleging joint responsibility for a particular debt must demonstrate that it was incurred for a family purpose: Vitug v. Vitug, 2013 BCSC 405 at para. 118. · Pensions and RESP [150] The evidence pertaining to the value of the parties' respective pensions was extremely poor. As best I can discern, the value of Mr. P.'s pension contributions during the marriage was $26,475 (not $26,745 as shown in Ms. D.'s written submissions). The value of her pension was significantly less, although a precise figure cannot be determined from the evidence as it stands. [151] To accede to Mr. P.'s position and order that the parties retain their pensions would result in a significant reapportionment in favour of Mr. P. He has not, however, established that an equal division of the parties' pensions would be unfair, having regard to the criteria set out in s. 65(1). Accordingly, I order that the parties' pensions be divided evenly between them as at the separation date, pursuant to the applicable provisions of the FLA. Their CPP credits, if any, are also to be divided equally in accordance with the governing legislation. [152] There was evidence that, as at the date of separation, Mr. P. held a small RESP for R.'s benefit. It too is to be divided

equally between the parties. · Vehicles and Co-op Deposit Refund [153] In her financial statement sworn on July 15, 2013, Ms. D. reported that in June 2013, she had traded-in her 2009 Kia automobile, which she had purchased during the marriage, and attributed to it a trade-in value of $8,900. However, there remained an outstanding loan against it of $5,600. Therefore, the net equity in relation to that vehicle, at that time, was approximately $3,300. The evidence does not reliably establish the Kia's net value as at the separation date or the triggering event. It is reasonable to infer that the Kia would have had a greater value at those earlier dates, but the balance against the car loan would have also been larger. [154] Mr. P. reported the value of his Jeep as $1,000 as at February 2013. Again, there is no evidence about its value as at separation or the triggering event. Ms. D.'s uncontradicted evidence is that Mr. P. has since acquired a new vehicle, but the evidence went no further than that. Despite Ms. D's contention that her 2009 Kia was not a family asset, it plainly was. So too was Mr. P.'s Jeep. [155] Mr. P. is entitled to an equal share of the equity position in the Kia as at the triggering date and Ms. D is likewise entitled in respect of Mr. P.'s vehicle. She is further entitled to one-half of the Co-op deposit refund (her share is approximately $1,056) that Mr.

P. retained for himself. [156] In the end, the parties have fared relatively equally by retaining their foregoing vehicles and by Mr. P. keeping the entire deposit refund. Therefore, I order that Ms. D's 2009 Kia vehicle be reapportioned to her entirely, and that Mr. P.'s Jeep owned by him at the triggering event as well as the Co-op refund be reapportioned 100% to him. In the result, neither party owes the other anything further in respect of those assets. · Ms. D.'s Jewellery [157] The items of jewellery claimed by Mr. P. as family assets were genuine gifts made by him to Ms. D. during the course of their relationship. Those gifts belong to Ms. D. and do not qualify as family assets. They are, therefore, not subject to division and will remain with Ms. D. as her sole property. · The Condominium [158] Ms. D. purchased the Condominium just weeks before the triggering event. Mr. P. appears to be advancing a claim against it on the basis it constitutes a family asset. [159] As a general rule, an asset purchased by one spouse after separation, will not be considered to be a family asset unless it was acquired in whole or in part by the sale proceeds of one or more family assets: Billingsley v. Billingsley (1991), 36 R.F.L. (3d) 188 (B.C.C.A.). [160] The evidence is overwhelming that Ms. D.'s acquisition of the Condominium was entirely facilitated by the loan to her from her father

and her ability to qualify for a mortgage in her name. No family assets were liquidated or encumbered, and no joint debt was used, to assist in its purchase. The Condominium is not a family asset; legal and beneficial title to it belongs solely to Ms. D. Consequently, Mr. P. has no entitlement to any interest in the Condominium and nor is there a principled basis to compensate him in respect of it. [161] Mr. P.'s claim against the Condominium is dismissed and the certificate of pending litigation filed by him against the Condominium is to be cancelled. · RRSPs and the Allocation of Debt [162] At the time of separation, Mr. P.'s RRSPs had a value of approximately $15,156. He testified that in December 2012, he redeemed $10,000 of them in order to free up funds to cover his legal expenses, leaving approximately $6,200 remaining. The value of Ms. D.'s RRSPs was $4,500 at separation. [163] An equal sharing of the parties' aggregate RRSPs would entitle each of them to approximately $9,828 in RRSPs. In order to achieve an equal division, Ms. D. would retain her RRSPs (valued at $4,500), plus receive from Mr. P., by way of a spousal rollover transfer, an additional $5,328 from his RRSPs. [164] For the reasons that follow concerning the allocation of family debt between the parties, I have concluded that an amount less than $5,328 should be transferred from Mr. P.'s RRSP to Ms. D.'s

RRSPs. Put another way, Mr. P. is entitled to a reapportionment of his RRSPs on account of the family debt he carried at separation. [165] When the parties separated, Mr. P. owed approximately $14,011 on his MasterCard and about $15,000 on his line of credit with the Royal Bank (the "LOC"). The balances as at the triggering event were not reliably established in the evidence. The evidence shows that by January 2012, the balance owing on the LOC had nearly doubled. In the corresponding time frame, the balance on Mr. P.'s MasterCard appears to have decreased and by February 2013 was sitting at less than $1,000. A reasonable inference is that Mr. P. used his LOC to pay off most or all of his MasterCard debt that had been outstanding at separation. [166] In contrast, Ms. D. had a credit card debt of $1,500 at the time of separation. She is not seeking any contribution from Mr. P. [167] Despite Ms. D.'s repeated requests that Mr. P. produce additional statements going back two years before separation in respect of the LOC and his MasterCard, he did not supply them. [168] Although Mr. P. placed into evidence statements of his LOC that reach back to April 2010, they do not set out particulars of any of the expenditures sufficient to shed light on the basis for the $15,000 indebtedness at separation. The picture those statements tell is that for the six months leading up to the

separation, the LOC effectively remained at its maximum of $15,000. [169] The MasterCard statements in evidence from roughly December 4, 2010 through to separation show that, within the six months preceding the parties' separation, Mr. P.'s debt climbed from about $4,000 to over $14,000. In my view, the statements record many purchases that would be expected in the ordinary course of daily living. Included within that category, for example, are charges at the drug store, toy store, wine and liquor store, car wash, the Home Depot, and McDonald's and other restaurants. [170] Mr. P. testified, and I accept, that he often used his MasterCard to pay for meals that he and Ms. D. enjoyed together, and that many of his Home Depot purchases were related to the home improvements he had undertaken. The MasterCard statements, as expounded upon by Mr. P., also show charges that are connected to family trips to Montréal, Harrison Hot Springs and Disneyland. [171] Other purchases, however, were unrelated to the family unit. For example, winter tires for Mr. P.'s mother, airline tickets for members of Mr. P.'s extended family and his aunt's boyfriend, and a washing machine for a relative in Peru. Others still, were distinctly personal to Mr. P. [172] Ms. D. testified that she was able to maintain a low credit card balance by paying cash for her personal expenses. She testified in general terms

that she had expressed her disapproval to Mr. P. about his spending habits and told him that she did not condone certain expenditures made on credit and would not share responsibility for them. [173] The evidence concerning the LOC indebtedness falls short of demonstrating that it was incurred in respect of items or for matters that could be classified as a family purpose or for the benefit of the family. Accordingly, Ms. D. is not responsible for any part of Mr. P.'s LOC debt. [174] That finding does not hold true in respect of Mr. P.'s MasterCard debt as at separation. In my view, his credit card statements reveal that a considerable portion of those charges were connected to a family purpose and constitute family debts as the cases have defined that concept. [175] Mr. P.'s assumption of those charges in furtherance of a family purpose conferred a general benefit upon Ms. D. and to the family at large, and enabled Ms. D. to live with greater thrift and keep her debts to a minimum. It would be inequitable to burden Mr. P. exclusively with that indebtedness. As a matter of fairness, Ms. D. must share some responsibility for it. Also as a matter of fairness, two additional factors must be taken in to account in the analysis: the fact that Ms. D. shouldered all of R.'s day care expenses until the judicial case conference; and that Mr. P. is required to pay his MasterCard debt

with after tax dollars whereas the RRSP values are pre-tax numbers. [176] In the circumstances of this case, I conclude that in order to achieve fairness between the parties, Ms. D. is to retain her RRSP in its entirety and is to be transferred, by way of a spousal rollover, $1,500-worth of Mr. P.'s RRSPs. Subject to that transfer, the balance of Mr. P.'s RRSPs is reapportioned to him 100%. V. Spousal Support [177] Section 15.2 of the Divorce Act provides the legislative framework for spousal support. In contrast to child support, there is no presumptive entitlement to spousal support. [178] Section 15.2(4) directs the court to take into consideration the condition, means, needs and other circumstances of each spouse in determining entitlement to support. Section 15.2(6) sets out the objectives of a spousal support order, which are to: (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. All of the objectives are to be

taken into account. [179] Pursuant to section 15.2(5), the court is forbidden to consider any marital misconduct on the part of the other spouse - as distinct from the emotional consequences that flow from such misconduct - when making an order for support: Leskun v. Leskun, 2006 SCC 25 at para. 21. [180] The Supreme Court of Canada has formulated three conceptual models for determining entitlement to spousal support: non-compensatory (needs-based); compensatory; and contractual: Moge v. Moge, [1992] 3 S.C.R. 813 [Moge], 99 D.L.R. (4th) 456; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577 [Bracklow]. These bases are not mutually exclusive and there is no single basis of support or single statutory objective that overtakes another. The basis of entitlement for spousal support, being contractual, compensatory or needs-based, or a combination, will influence the quantum and duration of the award. [181] The fundamental underpinning for an order of spousal support is the doctrine of equitable sharing between the parties of the economic advantages and disadvantages of marriage and marriage breakdown: Chutter v. Chutter, 2008 BCCA 507 at para. 49 [Chutter]. [182] It is settled that financial need alone of one spouse may be enough to establish entitlement to support: Chutter. It does not inevitably follow, however, that the quantum or duration of spousal support must

fully address those needs: Bracklow; T.N.P. v. R.P., 2004 BCSC 1627. In evaluating need, if the financial means are available, then the appropriate standard of living to look at is a reasonable standard, bearing in mind the standard of living enjoyed during the marriage. The notion of "need" is a relative concept that extends beyond the basic necessities of life, and will vary according to the circumstances of the parties: Chutter, at para. 55 [183] Mr. P. first raised a claim for spousal support in his Counterclaim, which was filed on April 18, 2013, after the first trial dates were adjourned and nearly two years following the parties' separation. The foundation of his claim appears to be two-fold. [184] First, he asserts that he relinquished his management position at Costco due to "extreme pressure" exerted upon him by Ms. D. and the stress caused by the marital breakdown. Building on that, he argues that the financial damage he incurred by taking that demotion, namely the consequential reduction in earnings, entitles him to ongoing spousal support from Ms. D. In his words, Ms. D. ought to pay him for those "lost wages and lifestyle". [185] Second, Mr. P. contends that he is entitled to support in order to allow him to continue and finish the college diploma in electronic engineering that he had been pursuing until 2003. In support of this branch of his argument, he alleges

that he and Ms. D. had a verbal agreement that she would fund his future education once she had completed her own. [186] I accept that Mr. P. suffered intense stress and anxiety in reaction to the news that Ms. D. had decided to end their marriage, and that the two-month leave he took from work was connected to the marriage breakdown. However, more than a year following separation, and long after he had returned from his leave, Mr. P. decided to resign from his management post. There is no evidence that he had discussions with Ms. D. about his doing so in advance of his resignation, much less that she pressured him into taking that step. The preponderance of the evidence is to the opposite effect. It may be that Mr. P. decided to leave management in order to take a job where his shifts were more predictable and amenable to him transporting R. to and from school on his parenting days. Whatever the reason, the stubborn fact is that Mr. P. took it upon himself to voluntarily step down from management. It was his decision - one that, in retrospect, he likely views as being rash - and his decision alone. [187] Turning next to the alleged verbal agreement between the parties, the evidence establishes that when they were a couple, Ms. D. commented to others, including Mr. P.'s mother and Ms. Vasquez, that she and Mr. P. were "taking turns" to complete school, and their plan was for

Mr. P. to finish his diploma at BCIT once she had completed her Master's degree. There was no evidence, apart from Mr. P.'s testimony, to the effect that Ms. D. represented that she intended or had promised to pay for Mr. P.'s education. There is likewise no cogent evidence to show that Mr. P. made any kind of direct financial contribution toward the cost of Ms. D.'s education while they were together. Indeed, in cross-examination Mr. P. admitted that while Ms. D. attended university, the support he offered her was "emotional" as well as occasionally driving her to class and to her practicums. His mother similarly testified that her son supported Ms. D. emotionally while she attended university, and emphasized that she was not saying that he had financially supported Ms. D. [188] Given the manner in which the parties structured their financial arrangements, it is implausible that Ms. D. would have committed to pay the costs of Mr. P.'s schooling so that he could resume his studies after completion of hers. [189] Moreover, a crucial point, unexplained by Mr. P., is that he chose not to resume his education in the approximate five year interval between when Ms. D. completed her degree in speech pathology and the parties' separation. Except for a "brief conversation, about nothing serious" that Mr. P. claims to have had with the Dean of BCIT on an unspecified date about the

reasons for withdrawing from school, he had done nothing to show he might have an interest in reviving his educational path. [190] All things considered, the evidence indicates that, like many couples, the parties periodically engaged in casual discussions about their future plans together. At one time, those discussions encompassed Mr. P.'s aspiration to resume his studies at BCIT and complete his diploma. However, there was no fixed plan in that regard and no agreement that Ms. D. would contribute financially toward the cost of him completing his course of study at BCIT should he resume it. [191] I have concluded that years before the parties were married, Mr. P. withdrew from BCIT mostly because he found the course content challenging. He has not shown that he suffered any consequent economic disadvantage or that he forwent that schooling opportunity on account of the role he assumed in the relationship or subsequent marriage. [192] In this case, there exists no contractual, compensatory or non-compensatory basis for a spousal support award in Mr. P.'s favour. His claim for spousal support is dismissed. VI. DIVORCE [193] Subject to s. 12 of the Divorce Act, the parties are divorced from each other, effective on the 31st day after the pronouncement of this order. VII. COSTS [194] Lastly, there is the matter of costs. If the parties are unable to agree as to costs, Ms. D. is

to provide written submissions to Mr. P. within 60 days of these Reasons for Judgment and file them with the Court. Mr. P. is to provide his written submissions in response and file them with the Court within 30 days of receipt of Ms. D.'s submissions. Any reply submissions from Ms. D. are to be provided to Mr. P. and filed with the Court within 15 days of receiving Mr. P.'s submissions. "Ballance J."