L.M.C.L. v. R.R.F.

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.M.C.L. v. R.R.F., 2004 BCSC 1197 Date: 20040915 Docket: EO13776 Registry: Vancouver Between: L.M.C.L. Plaintiff And R.R.F. Defendant Before: The Honourable Madam Justice Ross Reasons for Judgment Counsel for the Plaintiff: M. Rozenberg Counsel for the Defendant: P. Daykin Date and Place of Trial/Hearing: August 31, 2004 Vancouver, B.C.

INTRODUCTION [1] These are the reasons in relation to two applications for summary judgement pursuant to Rule 18A in this family action. [2] The defendant, R.R.F., applies for an order varying the Order of Mr. Justice Vickers of October 1, 2002 to provide that the principal residence of the child of the marriage, M.R.F., will be with Mr. R.R.F. with reasonable and specified access to the plaintiff, L.M.C.L.. [3] Ms. L.M.C.L. applies to vary the Order of Vickers J. of October 1, 2002 to provide for a specified access schedule with roughly equal time with each parent. In addition, she seeks an order for child support, retroactive to April 24, 2004. She applies for an order allowing a photocopy of an agreement of the parties dated January 1, 2004 to be filed with the court for enforcement, pursuant to s. 122 of the Family Relations Act. Finally, she applies for a declaration that Mr. R.R.F. is in arrears with respect to the payment of spousal support pursuant to that agreement.

SUITABILITY FOR SUMMARY DISPOSITION [4] In common with many applications in family litigation, there were several affidavits filed by the parties, each containing numerous assertions that contradicted or conflicted with the assertions of the other party. During the course of the hearing I expressed a concern that it would not be possible for me to resolve the numerous conflicts in the evidence in the context of summary proceedings and that since counsel appeared to be basing their submissions upon these contested facts, the matter may not be appropriate for summary disposition. [5] Counsel for each of the parties submitted in response that the facts could be found so that the matter could be resolved in summary proceedings, and urged me to do so. I have taken the matter under review and have concluded that I am able to find the facts necessary for the disposition of the issues before me. I find further that it is in M.R.F.'s best interest that the question of the access be resolved. Given the positions of the parties and my view of M.R.F.'s best interests, I have concluded that it is in the interest of justice to render a decision.

FACTS [6] The parties were married on February 25, 1994. M.R.F. was born on [ ], 1994. Ms. L.M.C.L. had a daughter from a previous relationship, A., who is presently 20 years old. Mr. R.R.F. adopted A. in 1994. [7] The parties separated in June 2001 and were divorced by Order of October 1, 2002. The parties were able to reach a comprehensive agreement with respect to the corollary relief. The terms of this agreement were embodied in the October 1, 2002 Order. The relevant terms included that: (a) the parties would share joint custody and joint guardianship of M.R.F.; (b) the parties would continue to set a schedule for the care of M.R.F. that is in the best interests of the child and that is practical having regard to the work schedules of each of them, with the guiding principle that M.R.F. shall spend equal time with each parent; (c) the parties would make arrangements for the care of M.R.F. during school holidays and professionals days, under the guiding principle that all holidays should be shared equally; (d) Mr. R.R.F. was to be responsible for all special or extraordinary expenses and would pay $300 per month to Ms. L.M.C.L. for child support; (e) Mr. R.R.F. would pay $1,200 spousal support commencing October 2002 and continuing until May 1, 2004 following which his obligation to pay spousal support shall terminate and cease absolutely. [8] As part of the terms of

settlement, Mr. R.R.F. retained the matrimonial home and assumed responsibility for the substantial family debt. He was and remains employed as a detective for the [ ] squad of the V.[ ]. Ms. L.M.C.L. was working as a realtor. She had been employed in that field on at least a part time basis for approximately 13 years. At the time of the Order, M.R.F. was spending an equal time in the care of each parent. [9] Shortly after the pronouncement of the Order, the situation changed and M.R.F. began to spend increasing time in the care of Mr. R.R.F.. During the period of October 1, 2002 to December 31, 2002, M.R.F. was with his father for 72 nights and his mother for 22 nights. [10] Commencing in early 2003, Ms. L.M.C.L. began to make frequent trips to San Diego in connection with a relationship with D.F.. It appears that she travelled to San Diego on at least the following dates: November 6-14, 2002 December 5 - 11, 2002 January 28 -February 5, 2003 February 27 - March 4, 2003 March 11 - March 20, 2003 March 31 - April 15, 2003 April 29 - May 7, 2003 May 14 - May 25, 2003 June 4 - June 17, 2003 July 10 - July 27, 2003 August 8 - August 19, 2003 Thus, commencing in January 2003, M.R.F. began to reside with his father on a full time basis. He would see Ms. L.M.C.L. from time to time when she was in Vancouver and on alternate weekends. In 2003, M.R.F. spent 313 nights with his father

and 52 nights with his mother. [11] The parties then entered into an agreement dated February 23, 2003 in which they agreed that the child support payments would be suspended as of March 1, 2003. Clause D of the recitals provides: Since the pronouncement of the divorce Order, circumstances have changed, and M.R.F. is now primarily resident with R.R.F., and enjoying generous access to L.M.C.L.. R.R.F. continues to pay all expenses relating to M.R.F. [12] During 2003, Mr. R.R.F. continued as M.R.F.'s primary caregiver. Mr. R.R.F. works four days per week, 8:00 a.m. to 5:30 p.m. He deposes that he has been able to secure sufficient flexibility in his work arrangements to allow time to care for M.R.F.. He was able to arrange childcare for mornings and after school with a next-door neighbour, whose children have been friends with M.R.F.. [13] Since the separation, Mr. R.R.F. has paid for all of M.R.F.'s expenses including those in relation to his extracurricular activities. These include piano, baseball, hockey, soccer and skiing. In addition, Mr. R.R.F. has been involved in many of those activities. He is the assistant coach and coordinator of the league for M.R.F.'s baseball. He practises hockey with M.R.F. and is the coach of his soccer team. [14] Ms. L.M.C.L. ended her engagement with Mr. D.F. in 2003. M.R.F. continued to reside full time with Mr. R.R.F., spending alternating

weekends with Ms. L.M.C.L. together with some visits during the week. In addition, in the period after her engagement to Mr. D.F. ended, Ms. L.M.C.L. frequently attended the matrimonial home in the morning to fix breakfast and take M.R.F. to school. She also would quite frequently pick him up after school and take him to either her home or Mr. R.R.F.'s. [15] The parties attempted reconciliation in January 2004. Ms. L.M.C.L. moved back into the matrimonial home with Mr. R.R.F. and M.R.F.. The parties at the same time entered into an agreement with respect to spousal support. Mr. R.R.F. deposes that the agreement was that he would pay $1,600 per month to Ms. L.M.C.L. effective January 1, 2004 until December 31, 2004. There is an agreement in writing made effective January 1, 2004 to this effect. He deposed further that Ms. L.M.C.L. agreed that if the reconciliation failed, and the parties separated again, he would no longer be required to pay her any support. Ms. L.M.C.L. denies that there was any such qualification to their agreement. [16] The attempt at reconciliation did fail. Ms. L.M.C.L. moved out of the matrimonial home in April 2004. At her insistence thereafter, the parties instituted an equal sharing arrangement for access. However, Mr. R.R.F. brought his motion on May 27, 2004, shortly after the separation. [17] Mr. R.R.F. continues to reside in the matrimonial home.

Since the initial separation Ms. L.M.C.L. has moved numerous times, with eight or more different residences, at least half of those since the October 1, 2002 Order. [18] For reasons that are unclear, but due perhaps in part to her attention being deflected to her relationship with Mr. D.F., Ms. L.M.C.L.'s financial situation appears somewhat precarious. Her most recent financial statement estimates her 2004 total income to be $12,800. Her 2003 post bankruptcy income tax return shows gross business income of $2,490 for a net loss of $8,276. The pre bankruptcy return for that year showed gross business income of $13,105 for a net of $428. Her 2002 return showed gross business income of $42,238 for a net of $8,781. The parties agreed in 2002 that her income for Guideline purposes was $30,000. These numbers are surprising given her experience in the field.

ACCESS [19] I have concluded that it is in M.R.F.'s best interest that the order of October 1, 2002 be varied to provide that his primary residence will be with Mr. R.R.F.. He will have generous access to Ms L.M.C.L. on such terms as the parties agree. In addition, M.R.F. will be with Ms. L.M.C.L. alternate weekends from Friday after school until Monday morning and one evening per week from after school until bedtime. The time during all school holidays, professional days, including Christmas, spring break and summer vacation will be shared between the parties. [20] This arrangement has effectively been the status quo from shortly after the October 1, 2002 Order until the reconciliation. Since separation, Mr. R.R.F. has been the stable, consistent and reliable parent. He has succeeded in creating a stable home and in fostering M.R.F.'s education and activities. He has put in place stable arrangements for day and after school care for M.R.F.. He has demonstrated through his actions that M.R.F. is his priority. [21] On the other hand, the arrangement contemplated in the consent Order has not been the status quo since shortly after separation. M.R.F. has not spent equal time with each parent. His primary residence has been with Mr. R.R.F.. Both parties agreed to this arrangement. Ms. L.M.C.L.'s situation has none of the stability of Mr. R.R.F.'s. She has not found a relatively permanent residence. Something has gone amiss with her income. Her affidavits did not disclose a concrete plan for childcare for the times when M.R.F. would be in her care and she needed to work. I conclude that she has not succeeded on making the sort of stable environment in which the alternating residence would be in M.R.F.'s best interests and that this has not been a priority with Ms. L.M.C.L..

CHILD SUPPORT [22] Mr. R.R.F. has not sought child support from Ms. L.M.C.L.. Accordingly, there will be no order for child support. Ms. L.M.C.L.'s application for child support is dismissed.

SPOUSAL SUPPORT [23] Ms. L.M.C.L. seeks an order allowing a photocopy of the Agreement dated January 1, 2004 be filed for enforcement pursuant to s. 122 of the Family Relations Act and Rule 60(44) of the Rules of Court, together with a declaration that Mr. R.R.F. is in arrears in respect of that agreement. [24] The parties in this application take different positions with respect to the terms of the agreement entered into in January 2004. Mr. R.R.F. objects to the relief sought on the basis that, first, there is no jurisdiction for such an order and, second, that if there is jurisdiction for such an order, the relief sought would deprive Mr. R.R.F. of having his defences determined on their merits. [25] Section 122(1) of the Family Relations Act provides; 122(1) If a signed copy of a written agreement containing a provision respecting (a) the custody of or access to a child by a parent, or (b) the maintenance of a child by a parent or of a person by the person's spouse, is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act. [26] Assuming without deciding that I have jurisdiction, I decline to make the order sought. Given that there are defences in relation to this issue, which cannot be resolved in these proceedings on the basis of the affidavit material, it would not be appropriate to grant relief that would effectively deny Mr. R.R.F. a trial of the issue. For the same reason I dismiss the application for a declaration of arrears. "C. Ross, J." The Honourable Madam Justice C. Ross