Molero Colina v. Chan

2011 BCSC 700 Molero Colina v. Chan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Molero Colina v. Chan, 2011 BCSC 700 Date: 20110511 Docket: E102281 Registry: Vancouver Between: Diego Alejandro Molero Colina Claimant And: Winnie Wing Kei Chan Respondent Before: The Honourable Madam Justice Gropper Oral Reasons for Judgment Counsel for the Claimant: I. I. Turaglio Counsel for the Respondent: C. T. McLeod Place and Date of Hearing: Vancouver, B.C. May 11, 2011 Place and Date of Judgment: Vancouver, B.C. May 11, 2011 [1] THE COURT: This is an application by the claimant father seeking an order for joint custody and joint guardianship of the child of the marriage, Jayden, who is almost two. He also seeks an access schedule, including that which would apply on special occasions, as defined in paragraph 3 of his notice of application. [2] The access which is presently in place was agreed to in the first judicial case conference held within months of Jayden's birth. There was a condition that it was to be reviewed when the second JCC was held. The mother was unwilling to address changes at that JCC. [3] At the outset of this application I advised counsel that I do not consider the current regime as defining the status quo, rather, it represented the agreement of the parties when Jayden was an infant. [4] The father also seeks a right of first refusal to care for Jayden when he is sick during the mother's access

time, when she is unavailable to care for Jayden. He seeks, as part of the order, that there be "make-up time" provided to the mother to compensate for these periods. He also seeks an order addressing Jayden's invitations to birthday parties during each other's access time and proposes that that, too, be addressed by an order, that there be make-up time. [5] The mother seeks a designation that her residence is the primary residence and that the terms of joint custody and joint guardianship should be the Joyce model, with the default to her in the event of a disagreement. Background [6] The parties were married in April 2005. They separated in July 2009, about two weeks following Jayden's birth. There is a dispute about the circumstances of their separation, and the mother also refers to the father's conduct at and around the time of Jayden's birth. [7] The only issue remaining between these parties is this matter of access. [8] The mother is a teacher. The father is a real estate agent. During the school year the father has greater flexibility regarding his work hours. Position of the Parties [9] The father says that the proposed schedule provides equal access or close to equal access for Jayden with each of his parents. [10] The mother provides what she describes as a "wake period calculation" based on the time she has to spend with Jayden when he is awake, according to his

current schedule, in consideration of her full-time employment. She equates the wake periods as the periods of quality time. Applicable Principles [11] The Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), provides, in s. 16(4), that the court has jurisdiction to order access. Section 16(8) of the Divorce Act provides that the sole consideration is to be the best interests of the child. Section 16(9) says that the past conduct of the parties is not relevant unless it affects the best interests of the child, and s. 16(10) provides that both parents have maximum contact with the child. [12] The principles to which I wish to refer are that access is the right of the child, not the parent, and that access is intended to facilitate a meaningful and continuing relationship between the child and both his parents. [13] The parties, according to the affidavits, have disagreed about access issues. A court-ordered access schedule is intended to address that, and I will assume that the disagreements will decrease or be eliminated by a set access regime. [14] There is no presumption that a mother or a father is a superior parent. There is no special consideration where one parent is involved in an occupation involving children, such as a teacher. Unless there is cogent evidence provided, the court assumes the competency of each parent. The conduct of one parent toward the other is irrelevant

unless it engages a consideration of the best interests of the child. Access addresses parenting; it is not about babysitting. There is no notion that one parent parents and the other parent babysits. There is no right of supervision by one party over the other party's parenting. Finally, there is nothing exceptional about one or both parties working. Analysis [15] The evidence satisfies me that both parents provide homes, activities, and parenting skills to Jayden which are positive and appropriate. [16] I will address the wake period calculation and the mother's assertion that that should guide my analysis. The wake period calculation, in my view, does not embrace the principles of the Divorce Act. The court does not divide access in accordance with a prescribed formula or make a specific calculation by the number of hours each parent has to spend with the child. It is not a competition. It cannot be addressed like the court addresses the equal division of property. There is no concept of punishing a mother for working or a father for not, or the other way around: that is inconsistent with the best interests test. It can be an advantage to a child that one parent has a more flexible work schedule. It is certainly not a detriment to either parent. [17] The wake period calculation relates to Jayden as an almost two-year-old, but he will grow and his schedule will change. The

wake period calculation does not address those periods where the mother is not at work, such as summer holidays, Christmas and spring breaks. As I said, the court does not calculate access in accordance with part days or hours, waking time, or quality time. The court considers all of the time which a child spends in each parent's care and assesses what access is appropriate based on the best interests of the child. [18] From that perspective, then, I find that the joint custody and joint guardianship sought by the father is appropriate as his proposal for access is reasonable and fair, and it is so ordered. [19] I also order that access for special occasions is in accordance with paragraph 3 of the notice of application. [20] I will not make any order requiring the parties to live within a 15 minute drive from each other, as the father has retreated from that position. [21] I impose the Joyce Model, but make no designation of a primary residence or a provision that one party makes a decision in default of an agreement. [22] I include in the Model a provision that both parties make their best efforts to resolve matters of access; if they fail to do so, the matter be referred to a mediator who is jointly agreed to, the costs of that mediator are split equally, and the parties have the final resort to court. [23] I will now address the application regarding the care when Jayden is

sick and birthdays, but before I do so, I want to make a comment on make-up time. I reject the notion of make-up time. Things change, emergencies occur. Jayden's care is not to be done by a specific calculation of time. Both parties will operate in good faith. If one party misses time for some appropriate reason, it will not be required to be made up. The parties can agree to accommodate the time missed, but there will be no calculation of access time missed and no make-up time will be ordered. The same principles apply with regard to the concept of make-up time as I have expressed in regard to the wake period calculations. [24] If Jayden is sick, his best interests are served if he is in one of his parent's care. If neither is available, other arrangements can be made. If the mother is not available during her period of access, the father is the person who will provide the care. There will be no make-up time required unless the parties specifically agree. [25] In respect of birthdays, with the new access schedule I have ordered, neither party can schedule Jayden to attend an event or an activity, including a birthday party, during the other's access period. If a birthday party occurs during the mother's access time, she can determine whether Jayden attends the birthday and take Jayden to it. She can also agree to let the father take Jayden to a birthday party during her access

if she considers that appropriate. On the father's access days, the father has the same responsibility and the same ability to determine whether Jayden will attend the birthday party and whether he will attend with his father or his mother. I note that in the very near future Jayden will attend birthday parties without his parents and he will have a view about whether he will attend a birthday party or not. [26] Those are my rulings. Is there any submissions in respect of costs? (SUBMISSIONS ON COSTS) [27] The Court of Appeal resolved the competing approaches to costs on family matters in S.J.C. v. S-J.C.A., 2010 BCCA 31. The court described the conflicting jurisprudence in this court between whether costs should follow the event in the normal course, in accordance with the decision in Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.), or because both parties are motivated by the best interests of the child they should bear their own costs. The Court of Appeal has been very clear that the Gold approach applies in family cases unless there are some exceptional circumstances, and that is that costs follow the event. [28] The courts assume that parties come to court with a genuine belief that their position is right. That is not just in family cases, but in every case. The "genuine belief theory" is not a theory of costs. I fully appreciate that each party came to court, and specifically in this case the mother came to court with a genuine belief that her position was appropriate and in the best interests of Jayden, but that is not the test. The successful party is entitled to his or her costs. [29] The father has been successful in these proceedings and he is entitled to an award of costs at scale B. "Gropper J."