S.L.R. v. J.D.M.

2024 BCSC 1163 S.L.R. v. J.D.M.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.L.R. v. J.D.M., 2024 BCSC 1163 Date: 20240627 Docket: E2362403 Registry: Prince George Between: S.L.R. Claimant And J.D.M. Respondent Before: The Honourable Justice E. McDonald Oral Reasons for Judgment The Claimant, appearing in person: S.L.R. Counsel for the Respondent: B.D. Levine Place and Date of Trial/Hearing: Prince George, B.C. June 25, 2024 Place and Date of Judgment: Prince George, B.C. June 27, 2024 Table of Contents Introduction.. 3 Background.. 3 Analysis. 5 Disposition.. 8 Introduction [1] The respondent applies for interim equal parenting time with the parties' two children. The claimant opposes the application, submitting that the parties should abide by the consent order that partially restored the respondent's parenting time because the disputed parenting issues should be resolved at the upcoming trial. [2] For the reasons that follow, I have concluded that, on an interim basis, it is in the children's best interest to order equal parenting time and the sharing of parenting responsibilities, the details of which I will set out later in these reasons. Background [3] After a relationship spanning approximately nine years, the parties separated on January 8, 2022. The claimant commenced this proceeding in June 2023. There is a trial set to begin on October 21, 2024 for eight days. [4] The parties have two

children together, K.M., born July 2017, and L.M., born July 2019. The children are presently 6 and 4 years old, respectively. [5] The claimant is a practicing physician and the respondent is a crisis centre worker. During the relationship, the respondent developed an alcohol dependence problem and just prior to separation, he was admitted to a detox program. The respondent has been participating in treatment for alcohol dependency and he continues that treatment to the present day. By all accounts, the respondent is having success in his treatment, which includes participating in a contract for drug and alcohol screening and reporting. [6] After the parties separated, they followed an informal parenting time regime with near-equal parenting time with the children. However, the respondent's parenting time came to an abrupt and total cessation in 2023 when the claimant reported a disclosure to her by K.M. alleging that the respondent had touched her inappropriately (the "Allegation"). [7] The Allegation was reported to the RCMP and the Ministry of Children and Family Development ("MCFD"). As a result, the respondent lost all parenting time. It appears the respondent later received some supervised parenting time that was arranged through MCFD. [8] Following the Allegation, the claimant applied for and was granted an order on a without prejudice interim basis that she have all

decision making authority, sole primary residence, and all parenting time with the children. That order was granted on December 4, 2023. Earlier, on September 15, 2023, the court ordered the preparation of a s. 211 report. [9] In early January 2024, MCFD officials advised the respondent that the investigation was completed and the child protection concerns against him were found to be unsubstantiated. The MCFD had no concerns about the respondent having unsupervised access to the children. The RCMP investigation was also closed without charging the respondent. [10] On January 25, 2024, pending the outcome of the s. 211 report, the parties entered into a without prejudice consent order to vary the December 4, 2023 order. Specifically, they agreed to variations that provided the respondent with some unsupervised in-person parenting time including, each Tuesday from 2:30 p.m. until Thursday at 2:30 p.m. and alternating Fridays from 2:30 p.m. until Saturday at 9:30 a.m. The respondent's counsel emphasizes that the January 25, 2024 consent order was agreed to in anticipation of receiving the s. 211 report. [11] The parties further agreed that the children would return to the claimant's care at the end of the respondent's parenting time and remain in her primary care pending further order or agreement. It is not disputed that to date, the respondent continues to have less parenting

time than he had before the Allegation was made. [12] On June 25, 2024, the parties received the s. 211 report. Both parties wished to proceed with the present application as they had reviewed the report and they were ready to make submissions about it. Analysis [13] The only consideration in making an order regarding parenting, such as increasing parenting time, is the best interests of the children: s. 37(1) of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. Determining the best interests of children involves considering the factors set out in s. 37(2) of the FLA. Those factors include considering the impact of family violence: s. 37(2)(g)-(h). [14] An order will not be in the children's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being: s. 37(3), FLA. Determining the best interests of children is a highly fact-specific exercise. [15] On an application for an interim order, a cautious approach is warranted and preserving the status quo pending trial is normally preferred absent compelling reasons to change: Fitzgibbon v. Fitzgibbon, 2014 BCCA 403. However, where a child has been wrongfully removed from the other parent's care, it cannot be argued that this creates a status quo to be maintained until trial: Moldowan v. Moldowan 1979 CanLII 2235 (SK CA). [16] In the present case,

the children were removed from the respondent's care due to the Allegation. As mentioned, the Allegation turned out to be unsubstantiated after investigation by the relevant authorities. In my view, the post-Allegation parenting regime does not establish the status quo for parenting issues. The January 25, 2024 consent order restoring some of the respondent's parenting time is clearly without prejudice and subject to the pending s. 211 report. [17] I also note that prior to separation and the Allegation, the respondent was a stay-at-home parent. When the separation first began, the respondent had equal, or near-equal, parenting time. In my view, the pre-Allegation parenting time regime is the status quo arrangement that is relevant to the present application. The court is to exercise caution about disturbing the status quo on parenting matters prior to trial unless there are compelling circumstances. [18] Both parties made submissions regarding the s. 211 report. In it, there is a recommendation to increase the respondent's parenting time. The claimant wishes to adjourn parenting issues to the trial including because of her safety concerns about the respondent's alcohol dependency and her allegations of family violence. However, I note that the claimant consented to the respondent having weekly overnight parenting time with the children as of January 2024. [19] The claimant has

concerns about the s. 211 report that she intends to explore these concerns at trial through cross-examination of the report writer. Her concerns include, for example, that the report does not address her allegations of family violence. The report writer says that the claimant does not allege family violence; however, the claimant points out that she does allege family violence. [20] In the report, under the heading "IPV", the report writer acknowledges that family violence must be assessed in all cases. It appears to me that the report discusses the issue, for example, where the report writer mentions aspects of the respondent's behaviour, including that he has resorted to name-calling and insulting language directed at the claimant. [21] Turning of the best interests of the children, the report includes extensive information about the children. In the spring of 2024, the report writer interviewed each child while at each parent's house for a total of two interviews per child. The report writer also conducted home observations at each parent's home. The children describe loving relationships with both parents. K.M. described some trepidation about transitions between homes. The children reported feeling that they had just the right amount of time with each parent. [22] The report writer concludes that both children struggle with transitions and that it takes time to settle

after a transition. The report writer also concludes the children sense the animosity between the parties and this is pulling the children in opposing directions. Secondary sources confirm that the children have stressors and responses that the report writer concludes are linked to the paradigm created by their parents' interpersonal animosity. [23] The report writer makes numerous recommendations regarding communication between the parties and for parenting, he recommends a return to sharing parental responsibilities and equal parenting time on a 2-2-3 schedule. [24] The claimant is concerned that this actually increases transitions from the present schedule which cuts against the recommendation to decrease transitions. However, in my view, the recommendation must be read as a whole and the balancing the report writer undertook is described as follows: It is therefore reasonable that the arrangement for parenting time that would be in the best interests of the children would be one that minimizes the number of exchanges, maximizes the ability of the parents to pursue their careers, and that is still developmentally appropriate for the children. One suggested schedule that may fit these requirements would be a 2-2-3 schedule, which would allow for both parents to have time during the week as well as weekends, would allow for the children to acclimatize to the different

household, and would balance fewer transitions with frequent contacts required for children of [L.M] and [K.M.]'s age. [25] In conclusion, on the evidence before me on this application, I do not find there are recent concerns about the respondent providing safe and responsible care for the children. I was not taken to any evidence that demonstrates recent adverse drug or alcohol monitoring incidents involving the respondent. The few incidents that did occur, appear to be somewhat dated now. To her credit, the claimant appears to agree that the respondent is doing well in treatment and that he adheres to monitoring. [26] When I consider the best interests of the children, as assisted by the s. 211 report, I am satisfied that the respondent's parenting should be increased on an interim basis to implement the 2-2-3 parenting time regime recommended by the report writer, subject to the parties agreeing to a different schedule. [27] To the extent the claimant wishes to challenge the conclusions of the report writer, she will be able to do so by requiring the report writer to attend for cross-examination at the trial. It will be a matter for the trial judge to assess the evidence, including the s. 211 report, to decide whether to accept the recommendations of the report writer and to make a final order in respect of parenting matters. Disposition [28] I make the following orders: a)

Paragraphs 1, 2 and 3 of the Consent Order made on January 25, 2024 are set aside. b) Pursuant to ss. 37, 38, 45 and 216 of the FLA, paragraphs 4 and 5 of the December 4, 2023 order is varied to state as follows: i. Except for during the summer parenting time schedule, the parties will follow a 2-2-3 regular parenting time schedule in respect of parenting time with the children. ii. Following the completion of the summer parenting time schedule as described in paragraph (c) below, the Regular Parenting Time Schedule will commence on Monday, September 2, 2024, with the claimant having the children from pick up time after school on Monday until school drop off on Wednesday morning followed by the respondent picking up the children on Wednesday after school and having parenting time with them until school drop off on Friday morning. iii. On days when school is not in session during the Regular Parenting Time Schedule, the time and location of the drop off, or pick up, time will be at 9:00 a.m. or 3:00 p.m. at the home of the parent who is either finishing or beginning their parenting time. c) For school summer holidays, the parties will follow an alternating one-week summer parenting time schedule (the "Summer Parenting Time Schedule"). i. The Summer Parenting Time Schedule will commence with the respondent beginning his one-week parenting time at 3:00 p.m. on Monday, July 1,

2024, until 3:00 p.m. on Monday, July 8, 2024, followed by the claimant beginning her one-week parenting time and alternating each week thereafter until the Summer Parenting Time Schedule ceases at 3:00 p.m. on Monday, September 2, 2024. d) On a child's birthday, the parent that has parenting time with the child on that day, shall facilitate a short video or telephone contact between the child having the birthday and the other parent at a reasonable time, meaning, among other things, at a time when the child and the other parent are available (the "Birthday Parenting Time"). e) The parties will make their best efforts to be reasonably punctual for drop offs or pick ups for their parenting time. The parties have liberty to consent to adjust the dates and times of parenting time, as well as locations for drop off and pick up of the children. The parties are encouraged to recognize that some flexibility may be required. f) Each parent will facilitate an opportunity for video or phone contact between the children and the other parent who does not have parenting time, once, at least every other day for a reasonable duration and at a reasonable time of the day, to be agreed to in advance between the parties. g) Pursuant to s. 41, 45 and 216 of the FLA, the parties shall share parental responsibilities for the children. h) The respondent is entitled to his costs of this application in any event of the cause. "E. McDonald J."