M.E.W. v. T.D.W.

2019 BCSC 2494 M.E.W. v. T.D.W. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.E.W. v. T.D.W., 2019 BCSC 2494 Date: 20190115 Docket: E1752778 Registry: Prince George Between: M.E.W. Claimant And T.D.W. Respondent Before: The Honourable Madam Justice Horsman Oral Reasons for Judgment In Chambers The Claimant, Appearing in Person: M.E.W. Counsel for the Respondent: D. Duncan Place and Date of Hearing: Prince George, B.C. January 14 & 15, 2019 Place and Date of Judgment: Prince George, B.C. January 15, 2019 [1] THE COURT: The claimant applies for an order that the respondent's court ordered contact time with the claimant's biological daughter, N., be cancelled. FACTUAL BACKGROUND [2] The affidavit evidence filed on this application discloses substantial areas of factual dispute between the parties. In providing the background context of this application, I will highlight the areas of dispute. For the most part, I am unable to resolve them for the purpose of deciding this application. The circumstances of the parties [3] The parties cohabitated for a period of time. The duration of the relationship is one of the many issues in contest between the parties. The parties separated in September of 2017. They have two children together, S. and T., who are 3 and 2 years old, respectively. N. is 5 years old and the child of a previous relationship of the claimant's. [4] The respondent says that he has raised N. as if she was his own child since the parties began cohabitating in June of 2014. The claimant disputes this and says the relationship was of a more short-term nature. I do not need to resolve this disagreement in order to resolve the present application. The evidence is clear that N. views the respondent as a father figure and calls him Daddy. The respondent has sought to maintain his relationship with N., despite the legal expense he has incurred in doing so. [5] The claimant has properly conceded that N.'s relationship with the respondent is an important one and the claimant suggested in the hearing before me that she does not seek to end the respondent's contact time. Rather, the claimant says that she should have the sole discretion as to when that contact will occur. [6] Following their separation in the fall of 2017, the parties entered into an agreement that set parenting time and contact between the respondent and the children in the amount of approximately twenty hours per week. The notice of family claim was filed in 2017 and the parties attended a Judicial Case Conference in June of 2018. It is fair to observe that the relationship between the claimant and the respondent is characterized by a high degree of conflict. Each has reported the other to the Ministry of Children and Family Development or the police on occasion. No child protection concerns were identified as a result of such reports that I have been made aware of. The interim order of Madam Justice Church [7] On November 13, 2018, the respondent applied for orders relating to the guardianship and parenting time with the children, and in the alternative, for parenting time with S. and T. and contact time with N. On November 27, 2018, Madam Justice Church ordered, among other things, that the respondent have contact time with N. as follows: a) every Tuesday and Thursday from 4 to 8 p.m.; b) every other weekend on Friday from 4 p.m. to Sunday 8 p.m., or Monday at 8 p.m. if the Monday is a statutory holiday, c) and such other orders as the parties may agree to in writing. [8] I am advised that the order of Madam Justice Church substantially tracks the parenting arrangements and contact provisions of the agreement the parties entered into in the fall of 2017. [9] The court ordered contact that the claimant seeks to vary must be taken to have been based on the court's assessment that continued contact between the respondent and N. was in N.'s best interests. [10] On the application before Madam Justice Church the respondent also asked for orders that he be granted guardianship of N. and parenting time with her. Madam Justice Church indicated that she was unable to determine those issues on the application material in light of conflicts in the affidavits. Madam Justice Church adjourned the issues of guardianship and parenting time in relation to N. to be determined at trial where the evidence could be tested through cross-examination. The claimant's application to vary the interim order [11] I turn now to the circumstances leading to the present application. On December 3, 2018, the claimant applied in Provincial Court for an order revoking the order of Madam Justice Church. She withdrew this application on December 10, 2018, after the respondent had filed his reply. [12] Starting December 4, 2018, the claimant has denied the respondent his court ordered contact with N. on a number of occasions. On December 17, 2018, the claimant brought the present application which seeks to terminate the contact term of Madam Justice Church's order. The application to terminate was thus filed three weeks after the order was made. [13] The claimant filed her sixth affidavit made on December 17, 2018, in support of the application. By way of summary, the affidavit addresses the claimant's concern that the respondent does not take proper care of N. when she is sick, that he does not monitor her temperature or give her Tylenol for her fever, and does not take her to see the doctor in a timely manner. The claimant says that as N.'s legal guardian, she should be allowed control over making any decisions about N.'s care when she is sick. The claimant's factual allegations are all disputed by the respondent. [14] On January 10, 2019, the claimant filed a further affidavit, her affidavit #7, recounting additional concerns with the respondent's care of N. and also with respect to the events of Christmas Day. By prior agreement, all three children were to be with the respondent starting at 2 p.m. on Christmas Day and overnight. The claimant was concerned that N. needed medical attention because she had experienced croup the night before. She indicated to the respondent that she would be attending his home at 8 p.m. to collect N. to take her to a hospital. The claimant says that when she arrived, the respondent had called the RCMP. [15] The respondent, for his part, says that the events of Christmas Day are illustrative of the claimant's need to control his time with N., which he says is not motivated by legitimate medical concerns. The respondent says that the claimant texted him fourteen times in the space of a few hours, which interfered with his parenting and contact time with the children on Christmas Day, and that N. was not in need of urgent medical attention. [16] The parties' different versions of the events of Christmas Day is illustrative of the evidence as a whole, which consists largely of each party's subjective views on the state of N. health at various times, and whether she did or did not require Tylenol, have a fever, or visit a doctor. It is simply impossible for me to resolve all of these conflicts on the basis of the conflicting affidavit evidence filed on the interim application. Discussion [17] Section 60 of the Family Law Act, SBC 2011, c. 25 [FLA], provides that an order respecting contact with a child may be changed, suspended, or terminated if the court is satisfied that since making of the order there has been a change in the needs or circumstances of the child. The order which the claimant seeks to vary was an interim order and therefore s. 216 of the FLA also applies. Section 216 of the FLA also allows for an interim order to be varied or terminated, where there has been a change in circumstances since the interim order was made. [18] Our courts have interpreted these provisions to require a material change in circumstance. The factors to be considered on an application to vary an interim order in s. 216(4) do not include the best interests of the child. The reasons for this is explained by Holmes J., as she then was, in B.K. v. J.B. [2015] BCJ No. 1808 at paras. 28 and 29: [28] Where a court is asked to exercise the authority under s. 216(3) by varying (or suspending or terminating) a parenting interim order already made, the court can properly start from the assumption that the interim order reflected the child's best interests insofar as those could be discerned at the time of the previous order. It is for this reason that s. 216(3) and (4) focus the court's attention on whether there is a change or new evidence since the previous order, and, if there is, on the factors in s. 216(4). Those factors relate mainly to the timing of the application to vary in relation to the previous interim order and the trial; the purpose of the interim order; and the potential adverse effects on the parties of varying or not varying the interim order. [29] The factors for consideration under s. 216(3) and (4) thus do not expressly include the best interests of the child. Consistently with the long-standing approach, on interim applications, of protecting the status quo and providing short-term solutions until a closer and more complete examination is possible at trial, they require the court to focus on what, if anything, has changed or emerged since the interim order was made, and to consider whether the new facts or evidence warrant a further change over the short-term. In the circumstances to which s. 216(3) and (4) apply, a full assessment of the child's best interests is not usually possible. [19] As noted at para. 27 of B.K. v. J.B., it is not usually practicable to conduct a complete assessment of the best interests of the child in the limited context of an interim application. The threshold question on an application to vary or terminate a contact order is whether there has been a material change affecting the needs or circumstances of the child. Only then will the court reconsider what contact is in the best interests of the child. [20] As noted by the Court of Appeal in Williamson v. Williamson [2016] BCJ No. 343 at para. 32, the requirement of material change means that an application to vary cannot serve as an indirect route of appeal of the original order. A material change is one that alters the child's needs or the ability of the parent to meet those needs in a fundamental way, and which would have affected the original order: Williamson at para. 32. [21] In the present case I find that the evidence is insufficient to establish a material change in circumstances that would have affected the November 27, 2018 order of Madam Justice Church. As noted, the claimant agrees that the respondent can safely parent S. and T., and also that she has no concerns with N. being in his care when she is not sick. The claimant's concern, as I understood it, is with respect to her lack of control over the day-to-day care of N. when she is sick. The claimant believes that as N.'s legal guardian she ought to have control over such matters. However, the claimant's status as guardian of N. is not a material change in circumstance, but rather a factor that was directly before Madam Justice Church at the hearing in November. [22] Further, it is relevant that the respondent's application seeking a declaration that he is a guardian of N. was not dismissed by Madam Justice Church, but rather adjourned to trial. Madam Justice Church was unable to finally determine that issue on the basis of the record before her and in the absence of cross-examination. I find myself in the same position. [23] I must acknowledge the claimant's belief, which appears to me to be genuinely held, that the respondent does not properly care for N. when she is sick. However, her evidence in that respect is directly contradicted by the respondent's affidavit evidence. All I can say is that I am not persuaded on the evidence before me that the respondent has neglected N. in a manner that undermines the interim contact order. Beyond that, any final determination of these issues must be left to trial. [24] I also accept that the claimant genuinely believes that she better understands and can meet N.'s needs and should be permitted to unilaterally do so as N's mother. However, it is implicit in the order of Madam Justice Church that the court has found that it is also in N's best interests, at least on an interim basis, to maintain contact with the respondent and to spend time with the respondent and her half-siblings, S. and T. [25] I am, therefore, not persuaded on the evidence that there has been a material change in circumstances since the order of Madam Justice Church on November 27, 2018. Accordingly, I must dismiss the claimant's application to terminate the contact between N. and the respondent that was ordered by Madam Justice Church. [26] The costs of the claimant's application shall be to the respondent in the cause. [27] I did wish to make clear as a concluding comment that my judgment should not act as a discouragement to the parties to try to work cooperatively towards interim contact arrangements that are satisfactory to both parties. It is always possible to amend an order by consent. There is also the possibility of engaging the assistance of a third party, such as a mediator, to facilitate discussion around issues of parenting time and contact. My order today does not preclude such measures, and indeed, they should be encouraged. "Horsman J."