1992-11-16_ bcsc_Laba-V-Laba.html

The parties were married in June 1987 and separated at the end of November, 1989 although they had ceased living together as spouses for several months prior to that time. Their child Nicholas was born on February 4, 1988.

Subject to s. 12 of the Divorce Act, I hereby grant an order of divorce. The parties have settled all of the remaining issues in the petition and counter-petition save for the issue of custody of Nicholas. Both parents seek sole custody and Mrs. Laba seeks an order permitting her to remove Nicholas to Regina in order that she may remarry and reside there.

Mrs. Laba is 34 years old and before her marriage to Mr. Laba, she was married at the age of nineteen; that marriage lasted only one year. She has grade 12 education supplemented by a secretarial course and a 2 year creative writing program. Up to the time of Nicholas's birth, she acquired extensive secretarial experience. She did not work after that time until September 1990. From that time until June 1991 she worked as a secretary at a college. Since then, she has been unemployed apart from some freelance writing. Her real interests are in creative writing and advertising. She is hopeful of obtaining employment in the latter fields in Regina although she has no guarantee of any employment other than assisting her fiance in his photographic business.

The petitioner met her present fiance, Mr. Clendenning, in September 1991 and they became engaged in August 1992, some 11 months later. He is a photographer in Regina with his own photographic business. He appears eager to share his life with Mrs. Laba and Nicholas. He has two children from a prior marriage who visit him regularly and he described a problem-free access arrangement with them.

In her discussions with both Mr. Laba and Dr. Elterman, a clinical and consulting psychologist retained by Mr. Laba to conduct a psychological evaluation of the parties and Nicholas, Mrs. Laba was less than forthright with respect to her engagement and her plans to move to Regina. In fact, she did not reveal her plans until she was examined for discovery in October 1992. Previously, she had advised Dr. Elterman that she had a boyfriend but she failed to tell him that he resided in Regina or that she intended to move there almost immediately. He only learned those facts on October 24, 1992, although he had interviewed her on August 18 and September 3, 1992 after her engagement.

The lease on Mrs. Laba's rented apartment expired when it was sold some months ago and she has continued to reside there on a month-to-month basis. That arrangement was to expire yesterday. She has made no arrangements for accommodation in Vancouver save for arranging to stay with friends for a short period of time.

Mr. Laba is 39 years of age. Most of his family lives in Ontario but he sees them regularly. He has been a computer engineer with the same company for 11 years and his employment is secure. He earns approximately $65,000. annually. He works regular hours and has some flexibility in his work schedule. He has travelled in the past on business but he is not required to travel.

From December 1990 to June 1991, the parties had an informal joint custody arrangement in which Mr. Laba saw Nicholas on Tuesday, Thursday and Saturday nights. Since June 1991, pursuant to a consent order of this Court, the parties have formally shared joint custody with Nicholas residing with his father every weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m. and extensive telephone access.

There have been several strains and difficulties in the joint custody arrangement because of communication difficulties between the parties.

At trial a great deal of evidence was devoted to the issue of whether Mrs. Laba exhibited poor judgment in failing to have Nicholas vaccinated at the usual age. There is no question that he suffered an adverse reaction to his first vaccinations at the age of two months and that Mrs. Laba was wise to seek out medical advice with respect to that issue. After a recommended delay, Mrs. Laba was told that Nicholas could be, or should be, vaccinated but she delayed for a further length of time. She also took him to a naturopath as well as to his regular family doctor in order to get advice with diet and nutrition. These issues were discussed with Mr. Laba and he initially offered no resistance to Mrs. Laba's decision to postpone vaccination.

Both Mr. Laba's belated objections, and Mrs. Laba's precipitous vaccination of Nicholas at the same time that Mr. Laba decided to seek sole custody, strike me as inextricably linked to the litigation rather than as reflecting independent objective concerns for Nicholas's health. There was undoubtedly a lack of communication at some point which reflected the parties' failure to communicate during and after their marriage. To a degree, that failure on Mrs. Laba's part stems from her aversion to confrontation with the respondent which has its roots in the marriage.

Another area of controversy concerns Mr. Laba's use of marijuana during and after the marriage. Mr. Laba downplays the frequency of his marijuana use in the past and states that he has ceased to indulge in that habit. The results of a drug test suggested by Ms. McKay, a Family Court counsellor, were negative. However, he did not take that test until 2 months after the suggestion was made and, while I accept his evidence that he will not smoke marijuana before or during his care of Nicholas, I have no doubt that he underestimated his use in his evidence. On the other hand, until she raised the matter with Ms. McKay, Mrs. Laba had not raised the issue of Mr. Laba's use of marijuana in any of the many previous court proceedings. I am left with the impression that she did not have any serious concerns about the effects of that drug use upon Mr. Laba's parental capacity.

I also accept Mrs. Laba's evidence that the respondent was verbally abusive to her during the marriage and, on one occasion, pushed her out the door of their home, screaming obscenities at her. That incident was verified by a neighbour who testified reluctantly. Nicholas witnessed some of those scenes.

Mr. Laba is described as a gentle, kind man by his friends and family and there is no suggestion that he has ever lost his temper or dealt harshly with Nicholas. While I consider it inexcusable for one parent to express that rage and abuse to another parent in the presence of a child, I am satisfied that he genuinely regrets that lamentable behaviour.

Criticisms were also levied against Mrs. Laba's behaviour and lifestyle. Despite her protests to the contrary, she has in fact curtailed Mr. Laba's access on occasion, although no doubt she thought that she was acting in Nicholas's best interests. Her failure to vaccinate Nicholas when he went to daycare and playschool, in spite of blood tests which suggested that it would be safe to vaccinate him, exposed him to the risk of infection from other children including the serious possibility that he could become ill as a result of the effect of contact with vaccinated children.

Mrs. Laba's failure to tell Mr. Laba of her plans to move to Regina with Nicholas does her no credit. Indeed, she left him under the mistaken impression that Mr. Clendenning was her cousin; she swore in an affidavit that she proposed to visit relatives in Saskatchewan in August 1992; and she left Mr. Laba the telephone number of "Craig and Heather Clendenning" in Regina. Heather is Mr. Clendenning's sister-in-law but the clear implication is that they are a married couple.

Since the separation, the parties have continually bartered for variations of Mr. Laba's access to Nicholas and brought on a great number of court applications in a relatively short period of time.

It is clear to me that Mr. and Mrs. Laba are both committed and devoted parents. Their parenting skills were verified by the other witnesses who testified at trial. Mr. and Mrs. Laba both love Nicholas dearly and I am satisfied that he would be well taken care of and loved in either home. They testified that they recognize the importance of Nicholas maintaining a strong and close relationship with both of his parents. I agree with Dr. Elterman and Ms. McKay that both parties are sensitive, emotional people who are anxious about Nicholas's well-being.

Dr. Elterman perceived Nicholas to be equally emotionally attached to both parents. He is happy and comfortable in both homes. While he is very close to his father, his mother is the primary parent who is associated with his day-to-day activities. Dr. Elterman expressed the view that joint custody was, at the present time, impractical because of the animosity between Nicholas's parents.

On the assumption that both parents would remain in the Vancouver area, Dr. Elterman recommended that Mrs. Laba should be given custody. However, he did not recommend removal of Nicholas from regular contact with his father with whom he has a close bond and a warm relationship. I share his opinion that severing or diminishing that relationship would be detrimental to Nicholas's best interests.

I also share his opinion that the geographical separation of Nicholas from either of his parents would be harmful to him. As a result, if the parties reside in different geographic jurisdictions, Nicholas would lose the benefits that he presently enjoys as a result of his close and frequent association with both parents.

Mrs. Laba suggested that if she were permitted to take Nicholas to Regina, he could travel one week a month to Vancouver to see his father until he begins kindergarten in September 1993. That plan is simply unworkable. The plane trip is a long one for a little boy and there is a two hour time change each way. Such an arrangement would be likely to have a negative effect on Nicholas which, in turn, would cause Mrs. Laba to seek to have the Court review the access order. If monthly access were struck because of its adverse effect on the child, the inevitable result would be to preclude a regular relationship between Nicholas and his father.

I recognize the fact that the parties do not communicate very well. I doubt that they ever did. Nevertheless, it is clear to me that Nicholas's best interests will be served by close and continued contact with both parents. Nicholas is bonded and attached to both of his parents and he enjoys a unique and loving relationship with each of them. Those facts are certain. In the hope that he would be awarded sole custody, Mr. Laba has made concrete plans for daycare and kindergarten. Photographs illustrate the fact that his home is clearly Nicholas' home as well. On the other hand, Nicholas's future with Mrs. Laba in Regina is uncertain.

This will be Mrs. Laba's third marriage. The first lasted one year; the second lasted approximately two years. Although she met Mr. Clendenning in September, 1991, she has only spent a total of 19 or 20 days during that time with him due to the distance between Vancouver and Regina. She became engaged in August but did not disclose that fact until shortly before this trial. I feel it necessary to consider those facts in the process of weighing the benefits to Nicholas of the proposed marriage against the devastating effects of separating him from his father.

Accordingly, and after anxious consideration, I conclude that neither party should be permitted to remove Nicholas from the Greater Vancouver area other than for temporary vacation purposes and, specifically, Mrs. Laba may not take Nicholas to Regina with her.

Further, despite the strong desire of both parties for sole custody, I am going to make an order of joint custody and guardianship, because I consider that it provides the only practical means of accommodating the terms of the order I consider to be appropriate.

If I were to make an order of sole custody, I would be granting sole custody to Mrs. Laba if she stayed in Vancouver with generous access to Mr. Laba or, if Mrs. Laba went to Regina, I would grant sole custody to Mr. Laba with access to her. Mrs. Laba has not really had sufficient time to decide whether, without the ability to take Nicholas to Regina, she will forego or postpone her relationship with Mr. Clendenning or whether she will go to Regina without Nicholas.

It is possible that the petitioner may make an initial decision and then change her mind once or more. As I am of the firm opinion that Nicholas should not be removed from his regular life with his father, it would be necessary to keep changing orders for sole custody in order to accommodate the intent of my judgment. My further concern, based on my perception of both parties as extremely sensitive individuals, is that if sole custody is granted to one parent, the other parent will likely feel strongly that he or she has "lost" custody and that such a reaction will have a correspondingly adverse effect on Nicholas.

I expect that both parties will be distressed initially with this decision but the goal of the Court in deciding custody is to determine how Nicholas's rights will be best served; it is not to determine parental rights.

I am mindful of the cases which state that an order of joint custody ought not to be made if the parents cannot co-operate but I also note the definite judicial trend away from the earlier requirement that both parents must agree to joint custody. In Heyman v. Heyman (1990), 24 R.F.L.(3d) 402 Josephson, L.J.S.C., awarded joint custody notwithstanding the fact that both parties sought sole custody. He held that the differences in their parental philosophies were not detrimental to the children who would benefit from an award of joint custody.

The principles of joint custody and guardianship are set out in the oft-quoted case of Anson v. Anson (1987), 10 B.C.L.R. (2d) 357 where Huddart, Co. Ct. J., stated:

In essence, in a joint custody arrangement, the parents continue to share the same duties, rights, responsibilities and input as cohabiting parents save and except for those responsibilities of everyday parenting that go with physical care and control. Usually, neither custodian is given final decision-making authority. The parties have to consult with each other and decide what is best for the child. if they cannot agree, they can seek the help of a professional third party or apply to the court for direction.

Although I use the words "primary residence" and "access" in the balance of my judgment, that language should not detract from the underlying principle that both parents will be full parents during the time that Nicholas resides with them. I adopt the words of Proudfoot, J. in Johnson v. Lemay [1988] B.C.W.L.D. 1035:

I propose to grant each party custody of Joanna; that is, each party will have full care and control of the child during the period that the child is residing with that particular parent. The respondent must come to terms with the fact that the petitioner is not a "mere visitor", he is the father; the child does have a right to have a relationship with her father and the father has a right to have a part in the upbringing of his child.

In the long run, I think it is important that Mr. and Mrs. Laba recognize the fact that Nicholas's best interests will be achieved if he is given the comfort and assurance that his parents, the two people that he loves the most, are able to co-operate and communicate with respect to his welfare and well-being. The divorce dissolves only the marriage not the parenthood of Nicholas which both Mr. and Mrs. Laba will continue to share for many years. Mr. and Mrs. Laba are now required to become professional parents and I am satisfied that they have the capacity to do so. They have much to offer Nicholas and his life will be enriched by maximum contact with both of them. I recommend that they seek the assistance of a Family Court counsellor or other skilled professional person if necessary.

If Mrs. Laba remains in Vancouver, Nicholas's primary residence will remain with her and Mr. Laba will have generous access. Until Mrs. Laba obtains employment, if Nicholas is not at daycare or playschool on Mondays and Fridays, then Mr. Laba will have access to Nicholas every weekend from Friday at 5:00 p.m. to Sunday or any Monday which is a holiday at 6:00 p.m. When Nicholas attends playschool, daycare, kindergarten or school, Mr. Laba should pick Nicholas up on Friday from the school or centre and return him Monday (or Tuesday if Monday is a holiday) to the school or centre. That arrangement will minimize the contact and resulting friction between the parents and, for Nicholas, it will ease the transition from one parent to another.

When Mrs. Laba obtains employment, her time with Nicholas will be significantly reduced and Mr. Laba will have access every second weekend on the same terms as above.

Mr. Laba will also have access Wednesday evening (or other week day evening by the consent of the parties). If the parties cannot otherwise agree to the times, Mr. Laba should pick up Nicholas from daycare, playschool or kindergarten at the end of the day or, if Nicholas is not attending such an institution, he should pick him up from Mrs. Laba at 3:30 p.m. Unless the parties otherwise agree, Mr. Laba should return him to Mrs. Laba at least one hour before Nicholas's regular bedtime.

Nicholas should spend half of each major holiday with each parent: Christmas, Easter, spring break, and the summer vacation (those holidays to be defined by the regular elementary school holidays.) If the parties cannot otherwise agree, they should alternate the first and second half of each holiday. My suggestion is that they work out a year's schedule in advance with the assistance of counsel or one of the Family Court counsellors, if necessary.

If Mrs. Laba moves to Regina, then primary residence of Nicholas will be with his father. Nicholas will visit his mother for half of each major holiday described above and, in addition, two long weekends a year. The cost of those trips should be shared by the parties. If Mrs. Laba wishes to visit Nicholas in Vancouver, on appropriate notice to Mr. Laba, she should be given generous access to him.

The telephone access which Mr. Laba has sought to exercise in the past appears to me to be excessive. While Nicholas should be free to telephone his parents when he wishes to (and assisted in that regard), each parent should telephone Nicholas no more than once a day unless there is some special reason to do so.

Neither parent is to schedule activities during the other parent's access period without the prior consent of that parent, such consent not to be unreasonably withheld.

The parties are to consult with one another regarding Nicholas's health, his medical care, education, and social and recreational activities. Both are to have free access to the Nicholas's daycare workers, teachers and doctors, etc.

I am prepared to remain seized of the matter for a period of one year if further matters need to be addressed. I have made a very detailed access order; if it proves unworkable, and the parties are unable to consent to varying it, then I will hear submissions in that regard. However, if I am out of town or otherwise available, the parties have liberty to bring any application before another Judge or a Master of the Court.

If Mrs. Laba remains in Vancouver, Mr. Laba is to continue to pay her the sum of $500. per month for Nicholas's support. If she moves to Regina, that obligation will cease.

Each party is to bear his or her own costs.

"M.J. ALLAN, J."

Vancouver, B.C. M.J. Allan, J.

November 16, 1992

	British Columbia >> Supreme Court of British Columbia >>
	Laba v. Laba, (1992-11-16) BCSC D079671
	Source: http://www.canlii.org/bc/cas/bcsc/1992/1992bcsc11320.html
	DATE OF RELEASE: NOVEMBER 16, 1992 No. D079671 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) REASONS FOR JUDGMENT JAYNE ELIZABETH LABA ) ) ) PETITIONER ) ) OF THE HONOURABLE AND: ) ) LEONARD JOHN LABA ) ) ) MADAM JUSTICE ALLAN RESPONDENT ) ) Counsel for the petitioner: A.M. Accettura Counsel for the respondent: J.M. Noble Place and Date of trial: Vancouver, B.C. November 9, 10, 12 and 13, 1992 This is a divorce proceeding in which both parties seek sole custody of the child of the marriage. The parties were married in June 1987 and separated at the end of November, 1989 although they had ceased living together as spouses for several months prior to that time. Their child Nicholas was born on February 4, 1988. Subject to s. 12 of the Divorce Act, I hereby grant an order of divorce. The parties have settled all of the remaining issues in the petition and counter-petition save for the issue of custody of Nicholas. Both parents seek sole custody and Mrs. Laba seeks an order permitting her to remove Nicholas to Regina in order that she may remarry and reside there. Mrs. Laba is 34 years old and before her marriage to Mr. Laba, she was married at the age of nineteen; that marriage lasted only one year. She has grade 12 education supplemented by a secretarial course and a 2 year creative writing program. Up to the time of Nicholas's birth, she acquired extensive secretarial experience. She did not work after that time until September 1990. From that time until June 1991 she worked as a secretary at a college. Since then, she has been unemployed apart from some freelance writing. Her real interests are in creative writing and advertising. She is hopeful of obtaining employment in the latter fields in Regina although she has no guarantee of any employment other than assisting her fiance in his photographic business. The petitioner met her present fiance, Mr. Clendenning, in September 1991 and they became engaged in August 1992, some 11 months later. He is a photographer in Regina with his own photographic business. He appears eager to share his life with Mrs. Laba and Nicholas. He has two children from a prior marriage who visit him regularly and he described a problem-free access arrangement with them. In her discussions with both Mr. Laba and Dr. Elterman, a clinical and consulting psychologist retained by Mr. Laba to conduct a psychological evaluation of the parties and Nicholas, Mrs. Laba was less than forthright with respect to her engagement and her plans to move to Regina. In fact, she did not reveal her plans until she was examined for discovery in October 1992. Previously, she had advised Dr. Elterman that she had a boyfriend but she failed to tell him that he resided in Regina or that she intended to move there almost immediately. He only learned those facts on October 24, 1992, although he had interviewed her on August 18 and September 3, 1992 after her engagement. The lease on Mrs. Laba's rented apartment expired when it was sold some months ago and she has continued to reside there on a month-to-month basis. That arrangement was to expire yesterday. She has made no arrangements for accommodation in Vancouver save for arranging to stay with friends for a short period of time. Mr. Laba is 39 years of age. Most of his family lives in Ontario but he sees them regularly. He has been a computer engineer with the same company for 11 years and his employment is secure. He earns approximately $65,000. annually. He works regular hours and has some flexibility in his work schedule. He has travelled in the past on business but he is not required to travel. From December 1990 to June 1991, the parties had an informal joint custody arrangement in which Mr. Laba saw Nicholas on Tuesday, Thursday and Saturday nights. Since June 1991, pursuant to a consent order of this Court, the parties have formally shared joint custody with Nicholas residing with his father every weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m. and extensive telephone access. There have been several strains and difficulties in the joint custody arrangement because of communication difficulties between the parties. At trial a great deal of evidence was devoted to the issue of whether Mrs. Laba exhibited poor judgment in failing to have Nicholas vaccinated at the usual age. There is no question that he suffered an adverse reaction to his first vaccinations at the age of two months and that Mrs. Laba was wise to seek out medical advice with respect to that issue. After a recommended delay, Mrs. Laba was told that Nicholas could be, or should be, vaccinated but she delayed for a further length of time. She also took him to a naturopath as well as to his regular family doctor in order to get advice with diet and nutrition. These issues were discussed with Mr. Laba and he initially offered no resistance to Mrs. Laba's decision to postpone vaccination. Both Mr. Laba's belated objections, and Mrs. Laba's precipitous vaccination of Nicholas at the same time that Mr. Laba decided to seek sole custody, strike me as inextricably linked to the litigation rather than as reflecting independent objective concerns for Nicholas's health. There was undoubtedly a lack of communication at some point which reflected the parties' failure to communicate during and after their marriage. To a degree, that failure on Mrs. Laba's part stems from her aversion to confrontation with the respondent which has its roots in the marriage. Another area of controversy concerns Mr. Laba's use of marijuana during and after the marriage. Mr. Laba downplays the frequency of his marijuana use in the past and states that he has ceased to indulge in that habit. The results of a drug test suggested by Ms. McKay, a Family Court counsellor, were negative. However, he did not take that test until 2 months after the suggestion was made and, while I accept his evidence that he will not smoke marijuana before or during his care of Nicholas, I have no doubt that he underestimated his use in his evidence. On the other hand, until she raised the matter with Ms. McKay, Mrs. Laba had not raised the issue of Mr. Laba's use of marijuana in any of the many previous court proceedings. I am left with the impression that she did not have any serious concerns about the effects of that drug use upon Mr. Laba's parental capacity. I also accept Mrs. Laba's evidence that the respondent was verbally abusive to her during the marriage and, on one occasion, pushed her out the door of their home, screaming obscenities at her. That incident was verified by a neighbour who testified reluctantly. Nicholas witnessed some of those scenes. Mr. Laba is described as a gentle, kind man by his friends and family and there is no suggestion that he has ever lost his temper or dealt harshly with Nicholas. While I consider it inexcusable for one parent to express that rage and abuse to another parent in the presence of a child, I am satisfied that he genuinely regrets that lamentable behaviour. Criticisms were also levied against Mrs. Laba's behaviour and lifestyle. Despite her protests to the contrary, she has in fact curtailed Mr. Laba's access on occasion, although no doubt she thought that she was acting in Nicholas's best interests. Her failure to vaccinate Nicholas when he went to daycare and playschool, in spite of blood tests which suggested that it would be safe to vaccinate him, exposed him to the risk of infection from other children including the serious possibility that he could become ill as a result of the effect of contact with vaccinated children. Mrs. Laba's failure to tell Mr. Laba of her plans to move to Regina with Nicholas does her no credit. Indeed, she left him under the mistaken impression that Mr. Clendenning was her cousin; she swore in an affidavit that she proposed to visit relatives in Saskatchewan in August 1992; and she left Mr. Laba the telephone number of "Craig and Heather Clendenning" in Regina. Heather is Mr. Clendenning's sister-in-law but the clear implication is that they are a married couple. Since the separation, the parties have continually bartered for variations of Mr. Laba's access to Nicholas and brought on a great number of court applications in a relatively short period of time. It is clear to me that Mr. and Mrs. Laba are both committed and devoted parents. Their parenting skills were verified by the other witnesses who testified at trial. Mr. and Mrs. Laba both love Nicholas dearly and I am satisfied that he would be well taken care of and loved in either home. They testified that they recognize the importance of Nicholas maintaining a strong and close relationship with both of his parents. I agree with Dr. Elterman and Ms. McKay that both parties are sensitive, emotional people who are anxious about Nicholas's well-being. Dr. Elterman perceived Nicholas to be equally emotionally attached to both parents. He is happy and comfortable in both homes. While he is very close to his father, his mother is the primary parent who is associated with his day-to-day activities. Dr. Elterman expressed the view that joint custody was, at the present time, impractical because of the animosity between Nicholas's parents. On the assumption that both parents would remain in the Vancouver area, Dr. Elterman recommended that Mrs. Laba should be given custody. However, he did not recommend removal of Nicholas from regular contact with his father with whom he has a close bond and a warm relationship. I share his opinion that severing or diminishing that relationship would be detrimental to Nicholas's best interests. I also share his opinion that the geographical separation of Nicholas from either of his parents would be harmful to him. As a result, if the parties reside in different geographic jurisdictions, Nicholas would lose the benefits that he presently enjoys as a result of his close and frequent association with both parents. Mrs. Laba suggested that if she were permitted to take Nicholas to Regina, he could travel one week a month to Vancouver to see his father until he begins kindergarten in September 1993. That plan is simply unworkable. The plane trip is a long one for a little boy and there is a two hour time change each way. Such an arrangement would be likely to have a negative effect on Nicholas which, in turn, would cause Mrs. Laba to seek to have the Court review the access order. If monthly access were struck because of its adverse effect on the child, the inevitable result would be to preclude a regular relationship between Nicholas and his father. I recognize the fact that the parties do not communicate very well. I doubt that they ever did. Nevertheless, it is clear to me that Nicholas's best interests will be served by close and continued contact with both parents. Nicholas is bonded and attached to both of his parents and he enjoys a unique and loving relationship with each of them. Those facts are certain. In the hope that he would be awarded sole custody, Mr. Laba has made concrete plans for daycare and kindergarten. Photographs illustrate the fact that his home is clearly Nicholas' home as well. On the other hand, Nicholas's future with Mrs. Laba in Regina is uncertain. This will be Mrs. Laba's third marriage. The first lasted one year; the second lasted approximately two years. Although she met Mr. Clendenning in September, 1991, she has only spent a total of 19 or 20 days during that time with him due to the distance between Vancouver and Regina. She became engaged in August but did not disclose that fact until shortly before this trial. I feel it necessary to consider those facts in the process of weighing the benefits to Nicholas of the proposed marriage against the devastating effects of separating him from his father. Accordingly, and after anxious consideration, I conclude that neither party should be permitted to remove Nicholas from the Greater Vancouver area other than for temporary vacation purposes and, specifically, Mrs. Laba may not take Nicholas to Regina with her. Further, despite the strong desire of both parties for sole custody, I am going to make an order of joint custody and guardianship, because I consider that it provides the only practical means of accommodating the terms of the order I consider to be appropriate. If I were to make an order of sole custody, I would be granting sole custody to Mrs. Laba if she stayed in Vancouver with generous access to Mr. Laba or, if Mrs. Laba went to Regina, I would grant sole custody to Mr. Laba with access to her. Mrs. Laba has not really had sufficient time to decide whether, without the ability to take Nicholas to Regina, she will forego or postpone her relationship with Mr. Clendenning or whether she will go to Regina without Nicholas. It is possible that the petitioner may make an initial decision and then change her mind once or more. As I am of the firm opinion that Nicholas should not be removed from his regular life with his father, it would be necessary to keep changing orders for sole custody in order to accommodate the intent of my judgment. My further concern, based on my perception of both parties as extremely sensitive individuals, is that if sole custody is granted to one parent, the other parent will likely feel strongly that he or she has "lost" custody and that such a reaction will have a correspondingly adverse effect on Nicholas. I expect that both parties will be distressed initially with this decision but the goal of the Court in deciding custody is to determine how Nicholas's rights will be best served; it is not to determine parental rights. I am mindful of the cases which state that an order of joint custody ought not to be made if the parents cannot co-operate but I also note the definite judicial trend away from the earlier requirement that both parents must agree to joint custody. In *Heyman v. Heyman* (1990), 24 R.F.L.(3d) 402 Josephson, L.J.S.C., awarded joint custody notwithstanding the fact that both parties sought sole custody. He held that the differences in their parental philosophies were not detrimental to the children who would benefit from an award of joint custody. The principles of joint custody and guardianship are set out in the oft-quoted case of *Anson v. Anson* (1987), 10 B.C.L.R. (2d) 357 where Huddart, Co. Ct. J., stated: In essence, in a joint custody arrangement, the parents continue to share the same duties, rights, responsibilities and input as cohabiting parents save and except for those responsibilities of everyday parenting that go with physical care and control. Usually, neither custodian is given final decision-making authority. The parties have to consult with each other and decide what is best for the child. if they cannot agree, they can seek the help of a professional third party or apply to the court for direction. Although I use the words "primary residence" and "access" in the balance of my judgment, that language should not detract from the underlying principle that both parents will be full parents during the time that Nicholas resides with them. I adopt the words of Proudfoot, J. in *Johnson v. Lemay* [1988] B.C.W.L.D. 1035: I propose to grant each party custody of Joanna; that is, each party will have full care and control of the child during the period that the child is residing with that particular parent. The respondent must come to terms with the fact that the petitioner is not a "mere visitor", he is the father; the child does have a right to have a relationship with her father and the father has a right to have a part in the upbringing of his child. In the long run, I think it is important that Mr. and Mrs. Laba recognize the fact that Nicholas's best interests will be achieved if he is given the comfort and assurance that his parents, the two people that he loves the most, are able to co-operate and communicate with respect to his welfare and well-being. The divorce dissolves only the marriage not the parenthood of Nicholas which both Mr. and Mrs. Laba will continue to share for many years. Mr. and Mrs. Laba are now required to become professional parents and I am satisfied that they have the capacity to do so. They have much to offer Nicholas and his life will be enriched by maximum contact with both of them. I recommend that they seek the assistance of a Family Court counsellor or other skilled professional person if necessary. If Mrs. Laba remains in Vancouver, Nicholas's primary residence will remain with her and Mr. Laba will have generous access. Until Mrs. Laba obtains employment, if Nicholas is not at daycare or playschool on Mondays and Fridays, then Mr. Laba will have access to Nicholas every weekend from Friday at 5:00 p.m. to Sunday or any Monday which is a holiday at 6:00 p.m. When Nicholas attends playschool, daycare, kindergarten or school, Mr. Laba should pick Nicholas up on Friday from the school or centre and return him Monday (or Tuesday if Monday is a holiday) to the school or centre. That arrangement will minimize the contact and resulting friction between the parents and, for Nicholas, it will ease the transition from one parent to another. When Mrs. Laba obtains employment, her time with Nicholas will be significantly reduced and Mr. Laba will have access every second weekend on the same terms as above. Mr. Laba will also have access Wednesday evening (or other week day evening by the consent of the parties). If the parties cannot otherwise agree to the times, Mr. Laba should pick up Nicholas from daycare, playschool or kindergarten at the end of the day or, if Nicholas is not attending such an institution, he should pick him up from Mrs. Laba at 3:30 p.m. Unless the parties otherwise agree, Mr. Laba should return him to Mrs. Laba at least one hour before Nicholas's regular bedtime. Nicholas should spend half of each major holiday with each parent: Christmas, Easter, spring break, and the summer vacation (those holidays to be defined by the regular elementary school holidays.) If the parties cannot otherwise agree, they should alternate the first and second half of each holiday. My suggestion is that they work out a year's schedule in advance with the assistance of counsel or one of the Family Court counsellors, if necessary. If Mrs. Laba moves to Regina, then primary residence of Nicholas will be with his father. Nicholas will visit his mother for half of each major holiday described above and, in addition, two long weekends a year. The cost of those trips should be shared by the parties. If Mrs. Laba wishes to visit Nicholas in Vancouver, on appropriate notice to Mr. Laba, she should be given generous access to him. The telephone access which Mr. Laba has sought to exercise in the past appears to me to be excessive. While Nicholas should be free to telephone his parents when he wishes to (and assisted in that regard), each parent should telephone Nicholas no more than once a day unless there is some special reason to do so. Neither parent is to schedule activities during the other parent's access period without the prior consent of that parent, such consent not to be unreasonably withheld. The parties are to consult with one another regarding Nicholas's health, his medical care, education, and social and recreational activities. Both are to have free access to the Nicholas's daycare workers, teachers and doctors, etc. I am prepared to remain seized of the matter for a period of one year if further matters need to be addressed. I have made a very detailed access order; if it proves unworkable, and the parties are unable to consent to varying it, then I will hear submissions in that regard. However, if I am out of town or otherwise available, the parties have liberty to bring any application before another Judge or a Master of the Court. If Mrs. Laba remains in Vancouver, Mr. Laba is to continue to pay her the sum of $500. per month for Nicholas's support. If she moves to Regina, that obligation will cease. Each party is to bear his or her own costs. "M.J. ALLAN, J." Vancouver, B.C. M.J. Allan, J. November 16, 1992