Date of Release: 8 Feb 95                             No. 1895

                                           ROSSLAND REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:                             )

                                    )

MARGARET ANNE WOODLAND               )

                                    )

                        Plaintiff    )     REASONS FOR JUDGMENT

                                    )

AND:                                 )       OF THE HONOURABLE

                                    )

ROBERT ALLAN CEECO                   )        MR. JUSTICE LOW

                                    )

                                    )

                        Defendant    )

Counsel for the Plaintiff:                      Alex Perehudoff

Counsel for the Defendant:                          Michael Kew

Dates and Place of Trial:           December 5, 6, 8, & 9, 1994

                                          February 2 & 3, 1995

    

1          The plaintiff and defendant lived together for five years. They separated in March, 1992 and reconciled in August of the same year for a couple of months. Communication between them broke down in 1992 and, although it has measurably improved in the past two years, they have been unable to reach agreement as to permanent custody of and access to their daughter, Milana, who was born on September 18, 1990 and is now in her fifth year.

2          Milana has been with her mother, the plaintiff, since the separation but the defendant has remained very involved in her life. He wants an order for joint or shared custody and, failing that, seeks sole custody. The plaintiff wants to have sole custody and is opposed to joint or shared custody. Under a series of orders, she has interim custody.

3          It would clearly not be in the child's best interests to award sole custody to the father. She has been well cared for by the mother since the parties separated and her primary residence should remain with the mother. However, the court must consider whether this is a suitable case for joint or shared custody, the primary residence to be with the mother.

4          Each party is a capable and loving parent. Both have lost sight of the fact that they have essentially the same concerns for Milana's welfare. There is no fundamental disagreement between them about child-rearing methods and goals. There are no stated religious differences and neither has any real complaint about the other's parental capabilities. Because they have become distrustful of each other, they have been unwilling and unable, despite encouragement by the court and the assistance of able counsel during the trial, to reach agreement as to custody and access.

5          It is necessary to do some historical analysis of how the parties lost the ability to trust each other and make sensible joint decisions about Milana's welfare. It should be said at the outset that Milana is, by all accounts, a bright, happy and well-adjusted child with social skills appropriate to her age. She seems to be relatively unaffected by the unfortunate dispute between her parents.

6          The plaintiff is thirty-two years old. She is a school teacher. She comes from a large New Brunswick family. She met the defendant when she was working in Brooks, Alberta as was he. Later they moved to the Kootenay area.

7          The defendant is thirty-one years old. He grew up in Kimberly where his parents still live. His older married sister lives in Nelson and a brother lives in Vancouver. The defendant is an operator at a pulp mill in Castlegar. His annual income is about $42,000 per year. He has suitable accommodation for himself and Milana.

8          The plaintiff now lives with Gerald Popoff in Rossland. She has made a modest start of an in-home child daycare business. If the business does not work out she will return to teaching.

9          She has been living with Mr. Popoff since last August. It appears to be a stable relationship. They plan to marry soon and wish to have a family. Mr. Popoff is thirty-two years old and divorced with two children who live with their mother in Merritt. His access to his children is flexible and as extensive as geography permits. His children were with him for most of last summer. He is employed by a private highway maintenance company and earns $52,000 per year. He and the plaintiff live with Milana in a 2,000 square foot home.

10         The plaintiff and Mr. Popoff are committed to a future together and there is no reason to believe they will not continue to have a stable relationship. I was impressed with Mr. Popoff's attitudes as he gave his evidence. He is not a threat to the defendant's parental relationship with Milana and seems to be capable of playing an important role in bringing about an atmosphere of trust between her natural parents.

11         The plaintiff testified that the defendant during half a dozen confrontations between them, both before and after their initial separation, pushed her or kicked her. The defendant claims that any physical contact during arguments was accidental and he denies some of the incidents entirely. I prefer the evidence of the plaintiff but I think she indulged in verbal provocation somewhat more than she is willing to admit. One pushing incident in particular was witnessed by a teenage baby-sitter who supported the plaintiff's version of the incident and whose evidence was objective and persuasive. Because of that episode, the plaintiff laid an assault charge against the defendant which was dropped as a result of the brief reconciliation of the parties later in 1992.     

12         The plaintiff also complains that during and subsequent to their relationship the defendant was domineering and controlling and was hyper-critical of her. There is no evidence to confirm these complaints, but I am persuaded that they are at least partially true. The defendant is quite rigid and inflexible. In his evidence he exhibited a tendency to be unreasonably critical of the plaintiff. During one answer he gratuitously referred to Milana being "temporarily" relocated in Rossland, which I took to be a comment on the plaintiff having moved three or four times since their initial separation and, perhaps, a negative comment on the defendant's view of her relationship with Mr. Popoff, a view not shared by the court.    

13         The defendant described as difficult an arrangement giving him additional access to Milana last October when this case was bumped from the trial list. He wanted four additional days and there was a compromise at two days. The implication from what he said about that matter was that the plaintiff was being difficult because he did not get exactly what he demanded. Only when questioned by the court did he concede that there had simply been a compromise and he did get extra access.

14         This trial commenced in December and concluded in February. In January the plaintiff took Milana on a trip to Kelowna with the defendant's knowledge. They stayed an extra day and, although there was no interference with his access to Milana, he chastised the plaintiff later for not telephoning him to tell him of that intention. He seems to think that the plaintiff is accountable to him at all times for what she does with Milana. He needs to develop an understanding that the plaintiff is entitled to lead her life separate from him and without his supervision.

15         In late 1993, Cyril Ozeroff, a probation officer, filed a custody and access report ordered by the court in March, 1993. He found the defendant distrustful and difficult to deal with. The defendant told Mr. Ozeroff that his extensive reading on the subject led him to believe that the courts favoured the mother in custody disputes. He did not accept Mr. Ozeroff's accurate advice that each case is decided on its own particular circumstances. He was annoyed that Mr. Ozeroff did not advise him when he planned to interview Milana so he, the defendant, could be present. He even suggested the alternative of observing the interview from an adjacent room through a one-way window. He also refused to give Mr. Ozeroff access to records of his doctor and counsellor. In short, the defendant was distrustful of Mr. Ozeroff and the process and wanted control over both. This attitude of the defendant, as well as his manner in the witness stand, gives some credence to the plaintiff's claims that he tends to be controlling and overly critical.      

          

16         The defendant expresses concern about some instability in the plaintiff's life since their separation. She has relocated several times and has not been responsible about letting the defendant know her plans in a timely manner. The defendant is not confident about her relationship with Mr. Popoff because she had similar tentative plans in 1993 and into 1994 with Donald Campbell. However, that relationship failed for reasons given by the plaintiff in her evidence and confirmed by Mr. Campbell in his evidence. Both of them maturely faced the fact that they had different goals in life, ended their relationship as a consequence and remain friends. Mr. Campbell was supportive of the plaintiff as a dedicated mother and, unlike the defendant, seems to wish her a good future with Mr. Popoff.

17         The defendant reasonably expresses concern about a period of clinical depression suffered by the plaintiff. Her doctor diagnosed that condition in August, 1993. On his recommendation she took medical leave from her teaching position during all of the ensuing school year. She received disability insurance. Difficulties over the defendant's access to Milana and the nature of the relationship between the plaintiff and the defendant were major contributing factors to the depression. However, there is ample evidence, from Mr. Campbell and others, that it did not affect the plaintiff's dedication to Milana's welfare and that the child's well-being did not suffer. The plaintiff had the good sense to seek early medical help. With medication and counselling, the condition was brought under control to the point where, since at least last summer, she has recovered her outgoing and fun-loving personality. She is recovered and there is no concern that her ability as a parent has been or will be affected.

18         Joint custody has been the subject of discussion in many reported decisions and in legal articles. There are cases in which the court has ordered it over the objections of one parent. In each case it is a question of whether joint custody is likely to work and is in the best interests of the child.

19         There will be an order of joint guardianship as both parties have so agreed. I consider joint guardianship to mean joint control over the estate of the child as expressed in Charlton v. Charlton (1980) 19 B.C.L.R. 42 in which Gansner, L.J.S.C. said at p. 45 that the parents:

          ... shall each have a full and active role in

          providing a sound moral, social, economic and

          educational environment for the said children.

          [They] shall consult with one another in plan-

          ning the religious upbringing, educational

          programs, athletic and recreational activities,

          health care (excluding emergency health care)

          as well as significant changes in the social

          environment of the said children. The power

          and authority hereby granted shall not be

          exercised by either of the parties so as to

          frustrate or unduly affect the life of the

          other. The petitioner and the respondent shall

          exert their best efforts to co-operate in

          future plans consistent with the best interests

          of the children.

                               (my emphasis)

20         The defendant's right to be consulted about these matters in Milana's best interests does not carry with it the right to intrude into the plaintiff's life as he has tended to do in the past. It does not give him a supervisory role. He is entitled to copies of report cards as well as to medical information and records as needed. School officials and doctors should be so informed by the plaintiff. He is entitled to participate in any decisions regarding Milana's exposure to religion just as he is required to consult the plaintiff about such exposure he proposes while she is with him. He should also be consulted from time to time about the child's extracurricular activities. Of course, both parents must recognize that the choice of those activities rests increasingly with the child as she gets older.

21         It must be pointed out that joint guardianship does not impose upon the plaintiff an obligation to report to the defendant or consult with him on a daily or weekly basis. These matters come up only periodically and do not involve accounting for what the child does with all her time.

22         I have considered the cases cited by counsel on the joint custody issue. They include: Johnson v. Lemay [1988] B.C.L.W.D. 1035, 9 A.C.W.S. (3d) 34; Heyman v. Heyman (1990) 24 R.F.L. (3d) 402; Mueller v. Mueller (1992) 39 R.F.L. (3d) 328; Tomlin v. Tomlin (1992) 69 B.C.L.R. (2d) 363; Laba v. Laba (1993) 98 D.L.R. (4th) 541; and Fry v. Silkalns (1993) 47 R.F.L. (3d) 169. All are decisions of this court. Each is determined on its own particular facts.

23         After wrestling strenuously with the circumstances of this case, particularly the defendant's inclination to feel unjustly treated by anything less than sharing half of Milana's time, I am persuaded that this is an appropriate case for joint custody. I reach this conclusion for the following reasons:

     (1) The mistreatment of the plaintiff by the defendant was during a lengthy period of high stress in their relationship, before and after their initial separation. There have been no physical incidents in over two years.

     (2) Although a couple of the physical incidents were in Milana's presence it is likely that she was too young to remember them now. They do not seem to have affected her in any way.

     (3) Interim access, including overnight access, has worked quite well for some time. Despite their mistrust of each other, the parties do communicate.

     (4) Because of the defendant's close relationship with Milana and commitment to her, it is in Milana's best interests to increase access. With agreement as to joint guardianship and increased access, joint custody is but a short step.

     (5) Each party drew an extreme line in this litigation with respect to sole custody and the amount of access. In my opinion, joint custody is a middle ground which should not give either party a feeling of having won or lost. I sense that both of them think that way, losing sight of the fact that they have found it necessary to rely upon the binding views of an independent third party whose only concern is Milana's best interests. In the circumstances, joint custody should have the psychological effect of demonstrating to each party that the other's role in Milana's life is to be considered and respected by them at all times.

     (6) Each party is a capable and loving parent. Each places her or his own interests secondary to Milana's interests. In the long run, this augurs well for the workability of joint custody as well as for joint guardianship. If it is needed, the parties have third party assistance available to them.

24         There will be an order of joint custody. Primary residence will be with the plaintiff.

25         The parties are not agreed as to the amount of weekly access, but through counsel during submissions have agreed on the following access:

     (1) Each party to have Milana for two consecutive weeks during the two summer months in 1995, to be increased to three weeks in 1996 and four weeks in 1997 and the years following.

     (2) Each party to spend half of the school spring break with Milana with the transition to be at 5:00 p.m. on the last day of the first half of the break if the break consists of an even number of days, otherwise at 1:00 p.m. on the middle day of the break.

     (3) The parties agree that the defendant will have access for a five day period during each Christmas break. The plaintiff suggested that it end or begin at 1:00 p.m. on Christmas Day. But I agree with the defendant's position that the location of extended family members makes that impractical. Milana spent last Christmas Day with the defendant, so his five day access period will include all of Christmas Day in the even-numbered years and the child will be with the plaintiff for all of Christmas Day in the odd-numbered years.     

     (4) On the child's birthday (September 18th) the defendant will be entitled to spend two hours with Milana during either the noon or evening meal. If her birthday falls on a day during which the defendant is exercising regular access, that privilege will be extended to the plaintiff.

     (5) The defendant will have reasonable telephone access to Milana as will the plaintiff when Milana is with the defendant. The parties agreed to add the words "and generous" but that is a vague term which adds nothing. Telephone calls that are frequent and intrusive may be generous, but they may not, and probably would not, be reasonable. I am not comfortable with the added words and wish them excluded from the order unless counsel wish to seek to persuade me with written submissions that they have some value.

     (6) It will be the responsibility of the defendant at the commencement of each access period to pick Milana up at the plaintiff's residence and for the plaintiff to retrieve her at the end of each access period.

     (7) The defendant will have additional access if necessary in the case of a medical emergency involving a member of his extended family. The plaintiff may intrude upon access for the same reason. I see no need to define the term "extended family".

26         The defendant accepts the plaintiff's plans to take Milana to Disneyland for a week in March of this year. They also agree that the defendant will be permitted to make up any lost access time before or after that week. I do not accept the submission made on behalf of the defendant that the parties each have an extra week every four months for special holidays. The parties should be able to reach agreement about such matters as they arise.

27         There is some speculation that Mr. Popoff's line of work might involve a transfer in the future. Of course, simple courtesy demands that the plaintiff advise the defendant of any such necessity. The order will provide that the plaintiff will give the defendant 45 days' notice of relocation outside the Rossland-Trail-Castlegar area.

28         That leaves the matter of weekly access. The defendant works a cycle of four days on and four days off. In my opinion, his proposal that the child be with him from noon on his first day off to 6:30 p.m. on his fourth day off is not in her best interests. She cannot be expected to adjust to living close to half her time with each parent when they live some thirty minutes driving time apart. She must have some sense of where her primary home is while at the same time having a close relationship with her father. The defendant's proposal involves Milana spending about 41% of her time with him. That would tend to deprive her of an ongoing sense of family and home life.

29         In most cases, access is granted every second weekend with perhaps one day or evening in the interim, in percentage terms perhaps 16% of the time. In the present case, the plaintiff proposes that the defendant have Milana from 9:00 a.m. on the second day to 5:00 p.m. on the third day of his first four day period off work and increasing that by one full day (second to fourth day) during the second four day period off work, alternating thereafter. That amounts to about 23% of the time. I prefer the plaintiff's proposal and weekly access is ordered accordingly.

30         The parties must recognize that Milana's schedule will change appreciably when she starts school. At some point she will have something to say about her schedule and her activities. Weekly access will have to accommodate such changes. The defendant must understand that quality of access cannot be equated to quantity.

31         The defendant will pay the plaintiff $300 per month child support commencing March 1, 1995.

32         Subject to my availability, I will remain seized of any further applications during the next two years.

33         The parties will bear their own costs.

Vancouver, B. C.              "R.T. LOW J."

February 8, 1995.