IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Cheung v. Cheung, |
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2018 BCSC 430 |
Date: 20180226
Docket: E54946
Registry: Kamloops
Between:
Tierre Susanna Marie Cheung also known as Tierre Susanna Marie Bekker
Claimant
And
Kingsley Joe Cheung
Respondent
Before:
Master McDiarmid
in Chambers
Oral Reasons for Judgment
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Counsel for the Claimant appearing by teleconference: |
K. Beazer |
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Counsel for the Respondent: |
D. Komori |
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Place and Date of Trial/Hearing: |
Kamloops, B.C. February 26, 2018 |
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Place and Date of Judgment: |
Kamloops, B.C. February 26, 2018 |
[1] THE COURT: This is an application initially filed September 21, 2017, by the respondent for a change in parenting. The particular application has been modified somewhat from the time it was initially brought because of a change in the respondent’s circumstances, namely his attendance at a welding course (see paragraph 6 of his Affidavit #7). The application was set initially for October 2, 2017. It was heard in part on November 27, 2017. On that date it was adjourned in the expectation that I could review a s. 211 report, which the parties and their lawyers hoped would be available before Christmas of 2017, but which still has not been prepared. The trial is set for March 26, 2018, in Williams Lake, four weeks from now.
[2] In giving my reasons I reserve the right to add specific references to the evidence and specific references to case authorities. I will summarize the law which is set out in the Divorce Act. Firstly, s. 16(8), which should be reproduced in its entirety if a transcript is ordered. It obviously refers to my -- I will read it in here. With the heading “Custody Orders” it says:
In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
In this case there are two children. They are quite young: Abel, born July 15, 2014, so he is three and a half. Ruth was born May 18, 2016, so she is approaching two years of age.
[3] Subsection (10) of s. 16 of the Divorce Act is as follows:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[4] In this case there are concerns expressed by the claimant about family violence. Those allegations are generally denied by the respondent. Both counsel point out, I think correctly, that their clients have both made attempts to exercise control. That sort of conduct is not always in the children’s best interests.
[5] The law in general is that the status quo should be maintained pending trial. Given the ages of the children, I doubt that which church they attend pending trial will have a long term effect; however, the children did attend the church where the respondent now attends. There is some basis for the respondent’s concern that the claimant’s actions are causing, he says, alienation. I do not think that is fair, but there is a potential for less than what is desirable contact between the children with their father. The claimant’s actions in removing the children to the Kootenays was not in their best interest. She is affected by the respondent’s behaviour, which she views as family violence, which may not in fact amount to family violence. That issue will no doubt be dealt with at trial. The initial position by the respondent in seeking to have children until past their normal bedtime did not help the situation. The claimant’s response to that issue was, in my view, accurate and appropriate. Fortunately, the respondent has seen the wisdom of the claimant’s position with respect to that issue.
[6] I make the following orders. Firstly, the application for the Ministry of Children and Family records is adjourned.
[7] The parenting time is varied as proposed by Mr. Komori in his submissions: Monday, Tuesday and Wednesday, 3:30 p.m. to 6:30 p.m., every second Sunday commencing March 4th from 9 a.m. till noon; every second Saturday, commencing March 10, from 9 a.m. until noon.
[8] In addition, and I appreciate there is no evidence on this, but Ms. Beazer raised a concern, and it is not in affidavit and the respondent has not had an opportunity to respond, but I am making an order pursuant to s. 225, a conduct order that neither party is to attend the church regularly attended by the other. That order is to be in effect until reasons for judgment are delivered after the trial and may be varied on notice.
[9] Ms. Beazer, I thought you did an exemplary job in leaping into a file that had a lot of history and I thank you for your submissions.
[10] The order can be signed by scanned counterpart signature and submitted to me electronically or in the usual course. Thank you.
[11] MR. KOMORI: Costs in the cause?
[12] MS. BEAZER: Thank you.
[13] THE COURT: The costs matter from the initial application was adjourned and adjourned again. That issue needs to be dealt with by the trial judge and I think that is the most -- do you have any submissions on that, Ms. Beazer?
[14] MS. BEAZER: No, Your Honour. That seems reasonable in the circumstances.
[15] THE COURT: Right. Thank you. So costs are adjourned to be dealt with by the trial judge.
“Master R.W. McDiarmid”
MASTER McDIARMID