IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	J. v. S.,
	2008 BCSC 549

 

Date: 20080428
Docket: E080237
Registry: Vancouver

Between:

S.J. also known as S.A.J.

Plaintiff

And:

T.G.S.

Defendant

Before: Master Taylor

Oral Reasons for Judgment

In Chambers
April 28, 2008

Counsel for the Plaintiff:	K. Shirley-Paterson
Counsel for the Defendant:	D. Marzban
Place of Trial/Hearing:	Vancouver, B.C.

[1]                THE COURT:  This is an application by the plaintiff for exclusive occupation and possession of the matrimonial home located on Cypress Street in Vancouver, together with a restraining order and designation as the children's primary residence, as well as reasonable and specified access by the defendant.

[2]                The parties commenced cohabitation in about 1993, and married February 10, 1999.  Cohabitation ceased on January 24, 2008.

[3]                The parties occupy the same premises, but the plaintiff makes it very clear in her affidavit material that she no longer wishes to be married to the defendant.

[4]                The parties have three sons, aged 12, nine, and seven.  The family appear to be financially privileged in that the defendant's annual income is well in excess of three-quarters of a million dollars.  They live in a large home in the Shaughnessy area of Vancouver.

[5]                Essentially, the plaintiff says that living in the residence with the defendant is difficult and is causing stress to both her and the children.  She swears to losing her hair and suffering from stomach cramps.  She claims the children are also physically affected by the atmosphere caused when the defendant is in the home.

[6]                The defendant says that the plaintiff has provided no third-party objective evidence in relation to either the plaintiff's claims about her own health or that of the children, which is usual in applications such as the instant case.  He submits that, at best, the plaintiff is self-diagnosing.

[7]                The defendant also claims that the plaintiff is involved in a cult called the Ashtar Command, and that she has involved the children to a minor degree in the cult.  He expresses his concern about the plaintiff's parenting abilities, therefore he has brought a counterclaim for sole custody of the children.

[8]                There is no question that the parties are having a difficult time communicating with each other.

[9]                On an application such as this, the plaintiff has the burden of establishing that the shared use of the home is a practical impossibility.  Rinta v. Rinta (1980), 19 B.C.L.R. 287.  If that requirement is met, then the applicant must show that she would be the preferred occupant on the balance of convenience; Dennis v. Regehr, [1996] B.C.J. No. 237.

[10]            I determine that, on a balance of convenience, the applicant would be the preferred occupant rather than the defendant, but I am not satisfied that the plaintiff has met the test in Rinta that the shared use of the home is a practical impossibility.  However, that does not end the matter, in my view.

[11]            This court has a statutory mandate in no less than three statutes, the Divorce Act, the Family Relations Act, and the Law and Equity Act, to consider the best interests of the child or children in circumstances where custody, guardianship, and access are in issue.  They are definitely in issue in these proceedings.

[12]            The affidavits filed by the parties and relied upon by them in this application are difficult to reconcile.  However, what does become evident is that the children have been placed squarely in the middle of the sniping between the parties.  In essence, the children have been caught in the crossfire.  This is not what this court considers to be in their best interests.  The children should be and must be protected from the extreme animosity and upset which exists between the parties.  It may be that the plaintiff is exaggerating and magnifying the difficulties between herself and the defendant, but she is reacting to the defendant's presence in and around her and, for whatever reason, the children are caught in the middle.

[13]            For these reasons, I deem shared occupancy of the residence on Cypress Street to be a practical impossibility.  Accordingly, I grant the plaintiff's motion for exclusive possession of the property and contents, to commence at 9:00 a.m. on Wednesday, May 1, 2008.  I also order that the defendant shall have reasonable and generous access to the children.  Leave is granted to the defendant to apply if a reasonable access schedule with the children cannot be arranged with the plaintiff.

[14]            I decline to make a restraining order pursuant to s. 126 of the Family Relations Act.  I am of the view that the evidence provided by the plaintiff falls far short of the requirement of a real or apprehended risk of physical harm to the applicant or a child, as set out in Moralis v. Pielak, [1983] B.C.J. No. 896.  Accordingly, that matter is dismissed.

[15]            The defendant has an application before the court for a s. 15 custody and access report.  While s. 15 reports are quite often helpful to the court when there are competing claims for custody, they can also be helpful in determining what living arrangements and access regimes are in the children's best interests.  In all regard, they provide a tremendous assistance to the court when faced with making these difficult decisions.  Accordingly, I see the s. 15 report as being extremely helpful to the parties, rather than being a hindrance.  I therefore order there to be a s. 15 report in these proceedings, the author of which is to be determined by the parties.  However, if they are unable to agree on the psychologist to conduct the inquiry and write the report, then the parties are given leave to apply.

[16]            The previous orders are interim orders only and made without prejudice to either party.  They are to continue until further order of the court or agreement between the parties.

[17]            One word need to be said about primary residence.  Since the children will continue to reside in the Cypress Street residence as their primary residence, the defendant will continue as the joint guardian of the children and will continue to be able to contact the school, teachers, doctors, and the like.  He is not precluded from being a parent just because he does not live in the same residence as they do.

[18]            As success has been somewhat divided, each party shall bear their own costs.

“Master Taylor”