[1] On October 13, 2000, Mr. David filed a motion in this court seeking specified access to his two children which would result in either split or shared custody. The motion also asks that he be granted a reduction in maintenance appropriate to such access. There is also a claim to reduce his monthly amounts by a further 20% for 24 months, which apparently refers to a claim that he paid too much child maintenance. Finally, although not expressly stated in the motion, he seeks a reduction in child maintenance based upon a claim of undue hardship. He alleges that he has unusually high expenses related to access and family debts.

[2] I am not prepared to consider the undue hardship claim. It was not framed in the motion and accordingly the plaintiff has not had adequate notice. In any event it seems that this aspect is an alternative to the access issue. If Mr. David succeeds in expanding his access, and if a corollary reduction in maintenance is achieved, then my sense is that he would not pursue an undue hardship claim. I suggested to him that he bring such an application on another day if he believes it appropriate, and with proper notice to the plaintiff.

[3] The parties were married in September, 1981 and divorced in June, 1999. There are two children: Kirk, age 7, and Jamie, age 10. Separation occurred in December, 1996 when the family resided in Fort St. John. It seems matters were reasonably amicable for a time. A shared custody arrangement was achieved and although there is dispute as to whom was the "primary" care giver then, it seems both contributed relatively equally. Both parents were employed and worked complementary hours that seemed to best suit child care arrangements.

[4] Things derailed when the plaintiff arbitrarily moved with the children to the lower mainland area in early 1998. Mr. David obtained an order returning the children to him in Fort St. John. Matters settled down reasonably well over the next few months. Mr. David had primary care for a time but by summer of 1998 it became apparent that neither wished to remain in Fort St. John. Ms. David had employment opportunities in the greater Vancouver area. Her parents resided in New Westminster and she generally considered it best to relocate. Mr. David was given an opportunity to transfer to Victoria, which would accommodate reasonable access to his children. Thus in October, 1998 the parties sensibly reached a resolution of their matrimonial affairs, including matters respecting the children.

[5] Mr. David agreed that primary care of the children should be with the plaintiff but the agreement clearly notes that both parents were to have joint custody and guardianship. A specified access arrangement was set out including a term that Mr. David would have "unlimited access" upon 48 hours notice that he would be in the lower mainland area. Clause 4 at page 3 contemplated a change to this schedule should Mr. David move closer to his children. It states:

[6] In June, 1999 Low J. (as he then was) made an order for divorce, an order for joint custody and guardianship with principal residence to Ms. David. Justice Low also set Mr. David's income at $60,883 and ordered monthly child maintenance payments of $900.77 inclusive of some s. 7 expenses and a separate allowance for tutoring. He dismissed other claims, including enforcement of the access terms in the settlement agreement. At the time of divorce, Mr. David was living in Victoria and Mrs. David in New Westminster.

[7] I accept that Mr. David is a parent with great concern and interest in his children and that he has gone to extraordinary lengths to ensure that he is prominent in their lives. Not satisfied with the problems that living in Victoria created for the kind of relationship he wanted with his children, he persuaded his employer (Ministry of Forests) to transfer him to Surrey for all but Mondays and Tuesdays of each week.

[8] The affidavit from his supervisor, Mr. Grant Parnell, states:

[9] Mr. David moved his principal residence to Surrey in August, 2000 and it is consequent upon these "changes in circumstances" that he seeks the relief requested.

[10] He presently resides in a basement suite at 11240 Wallace Drive in Surrey. Melissa Godfrey, owner of the home, deposed that "the defendant has created a more than adequate living environment for his children". She also stated that Mr. David enjoys a loving and active relationship with his children. The distance between the children's residence with their mother and their school in relation to the Wallace Drive location is approximately 8 and 12 km.

[11] Ms. David does not dispute that Mr. David is a fit and proper parent but on balance she says that it is not in the children's best interest to expand access. I was told of several relationships that Mr. David has experienced over the past few years that resulted in bouts of depression. One, with a Julie Carpenter, was alleged to have involved excessive drinking, driving while intoxicated and some duplicitous conduct respecting a motor vehicle collision.

[12] I did not put much stock in any of those allegations. There appears to be some bitterness on the part of Ms. Carpenter. She took every opportunity to "bad mouth" Mr. David. No one else complained about Mr. David drinking alcohol excessively and there is no reliable evidence that reflects poorly upon his parenting skills.

[13] The main thrust of Ms. David's concern is that Mr. David has no particular plans respecting the children. He does not address just how he will be able to effect access, particularly given past history of vehicle problems and inability at times to take advantage of extended access. There is some merit to this concern but I do not accept that mere "concern" should deny Mr. David his rights as a parent, particularly given the intention and conduct of the parties in the past.

[14] There is no issue that since separation there has always been a joint custody/joint guardianship relationship and/or order. At various times Mr. David has enjoyed the role of primary care giver, although I accept there is dispute about the length of those periods. The parties, by their agreement, contemplated some form of split or shared custody. I acknowledge Ms. David's position that she never "agreed" to it, rather agreed to "consider" it. Nevertheless, they addressed the possibility that should Mr. David move within a reasonable distance, he would be entitled to a more active role in the children's lives.

[15] Mr. David has made some sacrifices to place himself in a position where he can be an active, interested and committed parent to his children. Apart from some vague concerns, upon which I place little or no reliance, Mr. David is a loving parent who is entitled at law to as much access as can reasonably be accommodated, bearing in mind the "best interests of the children."

[16] Presently the children reside with their mother in a home in New Westminster. They attend St. Michael's Catholic school which is nearby the home and their grandparents (Ms. David's parents) offer day care before and after school in order to accommodate Ms. David's employment schedule. She works in North Vancouver.

[17] Mr. David asks that the children reside with him from Wednesdays at 6:00 p.m. to Saturdays at noon and that he also have them on alternating week ends to 6:00 p.m. Sunday. He seeks other relief relative to this increased access, in particular a reduction in maintenance, but I propose to defer that to another day.

[18] I find that Mr. David's efforts to date suggests a committed parent who, if somewhat "general" in his plans at the moment, will quickly develop specifics that will reflect the best interests of the children. He represented himself on this application and did a commendable job, obtaining affidavits and preparing submissions, including preparing a binder with all relevant material. His efforts to date have been concentrated upon obtaining court approval. Once obtained I believe he can develop a workable plan and I will give him the opportunity to do so.

[19] I am prepared to make an order providing for extended access but not to the extent requested by Mr. David. I am concerned about the transportation of the children but, given Mr. David's apparent commitment, I believe he will be able to work out some suitable arrangement. I am not prepared to place any of the transportation burden on the plaintiff. It will be Mr. David's responsibility to pick up the children on Wednesdays and to deliver them to school and return them as required. Although I do not consider myself seized of this matter, I will hear either party should an application be necessary to resolve any aspects.

[20] The extended access will be from 6:00 p.m. Wednesdays to 6:00 p.m. Saturdays. There will be no alternate weekend access as requested. The new access will place the children with Mr. David for three days and three nights each week with one day, Saturday, available as a family day. They will be with Ms. David for the remaining four days and she will have Sunday as a family day. I believe that best satisfies the needs of the children and the intent of the parties.

[21] Ms. David said that if Mr. David is successful in effecting further access, she did not believe her parents would be prepared to provide day care for any time that might be necessary between school ending and Mr. David picking the children up. This would be most unfortunate but I do not believe that is the grandparents' position. They did not depose to that and it seems mean spirited to deny day care, simply because it would create a potential problem for Mr. David. In any event, as a grandparent myself, I maintain an optimistic view that these grandparents will accommodate reasonable proposals for the care of their grandchildren.

[22] I will designate Wednesday, March 7, 2001 as the date upon which the new access will commence. I also direct that there be no reduction in maintenance until April 11, 2001 and thereafter maintenance will be in a sum calculated in accordance with the Federal Child Support Guidelines. I fix Mr. David's income at $61,000 per annum.

[23] The defendant concedes that with overtime pay in lieu of days off, he earns an additional $3,437.45 to his salary of $58,237.29. He formerly worked at part time labouring jobs to supplement his income but no longer does so. He says he would prefer to take the days off and not receive the money so he could spend more time with his children, but given the new access arrangements, he will have reasonable time with the children. Accordingly I fix his income at $61,000.

[24] Low J. ordered the cost of Sylvan Learning as a s. 7 expense and this remains, although it is now in a reduced amount. Mr. David will be responsible for his proportionate share. The remaining expenses deposed to by Ms. David in her affidavit filed December 1, 2000 might be described as within the "basket of goods" charged against regular maintenance. I am not prepared to dismiss any claim Ms. David may have in this regard, rather I will leave to another day (or to agreement between the parties) whether any of the items she lists in her affidavit are properly s. 7 expenses.

[25] I am not prepared to order a retroactive reduction in maintenance as I am not satisfied there has been any overpayment as claimed by Mr. David.

[26] Finally, I would like the parties to consider that as this new access arrangement obviously affects some of the terms of the order of Low J., they should reach some agreement respecting spring break and any other times not set out in the order.

[27] Judgment accordingly.

"R.A. McKinnon, J."
The Honourable Mr. Justice R.A. McKinnon