When Bad Behaviour by one Spouse can Impact Parenting Time

In the recent case SEV v. TMV, 2018 BCSC 30 (“SEV”), the BC Supreme Court considered whether to grant a father increased parenting time.

In SEV, the two parties, a father and mother, were married and had two children aged approximately 7 and 9 at the time of trial. The parties separated on January 2, 2015, and in January 2017 the children began spending four days and four nights with their mother, followed by four days and three nights with their father.

The Court made several findings with respect to the father’s conduct towards the mother, including that the father sent the mother offensive text messages, communicated with others negatively about the mother, including with co-workers at the parties’ place of work (both the mother and father were RCMP officers), and that the father had two offensive decals on his truck which he acknowledged were directed at the mother – a vehicle which he used to transport the parties’ children while he exercised parenting time.

The father’s conduct was such that he was formally reprimanded by the RCMP for his communications with other members of the Detachment. The father was also ordered not to park his truck on RCMP property until the offensive decals were removed, but, at the time of trial, the father continued to park his vehicle on the street close to the Detachment so he did not have to remove the decals in questions.

In determining how to allocate parenting time, the judge noted that the legal framework for the analysis regarding parenting time is set out in ss. 37-42 of the Family Law Act and s. 16 of the Divorce Act, and that the primary purpose of these provisions is for the Court to consider the best interests of the child or children.

In reaching the decision, the judge wrote:

  • He was not satisfied that it was is in the children’s best interests that the status quo regarding primary residence and parental responsibilities should be altered;
  • The father still harboured significant anger towards the mother which at times was detrimental to the children. This included the father’s steadfast refusal to remove the offensive decals from his truck, and what the judge considered the father’s “intransigence” in communicating appropriately at times with the mother regarding the children;
  • The mother, at the time of trial, was the more stable and reliable parent;

The judge also wrote:

[40]         I would add that, although I was not asked by [the mother]to make a finding that [the father’s] conduct towards her amounts to family violence as defined in s. 1 of the FLA and its assessment per s. 37 and 38, in my view it is very close to the line in that regard. The fact that [the father] continues to drive the children in his truck bearing the decals in question remains an important consideration regarding ongoing parenting arrangements. That is because it would be a simple matter to remove the decals but [the father] has chosen not to do so, notwithstanding his employer’s view of the matter and the needless ongoing embarrassment and discomfort which they cause [the mother]. They will also, at some point, no doubt be the subject of questions from the children.

As a consequence, the judge ordered a shared parenting schedule on a rotating cycle whereby the mother would have parenting time for six days, and that the father would have parenting time for two days thereafter.

 

On separation, a couple must decide how they will share time with their children and what responsibilities they will have in respect to each child. The implications to the couple will depend on whether legal proceedings are under the federal Divorce Act or the BC Family Law Act. A couple may only proceed under the Divorce Act if they are married; however, anyone can proceed under the Family Law Act for most matters dealing with children.

Terminology

Under the Divorce Act, the proper terms to describe parenting rights and responsibilities are “custody” and “access”. The term “custody” refers to with whom the child will live and the rights and responsibilities regarding the care of the child. The term “access” refers to the time a parent without custody, or another relative, is entitled to spend with the children.

Under the Family Law Act, the proper terms are “parenting responsibilities” and “parenting time”. The term “parenting responsibilities” refers to the ability to make decisions for the child. Guardians may share these responsibilities or one guardian may have these responsibilities on his or her own. The term “parenting time” refers to the amount of time that a guardian spends with a child and may also include smaller, or day-to-day, decision making while the child is in the care of that guardian.

Determining Parenting Time and Responsibilities

Parents may reach an agreement as to how they will share responsibilities and how much time they will spend with the children or they may apply to Court to receive an Order. A Court will determine these issues by considering what is in the best interests of the children. A Court may determine that it is in the best interests of the children to give shared rights and responsibilities to both parents, to only one parent or a combination of both. How these issues are divided may affect the amount of child support that each party is responsible to pay.

In many communities, before a parent can go to Court, he or she must attend a Parenting After Separation Course. This course discusses the effect of a couple’s separation on the parents and the children.

 

My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

If you need legal advice on this subject or any other law related inquiry please contact us.