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CUSTODY AND ACCESS - Considerations - Best interests of child - Conduct of parents - Willingness to facilitate access with other parent - Expert report or assessment

Tuesday, February 28, 2017 @ 10:00 AM  

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Appeal by the mother from an order governing parenting arrangements and child support. The parties married in 2006. They were the parents of two girls, ages eight and nine. The parties increasingly spent time apart due to mother's desire to spend time with her parents. In 2010, the mother claimed the oldest child disclosed inappropriate touching by the father. She advised the father she was terminating the marriage and obtained interim without notice orders of sole custody without access. Complaints were filed with police and social services. The father denied any wrongdoing. He consented to an order limiting his parenting time to supervised access of four hours per week. The access regime remained in place until the trial in 2015. The trial judge determined that generous unsupervised parenting time with the father was consistent with the children's best interests. The judge cited expert reports, and preferred the evidence of the father and his witnesses to that of the mother. The trial judge found the mother's credibility was severely impaired. On the issue of support, the trial judge refused retroactive support and ordered ongoing support of $758 based on an imputed income of $50,000, reducible to $558 due to hardship to the father. The mother appealed.

HELD: Appeal allowed to a limited extent. The trial judge did not err in approaching parenting time from the perspective of the father's entitlement thereto, rather than from the perspective of the children's best interests. A contextual reading of the entire judgment supported a conclusion the judge properly applied the best interests test. The trial judge made no palpable or overriding error with respect to the factual finding that the mother's allegations of impropriety and domestic violence were unproven and improbable, and based on embellished and exaggerated evidence in an attempt to demonize the father. The trial judge acknowledged the father's journals describing his sexual impulses were troubling, but did not err in finding they offered no corroboration of the mother's allegations. No error was established with respect to the interpretation and weighing of the competing expert evidence. There was no basis upon which to interfere with the judge’s discretionary orders regarding parenting time, communication, travel, passports, and other matters associated with the parenting time and guardianship. With respect to retroactive child support, errors misstating the applicable factors did not impugn the result dismissing the mother's claim based on hardship to the father. However, the reduction of ongoing support based on hardship flowing from high access costs was erroneous. Child support was accordingly increased to $758 per month.

L.C.T. v. R.K., [2017] B.C.J. No. 223, British Columbia Court of Appeal, P.A. Kirkpatrick, E.A. Bennett and N.J. Garson JJ.A., February 8, 2017. Digest No. 3640-008