The Importance of Making a Realistic Request – RA v WA, 2015 BCSC 1828 Overview

A couple is seeking a court ruling on guardianship of and parenting arrangements for their two children, as well as the appropriate amount of child support, among other things..¹

• The mother was born and raised in Canada, and works as a registered nurse.
• She met the father in Saudi Arabia – he was born in the US, but raised in England and Saudi Arabia.
• The parties got married in Canada due to laws in Saudi Arabia that restricted marriage to foreigners.
• They have two boys, born in 2008 and 2010.
• The parties came to the court with very different versions of events, leading to the judge questioning their credibility. They both relied heavily upon evidence coming from text and email communications.
• They came to the court to deal with guardianship and parenting time, their date of separation, child support, and the division of family property.

Why This Decision is Important

Because the relief sought is pursuant to both the Family Law Act (provincial) and the Divorce Act (federal), the federal statute takes precedence.

This means that any parenting order has to align with section 16(10) of the Divorce Act,² and has to maximize contact with both parents, so long as that meets the best interests of the child.

When determining the best interests of the child, the court looks to the factors in sections 37 and 38 of the Family Law Act.³

Most interesting for consideration here is the judge’s determination of which parent should receive guardianship and parenting time as between the two parents, and how they came to that determination.

The judge found some evidence from both parties to be unreliable, including the father’s version of events in regards to an act of family violence directed toward his ex-wife, and the mother’s inconsistent statements between testimony and sworn statements.

There was a noted history of violence from the father, which weighed on the judge’s determination of the best interests of the children.

Further weighing on the father’s request for equal parenting time was evidence that he had communicated with a prostitute and invited them to attend to the family home. The judge cited this act as showing “a remarkable degree of recklessness, self-centredness and poor judgement” by him.⁴

“The parties’ evidence and submissions about the history of the children’s care focused on who had done more with and for the children since they were infants, and the importance of those tasks. This approach appears to be typical in family cases with contested parenting issues. I find this type of evidence, for the most part, unhelpful.”

Paragraph 58, Note 1

Section 37(2)(d) of the Family Law Act intends to elicit information about whether a parenting proposal would be disruptive or emotionally challenging to a child in view of who has taken care of the child up to that point.

This centres the inquiry on what is best for the child.

The mother in this case claimed many examples of the father not being a suitable full-time parent, to which he agreed that he needed time to adjust to being a single parent, and was not seeking immediate joint parenting time for that reason.

Stability was also an issue here, as the children’s mother was on disability benefits at the time of trial and was available to care for the children full time. Their father was working heavy, unpredictable hours, and had made reference to possibly having his mother or sister come from Saudi Arabia to assist him in looking after the children, but the claimant was rightfully reluctant for their influence to be exerted on the children.

The children’s psychologist noted that their “attachment to both parents was strong and healthy” and that they “clearly derive considerable pleasure from being with both parents,” regardless of their differing parenting styles.

As a result, his recommendation was for joint guardianship and a 50/50 split for parenting time. However, at that time the father was not equipped to take on 50% of the parenting time.

Case Details

Family law — Children — Custody and access — Maintenance — Ability to pay

Outcome

The court ultimately found that the children’s father was not prepared to actually have 50% of the parenting time, even though it was what he was asking for.

The mother was given sole custody and guardianship of the children, and their primary residence was to be with her. However, both parents remained guardians, and parental responsibilities were allocated as such. The mother was given exclusive responsibility for some specific items.

The judge specifically cited the father’s personal circumstances as “not being conducive to being able to provide primary care to the children 50% of the time,” and noted that “no substantive plan has been put in place to change that situation.”

Key Takeaways

• In this contested parenting arrangement, the judge took the evidence and testimony of both parties seriously.
• Emails and texts were included in evidence and given weighty consideration.
• Although the father asked for 50% of the parenting time, the judge found that, realistically, he wouldn’t be able to handle that, and the decision reflected that finding.

References

1. RA v WA, 2015 BCSC 1828 (CanLII)
   https://canlii.ca/t/gljln ↩︎
2. Divorce Act, RSC 1985, c 3 (2nd Supp)
   https://canlii.ca/t/566hk ↩︎
3. Family Law Act, SBC 2011, c 25
   https://canlii.ca/t/566g8 ↩︎
4. Supra note 1 ↩︎

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