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FEB. 18, 2004
In
the Supreme Court of British Columbia
Citation: Wood v. Wood, 2004 BCSC 225 Date: 20040218 Docket:
E021298 Registry: Vancouver
Between:
Alexander Murray Wood, Plaintiff
and
Ayako Wood,
Defendant
Before: The
Honourable Mr. Justice Hood
Reasons for
Judgment
Date and Place
of Trial/Hearing: February 9, 10, 11, 2004
Vancouver, B.C.
[1] This
is a matrimonial case. The primary issues are whether the plaintiff
should have sole custody and guardianship of the two children of the
marriage, and the formulation of an access regime having reasonable
balance and certainty, and being in the best interests of the
children.
[2] Other
matters, including child support, the calculation of the defendant's
income, the payment of extraordinary expenses and so on have not
been dealt with, due mainly because of the lack of cooperation by
the defendant. They were adjourned.
[3] When
the trial commenced, Ms. Robin appeared on behalf of the plaintiff.
The defendant did not appear.
[4] The
plaintiff is a Richmond school teacher. The defendant is a flight
attendant with Air Canada. They met in the early 1990s when the
plaintiff was teaching English as a second language in Japan where
the defendant was a citizen. They met and eventually married. He
returned to Canada and she followed him later as a landed immigrant.
She has been living in Canada for 11 years and speaks English.
[5] The
couple have two children, a son Alexander Takara Maniwa-Wood, born
May 21, 1994, and a daughter, Manami Sheona Maniwa-Wood, born
January 6, 1997.
[6] At the
commencement of trial Ms. Robin advised me, and it is evident, that
since the couple separated, the defendant has effectively refused to
cooperate with the plaintiff and to communicate with him in a proper
or meaningful manner. As a result he has had to obtain some nine
orders of this Court; including three orders permitting the
defendant to take the children to Japan on vacation.
[7] When
the parties separated in April of 2002, the defendant disappeared
with the two children for about one week. She returned once she was
served an ex parte order dated April 24, 2002, the effect of which
was to require the return of the children to the plaintiff's
residence. By a consent order dated April 30, 2002, the parties were
granted interim joint custody and guardianship of the children. The
order also provided for specified access-by the plaintiff, which was
effectively a one week on and one week off or shared parenting
scheme.
[8] By a
further order dated November 6, 2002, the parties continued to have
interim joint custody and guardianship, with the primary residence
of the children being with the plaintiff. The order contained basic
provisions with respect to the care and parenting of the children
usually found in separation agreements. Significant decisions
pertaining to the children were to be discussed. In the event that
the parties could not agree with respect to a major decision, the
plaintiff had the right to make the decision.
[9] The
most important provisions in the order, from my perspective, were
that the defendant was required to produce to the plaintiff her
monthly work schedule as soon as reasonably possible but in any
event within 48 hours of receiving it; that upon receiving the
defendant's work schedule the plaintiff was required to draw a
calendar setting out parenting time for each parent for the coming
month, the primary aim being to see that the children spend equal
time with both parents if possible. It will be seen that the
defendant never did effectively follow or abide by this order.
[10] The
children's access to the defendant has been the main problem facing
the parties, and which has caused the plaintiff to continue with
these proceedings. She simply will not cooperate with him. When it
comes to the children's access to her and at times even with the
plaintiff, she is obstructive, rather than a facilitator. The
plaintiff is concerned with the financial drain of his legal fees,
having to be in court on numerous occasions and, more importantly,
with the defendant's erratic and stressful access to the children,
which she imposes on them and which is clearly not in their best
interests.
[11] In
brief, the problem is that none of the access regimes worked out by
the plaintiff, on the basis of whatever information he received from
the defendant, has enjoyed any success. She will not cooperate with
him. She does not. provide him with her monthly work schedule as
required by the November 6, 2002 order of Madam Justice Martinson.
She does not abide by court orders. when the defendant has the
children she will suddenly appear on the plaintiff's doorstep saying
that he must take the children because she has to go to work or for
some other reason. Alternatively, when he has the children she will
arrive at his doorstep and simply take the children for her
parenting time because she is available. It will be seen that on
these and most occasions the plaintiff gives into her rather than
add to the observable stress she has already placed on the children.
[12]
Lately the defendant has begun communicating with the plaintiff and
with Ms. Robin in Japanese. Neither the plaintiff nor counsel speak
or read Japanese. In this regard, the defendant emailed Ms. Robin at
1:38 a.m. on the morning of trial. The email was in Japanese. In any
event at 9:30 a.m. Ms. Robin emailed the defendant reiterating that
the trial was to commence at 10:00 a.m. that morning. She also left
phone messages at the defendant's number. However, she was unable to
communicate with the defendant.
[13] Counsel
also advised me that she had obtained a rough interpretation of the
defendant's email in Japanese which was sent early that morning.
Roughly translated it said that she was waiting to hear from
counsel, "tell me when to appear and here is my phone number". I am
unable to ascribe any air of sincerity to the email or to the
defendant's conduct.
[14] I then
determined that the action should proceed to trial notwithstanding
the absence of the defendant. I am satisfied that she was served
notice of trial through her counsel who, I am told, recently
withdrew because he was unable to obtain instructions. I am also
satisfied that it is more likely than not that she has received the
emails and the telephone messages and knows that the trial is
proceeding; that she has no intention of appearing. In layman's
terms she is playing games, including the use of the email in
Japanese. She continues to fail to cooperate, and to communicate in
a proper manner with the plaintiff.
[15] I should
have noted earlier that on two occasions the defendant failed to
attend for examination for discovery; that on January 16, 2004,
Master Donaldson ordered that she attend for examination for
discovery on January 21, 2004. The defendant did not attend for the
discovery, and communicated no explanation for her failure to do so.
She was served with notice of a pre-trial conference, and again she
did not attend. At the conference on February 2, 2004, Mr. Justice
Curtis ordered that the defendant personally attend at the trial
scheduled to commence Monday, February 9, 2004, at 10:00 a.m. Again,
the defendant did not appear and has provided no explanation for
failing to do so.
[16] In these
circumstances I directed that the trial proceed. I agree with the
plaintiff's position that the defendant has had ample knowledge that
the trial would proceed on Monday, February 9, 2004; and more
importantly, that the unsettling, stressful and uncertain access
forced on the children by the defendant is not in their best
interests and should be stopped. Further, delay is of no benefit to
the children and it is unlikely that any delay will change anything.
(I) The
Plaintiff's Evidence
[17] The
37-year old plaintiff is a teacher and teaches in Richmond. His
parents live nearby on one of the Gulf Islands. He has aunts and
uncles in Richmond and his children have access to their extended
family on a monthly basis.
[18] He has
entered into a new relationship with another teacher with whom he
lives. Ms. Whitelaw is 36 years of age. She has a very positive and
caring relationship with the children who respect her. The plaintiff
and Ms. Whitelaw have plans to marry.
[19] The
plaintiff said that when the defendant first came to Canada she
studied English at Vancouver College. Initially she spoke both
Japanese and English to her son after he was born in 1994. After
their daughter was born in 1997, she only spoke Japanese to the
children.
[20] He
believed that things began to deteriorate after their son was born.
The defendant did not seem to be able to care for him. She was
always too tired or too sick. He therefore arranged for their son to
be looked after in a daycare facility two or three days a week. This
continued after the daughter was born until she was about 18 months
old when the defendant returned to work. During the year and a half
that the defendant did not work, she looked after the children, when
they were not in daycare, until the plaintiff returned home from
work. The daycare facilities were still being used at least
part-time for the son.
[21] The
plaintiff says that when he returned from work he would take over.
He did his chores, bringing the children with him. He cooked their
dinner. He put them to bed. He got them up in the morning and
dressed them. The defendant then drove them to and from the daycare
facility, and school once they were of age.
[22] After
the defendant returned to work, they had a live-in nanny who was
there for about three years from 7:00 a.m. to 4:30 p.m. Monday
through Friday. At 4:30 p.m. he would come home from work and take
over as described earlier.
[23] After
the nanny left and they were both working fulltime, he would take
his daughter to daycare and his son to school, on the way to work,
and he would pick them up on the way home. She would do so if she
was not working. He continued to take over, and look after the
children, when he was at home, as described earlier. He did the
shopping, the house cleaning, and he cooked dinner. He got the
children up and ready for school, fed them and so on. He also
arranged for the children's medical and dental appointments. When
asked what the defendant did in the evenings he said that basically
she seemed to enjoy sitting on the couch crossstitching and being on
their computer. When asked whether she ever engaged with the
children, he said that periodically she would have dinner with them
but that was pretty well it. He said that she "took little
responsibility in terms of taking care of the children".
[24] 1 will
pause at this point to observe that I am satisfied that the
children's primary caregiver has always been the plaintiff. I am
also satisfied on the evidence that he is a good, loving and caring
father who is only interested in what is in the best interests of
the children. The defendant has made no effort to communicate with
or see the children since December 25, 2003. Since then the children
have lived in a stable and happy environment with the plaintiff and
his partner, Ms. Whitelaw.
[25] He
describes their ten-year old son as a cautious, careful and thinking
boy. He is alert to what is being said and what is going on around
him. He is sensitive and tries to resolve problems of others. In
particular, he is aware of the conflict between the parties and he
takes it on himself to try and resolve them. He constantly explains
his mother's conduct when it is inappropriate. He makes excuses for
her. However, his relationship with his mother is not good. She is
critical of him. She was quite emotional over the fact that the son
was slow to learn to speak. She blamed this on the stress that she
experienced when she was carrying him, and which she blames on the
plaintiff. The plaintiff is also concerned that the defendant tells
their son lies about him. In any event, the son is doing well in
school.
[26] He
describes the daughter as more outgoing, the opposite of the son.
She excels in school as well. At the moment she can read and write
in both English and Japanese. At present, the children go to Lord
Byng Elementary School in Steveston. The school is just across the
street from the defendant's residence, the former family home. His
present plans are to have the children remain at that school until
he is able to obtain a permanent residence and determine what school
is best for them.
[27] The
plaintiff says that he promotes the children's Japanese heritage. He
takes them to Japanese school every Saturday and sees that they do
their homework. He talks to them about their grandparents and the
value of their heritage.
[28] The
present problem involves the defendant's sporadic access as
described above. He believes that the children should see both
parents as much as possible. All of his attempts to work out an
access regime for the defendant, based on what information he has
been able to obtain from her with regard to her work schedule, have
failed. The suggestion is that things could be better if she was
more cooperative in setting up and in exercising a proper access
regime.
[29] He is
also concerned about the defendant belittling him with the children,
and the fact that she tries to communicate with him "using the
children". He described an incident where the children were having a
dance recital which they had worked towards for about a year. The
defendant insisted that he must not come to the recital or the
children could not go. He could not persuade her to the contrary so
he did not go.
[30] He
recalled an occasion when his daughter told him that she hated him
because her mother hated him. when he tried to explain the situation
to her, his son said "no, mom is mad at you". He recalled another
incident when he told his son to eat up and be big and strong like
his dad. His daughter told him that the son "did not want to be like
you - you are a liar".
[31] On the
second day of trial, counsel advised me of her further attempts to
communicate with the defendant by email and by telephone which were
unsuccessful. The trial continued.
[32] The
plaintiff recited problems which he encountered after the consent
order dated April 30, 2002, of Master Patterson was obtained. He
said again that he was concerned about the welfare of the children
as a result of the lack of any form of reliable and workable access
regime for the defendant, as well as the defendant's conduct in
front of the children. The problems continued throughout the summer
of 2002. When asked "why not just go to court", he said that at the
time he did not think a court order would be helpful in the
circumstances. What he wanted was for the defendant to take
responsibility for caring for their children when she was in town,
as he would do when he was not working.
[33] In
September of 2002, he had his counsel set up a judicial case
conference with the hope that a reasonable access regime could be
worked out. At the conference before Madam Justice Martinson, an
agreement was reached, the provisions of which were set out in a
consent order, that the defendant would establish an email account
on the Hotmail to be used for communication between the two of them
with regard to the children. The defendant was to forward the
address to him as soon as possible. In fact, he received it three
weeks later by mail from the defendant's counsel. The pre "@” part
of the address was written in Japanese. He found out later that it
meant "for the person that I hate". It was also agreed at the
judicial case conference that they would only use the phone for
emergency purposes. In this regard, he agreed that he was phoning
her quite often in an attempt to obtain information from her about
her work schedule. on the other hand, she was phoning him
repeatedly, generally in the middle of the night, when she would
either start yelling at him, voicing previous grievances during the
marriage, or she would just hang up.
[34] Matters did not improve. Hence, the plaintiff then arranged
for a further "four-way meeting", a meeting between the parties and
their counsel. During this meeting they discussed how the defendant
would provide him with information which would enable him to draw up
an access regime on a monthly basis. one was worked out for the
month of October. However, immediately it was worked out the
defendant did not abide by it.
[35] The
next incident he recalled occurred in October on the Thanksgiving
weekend when he had the children. He had made arrangements to take
the ferry to Gabriola Island so that the children could spend the
weekend with his parents. When he arrived at the defendant's house
on Friday afternoon as scheduled, she told him that she in fact was
not working the next day, and that she intended to keep the children
until she had to go back to work again. When he told her that he had
made arrangements to spend the weekend with the children at his
parents, she told him that he needed to be more fluid, that he
should go away or phone the police. His daughter then yelled through
the door slot "go away", and so he left.
[36] On the
following day, a Saturday, he went to Victoria for the day with a
friend. Since he did not have the children he wanted to preview a
film to see if it was appropriate for his class. Since the defendant
had not given him any indication when she was going back to work
(and he would have to take the children), he left messages for her
by phone and by email to see if she would tell him. He did not
receive any response. When he got home, he found that she had left
him a phone message that she would be dropping the children off at
his apartment at 9:15 a.m. the next morning, which was a Sunday,
whether he was there or not.
[37] He was
not sure what she would do so he got the early ferry home the next
day and arrived home at 9:00 a.m. When he phoned the defendant she
told him to come and get the children.
[38] When his
request for a further four-way meeting was denied by the defendant,
he then asked his lawyer to apply for interim sole custody and
guardianship. At that hearing, Madam Justice Martinson continued the
earlier order that the parties have joint custody, as opposed to
what he had asked for. I have already reviewed the important
provisions of the order, which was a consent order, with particular
regard to the regime worked out by Madam Justice Martinson: the
defendant was required to provide the plaintiff with information
regarding her work schedule. The plaintiff was then required to make
up the access regime, deliver it to her for her comments and then
integrate her comments with his access regime. The aim was to see
that the children spend an equal amount of time with each parent if
possible. In addition the order provided, for the first time, that
the children's primary residence would be with the plaintiff.
[39] It
appears that little changed as a result of the order. It provided
that she would be allowed to take the children to Japan for a
holiday pursuant to the terms therein set out. When she returned
from her holidays, the access problem returned as well.
[40] She
returned on a Friday and she kept the children until Sunday. The
order required her to take the children to Japanese school on
Saturday morning and to register them for school. She did neither,
that is she did not take them to the school and she did not register
them.
[41] On the
following weekend he had the children. He attended an educational
conference at UBC and left them with his mother. On the Friday, the
defendant phoned him saying that the children needed to go to the
Japanese school on the following Saturday morning and that she had
not registered them. When he told her that neither he nor his mother
could take them to the school that morning, she became very agitated
and told him that he was in breach of the court order. Eventually
she hung up on him.
[42] Later
when he, his mother, his sister and the two children were getting
ready to eat dinner the defendant arrived at the sliding glass door
of their kitchen where they were just-sitting down to dinner. Again
the defendant was extremely agitated. She began yelling at him and
at his mother, demanding that he take the children to the Japanese
school the next day. When he told her again that neither he nor his
mother could take the children to the school that morning, she told
him that she would take the next day off and she would take them to
the school. At that time the children were in their bedroom where
they had been taken by Ms. Whitelaw. The defendant began yelling at
the children to come out so that she could take them to the Japanese
school, and out they came.
[43] The
defendant was still agitated and began looking around his apartment.
When she saw anything which they had shared when they lived together
she demanded that it be returned to her. He says that when he left
the family home he took only a few items with him. When she spotted
some cookbooks she demanded the right to take them. He told her that
she could not have everything, and that the books were staying.
[44] The
defendant then told their daughter to go to the book shelf, pick up
the books and bring them to her. He then told her that she could not
do that with their daughter, that if she wanted the books so badly
she could take them and leave.
[45] The
defendant then went into the kitchen, stacked up a pile of books and
put some china serving dishes (which he had inherited from his aunt)
on the top of them. He said it was obvious that there was no way
that she could carry them out in that fashion and that once outside
the door she dropped the books and smashed all of the china.
[46] He
said that because the children were watching he stayed calm, and
went out to help the defendant pick up the books. In the meantime,
the children were going in and out of the house following their
mother's instructions as to what items she wanted them to bring. At
one point in time he was using flashlight to try and find an object
on the driveway which their son had dropped. During this time the
defendant stood by her car yelling "I hate you, I hate you".
[47] The
plaintiff said that he finally got the children and what they needed
into the vehicle, while staying calm. While he was saying goodbye,
the defendant "took off" and he had to jump back in order to avoid
being hit by the car. When asked how the children were reacting
throughout this scenario he said that their faces were simply blank;
that they had no idea how to deal with it.
[48] The
plaintiff noted that Martinson T.'s order also provided that they
were obligated to speak to each other with regard to any major
matter or decision which was required. When his son needed
orthodontic work for an unsightly front tooth which was sticking
straight out, he made an appointment with an orthodontist, which
involved a six-week delay, and advised the defendant about it.
Because the appointment was during a time when the defendant had the
children, she refused to take their son to the dental appointment.
Her position was that any appointments he made had to take place
during a time when he had the children. The result was that there
was a delay of several months before the boy had the unsightly tooth
removed.
[49] She
would make decisions on her own as well, but of a different kind. on
one occasion she signed the children up for riding lessons without
consulting him. She told the children about it and they were very
excited. She then told him to pay for the lessons or she would stop
them and tell the children that their father would not pay for them.
[50] A
similar incident occurred involving a kitten. on his birthday in
December of 2002, the children arrived at his home with their
present for him, which was a kitten. The mother knew that he was
allergic to cats or knew from living with him that he did not want
to have a cat in the house. He had to tell the children that he
could not keep the cat and they were really upset. He took the cat
back to the store and mailed the $200 credit voucher to the
defendant.
[51] The
plaintiff says that the defendant never followed the system set out
in the November 6 order to enable the parties to work out an access
regime for the coming month. She never gave him her work schedule.
while at times she did give him some information, often it was
incomplete or inaccurate.
[52] She
would also change the access arrangement without any notice to him.
Because of the nature of her work she has guaranteed days off each
month. However, even those days were not guaranteed. He recalled an
incident when she left a message on his phone that she wanted him to
pick up the children because she was going to have to work on her
guaranteed days off. He tried to phone her and find out whether she
was working or not. He said that rather than give him that
information, she phoned his aunt in Richmond, told her that he would
not pick up the children when he was supposed to, and dropped them
off at the aunt's.
[53] There
were, according to him, many other similar incidents. He recalled
one when she had the children on her guaranteed days off. He was
helping a friend move and happened to be home. She drove into the
driveway, dropped the children off and left. on another occasion
when she was supposed to take the children, she phoned and asked to
speak to them. When the children hung up, they told him that their
mother was not coming to pick them up, "she was going off with a
friend".
[54] He next
recalled at length an incident which occurred in October 2002. The
children were at home with him. They were going to go with their
mother on the following day. He had made plans to go to a friend's
home for dinner and the children were looking forward to it because
their friends had children as well.
[55] Shortly before getting ready to go, the defendant phoned to
say that she was coming to pick the children up immediately. He did
not feel that he could leave with the children before she arrived.
Further, the son knew that she was coming. He thought the best that
he could do would be to meet her outside and tell her that he would
bring the children over after dinner. The son suggested that they
should do "what mummy wants". He told them no, they would go to
dinner and he would take them over to her place after.
[56] When
the defendant arrived, he went outside to talk to her. She walked
right past him to the sliding glass door of the kitchen. She told
the daughter to open the door and she did. The defendant walked into
the kitchen and then brought the daughter outside. He told her then
that she could not do this to people who were expecting them for
dinner; "you just can't take Manami" (the daughter) "like that".
[57] She
was very agitated and he knew that there was nothing he could do.
She then said "fine, I'll just take Manami". The son was standing
right there, and the plaintiff told her that she could not leave him
behind. The plaintiff observed that here was a young boy who was
looking after his mother and being abandoned by her. The boy was
devastated by the fact that his mother would leave without him.
[58] He
then suggested to the daughter that she should go back into the
house and get her brother, and she agreed. When he attempted to help
the daughter out of the car, the plaintiff grabbed her daughter's
arm and would not let her out of car. The daughter then began to
cry. By this time the son had come out of the house and the
plaintiff was able to put him in the car, suggesting that everything
was fine in order to calm the boy.
[59] The
plaintiff went on to recite a number of other similar incidents
involving even more disturbing conduct by the defendant in the
presence of the children and causing them to cry, and of the
plaintiff attempting to pacify the defendant and protect the
children as best he could; these incidents occurred at the
plaintiff's premises, at the children's school and at the mother's
home on Christmas day, and which I do not propose to detail. It is
suffice to say that the incidents are simply further evidence of
misconduct on the part of the defendant, generally in the presence
of the children, conduct not in the best interests of the children,
conduct demonstrating that joint custody and guardianship has not
and can not work.
[60] The
plaintiff was asked how the children were during the past six weeks
since they last saw or heard from their mother. He said that the
consistency of their lives has had a stabling effect, and they seem
more settled. However, not knowing what their mother is doing has
caused a lot of anxiety to them. He knows this because they ask
about her. At one time she apparently emailed her lawyer that she
was enroute to Japan. When the children were told this the boy
expressed concern that she was not coming back.
[61] The
children were introduced to Ms. Whitelaw in the summer of 2002. They
all moved in together in the summer of 2003, after the plaintiff had
consulted with a counsellor on how to manage the separation in the
best interests of the children, and how to introduce a new person
into the family. He says that the children have a wonderful
relationship with the Ms. Whitelaw. He describes her as a very
thoughtful and caring person who is really concerned about the
children. The daughter has demonstrated her affection for Ms.
Whitelaw by hugging her, saying she is her best friend and so on.
The boy is more reserved but clearly enjoys her company.
(II) The Evidence Of The Plaintiff's Mother, Marilyn Wood
[62] The
plaintiff's mother, the grandmother of the children, Marilyn Wood, a
retired teacher, described a very strained relationship with the
defendant, which began soon after the boy, Takara, was born. The
witness had promised the defendant's parents, at the wedding in
Japan, that she would look after the defendant but she found this to
be "quite a bit of work". In the early years they all lived in the
same house. The witness and the grandfather lived upstairs while the
parties lived downstairs. The defendant's English was not strong
then and of course she was new to the country. The witness felt that
the defendant became depressed after the daughter, Manami, was born.
She said that from that point on the defendant "withdrew from us,
not wanting much to do with me and my husband or any of the family."
The defendant did not encourage their relationship with the
children. She felt that the defendant came to hate her and in fact
she has told her so on a number of occasions. While they lived
upstairs there could have been daily contact but there was not.
[63] When
asked how she felt the children were doing she said that she worries
about them. She said that the boy, being the oldest, and who was
closer in the beginning, seemed to take on the responsibility to
care for his mother since he was about two years old. He is the more
serious of the two children and wants to protect his mother. She did
not feel as close to the daughter who was "very distant from me"
although she "bounced along in life." She sees the children more
often since the separation, and the relationships are getting much
better. She feels that her initial strained relationship with the
children was a result of the defendant's attitude toward her, which
she described as "an intense dislike for me."
[64] She
was asked if she had ever witnessed any angry outbursts by the
defendant in the presence of the children. She described the
incident which occurred on November 29 at the plaintiff's home when
the witness, her daughter, the plaintiff and the two children were
getting ready to go out to dinner at some friend's home. It was
early because it was a school night. This was the incident when the
defendant forced her way into the kitchen, took the books and china,
and eventually the children, and left. When asked what the children
were doing when the defendant was in the house she said they were
"just moving around in nervous energy." When they left she described
the children going out the door "stiffly with little masked faces -
like little robots walking along behind the mother." At the time she
was concerned about the children getting into the car with the
defendant because she was clearly in a rage. When she asked the
plaintiff about it he said that it would be okay once the defendant
got out of sight.
[651 She tries
to promote the defendant's relationship with the children, although
there is not much that she can do. talks to them about their
grandparents and their heritage, about the Japanese school and so
on.
[661 Mrs. Wood
feels that the children have become more settled, "a little easier"
since December 25 when they last saw their mother. The boy will now
give her a hug sometimes, and the daughter always would in recent
years. She describes her son as a loving, caring father. She feels
that he and Ms. Whitelaw have a very good relationship between them
and with the children. She said that Manami "glues herself to Ms.
Whitelaw". She describes Takara's relationship with Ms. Whitelaw as
developing because he is not getting an attitude from his mother.
The Evidence of the Plaintiff's Companion, Ms. Whitelaw
[671 Ms.
Whitelaw also testified. She is a 35-year old well qualified
teacher. She has known the children since 2002, and has lived with
them for some time. She has witnessed the defendant's conduct in the
presence of the children and described it as "heart breaking at
times." She describes the plaintiff as being patient, kind and fair
in all of this. It is a difficult situation. On the other hand, she
has an emotional bond with the children and they have many nice
family times together. Manami is quite attached to her and calls her
her best friend. Takara is also attached to her, although he is
harder to get to know. She sits down and talks to both of them
before they go to sleep at night. On occasions Takara will hug her
and ask her not to leave.
[68] She
was present on May 3 during the car alarm incident, one of the
incidents which I have not detailed. She described the defendant as
being very very angry and agitated. Because of this she took the
children to the bedroom. She also described how upset Takara was,
and wanted to go out and "'maybe stop things".
[69] She
was also present on July 7, 2003, another incident which was not
detailed, when the defendant arrived unannounced, stood on their
neighbour's property and began yelling to Manami to come out and go
with her. When she asked the defendant to leave she said "fuck you"
and called her a bitch. The defendant knocked on all the windows and
doors and finally left. Manami had gone to her bedroom.
[70] The
defendant returned to the plaintiff's home that evening, the
neighbours became involved and the police were called. I need not
deal with the incident further.
[71] When
asked if she noted any changes in the children since they last saw
their mother six weeks ago she said that they seemed much more
settled, although they still want to know where she is. Manami sent
the defendant an email in Japanese asking "Mommy are you home yet?"
She did not receive a response. Manami wonders why. The witness
feels that Manami is now more concerned and not as carefree as she
once was.
[72] When
the trial resumed the following day counsel told me that further
attempts to communicate with the defendant were unsuccessful.
(IV) Should The Plaintiff Have Sole Custody And Guardianship Of
The Two Children?
(73] I have
no doubt that the answer is in the affirmative. I am satisfied that
the plaintiff has always been the primary caregiver for the two
children, and that in any event it is in their best interests that
he have sole custody and guardianship of them. The plaintiff is a
loving and caring father whose only interest is in that which is in
the best interests of the children, and he has the means and skills
to meet their needs in every way including love and affection, their
emotional well being, education and training. He provides for them
alone, but even more so together with Ms. Whitelaw, a stable, safe
and secure environment in which to be nurtured.
[74] On the
other hand, the defendant has demonstrated that she is not willing
or capable of parenting responsibly and in the best interests of the
children. All efforts by the plaintiff to share parenting with her
have failed. Her own interests take precedence over those of the
children. She cannot cooperate with the plaintiff sufficiently to
make important decisions or to take appropriate steps in the
children's best interests. She will not even communicate with him in
a manner appropriate to her duty. She simply does what she wants,
generally contrary to prior arrangements and even to orders of this
Court. She undermines the plaintiff and his efforts on behalf of the
children and on behalf of her as well, and contributes nothing in
return. Her injurious misconduct in relation to the children must
come to an end.
(V) Is
An Access Regime Possible?
[75] The
real problem here is to work out an access regime which will provide
the children with maximum contact with their mother and which is not
contrary to their best interests. In this regard my task might have
been easier if the defendant had appeared and provided me with
particulars of her usual work schedule with particular regard to her
days off when she will be available to provide access to her
children. The frustration which the plaintiff experienced for some
time in attempting to work out an access regime without her
cooperation and without the full information required is
understandable. I do not propose to repeat the plaintiff's admirable
attempts to try and perform a task made difficult, if not impossible
by the defendant.
[76] Ms.
Robin has presented a draft order containing access provisions which
I understand have been drafted by the plaintiff in light of his
limited knowledge of the defendant's work schedule. It is difficult
to respond to these provisions or to suggest alternatives since
everything will turn on the defendant's work schedule, and more
importantly, whether she is prepared to fully cooperate with the
plaintiff, to communicate with him properly, to encourage his
relationship with the children, and to act in an appropriate manner
in the presence of the children, all in their best interests.
[77] I
propose to adopt most of the provisions recommended by the plaintiff
in the circumstances, while giving the parties liberty to apply in
the event that for practical reasons the regime does not work, or on
the cooperation of the defendant it is ascertained that she has more
access time available or if the defendant demonstrates and satisfies
the plaintiff or this Court that she has changed her ways and will
conduct herself only in the best interests of her children. The
primary aim, to give them as much access to their mother as is
reasonably possible provided it does not clash with their best
interest, remains.
[78] As I
have said the plaintiff has drafted the order. He has persuaded me
that his interests are only those that are best for the children and
to that end he believes that they should spend as much time as
possible with their mother provided the access is not disruptive of
their day to day routine during the week or otherwise in conflict
with their best interests. while agreeing with most of the
provisions in the order, I have deleted the police clause
authorizing peace officers to apprehend the children in the event
that they are wrongly taken by the defendant. There is no evidence
before me that there is a real risk of such conduct on her part; and
in any event, the police can take such steps without the specific
provision being in the order.
[79] The
order will be as follows:
THIS COURT
ORDERS THAT:
1. The
Plaintiff will have sole custody and guardianship of ALEXANDER
TAKARA MANIWA-WOOD, born May 21, 1994 and MANAMI SHEONA MANIWA-WOOD,
born January 6, 1997 (the "Children").
2. The
Defendant will have reasonable access to the Children only if the
following occur:
a. The
Defendant must produce to the Plaintiff, by the second last day of
each month, her exact, complete monthly work schedule for the
following month; and
b. Upon
receipt of the Plaintiff's schedule setting out the Defendant's
access for the following month (the "Schedule of Access"), the
Defendant must confirm, in writing and in English, and deliver the
confirmation to the Plaintiff within 48 hour, by email, that she
will exercise the access as set out in the Schedule of Access.
If the
Defendant does not comply with either Paragraph 2(a) or (b), there
will be no access for that month.
3. When
setting the Schedule of Access, the Plaintiff will do the following:
a. Each
month assign to the Defendant a minimum of one weekend or a maximum
of two weekends per month of access ("Weekend Access"), in
accordance with the Defendant's schedule, except for the months in
which the Defendant will have Christmas Break or Spring Break access
or the Children will be on vacation with the Plaintiff or the
Defendant;
b. Each
month assign to the Defendant two mid-week days when she can spend
the hours between 4:00 p.m. and 7:00 p.m. with the Children. These
days will be assigned in accordance with the Defendant's schedule
and the Children's extra-curricular activity schedule. The
Plaintiff will drop off the Children at the home of the Defendant at
4:00 p.m. and the Defendant will drop off the Children at the home
of the Plaintiff at 7:00 p.m.;
c . In the
month of December, assign to the Defendant access every day from
December 27 until 7:00 p.m. the night before the Children return to
school at the end of the Christmas break ("Christmas Break Access"),
in accordance with the Defendant's schedule;
d. In the
month of March, assign to the Defendant as much of the Spring Break
as possible on odd years ("Spring Break Access"), in accordance with
the Defendant's schedule;
e. In the
month in which Easter falls on each even year, assign to the
Defendant the Easter Weekend, in accordance with the Defendant's
schedule.
4. The
Children will telephone the Defendant twice a week at their bedtime.
The Children will telephone the Defendant on her cell phone on those
days when she is not at home. If the Children are unable to reach
the Defendant by phone, they will send her an email.
5. The
Defendant will have three (3) consecutive weeks of holiday with the
Children each year, of which only two (2) of those weeks can occur
when school is in session so that the Children do not miss more than
10 consecutive days of school. The Defendant must provide the
Plaintiff with written notice, in English, of her intention to take
those holidays by March 30 of each year. If the Defendant receives
notice that the process of awarding holiday time changes, she will
advise the Plaintiff immediately of that change.
6. Weekend Access will commence at 5:00 p.m. Friday evening
when the Plaintiff drops the Children at the home of the Defendant
and end at 7:00 p.m. Sunday evening when the Defendant drops the
Children at the home of the Plaintiff.
7. The
Defendant must not contact the Children or retrieve the Children at
any time not specified by the Schedule of Access.
8. The
Defendant, AYAKO WOOD, born June 2, 1968, shall be restrained and
enjoined from harassing, annoying, or communicating with the
Plaintiff or the Children when the Children are in the presence of
the Plaintiff or attempting to do so.
9. The
Defendant is not to attend at the Children's school except for the
express purpose of attending the Children's sporting events and
school special events. School special events shall be defined as
school concerts and school plays.
10. The
Defendant will not remove the Children from the jurisdiction of the
Lower Mainland or British Columbia at any time without written
permission of the Plaintiff or order of this Honourable Court.
11. The
Defendant, AYAKO WOOD, born June 2, 1968, is restrained from
attending at the home of the Plaintiff for any reason other than
returning the Children to the Plaintiff as according to the Schedule
of Access for that month.
12. The
Plaintiff and Defendant shall each take all reasonable steps to
encourage the relationship between the Children and the other
party.
Neither the
Plaintiff or the Defendant will speak disparagingly of the other
party in the presence of the Children.
13. The
Defendant will pay to the Plaintiff the costs of this proceeding.
Hood J.
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