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
Counsel for plaintiff F. K. Robin
No one appearing for the defendant
Reasons for Judgment
Date and Place of Trial/Hearing: February 9, 10, 11, 2004
Vancouver, B.C.
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[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.
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[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
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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,
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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[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
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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
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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.
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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
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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.
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[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
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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
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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
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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.
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(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
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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
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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
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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.
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[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
Wood v. Wood
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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
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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
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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.
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[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;
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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
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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.
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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.