IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The applicant L.A.M.S., now known as L.A.M.G., seeks (informally) to have the style of cause in these proceedings amended to reflect the fact that she has returned to the use of the surname she used before marrying the respondent C.S. (“Mr. S.”).  I do not understand that request for procedural relief to be opposed and so, to get that preliminary matter out of the way at the outset, I order now that the style of cause be and is amended accordingly. I shall henceforward in these reasons for judgment refer to the applicant as “Ms. G”.

[2]           Ms. G and Mr. S are the separated biological parents of Child-S—their daughter who will soon turn four.  The court has previously made interim orders granting Ms. G sole custody and guardianship of Child-S under the Family Relations Act, R.S.B.C. 1996, c. 128, and requiring that Mr. S’s in-person access to her be supervised by a mutually acceptable third party at Mr. S’s expense, supplemented by telephone access.  These orders have all been made based upon concerns about the state of Mr. S’s mental health and about the ways in which it affects his ability to provide proper care for Child-S.

[3]           Court orders have also been made under the Family Relations Act restraining Mr. S from communicating with Ms. G except through third parties for the purpose of facilitating access to Child-S, and restraining him from entering premises where Ms. G resides.  (The strictness of the restraints on communication has been relaxed by amendments that permit Mr. S to send e-mails, once weekly, to Ms. G at a new account, but only to inquire about Child-S.) 

[4]           Beyond all of that, there is an interim, mutual non-removal order in place, specifying that neither Ms. G nor Mr. S may remove Child-S from the Lower Mainland of British Columbia without the consent of the other or a court order.  That order, too, has been relaxed to permit Ms. G to travel with Child-S to vacation destinations in British Columbia for two weeks on notice to Mr. S, provided she makes up access time lost to Mr. S for that reason.

[5]           In the hearing before me Ms. G now seeks orders, under the recently enacted Family Law Act, S.B.C. 2011, c. 25, making the interim orders granted previously under the predecessor legislation final.  In particular, as the beneficiary of subsisting interim sole guardianship and custody orders, Ms. G now asks the court to confirm in a final order her status as Child-S’s sole guardian under the Family Law Act and confirm as well, and conclusively, that all parenting responsibilities and parenting time for Child-S fall to her.

[6]           Ms. G also seeks to confirm restraining orders previously granted under the newly enacted Family Law Act but with some variations.  In particular, I take from her counsel’s submissions that she now seeks protection orders under s. 183 of the Family Law Act:

[7]           Ms. G requests that these protection orders be in force for five years and that they be enforceable by the police pursuant to s. 188 of the Family Law Act.

[8]           Finally, Ms. G seeks a final order, similar to the interim order now in place and made under the Family Relations Act, granting her the ability to travel with Child-S for vacation purposes for two weeks each year, but without the need to schedule “make up” contact time with Child-S for Mr. S.

[9]           For his part, Mr. S opposes all of the relief sought by Ms. G.  Moreover, he takes the position that, notwithstanding the existence of the interim orders of sole custody and guardianship regarding Child-S made in Ms. G’s favour under the Family Relations Act, his rights as Child-S’s guardian under the Family Law Act are only “suspended.”  Further, he cross-applies for an order removing the requirement that the time he spends with Child-S (whether “parenting time” or “contact” under the new legislation) be supervised.

[10]        I believe it appropriate that I begin with the threshold issue, raised by Mr. S, concerning the status and (he argues) questionable binding effect of the interim orders that have been made previously in this matter under the Family Relations Act.

[11]        Counsel for Mr. S puts the point this way:

[12]        I note first that the order concerning custody and guardianship referred to in counsel’s submissions is not, in fact, the order that is of central importance for the purposes of the argument he raises.  While it is true that Ms. G was granted sole custody and guardianship of Child-S on January 25, 2012 at an ex parte hearing, that order on its own terms expired on February 7, 2012.  Both parties made an appearance before Judge Alexander (who granted the original order) on February 7, 2012—the return date specified in the ex parte order—and both were represented on that occasion by counsel (in Mr. S’s case, duty counsel).  After hearing from both parties and their counsel, Judge Alexander ordered again, on an interim basis, that Ms. S “shall have interim sole custody and guardianship of the child”.  I shall refer to that order as the “February 7^th Order”.  There is no expiry date included in the February 7^th interim order.  Neither has any ruling made subsequent to February 7^th disturbed or varied in any way the sole custody and guardianship order that Judge Alexander made in Ms. G’s favour for a second time on February 7^th.

[13]        The possibility of uncertainty about the effect of, inter alia, custody and guardianship orders made under the Family Relations Act once the Family Law Act came into force was anticipated by the Legislature.  It therefore enacted the transitional provisions concerning parties’ care of children, and time with them, found in s. 251 of the Family Law Act.  That section reads as follows:

[14]        The language of that section seems clear on its face.  Without distinguishing between interim and final orders, it provides that if a court order “provides a party with … custody or guardianship of a child, the party is a guardian of the child under [the new] Act and has parental responsibilities and parenting time with respect to the child under [the new] Act”.  The February 7^th Order grants custody and guardianship of Child-S exclusively to Ms. G; all it grants to Mr. S is supervised access.  On a plain reading of s. 251, this means, necessarily, that under the new legislation, guardianship together with all of the parenting time and responsibilities regarding Child-S are vested in Ms. G exclusively and that Mr. S’s rights are limited to rights of contact. 

[15]        To put the point differently, the February 7^th Order can presumably be treated as an “order” for all purposes when interpreting the transitional provisions found in s. 251.  I say “presumably” because the matter is not entirely free from doubt.  While it was not cited to me, my own research has acquainted me with (for example) divergent authority on the question of whether, within the analysis that must be undertaken in respect of a change of residence application, an interim order is an “order” for the purposes of s. 46 of the Family Law Act: see L.J.R. v. S.W.R., 2013 BCSC 1344, S.J.F. v. R.M.N., 2013 BCSC 1812 and A.J.D. v. E.A.E., 2013 BCSC 2586.  Like s. 251, s. 46 does not distinguish between interim and final orders. 

[16]        So far as I am able to ascertain, there is no comparable debate within the cases as to whether an interim order is an “order” for the purposes of s. 251.  That is not to say, however, that such a debate cannot be imagined.  It may be that where, for example, an interim order made under the Family Relations Act grants one parent sole custody and guardianship of a child pending the outcome of paternity testing of another, formerly cohabiting party, that interim order might be treated differently if, after the enactment of the Family Law Act, the other, formerly cohabiting party is ultimately proven to be the biological progenitor of the subject child. 

[17]        But, that is not the case before me.

[18]        The case before me involves the consideration, by Judge Alexander, of evidence—including evidence regarding Mr. S’s mental health—that led her ultimately (on an interim basis) to make Ms. G the exclusive guardian and custodial parent of Child-S, to require Mr. S’s access to Child-S to be supervised, and to impose orders upon Mr. S restraining him from contacting or communicating with either Ms. G or Child-S except in narrowly defined circumstances.  In my view, those interim orders must, through s. 251 (and, with regard to the restraining orders, s. 255), continue to speak until there is a proper occasion for reconsideration of what those interim orders prescribe and proscribe.

[19]        Nothing in the recently decided British Columbia Birth Registration No. 2004-59-020158 (Re), 2014 BCCA 137 deflects me from that view.  In that case Bauman C.J.B.C. (Chiasson and Neilson, JJ.A. concurring) wisely cautioned against “lightly interpret[ing]” s. 251 so as to take away rights vested by provisions of the new Family Law Act: see para. 58.  But there, the court was confronted not with a prior court order (interim or final) that clearly and explicitly deprived a party of guardianship status but, rather, the court was called upon to consider a vaguely worded separation agreement which did not address guardianship head-on but rather did so only obliquely and incompletely: see paras. 54-55. In the Birth Registration case the court ultimately concluded that the subject child’s best interests would not, on the facts relating to the applicant’s father’s history, be served by his achieving guardian status.  It will become apparent further on in these reasons that Mr. S’s history, similarly, calls for him having constrained rights and responsibilities vis à vis Child-S.

[20]        To conclude then, as regards the interim orders at issue in the case at bar, I adopt and apply (with respect)  the conclusion reflected in the judgment of Madam Justice Harris in A.J.D. that “… the principles of statutory interpretation would not generally support limiting the interpretation of orders to exclude interim orders” (at para. 31).  It follows in my view that the February 7^th Order is an “order” for the purposes of s. 251 of the Family Law Act and its conferral of exclusive rights of guardianship of Child-S upon Ms. G, together with the ancillary parental responsibilities and parenting time regarding Child-S that attach to Ms. G’s guardian status, remains in force under the new legislation and will continue to do so until further order of the court.

[21]        As I have noted, Ms. G applies to make the provision of the February 7^th Order granting her sole custody and guardianship of Child-S a final order under the new legislation.  That is, she seeks an order confirming, conclusively, that she is Child-S’s sole guardian: see, for example, para. 2 of her counsel’s amended written submission.  By reason of the provisions of s. 40(1) of the Family Law Act, such “confirmation” would bring with it (so the argument goes) a correlative confirmation that only Ms. G—and not Mr. S—could and would have “parental responsibilities and parenting time” regarding Child-S.

[22]        There is no specific mechanism found within the Family Law Act to which resort can be had by a party to have a court “convert” an interim order made under the Family Relations Act into a final one under the Family Law Act. 

[23]        With respect, I believe that in seeking such a “conversion” counsel for Ms. G misapprehends the scheme of the new legislation.  Section 39(1) of the Family Law Act itself confirms Ms. G’s status as Child-S’s guardian.  That status springs from the fact that she is Child-S’s parent and is a person whose status as her guardian has not previously been taken from her.  In a sense, the mere enactment of the new legislation had the effect of confirming her status as guardian; her status is not any longer traceable to, or derivative of, the February 7^th Order made before the new statute came into force.  It is traceable to s. 39(1) and, in the wake of the enactment of that provision, any provisional or lesser character that might be said to have attached to Ms. G’s status as Child-S’s guardian to that point fell away.  On this analysis, the coming into force of s. 39 the Family Law Act had the effect of perfecting Ms. G’s notionally qualified status as a guardian as conferred upon her by the February 7^th Order.

[24]        Thus, by operation of law Ms. G’s status as Child-S’s guardian is already secure and calls for no confirmation by having the February 7^th Order made final by way of a further court order.

[25]        More clearly at the centre of controversy in this case, however, is the exclusive character of Ms. G’s status as Child-S’s guardian—a status to which Mr. S. strenuously objects.  However, because the February 7^th Order removed from Mr. S his status as a guardian by making Ms. G Child-S’s sole guardian, Mr. S (as I have noted) entered the new regime under the Family Law Act with no subsisting guardianship status whatsoever: s. 39(2).  Unlike Ms. G’s status, Mr. S’s status within the new family law regime in British Columbia is indeed traceable to, and derivative of, the February 7^th Order because that order divested him of both custody and guardianship of Child-S.  Section 39(2) is clear that a court order made after separation can provide that a person is not a child’s guardian (as happened here).  A person like Mr. S who, by reason of a previous court order, was not a guardian of a child before the Family Law Act came into force remains divested of his guardianship status after the statute’s enactment.  As someone without guardian status in place when the new legislation came into force, and as someone who takes exception to Ms. G’s current status as Child-S’s sole guardian, it follows that Mr. S has no option but to seek to be granted joint guardian status concerning Child-S by application under s. 51 of the Family Law Act if he wishes to gain that status.

[26]        Mr. S did not pursue, at the hearing over which I have presided, any cross-application seeking guardian status concerning Child-S for himself.  Moreover, while he has led evidence that his counsel contends ought to satisfy the court pursuant to s. 37 that Mr. S has the necessary qualities to take on the mantle of guardianship regarding Child-S, Mr. S has not led evidence of the kind that s. 51(2) and Rule 18.1 of the Provincial Court (Family) Rules, B.C. Reg. 417/98, as amended by B.C. Reg. 40/2013, require.  The requirements of s. 51 and Rule 18.1 are mandatory

[27]        In a sense both parties have, I say again with respect, misconceived where the onus lies with regard to the issue of guardianship. 

[28]        Ms. G mistakenly seems to have believed that she has an onus to prove something to convert the interim order that made her Child-S’s sole guardian into a final order.  She has no such onus.  Section 39 took care of that by operation of law. 

[29]        Mr. S mistakenly seems to believe that he could regain joint guardianship status if, in this hearing, he is successful in opposing Ms. G’s efforts to convert her interim order into a final one.  His mistaken thinking is rooted, in part, in his failure to recognise that his loss of guardianship status by court order followed him into the new world created with the enactment of the Family Law Act.  It is also reflected in his failure to cross-apply seeking an order conferring upon him guardianship status and supporting that application with, among other things, the evidence that s. 51(2) of the new statute and Rule 18.1 of the Provincial Court (Family) Rules specify.  Unlike Ms. G in this regard, Mr. S did have an onus—first to cross-apply for guardian status and then to support his application with the necessary evidence.  He has not done either.

[30]        To summarise then on this issue, Ms. G is Child-S’s guardian and, unless and until she is unseated as such, she will remain so pursuant to s. 39(1) of the Family Law Act.  Moreover, Ms. G is and will remain Child-S’s sole guardian unless and until Mr. S successfully makes an application in the future under B.C.’s new family law legislation, supported with proper evidence, to become joint guardian of Child-S together with Ms. G.  In the meantime the legislation allocates to Ms. G, as Child-S’s sole guardian, all parental responsibilities and parenting time relating to Child-S: s. 40(1) of the Family Law Act.  Mr. S, by contrast, is limited in his dealings with Child-S to having “contact” with her as contemplated by ss. 58ff of the new statute.

[31]        The February 7^th Order, in addition to granting Ms. G sole custody and guardianship of Child-S, also provided that Mr. S’s access (now contact) with her “be supervised by a professional agency”.  That provision was modified by the order of Judge Stone made on June 13, 2013, which, among other things, substituted for a professional agency “a supervisor as agreed between the parties”.  Mr. S seeks by cross-application to have the supervision requirement removed, saying that it is unnecessary, unduly expensive and that it interferes with the quality of his interactions with Child-S.

[32]        Section 59(3) of the Family Law Act confers upon the court the power to require that “… contact with [a] child … be supervised by another person … if the court is satisfied that supervision is in the best interests of the child”.

[33]        Section 37 of the Family Law Act defines the considerations that go into determining what will serve the “best interests of the child” for all purposes as follows:

[34]        I have heard considerable argument from both parties on the issue of the need, or otherwise, for Mr. S’s contact with Child-S to be supervised.  I have carefully reviewed the authorities cited to me by counsel, together with other cases I have found in the course of my own research on this subject.  The authorities I have considered are: B.K.G. v. H.S.G., 2013 BCSC 1942; F.K. v. M.K., 2010 BCSC 563; K.M.E. v. D.M.Z., [1996] B.C.J. No. 464 (S.C.); V.S.J. v. L.J.G., 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.); Merkand v. Merkand, [2006] O.J. No. 528 (C.A.), M.J.W. v. B.M.W., 2008 BCSC 1253; Q.B. v. W.I.M., [2014] B.C.J. No. 229 (S.C.); Leitch v. Leitch, [2014] B.C.J. No. 572 (S.C.); B.C.H. v. J.D.R., 2012 BCPC 88; Miller v. McMaster, 2005 NSSC 259; and M.A.G. v. P.L.M., [2014] B.C.J. No. 134 (S.C.).

[35]        From those cases I have distilled the following principles:

[36]        I should note that the discussion found in the cases of the factors set out above often imports reasoning from decisions in which courts have been called upon to terminate altogether what used to be referred to as “access”.  I agree that the factors that go to determining whether access should be terminated altogether overlap with those that go to determining whether a supervision order should be made.  But I also consider it obvious that the imposition of a supervision requirement is a markedly less forceful and disruptive court intervention than the making of an order terminating parenting time or contact.  It is important in my view that courts not conflate the two and acknowledge that the worrisome parental conduct that will justify the making of a

[37]        The mainspring of Ms. G’s argument in favour of maintaining the requirement that Mr. S’s contact with Child-S be supervised is her contention that he has unresolved mental health problems (or “clinical issues” to track the language used in several of the authorities) which she contends he shows no willingness to address.  Ms. G further contends that these clinical issues raise legitimate concerns about Child-S’s health and well-being when she is in Mr. S’s care.

[38]        That Mr. S has a rather troubled psychiatric/psychological history is beyond controversy.  I also consider it indisputable that Mr. S’s psychiatric/psychological and sexual history entail conduct that, for the purposes of s. 37(4), substantially affects some of the s. 37(2) factors and that I am entitled therefore to consider that conduct to the extent it does. 

[39]        Mr. S relied upon the expert opinion of a psychologist, Dr. Ronald LaTorre, in support of his various arguments in this case aimed at, among other things, having the supervision requirement lifted.  I shall discuss Dr. LaTorre’s opinion more fully in due course but, for the moment, I turn to his report dated August 28, 2012 (Exhibit 3) and an earlier report prepared by Dr. Larry Krywaniuk on October 24, 1994 (Exhibit 4), for what they have to say about Mr. S’s history.  (Dr. Krywaniuk’s report was prepared in relation to Mr. S’s unsuccessful bid to arrange unsupervised access to another daughter born to his first wife some years ago.  Dr. LaTorre relied heavily on Mr. S’s history as recounted by Dr. Krywaniuk when he—Dr. LaTorre—prepared his own, more recent, report.)  Counsel for Mr. S confirmed before me that he (Mr. S) does not challenge the accuracy of the facts pertaining to his psychiatric/psychological and sexual history, sometimes self-reported, as they are recounted in Exhibits 3 and 4, including the following:

[40]        I pause to say that I must be careful to record here that in referring to some of the unconventional sexual practices referred to in the documents that record Mr. S’s history, I do not comment or pass judgment upon those practices per se.  I recognise that at least some of those practices are not as uncommon in our society as many people would believe and that there is a plurality of viewpoints as to whether they are acceptable or advisable practices, depending on the moral, medical, psychological or other criteria that might be employed to assess them.  I have included mention of the practices in the enumeration of relevant features of Mr. S’s admitted psychiatric/psychological history because, as can be seen:

[41]        Most significantly, however, is the fact that there is a critically important and admitted aspect of Mr. S’s history with Child-S herself that has a sexual dimension and which, Ms. G argues, crosses an important boundary.  That incident, seen in the context of Mr. S’s history recounted above together with other evidence, forms part of the rationale for Ms. G’s argument (which she advances with great force) that Mr. S’s contact with Child-S must continue to be supervised.

[42]        I repeat that the incident involving Child-S is not denied by Mr. S; indeed, it is summarised as follows in the “Mental Status Examination and Interview Observations” section of the expert report, prepared by Dr. LaTorre, that was filed by Mr. S in support of his own arguments in this case.  About the incident, Dr. LaTorre says this:

[43]        I do not believe that it can be fairly said—given the sexualised nature of the above-described interaction between Mr. S and Child-S when she was a newborn—that what has been admitted by Mr. S regarding his sexual history overall is irrelevant to the question of whether his contact with Child-S should be supervised.  I say without hesitation that for s. 37(4) purposes Mr. S’s sexual history is clearly relevant to what I am called upon to bear in mind under para. 37(2)(a) (the child’s health and emotional well-being) and possibly under other provisions enumerated within s. 37(2).  I say that notwithstanding Dr. LaTorre’s expert opinion, based on his testing and other interactions with him, that Mr. S “would be at a relatively low risk of sexually offending against a child or other person in the next five to ten years”. 

[44]        It bears emphasis that Mr. S’s sexual history—including his history of having been aroused sexually by having Child-S suckle his finger when she was a newborn—is admitted by Mr. S.  In this respect, the facts of the case before me differ radically from cases like M.J.W. and others cited by Mr. S’s counsel where most of the worrisome sexual allegations made against the male parent were denied and found not to be proven.  Knowing Mr. S’s sexual history (as does Dr. LaTorre), I find I cannot agree with Dr. LaTorre that “[t]he only concern in the sexual history is [Mr. S] having engaged in sex with a 12 year old who would have been unrelated to him and, likely, a stranger” (Exhibit 3, p. 23).  To the court, that illicit encounter is without doubt a source of great concern.  But so also are other elements of Mr. S’s sexual history that have been referred to above in these reasons, particularly given his own history of being a victim of sexual abuse himself, coupled with the facts that he has tended to “push the limits of sexual practices”, has “difficulties with the boundaries of reality”, “tend[s] to act rather quickly, without having fully explored the implications [of his actions]” and displays “a lack of critical judgment”.

[45]        Thus, when undertaking my own, judicial assessment of all of the evidence with respect to how Child-S’s interests would be best served in relation to the way Mr. S’s contact with her might be managed, I take little comfort from Dr. LaTorre’s expert assurance that “[f]rom the point of view of risk of harm being purposely inflicted upon his child sexually or otherwise, I see that risk as relatively low”.  In the course of his testimony at trial on October 28, 2013, Dr. LaTorre expanded upon what “relatively low” means to him in connection with that risk.  By his estimation, on a scale of one to 100, a “relatively low” risk in this regard falls between one and 20.  While that level of risk may be tolerable to Dr. LaTorre—sufficiently so to lead him to conclude that “[he has] no reason to support the position that [Mr. S’s] access [sic] visits continue to be supervised”—I say emphatically that it is a level of risk that is intolerable to this court.

[46]        At the end of the day the decision as to what contact arrangement with Mr. S will serve Child-S’s best interests must be made by the court.  While I have given Dr. LaTorre’s opinion the consideration it is due, I am not bound to accept his conclusion as to what constitutes a tolerable risk and, as can be seen, I have chosen not to be guided by it.

[47]        Moving now beyond the implications of Mr. S’s sexual history—both generally and with respect to Child-S particularly—for what must be decided in this case, I turn to a closer examination of other aspects of Mr. S’s own mental health and his efforts (such as they have been) to manage it with professional assistance.  As has been noted above, Mr. S has received multiple diagnoses over the years from multiple psychiatric and psychological practitioners.  He has also been hospitalised for psychiatric reasons, most recently in 2011. 

[48]        Mr. S’s own expert, Dr. LaTorre, diagnoses Mr. S as being “primarily narcissistic” with a presentation that includes “notable histrionic features” amounting to a “personality disorder” coupled with a potential differential diagnosis of bipolar disorder (Exhibit 3, pp. 19-21).  Dr. LaTorre testified that as a person with such a diagnosis, Mr. S’s risk of experiencing “incapacitation due to transient psychosis in addition to narcissistic personality traits” is in the low range (i.e., between one and 20 on a scale of one to 100).

[49]        Dr. LaTorre acknowledges at pp. 21-22 of Exhibit 3 that medication may go some distance toward remedying some of his psychiatric/psychological problems, as might some of therapy or counselling.  However, Mr. S’s history and his testimony at trial confirm his steadfast resistance to taking these kinds of steps to deal with his mental illness.  He explains his disinclination to act on the advice of physicians to undergo a course of medication by raising concerns about side effects (such as dry mouth).  He worries that medication prescribed to manage his mental health problems might cause him to develop diabetes.  He says that counselling is too expensive despite the fact that his advisors (including Dr. LaTorre) have alerted him to community-based services that are free of charge.  He points to a psychiatric opinion he has obtained from Dr. Jerome Lee (Exhibit 8)—not properly in evidence before me as an expert report—that pronounces more favourably on his condition than do Dr. LaTorre, Dr. Krywaniuk or other psychiatric/psychological professionals whose opinions are referred to in Dr. LaTorre’s report.  But Exhibit 8 also confirms that Mr. S sought Dr. Lee’s opinion because “he is trying to apply for life insurance and has noticed that the premiums go up because of the previous diagnosis [of bipolar disorder]”.  It is plain that Mr. S failed to acquaint Dr. Lee with much of the information about his own medical/psychiatric history to which Dr. LaTorre and Dr. Krywaniuk were privy.

[50]        Suffice it to say that even on the evidence of his own testimonial expert, Dr. LaTorre—an expert whom I believe was at pains to portray Mr. S in the best possible light for the purposes of these proceedings—Mr. S is in need of professional assistance to manage his mental health.  Mr. S is not disposed to avail himself of that assistance and the reasons he gives for declining to do so do not withstand scrutiny.  Any parent diagnosed with a personality disorder and possible bipolar disorder who has tended to “push the limits of sexual practices”, has “difficulties with the boundaries of reality”, “tend[s] to act rather quickly, without having fully explored the implications [of his actions]” and displays “a lack of critical judgment”, and who declines recommended professional assistance to manage his mental health, is in a poor position to argue in favour of unsupervised contact with his child—particularly where, as here, the parent admits that the child in issue caused him to become sexually aroused when, as a newborn, she suckled on his fingertip.

[51]        There is no expert evidence before the court in this proceeding that speaks to Mr. S’s parenting capacity.  Dr. LaTorre candidly acknowledges that his assessment of Mr. S did not extend to embrace the issue of parenting capacity.  Indeed, in his report he lodges these important caveats:

[52]        However, there is observational and other evidence that does raise concerns about the judgment and insight Mr. S brings to his parenting role with Child-S.

[53]        Mr. S’s sometimes rather tenuous grip on reality—acknowledged repeatedly in the reports of Drs. LaTorre and Krywaniuk and in the anecdotes that came up in Mr. S’s own testimony—give the court pause as it considers Mr. S’s ability to remain sufficiently grounded in reality to meet the reasonable expectations of parenthood.  He has grandiose beliefs about himself and his abilities.  He has delusional notions about his potentially messianic potential for mankind as a whole.  As Dr. LaTorre put it:

[54]        I acknowledge that in his testimony and in his report Dr. LaTorre downplays the risk to Child-S that may result from these attributes and characteristics but, as I have explained above, while I take respectful note of what Dr. LaTorre views as tolerable risk in these matters, I do not operate, judicially, by recourse to the same, liberal threshold of tolerance that he seems to employ. 

[55]        The thought of Mr. S having complete charge of Child-S, without supervision, knowing that his persistently untreated clinical issues leave him poorly tethered to reality, gives me what I believe to be a rationally defensible concern.  Surely a parent who has complete charge of a helpless child must, in thought and action, be securely grounded in reality so that he or she might make all of the appropriate judgments and take all of the appropriate actions, moment to moment, that the child’s health and well-being require.

[56]        Mr. S testified that he has been awakened during the night by the wailing of the world’s starving people.  Though plainly hallucinatory, to Mr. S this was a call to action, so to speak; a sign to him that his designs to build a new world economic order that is more equitable must be pursued with all haste.  Mr. S knows that the new world economic order that he would bring about would recruit him powerful enemies whose pecuniary interests would not be favourably affected by the global reforms he would wish to orchestrate.  Thus he acknowledged that he believes he is a candidate for possible assassination and on at least one, relatively recent occasion he claims to have found evidence (an open bathroom window) confirming that assassins were indeed actively pursuing him.  Dr. LaTorre’s contrary view notwithstanding, a man whose mind is in the grip of this kind of delusionary thinking is, in the court’s estimation, a man whose ability to discharge the real-time demands of parenting a vulnerable child is plainly in doubt.  Could anyone argue in good faith that having one’s thoughts and actions securely grounded in reality is not an essential element of parenting capacity for the purposes of para. 37(2)(f) and subs. 37(4)?

[57]        Some of the activities that Mr. S has chosen to pursue with Child-S during his supervised contact with her also reveal, in Ms. G’s judgment (and the court’s), little grasp of what is appropriate for a three-year-old child.  Mr. S acknowledges that he has sought to engage Child-S in play with a golf putter and a hockey stick.  One of the “toy” items he brought for her to play with on one of his visits was a bungee cord.  Mr. S has requested winter clothing for Child-S on a warm day (a toque and mittens) and permitted her to play, fully clothed, in water for almost 30 minutes on a cooler one.  During some of his visits he has sought to teach his three-year-old to understand compass directions and the difference between clockwise and counter-clockwise directional movement.  During another he raised with the supervisor the prospect of teaching Child-S martial arts.

[58]        Ms. G gave evidence regarding occasions when seemingly trivial transgressions on her part would provoke disproportionately angry reactions on Mr. S’s part.  Mr. S’s counsel rightly argues that the individual instances are not particularly noteworthy; however, they must be seen in context and when they are they form part of a larger pattern discernible in the evidence as a whole that persuades me that what is unfolding in the real world and how those events are being perceived and responded to by Mr. S often cannot be reconciled.

[59]        Parenting young children is a demanding task.  It requires parents to be astute to possible risks to children’s safety and to their ever-changing needs.  It requires them to be sufficiently grounded in reality and knowledgeable about what is unfolding in reality to be able to respond in the moment to those risks and needs in appropriate and effective ways.  Parenting requires that parents’ thoughts and attention be focused on parenting imperatives and that their judgments and actions not be guided, actuated or influenced by perceived paranormal phenomena that spring from untreated mental illness.  Altogether, the evidence in this case raises serious questions about Mr. S’s grip on reality and hence his parenting capacity—questions that, in part, are rooted in concerns discussed earlier in these reasons about the “clinical issues” for which Mr. S stubbornly refuses to obtain treatment.

[60]        Having regard to all of the evidence that I have reviewed in the preceding pages of these reasons, I am not persuaded that Child-S’s best interests would be served by removing the requirement that Mr. S’s contact with her be supervised.  I appreciate that the need for supervision constrains the interactions Mr. S has with Child-S to some degree and makes the circumstances within which they occur somewhat artificial and unnatural.  I am also aware that the cost of supervision represents a barrier which has the effect of limiting the amount of time that Mr. S and Child-S spend together.  However, the sole consideration I must bear in mind is Child-S’s best interests and, having regard to the imperative of keeping her safe and well, I believe it is essential that a supervisor be present at all times during Mr. S’s contact with Child-S to ensure that neither Mr. S’s clinical issues, nor his apparent limitations in parenting capacity, manifest themselves in ways that are detrimental to Child-S’s health and well-being.

[61]        I have not been asked by Ms. G to order on the basis of Mr. S’s mental health problems and other limitations that he be isolated from Child-S altogether.  Neither do I believe that the evidence before me would justify such an order.  As the cases acknowledge, children do have right to know and have relationships with both their parents and courts should always strive to maximise the amount of contact with both parents, having regard to all the circumstances.  Here, the salient circumstances include what I have concluded is an intolerable risk that Child-S may come to some kind of harm by reason of Mr. S’s untreated mental health problems and his apparent limitations in parenting capacity if he is permitted to provide for Child-S’s care without supervision.  The requirement for supervision, necessarily, limits the contact between Mr. S and Child-S.  However, that is a limitation that must be tolerated, given that in my judgement Child-S’s safety and well-being cannot be adequately preserved without it.

[62]        Mr. S’s cross-application to remove the supervision requirement in respect of his contact with Child-S is accordingly denied.

[63]        I order pursuant to s. 59(3) and 251(1)(b) of the Family Law Act that, henceforward, Mr. S is entitled to have contact with Child S twice weekly, at times mutually convenient to him and Ms. G, but that that contact must be supervised by a professional access supervisor or such other adult person as is agreed between Ms. G and Mr. S.  The cost of contact supervision shall be borne by Mr. S.

[64]        I will say again that, as is the case with parenting time, contact is the right of the child (though, clearly, a lesser right than the right to experience parenting time with a guardian).  This reflects a policy in the law, acknowledged above, which seeks to maximise parenting time and contact between children and their parents where it is reasonable to do so, in order to foster the development of lasting and productive relationships.  As such, a rational case can sometimes be made for both parents contributing to the cost of supervision because it serves the interests of children in establishing and nurturing relationships with both parents.  However, in the case at bar the evidence I heard at trial has persuaded me that Ms. G’s economic circumstances are particularly straitened.  She is not receiving guideline child support from Mr. S to assist her in making provision for Child-S’s daily needs.  She is ill-equipped to bear any additional expenses.  Beyond that there is the fact that Mr. S continues to resist seeking and obtaining treatment for his mental health problems in circumstances where the persistence of those problems is a significant factor in the court’s decision to require supervision.  It is for these reasons that I have determined that Mr. S should bear the cost of arranging for supervision for his future contact with Child-S.

[65]        I further order that Mr. S shall be entitled to supervised telephone contact with Child-S twice weekly, at times mutually convenient to him and Ms. G, together with such other telephone contact as may be initiated by Ms. G.

[66]        Finally in this regard, I order pursuant to ss. 215(1), 218 and 221 of the Family Law Act that Mr. S has liberty to apply to vary or set aside the requirements in the foregoing orders requiring that his contact with Child-S be supervised.  I order as well that he has liberty to make a future application to seek joint guardian status with Ms. G.  However, any such applications:

[67]        The kinds of changes that Mr. S must undergo in order to have any real prospect of having the supervision requirements lifted, or—more drastically—to have any real prospect of gaining joint guardianship status, are broad in scope and go to the fundamentals of his personality, his mental health, his capabilities and the pattern of his behaviour across a broad span of his life.  Even a two-year time window affords a comparatively small interval within which to achieve the kinds of change that orders lifting supervision requirements and granting guardianship rights and responsibilities would require. 

[68]        In my judgment, Mr. S needs to make his mental health a singular focus in the coming years.  Premature and ill-conceived attacks on the regime that has been put in place in this proceeding to serve Child-S’s best interests would be quixotic and would serve no useful purpose.  More than that, they would inflict unnecessary and avoidable stress and inconvenience upon Ms. G who, in difficult circumstances, carries all of the responsibility for making provision daily for Child-S.

[69]        I feel bound to say that with so many strikes clearly against him in terms of his history, his undeniable mental health problems, his stubborn refusal to seek and obtain treatment for those problems and his questionable parenting capacity, Mr. S’s opposition to Ms. G’s continued sole guardian status and his campaign by cross-application to remove the requirement that his time with Child-S be supervised were both doomed to failure.  That is, Mr. S’s basis for resisting Ms. G’s claim to sole guardianship and his efforts to gain rights and responsibilities for Child-S’s daily care without supervision were so misconceived and wrongheaded as to amount, in my respectful view, to a misuse of the court process.  I believe that the Legislature conferred a power upon judges to limit recourse to court processes by litigants like Mr. S in circumstances like these so as to ensure that such future applications as those litigants might ultimately bring have potential merit and do not cause unnecessary distress, inconvenience and expense to others.  It is for this reason that I have sought, through recourse to the jurisdiction available to me under s. 221, to place limits and conditions on future applications Mr. S may care to bring in relation to the issues of supervision and guardianship.

[70]        Lastly in this regard, Ms. G seeks and order removing the requirement that supervised contact time between Child-S and Mr. S that is lost when she travels outside the Lower Mainland of British Columbia for vacation or other purposes be made up.  This requirement flows out of what began as a mutual non-removal order and then evolved into a later order that granted Ms. G some specific vacation rights in 2013.

[71]        I begin by observing that insofar as Ms. G is Child-S’s sole guardian and has all parenting time and responsibilities regarding Child-S reserved to her, there seems to be no surviving need for any non-removal order.  Mr. S’s rights with respect to Child-S are narrowly confined by the orders I am making in these reasons to supervised contact only.  That, coupled with the constraints imposed by the protection order I have made, leave no doubt that there is no way that Mr. S could lawfully remove Child-S from the Lower Mainland.  Moreover, given that Mr. S is entitled to nothing more than court-ordered contact, I can see no good reason to require Ms. G to obtain his consent or a court order in order to be able to travel periodically with Child-S.

[72]        With respect to the loss of supervised contact time to Mr. S resulting from any vacation travel that Ms. G may pursue, however, I find that I am disinclined to order that make-up supervised contact time is not required.  I repeat that the supervised contact time specified in this order is a right of Child-S’s for the reasons I have explained above. 

[73]        I do, however, make it a term of the order that Mr. S shall be entitled to make-up supervised contact time with Child-S resulting from the loss of the same due to Ms. G’s vacation or other travel, provided that Mr. S schedules the make-up supervised contact at mutually convenient times within the first two full weeks following Ms. G and Child-S’s return from their travels.  Make-up supervised contact time that is not scheduled and used within that time frame shall not be banked or accumulated for later use.  By imposing this latter condition I mean to reserve make-up, supervised contact time for its true purpose, that being to provide for temporarily enriched supervised contact immediately following a hiatus so as to restore equilibrium and compensate for the lost bonding and other benefits that can be presumed to flow to Child-S by reason of her ongoing, supervised contact with Mr. S.

[74]        The February 7^th Order, made when the Family Relations Act was still in force, contained restraining order provisions that subsequently underwent a number of changes.  The latest iteration of the restraining orders is found in Judge Steinberg’s order of July 15, 2013, pronounced subsequent to the enactment of the Family Law Act.  Substantively, it differs little from what is sought by Ms. G in this proceeding.  The one real difference relates to the frequency of the Child-S-centred e-mail communication that Mr. S can initiate with Ms. G.

[75]        The circumstances that gave rise to the imposition of restraining orders in the past, and to their preservation in new orders as recently as July of 2013, have not materially changed.  Much of what is canvassed in the portions of this judgment that speak to Mr. S’s unstable mental health also speaks to the need to create boundaries that are clear for Mr. S and that reflect the guardianship and parenting time/responsibilities realities—realities that cast Ms. G as Child-S’s primary caregiver with all parental responsibilities and ought to leave her with a sense of security that she will be able to carry out those responsibilities without fear of interference from Mr. S.  I do not see the need to go into the details of some of the harassing and badgering communications that Mr. S has initiated with Ms. G in the past and which have caused her considerable distress.  Such communications and unwelcome attention led to the imposition of restraining orders early on and they figured in Ms. G’s testimony; some of them are part of the documentary record—see, especially, Exhibits 1 and 2.

[76]        Altogether, I am persuaded that the s. 184 risk factors that must be discernible to justify a protection order—particularly those contemplated by paras. 184(1)(c) and (e)—are established on the evidence in this case.  I am also concerned, for the purposes of s. 185, that there is a prospect for “family violence” (as that phrase is now broadly understood) to which Child-S may be exposed if the protection order regime that two judges have worked to put in place before me is not preserved in some form.  Dr. LaTorre’s quantification of the risk that Mr. S will harm Child-S is but one aspect of what I have canvassed in these reasons that supports the making of a protection order.

[77]        In these reasons and, through the final orders I have made in this matter, I have sought to do the following:

[78]        I trust and expect that Mr. S will strive to understand and accept the hard truths that flow out of these reasons for judgment for him.  I also trust and expect that he will re-orient his attention and considerable energies toward gaining ground in dealing with his mental health problems and parenting capacity limitations, and conduct himself in the coming years toward Child-S and Ms. G in a way that is both respectful and constructive.

[79]        Orders accordingly.