IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[2]           Each of the parties has entered into a new relationship and sometimes that can work to the benefit of a child of separated parents. In this case however the parties have found new partners who see their role as allies in the fight against the enemy. Each has played a part in escalating the conflict, whether by waging war on Facebook, joining in angry incidents that take place at the exchange of the child, or making provocative or intimidating comments.

[3]           Each of the parties has come to court expecting victory, hoping for an order proclaiming their side in the right and the other in the wrong. Each has taken unrealistic positions. Each side will be disappointed. Nobody seems concerned enough about how the conflict is affecting the child, certainly not to the point where either has shown a willingness to back down or become conciliatory. Each party will swear that this is not the case, but the actions of the parties speak louder than their words.

[4]           The difficulty is in arriving at an order which adequately protects this child from further distress. There are no impartial family members to provide a safe haven for the child. The Ministry of Children and Families was involved with this family, but this no longer seems to be the case.

[5]           One of the most contentious areas of conflict concerns the child’s name. The Applicant prefers the child’s first name and strenuously insists that the Respondent must do the same. The Respondent thinks that the child’s first name is a terrible name, and prefers to call her by her middle name. This angers the Applicant. The Respondent knows that this angers the Applicant and is only too happy to push that button repeatedly. Both sides insist that the child prefers the name each uses. This conflict began at a time in the child’s developmental life when it likely mattered little to her what name she was called by. The extreme anxiety that the child is now experiencing is almost certainly the by-product of witnessing her parents’ behaviour surrounding the subject.

[6]           There are a number of issues between the parties that stem from their mutual mistrust of and contempt for one another. There is a struggle to control and to resist control. Unfortunately, matters have progressed to the point where the parties have lost the ability to be objective, and while each side likely wants to see this child to be happy, neither is willing to do anything to accomplish that if it involves any act of humility or surrender on their part. Perhaps these reasons for judgement will serve as a reality check. Perhaps they will not.

[7]           This trial drew significantly on the resources of this court. It took eight days, and for the first four of those, the Applicant was represented by counsel. That counsel filed a Notice of Withdrawal on June 2, 2014. In addition to the parties, a total of eight other witnesses were called: each of the parties’ new partners, the Respondent’s ex-wife, a social worker from the Maple Ridge office, the Respondent’s mother-in-law, a young man who witnessed an altercation between the Applicant and the Respondent’s wife, the Respondent’s sister, and an acquaintance of the Applicant. Some of these persons would rather not have been drawn into the middle of this conflict, and some had little evidence concerning the child, but were called instead by one party to disparage the other. Following the conclusion of the evidence, the parties agreed to file written submissions, which were to be filed by September 16, with rebuttal arguments filed by September 23^rd.

[8]           Following is a summary of the court history of this matter, a summary of the evidence heard at trial and the applicable law, followed by the reasons for the order which is now being made in this matter.

[9]           During the opening statements in this matter, each side tried to suggest that the other was the more litigious in this matter, inviting an examination of the history of the court proceedings.

[10]        The Applicant and Respondent met in 2006 and began living together in 2007. They separated in 2008, but still saw each other occasionally. The child was conceived on one of these occasions and was born on (d.o.b.), 2009. The Applicant filed an application for custody of the child and for child maintenance on April 3, 2009. No reply was filed because on April 15, 2009 the Applicant filed a request to withdraw that application. On the same day a new Application was filed once again requesting custody of and maintenance for the child. In that application, the Applicant wrote:

[11]        On April 21, 2009, the Applicant once again filed a request that her second application be withdrawn. The same day she filed a new application asking for custody and guardianship of the child and for child maintenance. With this application, the Applicant wrote:

[12]        On May 26, 2009 the Applicant withdrew her application yet again, once again asking for custody and guardianship of the child and maintenance for the child. For the fourth time, the Applicant withdrew her application on October 7, 2009. She filed another application seeking the same relief as before. That application was also withdrawn on February 23, 2010, when another application was filed by the Applicant.

[13]        The Application of February 23, 2010 asked for custody and guardianship of the child as well as child maintenance, but in addition, the Applicant was now asking that the Respondent’s access to the child be professionally supervised at the Respondent’s expense, and that he “provide [his] criminal record and undergo hair follicle tests.” She also requested a restraining order. The reasons she set out were as follows:

[14]        An affidavit of personal service was later filed on May 12, 2010, in which a bailiff swore that the Respondent had been personally served with documents on March 11, 2010. The Respondent failed to file a Reply to the application of February 23^rd and the matter came on for hearing on June 15, 2010. On that date the Honourable Judge B. G. Hoy ordered that the Applicant was to have sole custody and guardianship of the child. The Respondent was ordered to have reasonable supervised access to the child on terms and conditions determined by the Applicant. The Respondent was ordered to pay monthly child support in the sum of $500 per month and one half of the child’s day care costs. The Respondent was not present at this hearing.

[15]        On April 5, 2011, the Applicant applied for an order permitting her to serve the Respondent substitutionally with documents at his business address. That application was refused. On the same day, the Applicant applied ex parte (without notice) for an order increasing the amount of child maintenance. That application was also dismissed.

[16]        On November 2, 2011, the Respondent filed an application to vary the order of June 15, 2010. His application proposed joint custody and guardianship and a shared parenting arrangement. He also asked for a Custody and Access Report pursuant to section 15 of the Family Relations Act and for an adjustment of the child support obligations based on the result of his application. The Applicant filed a reply to this application on January 6, 2012 in which she was opposed to a Custody and Access Report being prepared. In what appears to be contradictory positions the Applicant stated, on the one hand, that the order should not be varied because there had been no material change in circumstances since Judge Hoy’s order was made, and on the next page proposed her own changes to the order. She sought an order preventing the Respondent from having overnight visits with the child and that supervised visits take place “in a public and child friendly venue at an equal distance between “the parties’ homes.” She wanted the access visits reduced to twice per week: a mid-week visit of no more than 90 minutes and one visit on the weekend of no more than two hours. She also wanted a restraining order preventing the Respondent’s new wife from having contact with the child or from sending email on behalf of the Respondent.

[17]        A Family Case Conference was held on June 14, 2012 and the parties agreed that the Respondent would have access to the child each Sunday for an hour, and six persons were selected as acceptable supervisors for the visits.

[18]        One June 29, 2012 a hearing was held before the Honourable Judge D. R. Gardner, who varied the order of June 15, 2010 by granting the Respondent unsupervised specified access to the child each Wednesday from 3:00 p.m. to 6:00 p.m. and every second weekend beginning on Friday at 4:00 p.m. and ending on Saturday at 6:00 p.m. for the visits before September 14^th, and ending on Sunday at 4:00 p.m. for the visits from and after September 14^th. The Applicant was permitted to be present for the exchange of the child.

[19]        A trial was scheduled to commence on January 8, 2013, but the trial was adjourned generally. On February 19, 2013, the parties entered into a consent order before the Honourable Judge R. B. Caryer to vary the order of July 29, 2012 by changing the locations for the exchange of the child. The Respondent’s new partner was permitted to pick up the child if the Respondent was unavailable to do so, but if she was present at the same time as the Respondent, she was to remain in the vehicle. If the Respondent planned on travelling east of Hope, B.C. with the child, he had to provide the Applicant with notice of where he was going, where the child would be staying, and contact information. The information was to be provided via text message.

[20]        The parties appeared in court again on March 19, 2013 and another Family Case Conference was set for June 21, 2013. At that conference no consent orders were reached, but the Honourable Judge W. G. MacDonald ordered the parties to exchange financial statements no less than 30 days before this trial and the Respondent was also ordered not to cut the child’s hair while she was in his care.

[21]        On December 3, 2013 the Respondent brought an application to amend Judge Gardner’s order and asked for access to the child at specific times, for an order that the Applicant would not be present at exchanges for access visits. A hearing was held before the Honourable Judge W. G. MacDonald on December 20, 2013, and he gave the Applicant permission to take the child on a family vacation to Mexico from December 30, 2013 to January 8, 2014. He also ordered that the Respondent would receive 51 hours of lost access time, with counsel to discuss how that would be scheduled.

[22]        The trial of this matter commenced on March 31, 2014. On that date an order was made for disclosure of the records of the Ministry of Children and Families pertaining to this child, pursuant to section 212 of the Family Law Act. A second order was made during the course of the trial giving the Respondent some additional time with the child during the summer.

[23]        The Applicant was born in 1971 and is 43 years of age. The Respondent was born in 1965 and is 49 years of age. The parties met sometime in 2006 (they disagree on what month it was). At the time the Respondent was coming out of a relationship with his previous wife, L.A. There were two children from that marriage. Those children were in elementary school at the time these parties met. The Applicant testified that she bought a house and the two of them moved in together in 2007.

[24]        The Applicant testified that she witnessed some domestic violence between the Respondent and his previous wife. She claims that she witnessed the Respondent punch his former wife in the face and break her foot. She was concerned about this, but she testified that the Respondent promised her that he would attend counselling and this seemed to satisfy her. She testified that she also kept in touch with the Respondent’s previous wife and developed a friendship with her.

[25]        According to the Applicant, she was concerned about the Respondent’s abuse of alcohol and illegal drugs. She says that, once again, he agreed to participate in counselling and asked her to arrange it for him. She says that she did so, but he would not attend, telling her “no woman is going to tell me what to do.” This added to the strain in their relationship. The Applicant described further instances of alcohol and drug abuse during the time she lived with the Respondent. She says that he often drove drunk and used cocaine in the home.

[26]        The parties separated in 2008. Once again there is a disagreement when. He says it was in May, she says it was in April. The Respondent moved into his place of business. The two of them would get together for intimate encounters, but were unable to reconcile their relationship. As the Respondent crudely describes it, “we were servicing each other.” He testified that he told the Applicant that it was not a good idea to have a child with someone she was not in a relationship with and believed that she was using birth control during their encounters. During one of these encounters the Applicant became pregnant with the child who is the subject of these proceedings. The child was born on (d.o.b.), 2009. The Respondent was not present at the child’s birth, at the time he was on a vacation in Jamaica with his two older children during their spring break.

[27]        The Applicant testified that after the child was born, she called the Respondent and asked him to sign the child’s birth certificate. According to her evidence, he said “how do I know it’s mine?”

[28]        There is a difference of opinion as to how much contact the Respondent had in the child’s life initially. It is his evidence that he saw the child about six or seven times during the first year of her life. The Applicant testified that the Respondent met the child on April 14, 2009 and that he saw her again in May and June. The Respondent testified that the Applicant wanted money and he gave her $500 per month without a court order. The Applicant claims that the Respondent was absent for the first three years of the child’s life. She does acknowledge that she was receiving money from the Respondent for the support of the child, but said that he would often make it humiliating for her to get her cheques. She testified that on one occasion, the Respondent wrote the words “for sex” in the memo line of the cheque. On another occasion she lost the cheque and when she asked him for a replacement, he asked her a number of embarrassing questions about sex. On another occasion he asked her for a large loan.

[29]        The Applicant named the child T.E.V. [The middle name] is the name of the Respondent’s grandmother. He did not like the name “[First Name]” and shared that opinion with the Applicant. As he puts it, “[First name] is not a name, it’s a word.” He believed that the child would get picked on and mocked for the name. He told the Applicant that he would call the child [middle name]. The Applicant has claimed several times that it is the child who dislikes being called [middle name], but right from the start, at a time when the child was too young to appreciate the significance of a name, the Applicant made it clear that she did not want the child to be called [middle name]. Although the Applicant insists that it is the child who dislikes the name, it is clear that she is the one who gets most upset when the Respondent calls the child [middle name].

[30]        As set out previously, from April of 2009 to February of 2010, the Applicant filed six different applications in this court for various custody, access and child support orders. Five of these were withdrawn and the Respondent did not file a reply to any of them. The Applicant testified that in early 2010 there were a number of incidents which concerned her enough that she decided to proceed with her court application. For example, on one occasion she alleges that he told her he would take the child whenever he pleased, stating “whatever I pay for, I own half of.” She testified that he had also told her that he himself had been kidnapped as a child and that he might take this child to Serbia if he wasn’t careful. She also testified that he told her that if she got an order for custody he would cut her head off.

[31]        When the order of June 15, 2010 was made, the Respondent was living at his workplace. He testified that, although his two older children would visit him there, he did not think this was an appropriate place for a baby and did not push for child access. It was his evidence that the Applicant was pressuring him to reconcile with her and even told him in a text message that she wanted a second child with him. The Applicant’s recollection is that the Applicant told her that he simply had no interest in seeing this child.

[32]        In September of 2010 the Respondent met T.A., the woman who is now his wife. He testified that when he told the Applicant that he was in a new relationship, she told him that he was not allowed to take the child for any access visits. For much of the following year, there is a wide divergence in the parties’ evidence. The Applicant asserts that the Respondent was not interested in seeing the child. She recapped a number of conversations which she says she had with the Respondent about money. The Respondent maintains that the Applicant was obstructing his efforts to have a relationship with his child, in part because he had a new girlfriend.

[33]        Whichever of these two versions is closer to the truth, the Respondent obviously wanted to see his child bad enough that he hired a family lawyer to help him do so. It is clear that intense animosity existed between these parties during this time. Their text messages give some examples of this. On September 16, 2011 the parties had this text message exchange:

[34]        T.M. testified that she was the one who suggested that the Applicant get a court order for access. She became very involved in the dispute between the parties. She testified that she reads all of the Respondent’s legal correspondence and will send messages for him by email and by text messaging because she is a better speller than he is.

[35]        On October 19, 2011 the Respondent emailed the Applicant and informed her that he would be taking legal steps to get access to the child and that it would be on his terms. A common theme in the parties email correspondence is that each will make demands, rather than try to negotiate or make concessions. The Applicant responded on October 27, 2011 by stating that she was not prepared to allow any visits to occur. (Her email says that she would not allow any “supervised” visits, but it is reasonable to infer that if she was not prepared to allow those, then she would not allow unsupervised ones either.)

[36]        In between that exchange, the parties continued their uncivil discourse. In an exchange of text messages, it was clear that the Applicant had litigation on her mind. It was also clear that T.A., then the Respondent’s girlfriend, saw her role in all this as doing more than just type the Respondent’s messages. In the following embarrassing exchange, the parties wrote:

[37]        One might expect a new partner of the parent of a child who is involved in a custody dispute to remain out of the fray and leave matters between the child’s parents. Ideally, such a person will often try to be a peacemaker or at least try and make the environment more comfortable for the child by attempting to reduce the conflict. Instead, the Respondent’s new partner saw it as her role to become a combatant and to do what she could to irritate the Applicant. In a subsequent text message exchange, she tells the Applicant “Im in D.A.’s life to stay and soon to be a big part of T.E.V.’s so get used to it sweetheart”. She gets the desired result from the Applicant. Initially the Applicant tells her to stop texting, but instead of taking the high road, the Applicant then responds “Over my dead body. U will play very little role in T.E.V.’s life. You are not fit to interact with her.” More immature remarks are traded back and forth in the subsequent exchange.

[38]        The Respondent continued his needling of the Applicant. On October 23, 2011 he texted her pictures of furniture that he was picking out for the child’s bedroom. T.A. also used her Facebook page to send a series of immature and hateful messages.

[39]        On November 2, 2011, the Respondent filed an application to vary the order of June 15, 2010. His application proposed joint custody and guardianship and a shared parenting arrangement. He also asked for a Custody and Access Report pursuant to section 15 of the Family Relations Act and for an adjustment of the child support obligations based on the result of his application.

[40]        On January 9, 2012 the Applicant sent a letter to the Respondent’s lawyer setting out what she called “the conditions I have determined” for the Respondent’s contact with the child. Included were the following:

[41]        The Respondent’s counsel responded by letter the following day, agreeing to the conditions until the next court appearance. On January 12, 2012, the Respondent emailed the Applicant and asked that their communications be in writing rather than by telephone. This was a reasonable request, given the level of conflict that existed. The Respondent was concerned about false allegations being made against him. It was wise for both of them that a record of their communication should exist. The Applicant did not want to do this even though she had previously emailed the Respondent on January 6, 2012 telling him to “cease and desist” sending emails from his work address. On February 9, 2012 the Respondent’s lawyer emailed the Applicant’s lawyer explaining the rationale for written contact. The Applicant’s lawyer at the time held on to the hope that the parties would someday learn to co-parent respectfully.

[42]        Throughout this matter, the parties have each looked for ways to “push each other’s buttons” and find ways to aggravate one another. After the Applicant demanded that the Respondent not send email from his work email address, the Respondent created a new Hotmail address and called himself “[misspelled middle name]sdaddy”. While no doubt intending to irritate the Applicant, he exposed his own ignorance by not knowing how to spell his child’s middle name correctly. On March 15, 2012 he sent the Applicant an email from this address. He told the Applicant that his girlfriend, who he called “step mommy”, had dropped a birthday present for the child off at her day-care. There was no warning that this would be occurring

[43]        When T.A. went to the child’s day care, the staff of the facility correctly refused to let her see the child. On March 16, 2012 the Applicant’s lawyer faxed a letter to the Respondent’s lawyer protesting the impropriety of the surprise visit to the day-care, as well as pointing out that the Respondent’s choice for his new email address was “unnecessarily provocative.”

[44]        The parties had made their first appearance in Family Court on March 13, 2012 and the matter was adjourned over to a Family Case Conference that took place on June 14, 2012. There they agreed that the Respondent would continue to see the child every Sunday from 11:45 a.m. to 12:45 p.m. but the Applicant would not agree to unsupervised visits. A hearing was scheduled for June 29, 2012 on the issue of whether or not the visits would have to be supervised. At the hearing the Honourable Judge Gardner determined that supervised visits were not required and he ordered a series of unsupervised visits.

[45]        On one of the first of these visits, the Respondent threw the child a belated birthday party. The child’s cake read “Welcome Home [middle name]”. From the account of those present and from pictures which were taken of the event, the child didn’t seem to mind this, but this made the Applicant very angry. She complained about the Respondent continuing to refer to the child by her middle name. There were no court orders in place preventing anyone from doing this, but it was a huge area of contention for the Applicant. She testified that there were a number of arguments that took place at the exchanges of the child. Apparently both of these parents felt justified in engaging in loud angry arguments in the presence of the child over the subject of the child’s name. It is something that neither side would budge an inch on. The child had ample opportunity to learn that this was a subject that made her parents very angry and it placed her in a difficult position.

[46]        The Applicant emailed the Respondent on August 23, 2012, complaining about the Respondent calling the child by her middle name. The Applicant asserts that it is the child who does not like this, but from the evidence heard at trial, it is difficult to discern if the child dislikes it, or if the child is taking her cues from the Applicant. Clearly the use of the name angers the Applicant and has done so since the child was a baby. It is unclear if the use of the name actually upsets the child, or if the child is afraid to use the name because she knows that if she does, he mother will become upset.

[47]        Rather than being conciliatory, the Respondent and his new partner used the name issue as something to continue to goad the Applicant with. They bought the child a puppy and named it “[a name mocking the child’s first name]”, a further display of their immaturity and of their desire to escalate rather than reduce conflict. It was also mocking of the child about something that she had no control over.

[48]        The issue of the child’s name led to a major incident which occurred between the parties on Halloween night. The Respondent had the child out trick-or-treating. An incident occurred at the exchange of the child. According to the Respondent, one of the children that the child was with said “goodbye [middle name]” and this made the Applicant very angry. According to the Respondent, the Applicant shouted at the child “her name is [first name]!” and she began to violently remove the child’s Halloween costume. The Applicant alleges that she was threatened and assaulted by the Respondent. The Respondent denies this. The Respondent blames the Applicant for injecting discord into what had been a happy night for the child. Police were called and the Respondent was later arrested and charged with assault and threatening under the Criminal Code. He was placed on a recognizance with conditions which prohibited him from having direct contact with the Applicant, but not with the child.

[49]        The criminal trial of these charges was held in Provincial Court in Port Coquitlam on January 2, 2013. The Honourable Judge Buller-Bennett presided and gave oral reasons for judgement. Judge Buller-Bennett said that she would have preferred to give written reasons, but gave judgement from the bench because the parties expressed some urgency in order that the family court trial could proceed.

[50]        Apparently, during the Halloween incident, the Applicant placed her iPhone inside of her brassiere and was secretly recording the exchange of the children. I have not had the benefit of hearing that recording, but according to Judge Buller-Bennett’s reasons for judgement, when the child was called [middle name], the Applicant became very upset. On the recording, the child is heard to say “I don’t like you daddy” and the parties argued about the child’s name. At this point T. A. injected herself into the argument and told the Applicant “I am her stepmother, get over it.” She can then be heard to call the Applicant a “fucking bitch”. The Applicant responded in kind, but then said that this was improper language to use in front of the child. As the child became more upset, the Applicant said “look what you’re doing to my daughter.” The Respondent is then heard to say to the Applicant “I’ll smack your head in.”

[51]        One would except that loving parents would do their best to shelter a young child from this kind of behaviour, but judging from their actions, these three adults love their conflict more than they love this child. They would rather get their way than back away from a fight in the presence of their child. That is what happened on this occasion. All three of them continued to yell at one another. The Respondent extended his middle finger in the Applicant’s direction and he may or may not have pushed her as well. I say “may or may not” because he was convicted of assault and threatening at trial, but his assault conviction was overturned on appeal.

[52]        I am less concerned with whether or not an assault occurred than with how these three adults (chronologically speaking) behaved. The point is that none of these three showed the maturity to take the high road and shelter this child from their conflict. They love their fight most. When faced with the choice of having a loud, profane and possibly violent fight in the presence of this child or not joining in and removing the child from the situation, they choose the former.

[53]        The Respondent was placed on probation and was required to complete Respectful Relationships counselling and Anger Management counselling. It is unclear whether he obtained any benefit from these courses.

[54]        The Applicant testified that after the Respondent was placed on an order of no contact, she arranged for other people to attend for the exchanges. On February 19, 2013 the parties entered into a consent order in front of the Honourable Judge Caryer changing the location of the exchange of the child. But even though he was present in court when the order was changed, the Respondent, in a display of further immaturity, pretended that there had been no change in the order. In a text message exchange, the Respondent acted as if there had been no change in the order, when he obviously knew better. He texted “the judge did not change the order yet. Until all matters are resolved.” When it was pointed out that he was incorrect and that he should bring the child the McDonald’s, he texted back “I have no order. Do you have it with you?” He insisted that the Applicant would have to pick the child up from his home. It was a very stupid display of arrogance on the Respondent’s part. The Applicant attended to the Respondent’s home to pick up the child, accompanied by an RCMP officer. T. A. also testified about this incident, taking the same tact as the Respondent, saying “we thought we had to wait for the order.”

[55]        The Applicant emailed the Respondent on June 1, 2013. The purpose was to disagree with a proposal for some vacation access, but the Applicant’s tone in the email is one of lording her position in the litigation over the Respondent. She begins by reminding the Respondent that “I am the sole custodian and full guardian of T.E.V.” and she then hurls an array of criticisms of the Respondent, while accusing him of “continued negativity.” The Applicant sent a similar email on July 9, 2013 as well. Unfortunately, Ms. Mayer responded with more negativity in a text message exchange of July 31, 2013. She told the Applicant “I have no issues telling the truth. The same certainly cannot be said of you. Your gig is up!! Big time”.

[56]        The parties had another Family Case Conference on June 21, 2013, but nothing was resolved. The Honourable Judge W. G. MacDonald ordered the parties to make full financial disclosure and also ordered the Respondent not to cut the child’s hair. Apparently he had taken the child for a haircut during one of his access visits and this upset the Applicant.

[57]        Attempts to negotiate additional time with the child by the Respondent were made, without success. The Applicant refused to agree to any proposed changes outside of the order, and would usually view such requests as an opportunity to tell the Respondent and his partner what she viewed their faults to be.

[58]        In the meantime, T. A. continued to use her Facebook page as a means of oblique criticisms of the Applicant, though why the Applicant bothered to read these posts is hard to understand. They contain a lot of nonsense about “father’s rights” but nothing about a father’s responsibilities or a child’s right to grow up in a safe and nurturing environment. The Respondent also expressed a similar sentiment when he said, in cross-examination, “I’m here to get some rights. I am aware that I have zero rights.” Once again, this type of sentiment displays a selfishness in which the parent expects to be the center of attention rather than the child, and in which the responsibility to raise a healthy and well-adjusted child is overlooked and the child’s needs are set aside in favour of the parent’s wants.

[59]        In July of 2013 an incident occurred at the child’s day-care and as a result, the day-care provider emailed counsel for the parties and advised that the day-care would no longer permit the exchange of the child to take place at the day-care. The proprietor, Ms. C., wrote “after careful consideration we have decided that it is best if we have nothing to do with the transfers. It causes too much stress on myself and the teachers. I will not change my mind on this matter.” In an email of July 31, 2013, she writes “I don’t want D.A. on [the day-care] property. He causes myself and my teachers extreme stress.” In an email of August 7, 2013 to the Applicant’s counsel, Ms. C. reiterates these sentiments. Specifically, her concerns were that the Respondent attended with two large men and acted in an intimidating fashion towards her staff, and because he calls the child [middle name], when they wish her to be called by her first name. The Respondent does not understand what the concern was and believes that the incident was overblown. He testified that the two large men were his son and his nephew. The point missed by all of this is that the day-care has no obligation to become involved in this conflict. They were doing so as a courtesy. Unfortunately, that courtesy was not reciprocated.

[60]        Another confrontational incident occurred in the presence of the child on September 25, 2013. What is sad for the child and embarrassing for the parties is that neither side expresses any regret that this incident took place in front of the child. Each is concerned with proving that the incident was the fault of the other side. At an access exchange taking place at a McDonald’s Restaurant, T. A. and the Applicant had an angry confrontation. According to T. A., the Applicant walked up to her car and the two of them had a conversation as follows:

[61]        According to T. A., all of this took place in front of the child as she was undoing the child’s seat-belt. She testified that the Applicant grabbed her car door as she was trying to close it, and the Applicant punched the driver’s door window very hard. The Applicant was holding the child as she did this. T.A. said that she responded by saying “get away from me, you’re nuts, you’re crazy.” She testified that the Applicant was standing in front of her car as she tried to drive away, and was screaming “you’re trying to run me over” as she punched the car window again. T.A. testified that she tried to drive away, but her car stalled. She decided to go inside the restaurant to call the police. As she was walking inside, she says that the Applicant struck her and she pushed the Applicant back before going inside to call the police.

[62]        The Applicant has a different version of this event. She claims that T. A. struck her with her vehicle and “shoulder checked me”. She claims that she did not punch the window of T.A.’s car, she slapped it with an open hand. She also claims that it was T.A. who punched her first and “I shoved back.”

[63]        It turns out that there was an unbiased and honest witness to this incident. Joseph S. was working at the McDonald’s drive through window and could see and hear the confrontation between the two women. He testified that he observed the Applicant approach T.A. and he saw the Applicant strike T.A.. He testified that she was struck below the right eye. He reported the incident to his boss and went back to work. He recalls that police were called, but that he was never asked to give them a statement.

[64]        On December 9, 2013, Social Worker Allison Hurst of the Maple Ridge office of the Ministry of Children and Families wrote to the parties, outlining her conclusions after ongoing assessments by her Ministry. It was refreshing to have Ms. Hurst’s involvement because there was finally someone in the picture whose main concern was the welfare of this child, not which side was winning the parental war. Ms. Hurst concluded that this child “has been found in need of ongoing protective services due to emotional harm.” No doubt each of the parties saw this as the fault of the other party, but Ms. Hurst correctly identified the source of the child’s problems as “her exposure to the intense, chronic conflict between her two parental homes.” The Ministry proposed a mediation process because of the intense level of conflict.

[65]        Ms. Hurst testified that the Ministry has received three complaints concerning this child: (1) a complaint that the Respondent would not call the child by her first name; (2) a complaint about the child witnessing the Halloween 2012 assault; and (3) a report of emotional harm that the child was suffering. According to Ms. Hurst, her concern was not so much what name the child was called, but rather how the Applicant was handling the situation. The conflict was arising out of the Applicant’s insistence that the child be called by her first name. Ms. Hurst made some suggestions about supports that the parties could make use of.

[66]        Ms. Hurst interviewed the child on two occasions. She describes the child as very active. It was her impression that, it was not so much that the child cared about which name she was called, but that it was a subject she simply did not want to discuss. It was also her impression that the child was comfortable in both homes. In the plan that she formulated, she wanted both parents to take counselling about how to keep their dispute out of their child’s life.

[67]        Ms. Hurst testified about reports about the child acting out. Some of these reports come from impartial sources such as the day-care providers. The child has cut her own hair with scissors and also scratches herself. The child also has shown problems with bedwetting and soiling herself. Ms. Hurst testified “the level of conflict was very difficult for me as a social worker. I can’t imagine what it will be like for that little girl as she gets older.” Ms. Hurst feels that the conflict between the parents has triggered these behaviours and the child suffers intense anxiety when she is in the presence of both of her parents.

[68]        Ms. Hurst testified that the Applicant was audio recording the child, when the child would complain about the Respondent. Ms. Hurst described this behaviour on the part of the Applicant as alarming and not healthy. I would concur in this assessment.

[69]        In cross-examination, Ms. Hurst described the parenting styles of the parties as very different. She described the Respondent as more action oriented and less “feelings oriented”.

[70]        The Applicant has asked that considerable weight be placed on a report prepared by the Surrey Family Preservation Program. The report recommends that the Respondent’s access to the child be suspended for six months. There are a number of problems with this report. Firstly, the report writer never spoke with the Respondent. All of the input from the report comes from the Applicant. The report writer was never called as a witness so there has been no opportunity to question her about her report. Ms. Hurst testified that some of the comments which the report writer attributed to Ms. Hurst in the report are inaccurate. I also concur with Ms. Hurst when she testified “it would not be my recommendation to recommend that a parent not get access when I hadn’t met that parent.”

[71]        Until the mediation process could take place, Ms. Hurst set out a list of expectations of the parties. Paraphrased, these were as follows:

[72]        Unfortunately after the letter of December 9^th was sent by Ms. Hurst, this file was transferred to a different social worker in the Surrey office of the Ministry. Since Ms. Hurst has ceased involvement there does not appear to have been any follow-up. It is unfortunate for this child that she no longer has someone like Ms. Hurst on her side.

[73]        At the trial of this matter, the Respondent testified that he tried to meet with a counsellor, but when he went to do so, he was told that she was on bereavement leave. He testified that he has never been contacted to reschedule the appointment, but he was very surprised to learn that the counsellor has met several times with the Applicant. T.A. testified that the meeting didn’t take place because the Respondent wanted his lawyer present. She testified that she and the Respondent later went to meet with the report writer but the meeting was cancelled because the report writer was on bereavement leave. They had not been told that this would happen. She said that the Respondent was never called back to reschedule.

[74]        A hearing was held before the Honourable Judge MacDonald on December 20, 2013. The parties had conflicting plans about where the child would be over the Christmas holidays.  The Respondent and T.A. planned to have their wedding on December 31^st and wanted the child to be the flower girl at the wedding. But the Applicant and her new boyfriend had planned a trip to Mexico to celebrate his 50^th birthday. Judge MacDonald accurately captured the nature of the parties’ relationship when he said “it appears very obvious that mother would not consent to a request to change the order unless so ordered by a court or unless there were really exceptional circumstances.” Judge MacDonald recognized that it was a difficult situation, noting “there is no way to either grant or deny the application without causing harm to at least one of the parties”. He permitted the Applicant to take the child to Mexico, but ordered that the 51 hours of lost access time to the father was to be made up within a reasonable time.”

[75]        The Respondent conceded in cross-examination that he is often late in picking up the child. He himself has cancelled some of the visits, and when asked about specific visits, he testified that he could not recall the specific reason for cancellation, but that “it must have been important.”

[76]        The Respondent testified that he enjoys a good relationship with his two sons from his previous relationship and with his ex-wife. It is unclear to what extent this is true. The Respondent’s ex-wife, L.A., was subpoenaed to testify by the Applicant. L. A. applied to set the subpoena aside. In short, she didn’t want to get involved in these parties’ conflict. She said in her application “attending court as a witness will bring hardship and strife into my family and children’s relationship with their father. It would be very harmful to them both and their future mental and emotional state.”

[77]        L. A.’s application to have the subpoena quashed was refused, and she was questioned by both parties. Without recounting her testimony, I can simply state that nothing in her testimony has had any effect on the outcome of this matter. The ultimate result in this case is the result of the parties’ conduct, words and actions towards one another, and more importantly towards the child and not anything that L. A. has testified about.

[78]        Patricia H., the Respondent’s mother-in-law, testified that she sees the child on average twice per month. She calls the child by her middle name, and this does not appear to upset the child. She testified that when the Respondent is present, the child will call him dad, but when he is not present, the child will call him by his first name. She describes the child as talkative. She testified about an occasion when the child saw a police officer and said “the police are gonna come and get D.A., he’s been a bad guy, H.S.K.V. told me so.” Mrs. H. also described some disturbing behaviour on the part of the child involving cruelty to animals.

[79]        The Respondent’s sister, Maria, testified, but had little good to say about her brother or his new wife. She described him as having problems with alcohol and testified that he called her in advance of the trial, and in her words “tried to intimidate” her. He left her an angry message on her voicemail and she reported the matter to the police. She describes T.A. as a bully and as very cruel and mean. Maria has developed a friendship with the Applicant and sees the child when she is in the Applicant’s care.

[80]        Donna K. had been a mutual friend of the parties. She is now a friend of the Applicant’s and sees the child about twice per week. She described the child as hyperactive and prone to tantrums and profane language. She also testified that the child pulls her own hair. Ms. K. testified that the child complains about the Respondent and about being called [middle name]. All of this occurs in the presence of the Respondent. Ms. K. had good advice for the parties, saying that she has encouraged them to “move on.”

[81]        The Applicant is now in a relationship with S. P. The two of them met in July of 2012. They have decided to wait until after this court action is over before moving to the next stage of their relationship. He lives in Coquitlam where he teaches martial arts. He has a son from a previous relationship. His son has functioning autism spectral disorder and Mr. P. and his son’s mother share parenting responsibilities for the child equally.

[82]        Mr. P. describes the child who is the subject of this action as presenting with behavioural challenges. She displays anger, temper tantrums, foul language and negative attention seeking. He testified that the child has complained to him about being called by her second name. He described a couple of confrontational conversations he had with the Respondent. They met for the first time in January of 2013 and had this conversation:

[83]        On another occasion during an exchange of the child, Mr. P. confronted the Respondent about calling the child by her middle name. He told the Respondent “the child has a first name, perhaps you could use it.” On still another occasion, he described another confrontational conversation with the Respondent in which the Respondent asked if he was the protection and he said “Yes, why, are you getting out of the car?” He also testified “it is quite clear to me that the child does not like to be called [middle name].”

[84]        In the cross-examination of the Applicant, a common pattern emerged in which it became clear that in the Applicant’s opinion, anyone who did not share her point of view was clearly wrong. For example, she thinks that Allison Hurst was wrong about her assessment of the significance of the child’s name. The Applicant feels that Ms. Hurst was biased in favour of the Respondent. She blames Judge Gardner for removing the requirement that the Respondent’s access be supervised. She believes that her first lawyer did a poor job of representing her and her second lawyer shouldn’t have withdrawn despite not being paid. She says that Joseph S., the witness to the incident at McDonald’s, was wrong and was probably paid for his testimony. She was unable to concede any wrongdoing on her part in any of the confrontations in which she was involved in, in the presence of the child. At one point however, she began to admit that she might have acted immaturely during the confrontation with T. A. at McDonalds, but then went on to explain why it was all T.A.’s fault. During cross-examination she constantly kept interrupting the questions put to her, wanting to engage in argument rather than answer what were legitimate questions.

[85]        It has never been ordered that a report setting out the views of the child be prepared. The Respondent had applied for this, but the Applicant was opposed to it. Part of the reason was the cost of such a report. In cross-examination of the Applicant, counsel for the Respondent noted that the Applicant felt that it was more important for her to contribute $1500 to the cost of her vacation to Mexico with Mr. P., rather than putting that money towards the cost of a report about the child.

[86]        A number of themes emerge from the evidence heard at the trial of this matter:

[87]        In her written submissions, the Applicant acknowledges that the child has serious behavioural challenges which she says the Respondent does not acknowledge. She accuses the Respondent of having financial motivations for wanting to change the status quo. She writes:

[88]        The Applicant has listed a number of access visits which the Respondent did not attend, and suggests that he has a “limited true desire” to see the child. She takes the position that he “should not be given any more parenting time and decision making power than he has because of his history and the negative impact he is having on his daughter.”

[89]        The Applicant is asking for an order that she be the only guardian of the child. She wants the Respondent to have no parenting time or contact with the child for six months, followed by supervised contact for a period that she calls “gradual re-entry.” She wants to control what this looks like, asking that this contact be “at the mother’s discretion.” She is firmly opposed to any increase in contact, including during holidays. The present Wednesday visits should be done away with, and she should decide what is in the child’s best interest. She asks that the Respondent be the one to pick up and drop off the child from visits and she would like any order for contact to be police enforced. She asks for an appropriate increase in child maintenance and ongoing financial disclosure. She has set out a number of ancillary orders that she is requesting in her written submissions, including an order that the Respondent only address the child by the name [first name].

[90]        Counsel for the Respondent argues that the Applicant has used her status as sole guardian to control the relationship between father and child. She argues that the records of the Ministry of Children and Families support the notion that the child’s behavioural issues stem from the Applicant’s negativity and control issues. She notes that the evidence shows that the Respondent has good parenting skills and that when he is with the child, away from the Applicant, the child is happy and does well. The Applicant chooses to frustrate parental contact, make unfounded accusations, about kidnapping for example, and express other irrational fears. The Applicant is constantly critical of whatever the Respondent does, whether it is giving the child a birthday cake or visiting the child’s great-grandmother. She has made a number of unfounded accusations which had been investigated by the Ministry of Children and Families and none of them have any substance to them. The Applicant has accused the Respondent of being violent, while overlooking the fact the she herself initiated a confrontation with T. A. and assaulted her. This occurred in the presence of the child, in spite of the fact that the Applicant knew that her child had been traumatized by the Halloween incident.

[91]        Counsel argues that all of this leads to the conclusion that the Applicant is attempting to alienate the child from the Respondent. In her written submission, Ms. Wood has set out the warning sign behaviours of an alienating parent, and argues that the Applicant is displaying many of these.

[92]        The Respondent testified that he would like an order for joint guardianship and shared parental responsibilities. In his testimony, he proposed that the child live at each home on alternate weeks. In Ms. Wood’s written submission, it is proposed that the child should reside primarily with the Respondent, but that the Applicant should have generous parenting time. The Respondent also said, in his testimony that he would abide by an order regarding the child’s name.

[93]        The positions of the parties are quite divergent. It is clear that the status quo is not healthy for the child, that each of the parties are set in their ways and that the child would be much happier if her parents weren’t so in love with their conflict.

[94]        Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of section 37 specifically mentions the following factors:

[95]        Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.”

[96]        Counsel for the Respondent argues that the Applicant’s behaviour amounts to parental alienation. Parental alienation is a concerted effort on the part of one parent to destroy the present and future relationship between a child and the alienated parent. This type of negative behaviour is very harmful and abusive to the child because it is negative conduct which is directed toward a young, emotionally vulnerable and impressionable mind. Parental alienation is often grounds for a change of a child’s residence because the harm which may be occasioned by a change in residence is outweighed by the harm to the child that will result if the child is permitted to remain in the care of the alienating parent.

[97]        In A.A. v. S.N.A. 2007 BCCA 363, the British Columbia Court of Appeal considered the question of when it is appropriate to change the custody of children who are in the care of a parent that is denigrating their relationship with the non-custodial parent. In that case, the trial judge decided not to change the custody of a child from a parent who was described as being “intransigent and highly manipulative” and who was injuring the child’s relationship with the non-custodial parent. The Court of Appeal held that the trial judge’s failure to do so constituted an error in law. In its reasons, the court wrote:

[98]        According to the principles set down by our Court of Appeal in this case, the difficulties of a change in the children’s residence are secondary to their long term interest. If I conclude that the status quo is detrimental to the children’s long-term well-being, a change in their custodial status is preferable to maintaining the status quo. Paramountcy must be given to the children’s long-term interests over the short-term adjustment that may come with a change to the status quo.

[99]        The first consideration in an analysis of what is in the best interests of this child is the child's health and emotional well-being. In this case, this child’s health and well-being have been adversely affected by the high level of acrimony that exists between her parents. While the Applicant insists that she is the only one who wants to do what is best for the child, her actions do not match her words. One of the most glaring examples of this is her initiation of a conflict with and her subsequent assault of T.A., in the presence of the child. I accept the evidence of Joseph Soderstrom as to what took place. He is independent and impartial in this conflict and presented as an honest witness.

[100]     It is clear from the evidence that the child is suffering from the conflict and is presenting with behavioural problems. The real difficulty is in identifying which parent could best help the child to address those problems. The difficulty with the Applicant is that her past behaviour satisfies me that she would likely reject any professional help and advice from anyone who might suggest that she looks at her part in the causation of the child’s problems. She is only interested in those professionals who support her view of the world. The Respondent sees himself as being pushed around and is intent on getting his “rights” no matter how this affects his daughter.

[101]     It is clear that an important part in getting help for this child is for both parents to see their part in the conflict. Each of the parties has to stop blaming the other side and clean up their own side of the street. It is obvious to anyone without a side to take in this matter that both of the parties bear some responsibility for that. As things presently stand, neither is willing to do this.

[102]     Social Worker Allison Hurst had the best suggestions for helping this child, but the Applicant has rejected any components of that advice which suggest that she somehow change her behaviour. What this child needs is an environment in which she can be comfortable showing love for both of her parents in the presence of each of them. The child loves her mother and she loves her father. But if she displays any positive feelings for one parent in the other’s presence, she fears that she will be rejected for this or worse. After all, in her eyes her parents are at war. They are enemies. They love their conflict so much that they are unwilling to declare a truce and say the slightest nice thing about the other. That might be taken as a sign of weakness and give the other side an advantage. It is impossible for the child to relax under these conditions.

[103]     A change of residence would not necessarily address these concerns. One only has to look at the content of the Facebook pages maintained by the Respondent and his wife to see where their focus is. A lot of spiteful anger is directed at the Applicant, and more would follow from a change of residence. Much of the evidence from both sides in this matter has been about criticism of the other parent. Very little concerned the benefits to the child that would flow from a change of residence. It has not been shown that a change of residence would end the conflict. It may make matters worse by having the Respondent view this as “payback time” and cause him to commence his own alienating behaviours.

[104]     On November 2, 2011, the Respondent asked that a “Views of the Child” Report be prepared. The Applicant opposed this. Part of the reason for her opposition was the expense, and yet was she able to find the money for a vacation to Mexico. In the time that it has taken this trial to complete, a free report from the Family Justice Councillor could have been prepared. A significant concern has been the lack of a voice given to this child.

[105]     The least reliable source of the child’s views in this situation comes from the parties themselves. From having had a front row seat to the angry confrontations between her parents, this child is painfully aware of the views of her parents, and it is most unlikely that she would ever feel comfortable enough to express a point of view that would not match that of the parent in whose presence she was in at the time. It is also not surprising that the friends and family of each party would witness the child supporting the point of view of that party, especially at times when that parent is present.

[106]     The best evidence of the child’s views comes from Allison Hurst, one of two independent witnesses who testified in this matter. It was Ms. Hurst’s evidence that it was not so much that the child cared about which name she was called, but that it was a subject she did not want to discuss because of the pressure being put on her about it. It was also Ms. Hurst’s impression that the child was comfortable in both homes, and this is consistent with the evidence of the family and friends called by both parties, who testified that when the child was in the care of each parent alone, she was comfortable in that parent’s presence.

[107]     The Applicant argues that the bond between her and the child is a strong one because she has been involved with the child since birth. She goes on to say that the Respondent “has been absent in the crucial bonding time and has been inconsistent with the access visits he has had.” In support of her request that his parenting time be supervised, she relies on the BC Supreme Court decision in B.J.M. v. K.F.B. 2003 BCSC 390. That case concerned a situation very different from this one. As paragraph [6] of that case notes, there the father “had almost no contact with his son for many years and has no meaningful relationship with him.” That is a vastly different situation from the present one, where the Respondent has tried to have a relationship with the child, and has exercised unsupervised access for a time.

[108]     Counsel for the Respondent argues that the Applicant’s attitude of wanting to control the conditions of access and to revert to supervised access at this point is indicative of a pattern of parental alienation on the part of the Applicant. Counsel cites the case of A.E.O. v. T.K.O. 2012 BCSC 708. In that case, the alienating parent made false complaints to the police that the child was being sexually abused. In this case, both sides have complained to the Ministry of Children and Families. Here the complaints were not simply crying wolf. Ms. Hurst’s letter of December 9, 2013 states: “it was determined that your daughter has been found in need of on-going protective services due to emotional harm.” In this case both of the parties have contributed to that harm. Unfortunately, each is unable to recognize their part in causing it. For example, the Applicant states in her submission that she accepted counselling on the recommendation of the Ministry “albeit under a false and largely inaccurate allegation made by T.A.” It is also clear that the Applicant wants the Respondent to have a relationship with the child only on terms that she sets and controls. Both sides are in deep denial about their part in causing emotional harm to the child.

[109]     Both of the parties have extended families and friends, and it is in this child’s best interests for her to be able to get to know her step-siblings, aunts and uncles and other extended family members.  Of the witnesses who testified, Patricia H., L. A., and Maria all seemed disinterested in enlisting in the war between the parties and just wanted this child to have some peace and happiness.

[110]     Both of the parents have new partners, and the new partners have been very supportive of their partner and very critical of the other parent. This is especially apparent in the case of T.A., whose Facebook pages show an unhealthy pre-occupation with disparaging the Applicant, and who is more than willing to escalate any conflict even when the child is present. S.P. has also demonstrated a willingness to become confrontational, though not to the same extent as T.A.

[111]     This is not a situation where one home is better suited than the other to protect the child from disparagement of the other parent.

[112]     The Applicant is quick to point out that she has been the child’s main caregiver throughout her life. In much of her communication with the Respondent she asserts her position of having sole custody and guardianship of the child. The Applicant is critical of the Respondent for not being present at the child’s birth and not being involved for the first three and a half years of the child’s life. The parties did not live together during the child’s life. The Respondent chose not to reply to the first court document that he was served with and the Applicant suggests that this is a further indication of his lack of interest in the child. The Respondent brought his first court application when the child was two and a half years old (in November of 2011). Since then any attempts on his part to become more involved in the child’s life have been vigorously opposed.

[113]     In her submissions on behalf of the Respondent, Ms. Wood argues that it is not necessarily a good thing for the Applicant to boast about being the child’s primary caregiver. Ms. Wood points out that the child “exhibits behaviours that are not normal for a 5 year old child” and that these have manifested themselves while the Applicant has been the primary caregiver. She argues that continuing that status is not in this child’s best interest. If the Applicant’s full-time care has resulted in a child with these behavioural problems, then, Ms. Wood asks, how can it be said to be a good thing to continue what has failed thus far?

[114]     Ms. Wood’s argument has some appeal, but it would have greater appeal if the Respondent could demonstrate the willingness and the ability to step back from the conflict. His conduct thus far raises concerns that if a change in primary care-giver was made at this time, the child would still be cared for by one parent who denigrates the other.

[115]     In her written submission, the Applicant does not acknowledge her part in the conflict that this child has been experiencing. She argued that “D.A.’s negative involvement needs to be minimized” for the child to do well. There is no mention of her angry outburst at the Halloween incident or her or her assault of T.A., both in the presence of the child. She takes no ownership of her part in the present state of affairs and views herself as the parent doing everything right, while the Respondent is the one doing everything wrong.

[116]     Counsel for the Respondent points out that the lion’s share of the behavioural problems that the child has demonstrated occur when the child is in the Applicant’s care. The Respondent suggests that in this case, maintaining the status quo is not in the child’s best interests because the child is not thriving in her current home. Once again, this argument would have more force if he had a track record for taking the high road and for walking away from conflict. The evidence instead discloses a string of embarrassing and crude email and text messages, a conviction for threatening in the presence of the child, the disingenuous ignoring of a court order shortly after it was made, and making his child uncomfortable by mocking her name insensitively by calling his dog a name offensive to the child. His arguments about parental alienation and the need for a change in the child’s residence would have much greater force if he had behaved more reasonably in the past.

[117]     This is not a case where either party has any shortfalls when it comes to caring for the child. Both of the parties are able to properly feed, clothe and meet the child’s material needs. Social Worker Allison Hurst has confirmed that the child is comfortable in either home. The problem has been in the parents’ ability to meet the child’s emotional needs. Both of the parties acknowledge the problems that this child has. In her submissions, the Applicant blames these solely on the Respondent. She says that he is the one who has “introduced conflict and brought harm in the form of emotional confusion to his daughter.” Any insight into what her part might be in the child’s problems is lacking.

[118]     The Respondent similarly feels that the Applicant is the sole cause of the child’s stress. He does not seem to accept any responsibility for his conduct and how it has negatively affected the child. This includes his threat to the Applicant in the child’s presence, his new spouse’s negative Facebook campaign against his child’s mother and his inappropriate conduct at the child’s day-care. Most troubling is his attitude towards his child’s issues are ego-centric, rather than his child-centric. As he stated in his testimony, his main concern is his “rights” rather than his responsibility for his child’s welfare.

[119]     Both of the parties have failed to grasp one key fact: when they direct hateful conduct towards one another, they are really directing it towards their child. She would like to be able to love each of her parents, without being made to feel that she is being disloyal to one when she is showing love for the other. Unfortunately, these parties are unable to understand this.

[120]     Neither party has ever been physically violent to the child. There have been some accusations of this, but the Ministry investigation did not find any substance to this. The Honourable Judge Gardner was quite correct in concluding that there was no need for the Respondent’s access to be supervised. There has never any substance to the suggestion that the Respondent would physically harm the child. The harm that the child has suffered has been emotional and both of the parties need to take responsibility for their part in it.

[121]     The parties have each participated in violence, and have not spared the child from witnessing that violence. The Respondent has been convicted of uttering a serious threat to the Applicant in the presence of the child. The Respondent has not demonstrated any remorse for his actions, and no doubt he believes that the Applicant deserved it and more. The Applicant has on at least two occasions had angry outbursts in the presence of the child. She hit T. A. at an exchange of the child, even though she was never charged criminally. She banged on the window of T.A.’s car because she was unable to control her aggression. She too is oblivious to her own conduct, maintaining that everything is the Respondent’s fault. There is also considerable intimidating conduct on the part of the parties, including the Respondent’s conduct at the day-care, in whatever made L. A. afraid to testify, and in S.P.’s assertions that he is “the bodyguard” and “the protection”. All in all, it is a very unhealthy atmosphere for this child.

[122]     This is not a situation that offers any easy solution. At the center of this action is a five year old child who has been emotionally harmed because of the intense conflict between her parents. Both parents have a very strong dislike of one another. It is so strong that neither parent is willing to acknowledge their contribution to their child’s distress. Each is convinced that it is entirely the fault of the other side. Both are stubborn and blind when it comes to seeing how their actions have made their child unhappy. Both approach the problem from an ego-centric perspective rather than a child-centric perspective. Both want to be in control. Neither is willing to say: I admit that I am partly responsible for my child’s unhappiness and I am willing to change my negative behaviour for her sake.

[123]     The child’s life could be improved if the parties would adopt a few simple steps:

[124]     Unfortunately, the law has not yet found a way of enforcing a court order that reads “You are ordered to act as decent human beings.” Because these litigants are indeed “high conflict litigants”, this situation in this case presents a number of options:

[125]     Neither the first nor last options would be in the best interests of this child. Doing so would feed into the notion that this is a war, that the child is a possession and that there must be a victor and a loser in the war. If this was a case where one side was showing some insight into their conduct and was willing to take conciliatory steps toward reducing the child’s anxiety, it would be in the best interests of the child to maximize her time in that environment. Unfortunately neither party has demonstrated that level of insight. The Applicant sees herself as the only opinion that matters and is not open to opinions that differ from hers. The Respondent is concerned about his “rights” more than his child.

[126]     The status quo is not good for the child. As someone once said, “If you keep doing what you’ve been doing, you’ll keep getting what you’ve been getting.” In this case a continuation of the status quo will mean a continuing troubled child.

[127]     The child is entitled to a relationship with her mother and with her father. She is entitled to feel comfortable with each parent and to be free of denigration of each parent by the other. Her time spent with each parent should be free from interference by the other parent. Much of the conflict surrounding the child’s life comes from the Applicant’s disapproval of some aspect of what the child is doing when she is in the Respondent’s care. This kind of micro-managing has only added to the conflict and resentment.

[128]     I have considered a split or parallel parenting arrangement in this case, but do not feel such an arrangement to be in the best interests of the child. Firstly, there is insufficient evidence as to how this drastic of a change would affect the child. Secondly, it would likely feed into the notion of the Respondent as winner and the Applicant as loser, and such a situation would not achieve what this child needs most: for her parents to take responsibility for their part in causing the child’s emotional distress. However, I am satisfied that the time this child spends with the Respondent should be increased so that the child can clearly understand that she has two parents and both are to be valued in her life. How much of an increase will depend on how the Respondent reacts to that increased contact.

[129]     The Applicant has asked for an order for sole guardianship of the child, while the Respondent has asked for his order for guardianship, presumably joint guardianship. As the Applicant has often proudly pointed out, at present she has an order for sole custody and guardianship under the Family Relations Act. When the Family Law Act came into force, section 251 of that Act provided that the Applicant now has guardianship of the child and parenting responsibilities. The parties never lived together during the child’s life and none of the conditions set out in section 39 of the Family Law Act apply to make the Respondent the guardian of this child.

[130]     It is possible to appoint the Respondent as a guardian under section 51 of the Family Law Act if there has been compliance with Rule 18.1 of the Provincial Court Family Rules. That rule requires the filing of a formal affidavit, but rule 18.1(4) gives the discretion to dispense with the filing of the affidavit, and I am satisfied that I could dispense with that requirement in this case, where there has been eight days of evidence heard.

[131]     I am declining to make a guardianship order or any order for sharing of parental responsibilities at this time. This is not to suggest that the Respondent should never enjoy such status. But before that happens, he will have to do certain things to earn that responsibility. (It must clearly be understood that it is a responsibility and not a right.) He may apply to become a joint guardian one year from now, with his application based on the following considerations:

[132]     These are intended to set some guidelines for the Respondent to aspire to in order for him to take on the responsibility of being a joint guardian. If the Applicant continues in her current manner of behaviour, these guidelines would also make an order changing the child’s residence more likely. Most importantly, if the Respondent can meet some of these goals, they should help to alleviate some of the child’s distress.

[133]     The most reliable evidence I have on the issue of the child’s name is that from Social Worker Allison Hurst, i.e. that the child’s stress comes doesn’t arise from the child’s name, but from how the Applicant has handled the situation. This should never have become an issue, and the child should have been made to feel comfortable whether addressed by her first or second name. It is hard to imagine that when the child was three or four years old, she would react to being called by her middle name is the way that the Applicant suggests, without being influenced to react that way. It is more likely that her distress about the name is a response to conditioning. Nevertheless, if the damage has been done, it doesn’t matter much at this point whose fault that is. Too much effort has been spent by the parties on fault finding and too little on problem solving.

[134]     I will order the Family Justice Counsellor to prepare a “Views of the Child” report pursuant to section 211 of the Family Law Act. This should have been done at an earlier stage, and I am at a loss to understand why the Applicant opposed this, other than because this would remove control of the outcome out of her hands. The report should canvass the child’s views in the usual fashion, but I would like the report to specifically seek out the child’s views on which name she prefers. It has been the experience in this court that the Family Justice Counsellor’s report writers are very professional and impartial and are able to detect signs of coaching. I would also ask the report writer to record any impressions about any influence that may have been applied to the child in expressing her views on the subject.

[135]     Once the Family Justice Counsellor is able to discern the child’s real feelings on the subject, the parties will be expected to respect the child’s wishes as she expresses them to the Family Justice Councillor. If the child prefers to be called by her first name, they should do so. If she is comfortable with both names, they should each respect that. Thereafter they should let the subject drop. If the parties genuinely love their child, they will cooperate to eliminate this stress from the child’s life, even if it means that they do not get their own way, and even if they are still inclined to see this as a “win” for the other side.

[136]     One of the distressing things about how this file has proceeded is in the cessation of involvement by the Ministry of Children and Families. On December 9, 2013, the Ministry concluded that this child was “in need of on-going protective services due to emotional harm.” Social Worker Allison Hurst was very conscientious and very astute in her assessment, but unfortunately, once she was no longer the assigned social worker, nothing further seems to have happened. Specifically, eight excellent recommendations were made by Ms. Hurst, but were not followed up on. For some reason a counsellor made a very drastic recommendation after only getting one side of the story. This one-sided counselling report fed into the climate of “I’m right, you’re wrong” and “I win, you lose.”

[137]     The emotional harm that the child was found to be experiencing eleven months ago has not gone away. The Ministry has the advantage of being in a position to have eyes on the child and on the parents to see that they do what is necessary to alleviate the stress on this child. Specifically the parents need to get past blaming the other side and be accountable for their own actions. The Ministry has the clout to provide an incentive for the parents to do so. They have access to the proper counselling and other resources necessary to carry out the expectations set out in Ms. Hurst’s letter of December 9, 2013. Most importantly, they have the mandate to do so where a child has been emotionally harmed within the meaning of section 13(1) (e) of the Child Family and Community Service Act. The Ministry has already reached that conclusion, but nothing has been done about it.

[138]     The Ministry is not a party to this action and I am unable to directly order them to intervene in this matter. I will direct that a copy of these reasons be sent to the Ministry of Children and Families office in Maple Ridge. I cannot order them to follow up on their recommendations of December 9, 2013, but doing so would certainly be in this child’s best interests. It would be ideal if Ms. Hurst was the assigned social worker because of her diligence shown when she was the assigned social worker, but I do not mean to micromanage the Ministry’s handling of this matter. Suffice it to say that an independent pair of eyes on this child would be in her best interests and the Ministry of Children and Families is uniquely suited to provide that pair of eyes.

[139]     The current order, made by the Honourable Judge Hoy on June 15, 2010, imputed an annual income to the Respondent, for the purpose of the Federal Child Support Guidelines, in the amount of $55,080. He was ordered to pay child support in the sum of $500 per month for the support of this child.

[140]     The Respondent has filed two financial statements in this matter: one on June 7, 2012 and one on March 3, 2014. There have been vague assertions about the Respondent “working under the table”, but the only credible evidence before the court is the financial information contained in the financial statements. Because the Respondent is self-employed, some of his income comes from a salary draw, and some comes from dividend income. The financial statements are troubling because they do not contain the Respondent’s Notice of Assessment for each year. The Financial Statements disclose the following information:

[141]     The Respondent’s average income for the past five years has been $51,515.40, which attracts a monthly payment of $473 (or $27 per month less than what Judge Hoy had imputed.) In order to change the amount of child support, the party seeking the change must make full and frank disclosure of his or her financial position. At the very least, the Respondent should produce his Notice of Assessment from each of the past five years. I am unable to make a variation of Judge Hoy’s order based on the financial evidence now before the court.

[142]     The Applicant has asked for an order for financial disclosure and this is a reasonable request. This is one area where rights are especially important, in that it is the child’s “right” to be maintained, by the Respondent in this case, in accordance with the Federal Child Support Guidelines. The Respondent is required to file his income tax for this fiscal year by April 30, 2015 and in the usual course he should receive his Notice of Assessment from the Canada Revenue Agency no later than June 30, 2015. I will order that he file and deliver to the Applicant a Financial Statement by that date, together with all required attachments,  to include his notice of assessment for the 2012, 2013 and 2014 tax years.

[143]     Neither party has requested that this file be transferred to another court registry nor am I making any order for such a transfer. It is my understanding however that the parties no longer live in any of the communities usually served by this court registry. If further applications follow this order, it would be wise to consider a transfer of the file to the registry nearest to where the child resides in order to save the parties expense.

[144]     For the foregoing reasons, the order which I am making is set out below: