C.E.D. v. C.L.L., 2014 BCPC 34 (CanLII)
Citation: C.E.D. v. C.L.L. Date: 20140314
Registry: Victoria
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
C.E.D.
APPLICANT
AND:
C.L.L.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE J.P. MacCARTHY
Counsel for the Applicant: Wendy Zimmerman
Counsel for the Respondent: Julie Donati
Place of Hearing: Victoria, B.C.
Dates of Hearing: August 8, 9, October 30, November 4 and 29, 2013
Date of Judgment: March 14, 2014
Introduction
[1] C.L.L. (the “Father”) and C.E.D. (the “Mother”) (collectively the “Parents”) are before this court either seeking to enforce or vary the terms of an Agreement Made in a Facilitated Planning Meeting or Mediation dated October 27, 2010 (the “Mediated Agreement”) pursuant to which an interim consent order was made by this court on October 28, 2010 (the “October 28, 2010 Order”) under Family Relations Act , R.S.B.C. 1996 chapter 128 ( the “FRA”). It granted the Parents shared joint custody of their Child C.D.L., born [deleted for publication] (the “Child”) who is now five years old.
[2] The Father’s allegations are that the Child’s development has been hindered by the Mother and her capabilities as a Parent and the poor choices that she has made, such that it is no longer in the Child’s best interest to remain in the halftime care of the Mother and if that shared arrangement is to remain, then it requires modification. Furthermore, the Father says that there should be an allocation of parental responsibilities granting the Father more responsibilities than the Mother. The Mother denies those allegations and seeks to enforce provisions of the Mediated Agreement and the October 28, 2010 Order.
Background of Court Proceedings
[3] The Mediated Agreement came about as a result of the involvement of the Director of Child, Family and Community Service (the “Director”) due to child safety concerns with respect to the Child. As a result of those concerns the Child had been placed in a foster home situation from September 28, 2009 onward. A social worker who was the delegate of the Director was a party to the Mediated Agreement along with the Mother and the Father (collectively the “Parents”). The purpose of the Mediated Agreement was to put in place an appropriate framework to permit the return of the Child under supervision pursuant to section 46 of the Child, Family and Community Service Act (“CFCSA”).
[4] On January 6, 2011 this court made an order in the CFCSA action, pursuant to section 60 of that act, returning the Child to the custody of the Parents under supervision for a six month period expiring July 6, 2011 (the “January 6, 2011 Order”). Under the terms of that order the parties agreed to delete certain interim provisions of the Mediated Agreement such that Appendix C of the Mediated Agreement entitled “Co-Parenting schedule as January 2, 2011” became the operative agreed parenting arrangement (the “Original Co-Parenting Arrangement”).
[5] Under that arrangement in Week 1, the Father is entitled to overnight and daily care of the Child commencing on the Saturday of that week and continuing through to Monday morning when the Child is returned to day care; the Mother is responsible for picking up the Child on that Monday afternoon from day care and having the care of the Child daily and overnight for Monday, Tuesday, Wednesday and Thursday, and then on Friday mornings she returns the Child to day care and the Father is responsible for pick up on Friday afternoon and then resumes care of the Child for Friday overnight.
[6] In Week 2 the Father’s care of the Child continues from the previous Friday such that he has the Child overnight and throughout the days on Saturday, Sunday and Monday and then returns the Child to day care on Tuesday morning; the Mother is responsible for pickup that afternoon and resumes care of the Child overnight and throughout the days for the Tuesday night and then Wednesday and Thursday. She drops the Child off at day care on Friday morning with the Father being responsible for pick up that afternoon and has care for Friday overnight. The week 1 schedule then once again commences.
[7] The Parenting schedule under the Original Co-Parenting Arrangement is made subject to alteration by mutual agreement of the Parents.
[8] Under the Mediated Agreement various restrictions were placed upon the Parents and agreed terms were put in place regarding their interaction and contact with each other. This arose from the history of family violence within their relationship in front of the Child, cross allegations of physical abuse which resulted in police involvement and from the Parents’ challenges in their ability to communicate with each other in an appropriate fashion, especially as it related to the Child. It provided that the caretaking Parent would contact the other Parent when child care was required for a period of time greater than four hours, on the understanding that the other Parent would have the right to decline if they were unavailable. Each Parent agreed to use email or phone calls or text messages to exchange urgent child related information. It was agreed that the Parents would have a monthly in-person co-parenting business meeting in a public place to talk but issues relating to parenting the Child.
[9] Provisions were made to address the requirements of the Father obtaining suitable counselling and the Mother continuing to receive support and services pursuant to her risk reduction plan with the Director.
[10] The Mediated Agreement contains two important and somewhat unique features. The first was that the Mother agreed to inform the Director and the Father if and when she decided to return to her employment in the escort business and for her and the Father to develop a safety plan for the Child in the event that she returned to this line of business.
[11] The second related to the aboriginal heritage of the Mother, the Father and the Child.
[12] The Mother and the Father are members of different bands. A cultural plan for the Child was deemed to be appropriate. Accordingly, a November 15, 2010 deadline, being approximately three weeks from the making of the Mediated Agreement, was set for the parties to collect information on the benefits associated with membership in their respective bands and to arrange a meeting with the Director to discuss the Child’s band registration. It was agreed that that the Father would arrange an aboriginal naming ceremony for the Child. So far as can I can determine, the parties never complied with that important cultural plan provision.
[13] On September 7, 2012 the Father filed An Application to Change or Cancel an Order under the FRA in which he sought to change the October 28, 2010 Order.
[14] In that application the Father sought to have the primary residence of the Child with him and in the alternative the “50/50 Parenting schedule should be carried out such that each party have (the Child) in their care every second weekend”, the Child be registered as a member of the Father’s band and in the event that the primary residence was not granted to the Father, the Child be registered in an “elementary school in the greater Victoria area, somewhere geographically between the applicant Father’s home and the respondent Mother’s home. The basis for the Father’s application was the allegation that the Child’s development had been hindered by the Mother and that it was no longer in the Child’s best interest remain in the 50% care of the Mother.
[15] The Mother disputed the changes being sought by the Father and in her own application filed October 4, 2012 sought orders: for the Child be registered as a member of her band, for the Child to attend one of two named schools within the City of Victoria; for all communication between the parties, except for emergencies, be by way of email, that the Parents discuss and agree upon professionals treating the Child, including but not limited to doctors, dentist and speech therapist; for each Parent to advise the other of the Child’s medical dental or other appointments; for the Child to remain in his current day care; for each Parent to advise the other if the Child to be left in the care of an alternate caregiver overnight, or for a period of more than 10 hours, in which case the other Parent will have first option to provide alternate care for the Child; neither party will be under the influence of non-prescription drugs while the Child is in his or her care.
[16] As I understand it, the matter was then set down for hearing in June of 2013. However, the matter was adjourned from June 13, 2013 to June 20, 2013 for the purposes of permitting concerns about the Mother’s potentially violent domestic relationship with a certain R.M. that had been reported to the Director to be investigated. An interim order by consent was made on June 13, 2013 to permit the Mother to have specified parenting time with the Child at the Child’s day care and for telephone calls each evening at 7:00 p.m. (the “June 13, 2013 Order”).
[17] On June 20, 2013 an interim consent order this court ordered that the Mother not allow contact between R.M. and the Child during her parenting time with the Child (the “June 20, 2013 Order”).
[18] The matter came on before me for hearing on August 8, 2013 and August 9, 2013. Given the approaching new school year, I was asked by the parties to deal specifically and immediately with the dispute about which school the Child should be registered at for commencement of kindergarten in September 2013. It became apparent that the matter before me would not be able to be entirely completed within the allotted time. Accordingly, I made an interim order to incorporate the terms of an agreement that had been reached by the Parents during the course of the two days of hearing. Under the terms of that order it was required that the Child be registered at a school geographically between the residence of the Mother and the Father.
[19] The matter was set for a continuation on November 4, 5 and ultimately again on November 29, 2013.
[20] On October 2, 2013 in the midst of the continuation the Father filed a further Application Respecting Existing Orders or Agreements under the Family Law Act, S.B.C. 2011 c. 25 ( the “FLA”). In that application the Father sought to suspend the Mediated Agreement and requiring the Mother to have parenting time supervised by the Director or by a professional supervisor, permitting the Mother to have telephone access three times per week and requiring the Mother to submit for hair strand testing for illicit drugs. The basis for the orders sought by the Application were allegations about the Mother’s poor decision-making, mental health issues, association with an abusive boyfriend, illicit drug use and the absence of stable housing.
[21] On October 28, 2013 the Father filed a further Application Respecting Existing Orders or Agreements seeking to vary the October 28, 2010 Order such that the Father would have sole parental responsibilities for the Child pursuant to section 41 (a) to (f) inclusive and subsection (h) of the FLA and that the Parents have joint parental responsibilities pursuant to section 41 (g), and (i) to (l) inclusive of the FLA.
[22] The Mother opposed both applications as not being in the best interests of the Child and cited the fact that this matter and those issues were presently before the court for continuation of the hearing.
[23] At the conclusion hearing the evidence and upon hearing submissions, I made an interim order that placed certain restrictive terms on the Mother’s parenting time. This order arose out of very recent and concerning developments that had occurred during the course of the continuations of the trial.
Issues Before the Court
[24] The issues before this court that must be decided are as follows:
1. Are the existing parenting arrangements set forth in the Mediated Agreement still in the Child’s best interests;
2. If not, what changes should be made to the existing parenting arrangements, having regard to the best interests of the Child;
3. Should there be an allocation of parental responsibilities for the Child beyond an equal sharing of those responsibilities between the Parents, and if so what changes are required in the best interests of the Child.
4. Which of the Parent’s aboriginal bands should the Child be registered with for the purposes of the Indian Act.
Relevant Provisions of the Family Law Act
[25] Part 4 of the FLA – “Care of and Time with Children” and Division 1 “Best Interests of Child”, Division 2 – “Parenting Arrangements”, Division 3- “Guardianship”, Division 4 – “Contact with the Child”, and Division 5- “Compliance Respecting Parenting Time or Contact with the Child” are the provision of the FLA that are relevant to the applications and the issues presently before this court.
[26] For the convenience and for the parties’ ease of reference, those provisions are set forth in Appendix A to these reasons, along with other sections of the FLA to which I may make direct or indirect reference.
[27] Section 40 (1) to (3) inclusive provides that only a guardian may have parental responsibilities and parenting time with respect to a child. Each guardian may exercise all parental responsibilities with respect to a child in consultation with the child’s other guardians, unless an order or agreement provides to the contrary. Parental responsibilities may by agreement or by court order be allocated for exercise by one or more of the guardians only or each acting separately or all guardians acting together.
[28] No particular parenting arrangement must be presumed to be in the best interests of a child, including that parental responsibilities or parenting time should be shared equally or that decisions about a child should be made separately or by more than one guardian together. [see section 40 (4).]
[29] Section 41 lists the parental responsibilities that may be allocated by agreement or court order such that they can be exercised by one or more guardians, each guardian acting separately or all guardians acting together [see section 40 (3)]. Such parental responsibilities must be exercised in the best interests of the child. [see section 43(1)].
[30] In section 42 the term “parenting time” is stipulated to be the time that a child is with a guardian, as allocated under an agreement [ see section 44] or court order [see section 45] and under section 45 (3) the court may order that parenting time be supervised.
[31] During parenting time, subject to an agreement or court order that provides otherwise, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and will have day-to-day care, control and supervision of the child. [See section 42 (2)].
[32] Section 49 provides that a guardian may apply to court for directions on an issue affecting the child.
[33] Section 37(1) provides that the only consideration that the court must take into account in making an order or parties must take into account when making an agreement respecting guardianship, parenting arrangements or contact is the child’s best interests. In determining the child’s best interest, the list of factors set out in section 37 (2) must be considered. The listed factors are non-exhaustive. Section 37 (3) further stipulates that an agreement or order is not to be in the best interests of a child unless it protects to the greatest extent possible, that child’s physical, psychological and emotional safety, security and well-being.
[34] The conduct of a person may be considered by the court only if it substantially affects any of the factors set out in subsection 37(2) and only to the extent that it affects that factor.
[35] Two of the factors listed for consideration under section 37 (2) relate to family violence, as that term is defined in section 1 of the FLA. Those subsections are:
subsection (g) requiring a consideration of the impact of any family violence on the child’s safety, security or well-being, whether directed towards the child or another family member; and
subsection (h) requiring a consideration of whether the actions of a person responsible for family violence indicate that such person may be impaired in his or her ability to care for the child and meet the child’s needs;
[36] Guidance is found under section 38 when the court assesses family violence as a consideration in determining the best interests of a child.
[37] Under section 37(2) (j) the court and other decision-makers are required to consider relevant civil or criminal proceedings that may be relevant to the Child’s safety, security and well-being.
[38] The variation of a court order for parenting arrangements is governed by section 47. The court may change, suspend or terminate an order for parenting arrangements if satisfied that there has been a change in the needs or the circumstances of the child. This includes any change in the circumstances of another person since the order was made.
[39] Division 4 of the FLA deals with contact with a child. The time that a person who is not a guardian of a child has with that child is referred to as “contact”. This includes time for a parent who is not a guardian. The court may make an order that a person who is not a guardian have contact with a child [see section 59] or the guardians may make an agreement respecting contact [see section 58]. Again, the best interests of the child must be considered.
The Witnesses Who Provided Evidence at the Hearing
[40] A total of 10 witnesses were called and provided evidence at this hearing.
Witnesses for the Father
[41] The witnesses for the Father were as follows:
a) the Father;
b) B.M., current domestic partner of the Father and his former lawyer and now the stepmother for the Child (hereinafter sometimes referred to as the “Stepmother”);
c) Francisca Waring a worker with the aboriginal child support program provided through the Victoria Native Friendship Centre. Ms. Waring has since August 2012 dealt with the Child’s extra support needs while attending daycare and out of school care;
d) D.H., mother of the Father and a former native band manager and presently an aboriginal treaty negotiator;
e) Police Officer Sergai Babakiff, of the of Victoria Police Department who investigated a domestic violence incident against the Mother allegedly perpetrated by R.S.M. also known as R.M. (herein sometimes referred to as “R.M.”) on or about September 23, 2013, that gave rise to criminal charges against R.M;
f) K.S. is a private detective hired by the Stepmother to investigate the Mother’s alleged continuation of employment in the sex trade and specifically as an escort.
Witnesses for the Mother
[42] The witnesses who were called by the Mother were as follows:
a) the Mother;
b) Denise (Denny) Hall, a social worker and family service worker with the Ministry of Child and Family Development who investigated concerns reported to the Director; Those concerns related to the Child and specifically about issues concerning the Mother;
c) D.P., sister of the Mother;
d) Kevin Lauder, a Child protection social worker with the Ministry, who is attached to the Regional Domestic Violence Unit (RDVU) for Victoria; his primary mandate is to manage high risk relationships and to ensure victim safety and support. He was responsible for dealing with the reported domestic violence behavior against the Mother by R.M.
Personal Background of the Child
[43] The evidence supports the conclusion that the Child is a very loving, emotional and sensitive child with a good sense of humour and in tune with the emotional needs of people around him. The Child has some special needs. He is considered to be somewhat developmentally delayed, in terms of emotional control issues and some other special needs issues. These have necessitated having special aid assistance at day care and a variety of other specialized treatments and resources, all of which will likely be necessary as the Child enters school. He also has some speech developmental issues recognize from about age three onward for which he receives speech therapy. Again these treatments will likely continue when the Child enters school. There are also some delays in his fine motor skills development and tactile sensitivity issues which are being addressed through various support programs including occupational therapy. It appears that the Child will require the continuation of additional classroom support and a continuation of the various existing programs while enrolled in the public school system.
[44] The Child has displayed some levels of anxiety in the midst of the significant turmoil in the relationship between the Mother and the Father. The emotional turmoil has continued since the separation of the Parents. It is also safe to conclude that that the Child’s anxiety has also arisen out of the Mother’s relationship with R.M. and the physical abuse she has suffered in that relationship. This anxiety has been evidenced both in verbal communications to various adults and a regression in the Child’s toilet training, episodic panic attacks on transition days between the Mother’s and the Father’s residences and incidences of significant stomach upset and nervous vomiting.
[45] The Child was apprehended by the Director from the care of the Mother in approximately September of 2009 and remained in care or under supervision until the expiry of the six month term of the January 6, 2011 Order. During a significant part of that time, the Child was in foster care with the Mother’s own long time foster parent and foster parent of her other siblings.
Personal Background of the Mother
[46] The Mother is age 24, was born in Victoria but is a member of an aboriginal band located on the West Coast of Vancouver Island. She has had very little contact culturally or otherwise with her band over the years.
[47] She was taken into care by the Director along with her siblings at a relatively early age. She remains close to her foster mother who along with a friend and her sister, D.P., form part of her personal support network. She also has been a long time participant in and is supported by the Bridges Program which offers her counselling, including counselling about abusive relationships and her anxiety issues, along with life skills and employment development training. She has taken a number of courses over the last 1 ½ years through that program. In her evidence, she indicated that she is not yet ready to pursue employment. She also receives support and assistance in finding stable housing through the Native Friendship Centre.
[48] She presently receives provincial social assistance for her financial support. There is limited evidence about the Mother’s work history. She worked as a housekeeper for a month about a year ago, but failed to report that income to the provincial social assistance office and is now repaying her overpayment of social assistance.
[49] The suggestion is made in the evidence of the Father and the Stepmother to the effect that the Mother may suffer from foetal alcohol syndrome and may have cognitive impairment that affects her ability to process things quickly and may have some level of autism. This is based on statements allegedly made by the Mother to each of them. Little evidence to support this contention was elicited from the Mother during her testimony. In fact she denies ever making those statements. I am unable to reach a conclusion about these matters given both the paucity and the conflict in the evidence.
[50] She was involved in the sex trade as an escort for a brief period of time following her separation from the Father; this was due to her poor financial circumstances. Her evidence is that she withdrew from that line of work prior to the Mediated Agreement. However, during the course of the hearing and pending its continuation the Mother was apparently drawn back to the escort service when a specific request was made for her. As it turns out, that request was made by K.S., who had been hired by the Stepmother on October 14, 2013 to obtain evidence of the Mother’s continued involvement as an escort. During the course of her meeting with K.S. on October 18th, 2013, she apparently admitted that she had only recently returned to working as an escort; however the evidence also confirms that she became upset and left K.S.’s presence without delivering or attempting to deliver any sexual services; the funds paid by K.S. were refunded to him by the agency. Although she visits with friends who are escorts and she still appears on the agency’s website, the Mother says in her evidence that she is no longer working in that field and had not done so for an extended period of time up to the event with K.S.
[51] The evidence is very clear about some very bad decisions made by the Mother with respect to entering into a relationship and maintaining a relationship with R.M. That relationship is both toxic as well as dangerous for the Mother. She met and formed a relationship with R.M. in February of 2013. They did not cohabitate on a full-time basis, each maintaining their own residence and staying with each other on weekends. R.M. is a frequent and heavy user of illicit drugs. He is a violent individual and appears to be more violent when under the influence of illicit drugs.
[52] The Mother became pregnant by R.M. She eventually had an abortion but that caused considerable stress in the relationship due to his opposition to the Mother’s decision to have an abortion. The relationship broke off around May 2013 when the Mother became aware of his heavy drug use, which she says he had previously been hiding from her. There had been previous incidents of aggressive emotional outburst in public places by R.M. in the presence of the Mother and about the Child in presence of the Child and the Mother. An allegation of a publicly viewed assault on the Mother by R.M. was made to the Director, likely from the Father. This gave rise to safety concerns about the Child and resulted in the Director’s investigation of this relationship by Denise Hall in June of 2013 and the making of the June 20, 2013 Order. Denise Hall’s conclusion was that there were no child protection concerns.
[53] According to the evidence, physical assaults of the Mother by R.M. did subsequently occur. The Child was not present. Flowing from R.M.’s assaultive behaviour, he was charged on a five count information signed on September 22, 2013, alleging assault causing bodily harm and unlawful confinement of the Mother on August 20, 2013 and again on September 22, 2013.
[54] A safety plan for the Mother was developed by RDVU to deal with the concerns about R.M.’s assaultive behaviour. On November 4, 2013, Kevin Lauder testified that the safety plan included: arrangements for the Mother to call the police if R.M. attempted to contact her, arrangements for the Mother to stay in a safe location with friends until a new safe residence could be obtained for her; not to allow that safe location to be revealed to R.M. the completion of an RDVU assessment to ensure that Child safety concerns were met, having regard for protective conditions imposed upon R.M. and RDVU’s assistance to the Mother to help her to understand the conditions that are in place for her protection.
[55] R.M. was apparently placed on bail conditions not to have any contact with the Mother. The exact bail terms are not in evidence. In her evidence of November 4, 2013 the Mother said that since the assaults she had not had any contact with R.M. However, at some point shortly thereafter she resumed having contact with R.M., notwithstanding the existence of a court order against R.M. to the contrary. The Child was not present during this contact.
[56] During the course of that contact she foolishly informed R.M. as to the location of her new residence, thereby undoing the significant efforts that had been made by various agencies to find her safe accommodation and to protect her from R.M.
[57] R.M. was apparently arrested on or about November 24, 2013 for violating a condition that prohibited him from being south of the Malahat Mountain, located in the southern part of Vancouver Island. He was apparently arrested for that breach and then re-released on November 27, 2013. He then started to call the Mother on her cell phone in a highly agitated state, which she presumed was being fuelled by his heavy use of drugs. She started to ignore his calls. She fell asleep but was awakened to find R.M. in her residence standing over top of her. In a panicked state she grabbed the Child who was in her care and ran from her residence to seek the help of neighbours, urging them to call the police. She admits that the Child was traumatized by this event and may need counselling. She is remorseful about her behaviour in having further contact with R.M. She admits that the safety plan has been rendered inoperative and that no safety plan was therefore in place.
[58] All of this occurred immediately prior to the continuation of the hearing on November 29, 2013. Evidence of these disturbing events was presented to the court at that time. It formed the basis of my interim order made on that day, at the end of the trial, which placed restrictions of the Mother’s parenting time.
Personal Background of the Father
[59] The exact age of the Father was not put into evidence. However, I believe him to be in his mid-30s to early 40s. He has two children, by previous relationships, ages 16 and 15. He has some contact with these children. He has been steadily employed for 8 years as a representative for an equipment rental business. He is also a native carver, painter and artist and comes from a family of distinguished native artists. He describes his art as his “passion”.
[60] He is a member of a northern Vancouver Island aboriginal band. He maintains close contact with his band and is highly engaged in many of its cultural activities, although he does admit to losing some of his native language ability due to lack of use. His extended family are cultural leaders within his native community, in terms of native song and dance and native cultural societies.
[61] In October 2011 he started a social relationship with the Stepmother, who had previously been his lawyer at the time that the Mediated Agreement had been signed. Thereafter they entered into a common-law relationship and they presently reside together. She serves in the role as an active and engaged stepmother to the Child.
[62] The Father admits to occasional arguments with the Stepmother, but he denies that they are excessive or violent in nature and says that they do not occur in front of the Child.
[63] The evidence of both the Father and the Stepmother is that they have a stable relationship and have been working well together for the last two years.
Relationship of the Mother with the Father and Stepmother
[64] The Parents met approximately a year before the birth of the Child in Victoria. She became pregnant very quickly. They separated within a reasonably short period of time following the birth of the Child. There were numerous arguments between the Mother and the Father during and after their cohabitation which resulted in police involvement. The Father was charged for assaulting the Mother but was acquitted on those charges. They separated and got back together several times. Each accuses the other of physical violence towards the other and each denies that they were responsible for the violence.
[65] The representatives of the Director eventually told the Mother and the Father that they were not to have contact with each other. This was due to the high level of conflict within the relationship, the theme of domestic violence in the relationship, the police involvement, cross allegations of abuse, and the lack of healthy boundaries between the Parents. The Child stayed with the Mother at the time of separation.
[66] After their separation the Child was eventually apprehended by the Director, as a result of a report made by the Father to the Director. The ensuing investigation raised concerns about the Mother’s emotional stability and about the Mother’s ability to care for the Child. The Child then went into foster care.
[67] Following the Mediated Agreement, the parties were able to share the parenting arrangements for the Child. However, it was not without some difficulties both in terms of the Parent’s interaction with each other as well as their problems in communicating on an effective level.
[68] The agreements contained within the Mediated Agreement with respect to band registration and dealing with major decisions affecting the Child, from time to time, became quite difficult. So far as I can determine the Parents did not carry out the communication provisions of the Mediated Agreement which contemplates the use of a “communication book” to exchange information about the Child and to inform each other about Child related information. It appears that the Parents did not attend co-parenting meetings on a monthly basis.
[69] Each accuses the other of failing to accommodate meetings to discuss issues relating to the Child or attending with third parties to deal with Child related issues. Each accuses the other of withholding the Child from the other and from interfering with their parenting time. The evidence supports various aspects of these contentions on both sides.
[70] The Father and the Stepmother are critical about the Mother’s Parenting capabilities. They say that she has problems in terms of consistency and routine for the Child, lacks stability in her life both emotionally and financially, does not understand the Child’s nutritional needs nor does she follow a proper regimen to meet those needs, is resistant to and does not accept some resources required to address and support the developmental needs of the Child, has problems making decisions in the best interests of the Child, fails to communicate effectively about major decisions for the Child, does not have the capability to assist the Child with school, has problems getting the Child to school in a timely manner, and is inflexible in terms of dealing with Child related issues requiring agreement of the Parents including accommodating changes requested by the Father that are most often refused. They say that she is secretive and often misleading about her personal life and in particular about R.M. and her re-entry into employment as an escort. There is testimony from the Stepmother about a bruise on the Child which was concerning; this concern was based upon her discussions with the Child and an indication that it may have been inflicted by the Mother. I understand that an investigation by the Director failed to reach such a conclusion.
[71] The Mother contends that the Father and the Stepmother have attempted to take over the parental responsibilities and to exclude her from reasonable participation. Although she does not express it in the following precise terms, it is evident that she feels betrayed by them. At times that she has disclosed personal information about herself and sought their assistance to handle additional parenting responsibilities, for a significant period of time for about six weeks, while she was facing emotional issues surrounding her pregnancy, abortion and her failing relationship with R.M. She has called upon by them when she has had safety concerns that could affect the Child, arising from possible actions and threats of R.M. and one of his colleagues, S.M.W. S.M.W. is also known to the police and who has a criminal record for serious violence related offences.
[72] It is evident from the testimony of the Father, the Stepmother and the Mother that the Mother has been quite forthcoming about some aspects of these issues to the Father and the Stepmother. The Mother now suggests that they are using this disclosed information and these circumstances in order to gain an advantage and to interfere with her relationship and Parenting role with the Child. She describes them as being abusive towards her and as seeking what only benefits them and furthermore seeking control of the situation. She suggests that their conduct, which she characterizes as manipulative, undermines the existing parenting arrangement. The Mother says when they act like that, she feels like they are her enemies. Kevin Lauder’s testimony indicated that he shared some of these same concerns about the Father and the Stepmother’s behaviour.
[73] The Mother also contends that they have not told her about the decisions they have made with respect to the Child including medical and dental decisions.
[74] She testifies that she has been willing and desirous to resolve problems through mediation but has been thwarted by the Father and the Stepmother.
Parental Relationships With the Child
[75] The Child is most fortunate to have two sets of loving and caring parents, the Mother on one hand and the Father and the Stepmother on the other. Unfortunately, these two sets of parents have a dysfunctional relationship which is not being adequately addressed by either side. They find co-operative parenting to be challenging.
[76] They have significantly different parenting styles. Clearly the Father and the Stepmother provide a much more structured parenting style. The evidence suggests that that the differences in parenting styles is more at the behest of the Stepmother than the Father. Due to his less flexible work schedule and her more flexible work schedule, a significant burden of parenting has been placed upon the Stepmother, when the Child is in the care of the Father. No doubt she finds it frustrating to have to deal with some aspects of the different parenting styles and to work through to attempt to achieve agreements with the Mother.
[77] The evidence supports the notion that the Child is receiving benefits from both sets of Parents in his relationship with them.
[78] In the earlier evidence received from the social workers Hall and Lauder, they indicated that there were no safety concerns of the Director with respect to the Child. I understand that conclusion to be made by them in connection with both sets of Parents. However, it is important to view this lack of concern within the context of what they knew at the time of their testimony and the subsequent unfortunate series of events involving the Mother and R.M., culminating in R.M.’s November 27, 2013 uninvited intrusion into her home.
Positions of the Father
[79] The Father’s closing submissions regarding the relief now being sought are somewhat different than what was being pursued at the outset of these proceedings and applied for in the Father’s Application. I understand that this arises out of the unfolding series of events involving the Mother and R.M. that occurred during the course of the trial.
[80] In closing submissions the Father’s position is that the section 37(2) factors of the best interests of the Child weigh heavily in favour of the Father’s suggestion about changes in the parenting arrangements. Those submissions to the court include:
a) primary residence of the Child to be with the Father;
b) supervised access for the Mother; and
c) permission for the Father to register the Child with his aboriginal band due to the Father’s close and active cultural ties with that band.
Positions of the Mother
[81] I understand the Mother’s position is that the present arrangements under the Mediated Agreement should remain in force. Those arrangements are said to continue to be in the best interests of the Child. The Mother does concede that a re-crafted safety plan is required.
Analysis
[82] There is a large body of evidence before me that requires analysis and consideration in reaching my decision in this matter.
[83] I will deal first with the consideration of the section 37(2) factors.
Section 37(2) (a): The Child’s Health and Emotional Well Being
[84] With one reservation I am satisfied that both the Father and the Mother are meeting the Child’s health and emotional well-being needs. The reservation I have is the difficult situation that the Mother has placed herself in through her relationship with R.M. This is an important concern that the Mother must keep at the forefront of her mind in the future. The events of November 27, 2013 were traumatic for the Child. Most unfortunately it has taken a traumatic event to drive home to the Mother the necessity of creating and adhering to an appropriate safety plan.
Section 37 (2) (b): The Child’s Views Unless Inappropriate to Consider
[85] The Child’s views must be considered unless it would be inappropriate to do so. In this case I find it inappropriate to do so given the Child’s young age. I have conflicting evidence to the effect that at different times the Child was apprehensive to be in the residence of the Mother and also that of the Father. I do not place any significant weight on this evidence in making my decision, notwithstanding that such evidence comes from trained social workers who spoke to the Child.
Section 37(2) (c): The Nature and Strength of the Relationships between the Child and significant persons in the Child’s life
[86] There is a significant bond between the Child and with both sets of Parents and with their extended families. The Stepmother now plays a significant role in the Child’s life. The Child is benefiting from the nature and the strength of both sets of those relationships.
Section 37(2) (d): The History of the Child’s care
[87] Since the making of the Mediated Agreement, the Mother and the Father have shared the Child’s care. There have been periods of time where the Father was called upon to provide additional assistance to the Mother in terms of taking over the Child’s care. He has undertaken that responsibility without complaint. The Child is fortunate to have these types of resources available to him from at least two different sources. A shared parenting arrangement offers the Child some significant benefits.
Section 37 (2)(e): The Child’s need for stability, given the Child’s age and stage of development
[88] The Child is clearly at an age and stage where stability is very important. The Father and the Stepmother have been able to provide a significant measure of stability.
[89] For a considerable period of time, the Mother was able to provide a stable environment for the Child. In recent months that stability has been eroded due to poor choices made by the Mother, especially as it relates to her relationship with R.M. Her decision to attempt to re-engage in the escort business was ill-timed and showed a lack of appreciation of the potential risks in which she may place herself and possibly the Child, both directly and indirectly. Her failure to make the required disclosure to the Father about once again becoming an escort, as required by the Mediated Agreement, is also of concern. It is one of many things that can erode trust between the Parents. However, I must balance that erosion of trust by a failure to disclose against the fact that it was the action taken by the Stepmother of hiring K.S. to create a situation that may have enticed the Mother into returning to the sex trade.
[90] The question I must ask is whether or not any risk created by this type of activity on the part of the Mother is manageable. I have concluded that it can be managed through an appropriate court order.
Section 37(2)(f): The Ability of each Guardian who seeks parenting time or responsibilities to exercise his or her Parental Responsibilities and Parenting time.
[91] I am generally satisfied that both Parents have an ability to adequately exercise their parental responsibilities and parenting time. Each has different strengths and for that matter different weaknesses. Both are very much engaged with their Child. The Father is very dependent upon the Stepmother’s availability due to her more flexible schedule to deal with the needs of the Child. While the Mother is presently not working, she has time available to assist with the needs of the Child. That should be a future goal and pursuit for her.
[92] The Mother has in recent times underestimated the potentially negative effects that her relationship with R.M. could cause her and its negative impact on her ability to exercise her parental responsibilities and her parenting time in an effective and safe manner. By way of example, the fact that she sustained facial bruises at the hands of an abusive partner has a great potential for disturbing and upsetting the Child. However, I am not prepared to conclude that these unfortunate circumstances, which occurred when the Mother resumed contact with R.M., should require me to find that the Mother lacks the necessary ability to perform her parental responsibilities and to undertake parenting time. However, she will need to be guided by and strictly follow the court’s directions or face an appropriate response from the court.
Section 37(2)(g): The impact of family violence on the Child’s safety, security or well-being
[93] The historical level of conflict in the relationship between the Parents and the theme of domestic violence within that relationship that both Parents must bear is a concern for this court. I do have some particular concerns about family violence as it relates to the Child’s safety, security or well-being given the recent events arising out of Mother’s relationship with R.M. The question I again must consider is whether or not given all the circumstances those risks are manageable by both the Mother and by way of guidance in the form of a court order. I have concluded that they are.
Section 37(2) (h): Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the Child and meet the Child’s needs
[94] While there has been he has an unfortunate history of high conflict and a theme of domestic violence in the relationship between the Mother and the Father, that has not necessarily impaired the ability of either to care for the Child and to meet the Child’s needs. Both Parents will of course need to be extremely mindful of the potential impairment of their ability should either be in a relationship that involves family violence or if they create a situation that puts themselves or the Child at risk of family violence. In this case the Mother has not demonstrated an appropriate appreciation of those concerns, by continuing her toxic relationship with R.M. However, I am satisfied that specific court orders may be useful to appropriately deal with that issue of concern.
Section 37(2) (i): The appropriateness of an arrangement that requires Guardians to cooperate on issues affecting the Child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the Child or other family members
[95] There have been issues between the Parents in terms of cooperation. Both Parents must bear a measure of responsibility in that regard. Our Court of Appeal in Robinson v. Filyk (1996) 1996 CanLII 3310 (BC CA), 28 B.C.L.R. (3d) 21 rejected the presumption that joint custody and joint guardianship under the FLA is appropriate only when both Parents are excellent Parents, there is a history of cooperation with respect to parenting of the child and there is no valid reason to exclude a parent from having a significant input into raising of the child. While there have been problems here with cooperation in the past, I am not satisfied that there is a risk to the safety, security or well-being of the Child or any other family matter arising from the existing shared parenting arrangement. It is evident to me that both sets of parents must seek to utilize appropriate means of achieving co-operation and consensus when it relates to decisions that pertain to the Child.
Section 37(2)(j): Any civil or criminal proceedings relevant to the Child’s safety, security or well-being
[96] The issues relating to the Mother’s relationship with R.M. and the assaultive behaviour towards her and the criminal charges arising therefrom are relevant to the present case.
[97] The question that must be addressed is whether or not there is a likelihood of those risk factors continuing such that it will be problematic for the Child’s safety security or well-being. The Mother has previously ignored the significance of protective orders for her benefit and for the benefit of the Child by resuming contact with R.M. This requires an appropriate response from the court by way of specific orders and consequences to ensure that this will not occur again in the future.
Some Other Matters of Concern and Relevance
[98] It is evident to me that within the relationship of the Mother on one hand and the Father and Stepmother on the other, a power imbalance has developed. This has likely become more pronounced after the Father and the Stepmother formed their personal intimate relationship. The Stepmother is an assertive individual. I say that without criticism. It likely serves her well in her professional career. However it has tipped the balance of power in the parental relationships very much in favour of the Father and the Stepmother. It has made collaboration between the Parents more challenging. The Mother has developed a defensive response to this imbalance marked by passive aggressive behaviour, and it is evidenced by her lack of timely engagement on important issues and decisions relating to the child.
[99] While the relationship between the Parents was previously dysfunctional it has now become much more adversarial. In my view that does not assist a collaborative approach when addressing questions about the needs of the Child and what is in the Child’s best interest.
[100] The parties need to adopt a more appropriate way of dealing with the decision making as it relates to the Child.
[101] The Mother is struggling to address some significant personal issues and to regain some stability in her life. Her ongoing participation in the Bridges Program is praiseworthy. Hopefully there will come a time in the not too distant future, when on the advice of her counsellors, she will attempt to move forward and gain some safe, meaningful employment, which will help her re-stabilize her personal and home environment on a sustained basis, both for her sake and for the well-being of her Child.
[102] Our Supreme Court of Canada has recently re-confirmed in Canada (Attorney General) v. Bedford 2013 SCC 72 (CanLII), [2013] SCJ No. 72 that it is not a crime in Canada to sell sex for money. It is a legal activity.
[103] In that case the Supreme Court struck down three specific provisions of the Criminal Code which criminalize certain aspects of prostitution, as being an infringement of prostitutes’ rights of security of the person, protected by section 7 of the Charter. The Supreme Court held that the impugned sections prevented the implementation of safety measures that could protect them from violent clients. In its analysis the Supreme Court recognized that people in the sex trade are engaged in a risky but legal activity, but which was made more dangerous by the conditions on prostitution imposed by the Criminal Code. The Court also observes that while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.
[104] If the Mother chooses to continue to work as an escort or in some other aspect of the sex trade, she must be fully aware of the present risks associated with that choice and consider the potential negative impact on her Child and must mitigate any negative impact with respect to the factors that must be considered in determining the best interests of the Child.
[105] The evidence allows me to conclude that there have been changes in the circumstances of the Child, and both Parents that require changes in the presenting parenting arrangements. The existing Original Co-parenting Arrangement creates a heightened level of tension among the parents and the Child. This flows in part from the frequency of the transitions between the two parental homes. Hopefully a change to that schedule may be helpful in reducing the negative impacts of frequent changes. There are some disadvantages to alternating weeks for parenting time, but that regime may increase the stability for the Child and reduce the Child’s anxiety.
[106] The best arrangement is the arrangement that the Parents can agree to between themselves. However, they have been unable to make any agreements as to a permanent change to the existing co-parenting schedule. It will always be open to them to do so pursuant to the terms of the order that I will make.
[107] Based upon the evidence, as between the Father and the Mother there is a much greater likelihood that the Child will be gaining a greater opportunity to discover and appreciate his aboriginal identity and heritage through the Father’s connection with his aboriginal band rather than through the Mother’s connection with her aboriginal band. While potentially there may be some better future financial resources available to the Child for education and other purposes through the Mother’s band than through the Father’s band, a future meaningful association with the Child’s native heritage is significantly more likely through the Father’s band. This will be reflected in the order that I will make.
[108] There is no evidence before me that warrants subjecting the Mother to a test for illicit drugs at this time.
[109] Rather than restricting the form of communication, it is my hope that my order will promote constructive and meaningful communication between the Parents, including the Stepmother.
Conclusions and Orders
[110] I have reached several conclusions taking into account the relevant provisions of the FLA and in particular sections 37, 39 to 43 inclusive and section 45 and section 47 having regard for the unique and challenging circumstances in this case.
[111] First of all both Parents shall continue to each be guardians of the Child as that term is now used under the FLA and subject to some conditions, there will be an equal parenting regime. I will confirm that status in a new final order and in substitution for the interim October 28, 2010 Order made under the FLA. I will incorporate relevant principles of the Mediated Agreement into the new order.
[112] Part 9 of the FLA permits the court to make orders to protect against family violence. The new order will also deal with safety concerns and family violence concerns that have arisen in recent months, in particular in the life of the Mother, and which have either or have the potential of placing the Child in danger and also negatively affecting the best interests of the Child. The order will also reflect that the Mother is still in the midst of a fragile recovery from the violent relationship that she has recently endured.
[113] The order will also provide directions to the Parents to assist them in resolving issues and improving their communication such that it will become more child centred, effective and timely.
[114] Therefore there will be a final order on the following terms:
1. The Mother and the Father are each guardians of the Child;
2. To reduce the risk of family violence being inflicted upon the Mother or the Child, the Mother will enter into a safety plan (hereinafter the “ Safety Plan”) within 10 days of the date of this order and from time to time thereafter, as deemed necessary by the RDVU:
a) that will be in a written form and content that meets with the approval of the RDVU and which will be of a length of time determined to be suitable by the RDVU;
b) that will in the opinion of the RDVU be required to adequately deal with any risk, risk of violence or danger to her or to the Child that may arise from the actions of R.M. or S.M.W;
(c) with which Safety Plan the Mother will abide throughout its duration;
(d) a copy of which, including any amendments to it from time to time deemed desirable or necessary by the RDVU, will within 48 hours be provided to the Father by the Mother;
(e) and throughout its duration the Mother will forthwith notify the RDVU of any breach of the Safety Plan by her or any interaction by her or the Child with any person identified in the Safety Plan as being a risk or danger to her or the Child and will within 24 hours of providing such notification to the RDVU provide the same notice to the Father;
(f) and which Safety Plan will be subject to review by the court upon the application of either Parent.
3. The Mother:
(a) will not have any contact or communication with R.M. or with S.M.W. nor will the Mother permit any contact or communication by either of them with the Child, unless with the further order of this court;
(b) will immediately report any communication that she receives from or any contact that she has with either R.M. or S.M.W. to the Victoria City Police Department or to the local police force in the community in which she is residing at the time of the communication or the contact; and
(c) will also provide that information about the communication or contact to the RDVU immediately and thereafter will provide the Father with the same information within 24 hours;
(such provisions in this paragraph immediately above are hereinafter referred to as the “No Contact Provision” of this order)
(d) and the No Contact Provision will be subject to review upon the application of either Parent.
4. The Mother will notify the Father if and when she decides to return to the escort business or she has any other involvement in the sex trade. Prior to becoming actively engaged as an escort or having any other involvement in the sex trade, the Mother:
(a) will enter into another safety plan (the “Vocational Safety Plan”) with the RDVU or such other police agency or organization designated by the RDVU (the “Designated Agency”) which safety plan may be amended from time to time as recommended by the Designated Agency;
(b) will comply with the Vocational Safety Plan which will address both direct and indirect safety and violence concerns for her and the Child arising from her engagement as an escort or her involvement in the sex trade, all such terms to be to the satisfaction of the Designated Agency;
(c) will provide the Father with a copy of the Vocational Safety Plan forthwith.
(d) will forthwith notify the Designated Agency of any breach by her of the Vocational Safety Plan or any violence or danger that she may experience or any risk or violence or danger that the Child may experience, directly or indirectly as a result of her employment as an escort or her involvement in the sex trade; and
(e) the Vocational Safety Plan will be subject to review by the court upon application by either of the Parents.
5. The Parents as guardians will both exercise all parental responsibilities set out in section 41 of the FLA with respect to the Child on the following terms:
(a) in the event of the death of a guardian, the surviving guardian will be the only guardian of the Child;
(b) each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the Child;
(c) each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the Child, including significant decisions about the Child's health (except emergency decisions), education, religious instruction, heritage, including the Child’s aboriginal identity and general welfare;
(d) the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;
(e) in the event that the guardians cannot reach agreement on a significant decision, despite their best efforts, that specifically relates to medical, dental or other health related treatments as contemplated by section 41(f) of the FLA and any recommended treatments for any independent professionally assessed special needs of the Child, the Father will be entitled to make those decisions and the Mother, as the other guardian, will have the right to apply for directions on any decision the Mother considers contrary to the best interests of the Child, under s. 49 of the Family Law Act; and;
(f) each guardian will have the right to obtain information concerning the Child directly from third parties, including but not limited to teachers, counsellors, medical professionals, special needs treatment providers and third party care givers;
(g) in the event that the guardians cannot reach agreement with respect to any major decisions despite their best efforts the guardians will attend mediation at the earliest appointment that is made available to them with a Family Justice Counsellor to attempt to resolve their dispute out of court and in the event that such resolution is not reached then either guardian may apply to this court for directions pursuant to section 49 of the FLA;
(h) the guardians will maintain a common exchange journal which is to be exchanged when the Child is transferred to the other guardian for parenting time. Each guardian is to record on a daily basis while the Child is in its care matters relating to the Child including:
(i) School - such as events, key dates, report cards, newsletters, outings, assignments, home reading, parent/teacher meetings and homework;
(ii) Health - observations of the child, child's complaints, doctors' appointments, dental appointments, medications, injuries, and diet;
(iii) Special needs- observations about any progress made or the status of the Child’s identified special needs determined by an independent professional or by specialized assessment and all reports arising therefrom, including without limitation, from speech and occupational therapists, behavior counsellors, care aids or other similar resources or support programs;
( iv) Social - invitations, activities under taken and family events;
( v) Extracurricular activities - registration, schedules, equipment, and events;
(vi) Clothing;
(vii) Key contact information for doctors, dentists, daycare, sitters, parents emergency contact numbers;
(viii) Any other matter relating to the care of the Child; and
(ix) A summary of the decisions reached by agreement and matters resolved through mediation by the Parents.
6. The Parents, as guardians, will have a co-parenting meeting (the “Co-Parenting Meeting”) at least every three months, to be arranged at an agreed time and location and held pursuant to a continuing schedule arranged by the Parents at least three months in advance. The first meeting is to be held within 30 days of the date of these reasons for judgment. At each Co-Parenting Meeting the participants will deal with matters relating to the Child, share information and seek to come to agreements with respect to the shared parental responsibilities and determine which matters (if any) need to be referred to a mediation conducted by a Family Justice Counsellor. The Stepmother will be entitled to attend at all of the Co-Parenting Meetings, along with the Father and the Mother will be entitled to attend accompanied by a family member, such as but not necessarily being her sister D.P., or by a friend or other supportive individual selected by the Mother. Any agreements and decisions reached at the Co-Parenting Meetings will be recorded in the common exchange journal.
7. So long as any required Safety Plan or Vocational Safety Plan as contemplated by this order remains in place, the Parents will have parenting time scheduled (the “Parenting Time Schedule”) on a week on and week off basis, such that the Mother will be entitled to have her parenting time on an unsupervised, overnight basis commencing with the Mother being responsible for picking the Child up after school on the Friday following the date of these reasons for judgment, and which parenting time for the Mother will continue until the following Friday morning, at which time the Mother will be responsible for dropping the Child off at school on that Friday morning and the Father will be entitled to his parenting time on an unsupervised, overnight basis, commencing with the Father being responsible for picking the Child up after school on that Friday, and which parenting time for the Father will continue until the following Friday morning, at which time the Father will be responsible for dropping the Child off at school on that Friday morning and the Mother’s unsupervised, overnight parenting time and the Father’s unsupervised parenting time will continue thereafter in accordance with this same week on and week off Parenting Time Schedule. As part of the Parenting Time Schedule, each parent will be entitled to reasonable and generous telephone access to the Child when the Child is with the other Parent, at times to be scheduled by agreement of the Parents and the Parent with whom the Child is residing will make the Child available for such telephone access. Any details or modifications of the Parenting Time Schedule to accommodate the Child’s school holidays and vacations or otherwise will be by mutual agreement of the Parents and failing agreement by mediation and failing agreement reached after mediation by further order of this court upon application by either party.
[115] As part of the Parenting Time Schedule, the parenting time of the Parents during the Child’s school spring break, school summer vacation and school Christmas vacation will be shared equally by the Parents as determined by mutual agreement of the Parents and failing agreement by mediation and failing agreement after mediation by further order of this court.
[116] The entire Parenting Time Schedule or any detail or provision of it may be amended or varied by the mutual agreement of the Parents and any significant permanent amendments or variations will be confirmed by an application for a consent desk order or upon application to this court by either party.
[117] In the event that any Safety Plan or any Vocational Safety Plan required by this order shall not be in effect or there shall be a breach of either any Safety Plan or any Vocational Safety Plan by the Mother or there shall be a breach of the No Contact Provision by the Mother, then either parent may apply to this court for a review or variation of the Parenting Time Schedule and without limitation may seek a variation of it such that the Mother’s parenting time will be subject to supervision and further either Parent may seek a variation of the allocation of parental responsibilities between the Parents.
[118] The Father will be entitled to register the Child with the Father’s aboriginal band located on Northern Vancouver Island without the permission or consent of the Mother and the Father will provide the Mother with a copy of all written confirmations that this has been completed.
[119] The solicitor for the Father will prepare the form of the orders made in this matter, for approval as to form by the solicitor for the Mother.
BY THE COURT
________________________________
The Honourable Judge J.P. MacCarthy
Appendix A
1 In this Act:
"family violence" includes
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,
(b) sexual abuse of a family member,
(c) attempts to physically or sexually abuse a family member,
(d) psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,
(iii) stalking or following of the family member, and
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;
Part 2 — Resolution of Family Law Disputes
Division 1 — Resolution Out of Court Preferred
4 The purposes of this Part are as follows:
(a) to ensure that parties to a family law dispute are informed of the various methods available to resolve the dispute;
(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;
(c) to encourage parents and guardians to
(i) resolve conflict other than through court intervention, and
(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.
5 (1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.
(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.
Agreements respecting family law disputes generally
6 (1) Subject to this Act, 2 or more persons may make an agreement
(a) to resolve a family law dispute, or
(b) respecting
(i) a matter that may be the subject of a family law dispute in the future,
(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or
(iii) the implementation of an agreement or order.
(2) A single agreement may be made respecting one or more matters.
(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.
(4) Subsection (3) applies whether or not
(a) there is consideration,
(b) the agreement has been made with the involvement of a family dispute resolution professional, or
(c) the agreement is filed with a court.
(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.
7 If an agreement changes a previous agreement,
(a) each part of the previous agreement that is changed is deemed to have been revoked, and
(b) the remainder of the previous agreement, if any, remains effective.
Part 4 — Care of and Time with Children
Division 1 — Best Interests of Child
Best interests of child
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.
(4) 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.
38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:
(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed toward the child;
(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;
(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
(i) any other relevant matter.
Division 2 — Parenting Arrangements
Parents are generally guardians
39 (1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.
(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;
(c) the parent regularly cares for the child.
(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.
40 (1) Only a guardian may have parental responsibilities and parenting time with respect to a child.
(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.
(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by
(a) one or more guardians only, or
(b) each guardian acting separately or all guardians acting together.
(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:
(a) that parental responsibilities should be allocated equally among guardians;
(b) that parenting time should be shared equally among guardians;
(c) that decisions among guardians should be made separately or together.
41 For the purposes of this Part, parental responsibilities with respect to a child are as follows:
(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
(b) making decisions respecting where the child will reside;
(c) making decisions respecting with whom the child will live and associate;
(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;
(h) giving, refusing or withdrawing consent for the child, if consent is required;
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
(j) requesting and receiving from third parties health, education or other information respecting the child;
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating to the child, and
(ii) identifying, advancing and protecting the child's legal and financial interests;
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.
42 (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.
(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.
Exercise of parental responsibilities
43 (1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child.
(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so.
Agreements respecting parenting arrangements
44 (1) Two or more of a child's guardians may make an agreement respecting one or more of the following:
(a) the allocation of parental responsibilities;
(b) parenting time;
(c) the implementation of an agreement made under this section;
(d) the means for resolving disputes respecting an agreement made under this section.
(2) An agreement respecting parenting arrangements is binding only if the agreement is made
(a) after separation, or
(b) when the parties are about to separate, for the purpose of being effective on separation.
(3) A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court.
(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.
Orders respecting parenting arrangements
45 (1) On application by a guardian, a court may make an order respecting one or more of the following:
(a) the allocation of parental responsibilities;
(b) parenting time;
(c) the implementation of an order made under this Division;
(d) the means for resolving disputes respecting an order made under this Division.
(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.
(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child.
(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section.
Changes to child's residence if no agreement or order
46 (1) This section applies if all of the following circumstances exist:
(a) no written agreement or order respecting parenting arrangements applies in respect of a child;
(b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements];
(c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.
(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court
(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and
(b) must not consider whether the guardian who is planning to move would do so without the child.
Changing, suspending or terminating orders respecting parenting arrangements
47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.
Part 9 — Protection from Family Violence
182 In this Part and the regulations made under section 248 (1) (d) [general regulation-making powers]:
"at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member;
"residence" means a place where an at-risk family member normally or temporarily resides, including a place that was vacated because of family violence.
183 (1) An order under this section
(a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and
(b) need not be made in conjunction with any other proceeding or claim for relief under this Act.
(2) A court may make an order against a family member for the protection of another family member if the court determines that
(a) family violence is likely to occur, and
(b) the other family member is an at-risk family member.
(3) An order under subsection (2) may include one or more of the following:
(a) a provision restraining the family member from
(i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,
(ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place,
(iii) following the at-risk family member, or
(iv) possessing a weapon or firearm;
(b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact;
(c) directions to a police officer to
(i) remove the family member from the residence immediately or within a specified period of time,
(ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or
(iii) seize from the family member any weapons or firearms and related documents;
(d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court;
(e) any terms or conditions the court considers necessary to
(i) protect the safety and security of the at-risk family member, or
(ii) implement the order.
(4) Unless the court provides otherwise, an order under this section expires one year after the date it is made.
(5) If an order is made under this section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of Part 10, the orders must not be recorded in the same document.
Whether to make protection order
184 (1) In determining whether to make an order under this Part, the court must consider at least the following risk factors:
(a) any history of family violence by the family member against whom the order is to be made;
(b) whether any family violence is repetitive or escalating;
(c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member;
(d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate;
(e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence;
(f) the at-risk family member's perception of risks to his or her own safety and security;
(g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.
(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account
(a) the history of, and potential for, family violence,
(b) the extent of any injuries or harm suffered, and
(c) the respective vulnerability of the applicants.
(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.
(4) The court may make an order under this Part regardless of whether any of the following circumstances exist:
(a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order;
(b) the family member against whom the order is to be made is temporarily absent from the residence;
(c) the at-risk family member is temporarily residing in an emergency shelter or other safe place;
(d) criminal charges have been or may be laid against the family member against whom the order is to be made;
(e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is to be made after family violence has occurred;
(f) an order under section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made.
185 If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order],
(a) whether the child may be exposed to family violence if an order under this Part is not made, and
(b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child's parent or guardian.
186 (1) An application for an order under this Part may be made without notice.
(2) If an order is made under this Part without notice, the court, on application by the party against whom the order is made, may
(a) set aside the order, or
(b) make an order under section 187 [changing or terminating orders respecting protection].
Changing or terminating orders respecting protection
187 (1) On application by a party, a court may do one or more of the following respecting an order made under this Part:
(a) shorten the term of the order;
(b) extend the term of the order;
(c) otherwise change the order;
(d) terminate the order.
(2) An application under this section must be made before the expiry of the order that is the subject of the application.
(3) Nothing in subsection (2) of this section prohibits a person from making a subsequent application for an order under section 183 [orders respecting protection].
Enforcing orders respecting protection
188 (1) An order made under this Part may not be enforced
(a) by means of any order that may be made under this Act, or
(b) under the Offence Act.
(2) A police officer having reasonable and probable grounds to believe that a person has contravened a term of an order made under this Part may
(a) take action to enforce the order, whether or not there is proof that the order has been served on the person, and
(b) if necessary for the purpose of paragraph (a), use reasonable force.
189 (1) In this section, "protection order" means any of the following orders:
(a) an order made under this Part;
(b) an order, made under the Criminal Code, that restricts a person from contacting or communicating with another person;
(c) an order, made by a court in British Columbia or another jurisdiction in Canada, that is similar in nature to an order made under this Part.
(2) If there is a conflict or an inconsistency between a protection order and an order made under a Part of this Act other than this Part, the other order is suspended, to the extent of the conflict or inconsistency, until
(a) either the other order or the protection order is varied in such a way that the conflict or inconsistency is eliminated, or
(b) the protection order is terminated.
190 The making of an order under this Part does not affect any existing right of action of a person who has been the subject of family violence.
191 The Enforcement of Canadian Judgments and Decrees Act applies to an order, made by a court in another jurisdiction of Canada
Division 4 — General Orders the Court May Make
211 (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:
(a) the needs of a child in relation to a family law dispute;
(b) the views of a child in relation to a family law dispute;
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
(2) A person appointed under subsection (1)
(a) must be a family justice counsellor, a social worker or another person approved by the court, and
(b) unless each party consents, must not have had any previous connection with the parties.
(3) An application under this section may be made without notice to any other person.
(4) A person who carries out an assessment under this section must
(a) prepare a report respecting the results of the assessment,
(b) unless the court orders otherwise, give a copy of the report to each party, and
(c) give a copy of the report to the court.
(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.
212 (1) A court may at any stage of a proceeding make an order to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules.
(2) If an order is made under subsection (1), the court may order a party to pay, to the other party or to another person, all or part of the expenses reasonably and necessarily incurred in complying with the order.
(3) A person must not disclose information obtained under an order made under this section except
(a) as necessary to resolve a family law dispute, and
(b) in accordance with the order.
Enforcing orders respecting disclosure
213 (1) This section applies if a person
(a) fails to comply with
(i) an order for disclosure made under section 212 [orders respecting disclosure], or
(ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules,
within the time or in the manner required by the order or Rules, or
(b) provides information that is incomplete, false or misleading.
(2) In the circumstances set out in subsection (1), the court may do one or more of the following:
(a) make an order under section 212;
(b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference;
(c) require a party to give security in any form that the court directs;
(d) make an order requiring the person described in subsection (1) to pay
(i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or
(iii) a fine not exceeding $5 000;
(e) make any other order the court considers appropriate.
214 (1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.
(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.
(4) A court may on application by a party to family dispute resolution make an order requiring the other party to pay all or part of the applicant's expenses in relation to the family dispute resolution if satisfied that
(a) the other party knowingly failed to disclose relevant information, and
(b) an order is made under section 93 [setting aside agreements respecting property division] or 164 [setting aside agreements respecting spousal support] to set aside all or part of an agreement arising from the family dispute resolution.
Changing, suspending or terminating orders generally
215 (1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.
(2) A court may not change, suspend or terminate an order made under Part 5 [Property Division] or 6 [Pension Division] except as provided under those Parts.
216 (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.
(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.
(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:
(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
(4) In making an order under subsection (3), the court must take into account all of the following:
(a) the change in circumstances or the evidence, or both, referred to in subsection (3);
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled;
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).
Interim orders before changing, suspending or terminating orders
217 If an application is made to change, suspend or terminate an order, an interim order for the relief applied for may be made only if the court is satisfied that
(a) a change in circumstances has occurred since the order that is the subject of the application was made, and
(b) the hardship to a party of denying interim relief before the application is heard outweighs the hardship to any party of granting interim relief.
Terms and conditions of orders
218 Subject to section 183 (3) (e) [orders respecting protection], a court may include in an order any terms or conditions the court considers appropriate in the circumstances.
Persons may consent to order being made
219 (1) A person may consent to the making of an order under this Act.
(2) Consent under subsection (1) must not be considered an admission of a fact alleged in a proceeding unless the fact is specifically admitted.
Court may make order on behalf of child
220 If a court is satisfied that an application for an order under this Act should also have been made on behalf of a child, the court may make an order on behalf of the child.
221 (1) A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party
(a) has made an application that is trivial,
(b) is conducting a proceeding in a manner that is a misuse of the court process, or
(c) is otherwise acting in a manner that frustrates or misuses the court process.
(2) If an order is made under subsection (1), the court may do one or more of the following:
(a) make the order apply
(i) for a specified period of time, or
(ii) until the party has complied with an order made under this Act;
(b) impose any terms and conditions respecting the granting of leave to make further applications or to continue a proceeding;
(c) require the party to pay
(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or
(iii) a fine not exceeding $5 000.
Division 5 — Orders Respecting Conduct
Purposes for which orders respecting conduct may be made
222 At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:
(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;
(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;
(c) to prevent misuse of the court process;
(d) to facilitate arrangements pending final determination of a family law dispute.
Orders respecting case management
223 (1) A court may make an order to do one or more of the following:
(a) dismiss or strike out all or part of the party's claim or application;
(b) adjourn a proceeding while
(i) the parties attempt to resolve one or more issues before the court, or
(ii) a party complies with an order made under this Division;
(c) require that all further applications be heard by the judge or master making the order unless that judge or master directs otherwise;
(d) prohibit a party from making an application, without leave of the court, respecting any matter over which a parenting coordinator has authority to act under an agreement or order.
(2) Subsection (1) (d) of this section does not apply to an application made under section 19 [confirming, changing or setting aside determinations].
(3) Nothing in this section limits any other order a court may make under an enactment or the common law for the purpose of controlling a proceeding before the court.
Orders respecting dispute resolution, counselling and programs
224 (1) A court may make an order to do one or both of the following:
(a) require the parties to participate in family dispute resolution;
(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.
(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.
Orders restricting communications
225 Unless it would be more appropriate to make an order under Part 9 [Protection from Family Violence], a court may make an order setting restrictions or conditions respecting communications between parties, including respecting when or how communications may be made.
226 A court may make an order to do one or more of the following:
(a) require a party to make payments respecting rent, mortgage, specified utilities, taxes, insurance and other expenses related to a residence;
(b) prohibit a party from terminating specified utilities for a residence;
(c) require a specified person to supervise the removal of personal belongings, by another person, from a residence.
Other orders respecting conduct
227 A court may make an order requiring a party to do one or more of the following:
(a) give security in any form the court directs;
(b) report to the court, or to a person named by the court, at the time and in the manner specified by the court;
(c) do or not do anything, as the court considers appropriate, in relation to a purpose referred to in section 222 [purposes for which orders respecting conduct may be made].
Enforcing orders respecting conduct
228 (1) If a party fails to comply with an order made under this Division, the court may do one or more of the following:
(a) make a further order under this Division;
(b) draw an inference that is adverse to the party, and make an order based on the inference;
(c) make an order requiring the party to pay
(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non-compliance, or
(iii) a fine not exceeding $5 000;
(d) make any other order the court considers necessary to secure compliance.
(2) If a party fails to comply with an order made under section 225 [orders restricting communications], the court must consider whether it would be appropriate to make an order under Part 9 [Protection from Family Violence].
Division 6 — Enforcement Generally
229 For the purposes of enforcing an order made under this Act, it is not necessary to prove that the person against whom the order was made was served with the order.
230 (1) Subject to section 188 [enforcing orders respecting protection], an order under this section may be made only if no other provision of this Act applies for the purposes of enforcing an order made under this Act.
(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:
(a) require a party to give security in any form the court directs;
(b) require a party to pay
(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or
(iii) a fine not exceeding $5 000.
231 (1) This section applies if
(a) a person fails to comply with an order made under this Act, and
(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.
(2) Subject to section 188 [enforcing orders respecting protection], the court may make an order that a person be imprisoned for a term of no more than 30 days.
(3) For the purposes of subsection (2),
(a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this section should not be made,
(b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and
(c) imprisonment of a person under this section does not discharge any duties of the person owing under an order made under this Act.
(4) If satisfied under section 61 [denial of parenting time or contact] that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, a court may make an order requiring a police officer to apprehend the child and take the child to the person.
(5) If satisfied that a person having contact with a child has wrongfully withheld the child from a guardian of the child, a court may make an order requiring a police officer to apprehend the child and take the child to the guardian.
(6) For the purpose of locating and apprehending a child in accordance with an order made under subsection (4) or (5), a police officer may enter and search any place he or she has reasonable and probable grounds for believing the child to be.
Offence Act application
232 Sections 4 and 5 of the Offence Act do not apply in respect of this Act or the regulations made under it.