IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         THE COURT: The parties are before this Court in connection with an Application brought by the father, J.M., to cancel and set aside a Protection Order that was made ex parte, that is on a without-notice basis, by the Honourable Judge Munro on February the 1st, 2024. The Application that brought that matter before Judge Munro was that of the mother, S.D. The father, J.M., filed an Application on February 6, 2024, About a Protection Order in Form 12 and he is seeking to set aside the Protection Order made without notice to him by the Honourable Judge Munro. The task of this Court is to determine whether or not there are sufficient grounds either to maintain the February 1, 2024, Protection Order or to set aside or vary it.

[2]         This is not the first time that the parties have been before the court in connection with a protection order. The first occasion was on March 14, 2023. At that time, the mother, S.D. (the “Mother”) brought on an Application without notice in front of Judge Munro in order to obtain a Protection Order. That Protection Order sought to prevent the father, J.M., ( the “Father”) from having any contact or communication directly or indirectly with the applicant, S.D., or the two children of their marriage, D.M., born [omitted for publication], and the daughter, Y.M., born [omitted for publication] (the “Children”).

[3]         That March 14, 2023, Protection Order became the subject matter of a further proceeding which was eventually dealt with and a decision rendered, in the presence of both parties, by the Honourable Judge Harvey on November 7, 2023. As a result of that particular decision, the March 14, 2023, Protection Order that had been granted (and subsequently reissued by Judge Lamperson as described below) was cancelled. In his Reasons for Judgement, Judge Harvey made a replacement order in the nature of a Conduct Order.

[4]         On August 21, 2023, the Honourable Judge Lamperson, made an order which varied the terms of the original Protection Order made by Judge Munro on March 14, 2023, removing reference therein to the Ministry of Children and Family Services. According to my understanding, at the conclusion of that matter, the Honourable Judge Lamperson re-imposed a replacement Protection Order, but did not hear further evidence or the substantive Application to set aside the March 14, 2023, Protection Order. Hence, the original order of Judge Munro made on March 14, 2023, was essentially re-imposed but with the above described modification to the provisions in the original March 14, 2023, Protection Order made by the Honourable Judge Munro. The adjourned original Application to set aside the original and the subsequent replacement Protection Order made by Judge Lamperson then came before Judge Harvey; the replacement Protection Order was cancelled on November 7, 2023. Thereafter, the February 1, 2024, Protection Order was granted by Judge Munro.

[5]         I have had the opportunity of reading some of the background materials. It is useful at this point to indicate that what I have in front of me is the following information:

[6]         I note that, having read the reasons of the Honourable Judge Munro in the proceeding of hearing without notice on February 1, 2024, he made mention of the fact that the earlier Protection Order had been set aside for “some reason”. It is not entirely clear to me that Judge Munro had the benefit of being able to read the Reasons for Judgment of the Honourable Judge Harvey in which he set aside the August 21, 2023, Protection Order granted by the Honourable Judge Lamperson, which was essentially a restatement of the Protection Order originally made by the Honourable Judge Munro.

[7]         This being the second time that a without-notice Protection Order has been before and granted by the court in these proceedings, gives pause for this Court to reflect about some of the problems that arise when without-notice Protection Orders are granted. What is clear to me, both in my role as a hearing judge and also having looked at transcripts of proceedings from other similar protection order applications, is that: the presiding judge in ex parte applications only hears one version of the facts and usually thereafter is required to in fairly short, make a determination as to whether or not a protection order should be granted or denied.

[8]         The important thing that I must remind myself is that the information before the court in a without-notice hearing is only presented only from the perspective of the applicant. Often very little unfavourable information which would support an absent party’s contrary position is therefore available to the court. That type of information should be considered when making the protection order, but most certainly when a protection order application comes back before the court for a determination as to whether or not a protection order should continue or be set aside. I must also instruct myself that a “without-notice” order is an extraordinary, powerful, interlocutory remedy that may produce potential injustice when made on incomplete submissions that generate a wrong understanding of the circumstances (see: Kapoor v. Makkar, 2020 BCCA 223, at para. 11).

[9]         In the course of the hearing before me on today's date, I had the opportunity of hearing the viva voce evidence of the Father, J.M., who was cross-examined by his estranged spouse, S.D., the Mother of the Children. I also have the viva voce evidence of the Mother, S.D., who was cross-examined by counsel for the Father.

[10]      I also had presented to me a series of exhibits which I will describe and summarize as follows:

[11]      It is important for the purposes of these reasons to confirm that much of the documentary evidence contained within Exhibits 1 to 5 is in the Mandarin language. Some of it, but not all of it, was reviewed with the assistance of the Mandarin-English interpreter. Exhibit Number 6 is in English, although a small portion of it, which I take to be alert messages, in other words, notices from the Internet provider, appears to be the Mandarin language. Apparently there is nothing in the various communications which would suggest that the Father was threatening towards the Mother or the Children. It does not appear that any of the information in these exhibits was ever provided to Judge Munro at the February 1, 2024, Application for a Protection Order.

[12]      The provisions relating to Part 9, "Protection from Family Violence," are found under ss. 182–191 of the Family Law Act.

[13]      The Protection Order that was made originally by the Honourable Judge Munro on March 14, 2023, the subsequent replacement of that Protection Order made by the Honourable Judge Lamperson on August 21, 2023, the review of those Protection Orders made by the Honourable Judge Harvey on November 7, 2023, and the further without-notice Protection Order of Judge Munro made on February 1, 2024, required the presiding judges to review and apply the provisions of Part 9 of the Family Law Act. This Court is required to do the same.

[14]      Of particular importance for consideration are the provisions under s. 184 entitled, "Whether to make protection order," and under the provisions of s. 183 which deals generally with, "Orders respecting protection." It is clear that Judge Munro, who made the two without-notice protection orders, also took into account the provisions of s. 186 which deals with, "Order without notice."

[15]      When Judge Harvey was called upon to review the original without-notice Protection Order made by Judge Munro on March 14, 2023, as replaced by the Protection Order of the Honourable Judge Lamperson, he canvassed a number of the details which had given rise to the Application brought by the Mother in order to obtain that first without-notice Protection Order of March 14, 2023. I do not intend to go through in any great detail the background materials which are amply described by Judge Harvey in his Reasons for Judgment of November 7, 2023.

[16]      I think it is useful to review some of the reasoning of the Honourable Judge Harvey in his Reasons for Judgment of November 7, 2023. Specifically under the heading of, "Analysis," Judge Harvey states, starting at para. 37, as follows:

[17]      Thereafter, Judge Harvey sets out the terms of a Conduct Order which put limits on the way that the parties would be communicating with each other, that is, through electronic means or through legal counsel. Also, there were provisions put in place whereby the parties, pursuant to a Conduct Order, were: to put the best interests of the Children before their own interests, encourage the Children to have a good relationship with the other parent, and to speak to the Children about the other parent and the other parent's partners in a positive respectful manner and make real effort to maintain polite respectful communications with each other, refraining from any negative or hostile criticism, communication, or argument. Furthermore, there were provisions whereby the parents were not to question the Children about the other parent or time spent with the other parent beyond simple conversational questions, discuss with the Children any inappropriate adult, court, or legal matters, and blame, criticize or disparage the other parent to the Children.

[18]      At the conclusion of that particular hearing, as ancillary orders, Judge Harvey directed that the parties were to set the original Application About a Family Law Matter filed by the Mother on June 13, 2023, and the Reply to an Application filed by the Father on July 26, 2023, for a two-day hearing. Also, Judge Harvey directed that there be, in addition to the two-day hearing, a further half-day hearing on interim parenting time for the Father. Judge Harvey disqualified himself.

[19]      A number of Judge Harvey’s observations and conclusions apply equally well to my own observations and conclusions in the matter before me.

[20]      I note parenthetically that the parties were before me yesterday on March 21, 2024; it was purportedly set to be the hearing for a half-day about the Father's interim parenting time. However, it is clear that events overtook the purported scheduling of that hearing by way of the most recent Protection Order made without notice by the Honourable Judge Munro on February 1, 2024. Accordingly, the time was spent yesterday afternoon by me making a certain number of trial management orders. Those included resolving what has apparently been a problem in terms of getting the parties to agree to dates for the commencement of what was originally thought to be a two-day hearing and may, in fact, now amount to a three-day hearing. The hearing is now scheduled to commence in Nanaimo on June the 27th, 2024.

[21]      I note that I will not be hearing those applications and I expect that another judge will be assigned to deal with that hearing. In addition to the orders that I made concerning document exchange and disclosure, and witness information exchange and disclosure, I also made an order that a Family Justice Counsellor prepare a s. 211 Views of the Child Report for both Children to assess the existing parenting arrangements and any proposed changes to the parenting arrangements, including without limitation to increase the Father's parenting time on both a permanent and interim basis; it is intended that the s. 211 Report will be utilized at the scheduled trial hearing commencing on June 27, 2024.

[22]      As noted on several occasions above, this matter came before the Honourable Judge Munro as a result of the Mother's Application which she filed on February 1, 2024, in which she was seeking to obtain a replacement protection order against the Father on a without-notice basis. It is useful to review that Application and the information that would have been before the Honourable Judge Munro at the hearing on February 1, 2024. There is a significant similarity between that information and the information that was contained in the original Application which brought the matter before the Honourable Judge Munro on March the 14th, 2023, at which time he granted that first without-notice Protection Order.

[23]      The Application filed by the Mother and sworn as an affidavit makes several allegations about what are described as a “narcissistic personality disorder” on the part of the Father and abusive behaviour and abusive action in words that, in the view of the Mother, confirms some diagnosis by some unknown person of the narcissistic personality disorder. In particular, there is an allegation by the Mother that the Father is “highly unpredictable” and that he manipulates the Mother and the Children by what is described as "ghosting from court hearing to avoid confronting with my witnesses that were present in court." The allegation goes on to say that the Father disappears out of the lives of the Children and then reappears and that it causes significant problems. The Mother alleges that there are psychological, mental, and physical abuses being perpetrated by the Father on her and the Children.

[24]      What brought the matter specifically to the court was the incident that occurred when the Father attended at the Children’s school without any notification to either the Mother, the Children, or their school on January 31, 2024. That appears to be the primary basis for the Mother's Application to obtain the February 1, 2024, Protection Order. Exhibit 6, which purports to be (and which I accept) is an email exchange between the Father and K.A., the principal of the Children's school. The picture it paints is somewhat different than the inferences that the Mother is seeking the court to draw from the events that took place on January 31, 2024.

[25]      The Father's version is that he clearly admits that he showed up at the school, without any notification to anybody including the Children or the school. He did so, he says, because of the significant problems that he has had getting any parenting time with the Children because of the actions of the Mother. He ended up speaking with Principal K.A. and sought to have a visitation. It is clear both from his evidence, which is to an extent corroborated by the Exhibit 6 email exchange, that the school was not receptive to the Father's intention to have parenting time with the Children without some sort of prior agreement or notification.

[26]      Quoting from K.A.'s email of March 21, 2024, he confirms that the two Children reacted somewhat differently to the invitation being extended by K.A. on behalf of the Father for them to see their Father. The response of the son was that he was visibly upset and refused to come out to see his Father. The daughter did come to the office at the request of the principal and, apparently, did have an opportunity to see her Father at that time. K.A. purportedly said (which I think, is accepted by the Father and not disputed by the Mother) as follows [as read in]:

[27]      The next paragraph is also important. It says, and I quote from K.A.'s email [as read in]:

[28]      There is a specific response to the question posed by the Father in his email to K.A., framed as follows: "I want to ask you a question. Did you actually advise S.D. to get a protection order against me, specifically, on January 31st or February 1st, 2024," (end of question). The response contained within K.A.'s email was as follows, and I quote [as read in]:

[29]      It was on the basis of that school visit that S.D. resurrected her apparent concerns and sought and obtained the second without-notice Protection Order from the Honourable Judge Munro. What is somewhat noteworthy is the fact that both before and after the Mother obtained that Protection Order on February 1, 2024, there was a significant amount of emails and similar type communication exchanged between the Mother and the Father. This occurred notwithstanding the Mother’s contention that she was fearful of the Father. The Mother's explanation as to why she continued to communicate with the Father once she had obtained the February 1, 2024, Protection Order is somewhat mystifying to me. She purported that she did not understand that the Protection Order was effective at the date of pronouncement, but rather seemed to suggest that the Protection Order was not operative until such time as she received a hard copy of the order from the court registry.

[30]      The Father became aware of the granting of the February 1, 2024, Protection Order on or about February the 4th, 2024. His evidence is that he did not thereafter communicate with either the Mother or with the Children which would clearly be a violation of the Protection Order made by the Honourable Judge Munro on February 1, 2024. The February 1, 2024, Protection Order provides as follows, and I quote [as read in]:

[31]      In his cross-examination, the Father was repeatedly questioned by the Mother about the matters that primarily relate to the subject matter of the Application About a Family Law Matter filed June 14, 2023, and the reply filed July 26, 2023. A significant number of those questions dealt with financial arrangements, but some did deal with concerns about the Father's engagement in the life of both Children and the fact that his day-to-day whereabouts was not necessarily shared with the Mother. The Father questioned the necessity of doing that and then, in his evidence and in cross-examination, confirmed that a significant number of the problems that arose as between the parties with respect to the Children were based on the fact that the Mother had kept the exact location of the residence of the Children and their schooling from the Father, or at the very least she had not been very forthcoming about those locations.

[32]      The Mother's explanation for her action related back to what she alleged in her Application were the psychological and emotional abuse that the Father had perpetrated upon her and the two Children. I do not have before me any corroborating evidence to support what the Mother says has been the psychological, mental, and physical abuse which is referenced in para. 24 of her Application.

[33]      It seems that the biggest concern was the re-emergence of the Father who has taken time to travel between Canada and China, to deal with other pressing family matters. However, he is primarily residing in Canada for educational purposes. However, the Mother relies on the Father’s temporary absence and his planned return as being the basis of what she characterizes as his "sudden appearance" at the school, which in the Mother's evidence was alarming for the Children and, for that matter, herself. Apparently this was accepted by Judge Munro as being a concerning factor. The Father, in his evidence, suggests that the Mother is utilizing the Protection Order as a means of limiting his access and parenting time with the Children and as a means of trying to manipulate the situation in her favour and to alienate the Children from him. The Mother takes issue with that suggestion and says that it is the Father who is using the Children to try to financially manipulate her and she describes this as "abuse of process."

[34]      It is quite clear to me that the parties have a very dysfunctional relationship. They clearly have a number of significant issues which are going to have to be dealt with at the multiday hearing which has been scheduled starting on June 27, 2024.

[35]      The questions that this Court must decide are: first, whether or not at the time that Judge Munro made the Protection Order of February 1, 2024, he had adequate information properly disclosed by the Mother to him; and second, whether her actually disclosed information (which, of course, went unchallenged in the without-notice hearing) or what should have been disclosed by the Mother would, have allowed Judge Munro to conclude that there was a sufficient degree of behaviour to amount to family violence (defined in Part 1) and as contemplated by s. 184(1) of the Family Law Act and thus resulted in the making of that Protection Order.

[36]      I have had the advantage of hearing both sides of the story with both parties present. This allows me to have additional important information which must be taken into account in reconsidering the necessity of that Protection Order.

[37]      On the basis of all the evidence before me, I have come to a different conclusion than that of Judge Munro at the without-notice hearing. In my view, there is likely a high degree of antagonism between the Mother and the Father. However, notwithstanding that the Father’s unannounced attendance at the school to see the Children was not necessary and was inappropriate, in my view, it did not meet the threshold standard of amounting to "family violence" as that term is used and considered under the provisions of the Family Law Act. There is, in my view, insufficient evidence to indicate that with respect to either the Mother or the Children that there has been physical violence which is repetitive or escalating, or any psychological or emotional abuse that constitutes, or is evidence of, a pattern of coercive and controlling behaviour. In that regard, I make reference to the decision of K.A.J. v. B.G.J., 2021 BCSC 142, varied [K.A.J. v. B.G.J.,] 2021 BCSC 245.

[38]      As similarly noted by Judge Harvey in his Reasons for Judgment, I have no evidence that there are any police files presently under investigation with respect to the Father. I have no evidence before me that indicates that there are any continuing child protection concerns with Ministry of Children and Family.

[39]      Simply put, I have evidence that the Father made a poor decision about showing up at the school, and seeking to exercise parenting time with his Children without any notification. His excuse is that he was concerned that if he notified the Mother in advance that there was a likelihood that she would continue with, what he says, is the pattern of depriving him of parenting time with the Children. In my view, that is not a particularly valid excuse and the Father has indicated in his evidence that he understands, having discussed the matters with the school principal, that it is not an appropriate way of proceeding. I understand him to say, he is prepared to follow those recommendations that have been provided to him by the school principal in the email exchanges in and around March 20th and March 21st of 2024.

[40]      On the whole of the evidence that I do accept in this case, I do not find that the existing Protection Order granted February 1, 2024, is necessary to protect either the applicant Mother or the two Children. I have no evidence that can lead me to conclude on a balance of probabilities that the Father sought to harm the Children physically or emotionally. There is contrary evidence that he has reached out to the school in order to try to learn about the Children's progress in school. There is also evidence from the various email exchanges that he has (certainly in the periods evidenced by the various exhibits) sought to exchange information with the Mother about the successes and the well-being of the Children. There is nothing before me that would lead me to conclude that there has been ongoing harassment on the part of the Father against either the applicant Mother or either of the two Children.

[41]      I am therefore left to conclude that the existing Protection Order is no longer required and, accordingly, I am going to make an order similar in nature to the one made by the Honourable Judge Harvey on November 7, 2023, and that will be as follows.

[42]      There will be an order terminating forthwith the Protection Order of the Honourable Judge Munro made on February 1, 2024.

[43]      This case does raise some concerns about the way that both of the parties seem to be treating the existing Conduct Order made by the Honourable Judge Harvey. Accordingly, in my view, having cancelled the Protection Order made February 1, 2024, and having reviewed the terms of the Conduct Order made by the Honourable Judge Harvey on November the 7th, 2023, I am going to order that there be a further order replacing the provisions of paragraphs 1, 2, 3, and 4 of that Conduct Order.

[44]      Pausing for a moment before I make these orders, I am going to ask the parties: what the preferred method of communication is going to be with each other and with the Children? I am going to ask S.D., are you prepared to communicate with your husband or do you wish to put restrictions on the communication that the two of you will have with each other? What is your request in that regard?

[45]      S.D.: Your Honour, thank you for asking. He is the biological Father of the Children even if he's never been responsible and he's not been accountable. However, if he wanted to let me believe he cares about Children's education, I would prefer him to ask me. For example, if he cares, he could have asked which school the Children goes. He could have asked what Children's progress, right? He has never asked, and the method I would prefer would be emails than -- I think could be enough. If he wants to ask something, he could be specific -- specifically and he can ask and I have no reason not to answer, but the fact is that he never asked. He never cared and he forgotten. He --

[46]      THE COURT: All right, so email exchange is what you prefer --

[47]      S.D.: Yes, thank you --

[48]      THE COURT: -- is that correct?

[49]      S.D.: Yes, thank you, Your Honour.

[50]      THE COURT: And what would be the Father's position with respect to that?

[51]      J.M.: So my preference is both email and oral communication.

[52]      THE COURT: Email and?

[53]      J.M.: Oral.

[54]      THE COURT: Oral? Well, given her request, what you are suggesting?

[55]      J.M.: Yes, because we need to discuss many things about the Children. So, if we can have oral communications, it can be more effective, but email is acceptable to me.

[56]      THE COURT: It is?

[57]      J.M.: Yes.

[58]      THE COURT: But you would prefer it be broader?

[59]      J.M.: Yeah, I prefer both, email and oral.

[60]      THE COURT: Well, what I am inclined to do is to make it that the default position will be by email unless the two of you agree --

[61]      J.M.: Okay.

[62]      THE COURT: -- to have oral communication, all right?

[63]      J.M.: Yes, we can possibly communicate --

[64]      THE COURT: Yes, yes --

[65]      J.M.: -- [indiscernible/overlapping speakers].

[66]      THE COURT: -- I fully understand that sometimes a phone call as long as it remains polite and respectful, that it may be a lot more efficient than spending a large amount of time typing --

[67]      J.M.: Yes.

[68]      THE COURT: -- between the two of you, all right --

[69]      J.M.: Yes.

[70]      THE COURT: -- but I am going to -- before I make the order here, I want you to understand that no matter how the hearing turns out later this summer, it is pretty clear to me, given the ages of your Children, you are going to be in each other's lives for a long time. So you are going to have to find a way of dealing with this, you know, on a long ongoing basis, and you do not want to be the type of parents that end up with files that take up many feet of shelf space in the court registry because they are constantly in court. You do not want that to be your experience because who will it harm? Your Children, and they do not have any say in how you two behave with each other. So, we need to find a new pathway for doing this.

[71]      J.M.: Yes.

[72]      THE COURT: Yes?

[73]      S.D.: And, Your Honour, may I explain the reason I would like to use email only because he constantly --

[74]      THE COURT: No, I am going to make it by email, but if you agree to oral communication, you have to both agree, then you know you can. There are times where email is clumsy. It may take longer if you need a quick yes or no answer or you need to discuss some other more important issues and a conversation done properly is going to be of greater assistance and you can agree to do that. So the default position is going to be using emails, but I am going to allow you to agree to do it in another fashion which is oral communication. Yes?

[75]      S.D.: Your Honour, please, he constantly states on me that I am cognitively disabled, I have no knowledge, I have no education --

[76]      THE COURT: Well, that is -- the -- stop, please.

[77]      S.D.: -- my life has no value.

[78]      THE COURT: No, stop. No, you have said that. You said that. I am not accepting that at this point. I accept that there are high tensions in your relationship, but you do not have to agree to talk to him if that is what your concern is, but I am going to make it an option for you both to be able to have what I call a civil and appropriate discussion. So, that is what the form of the order is going to be. So I am going to be making the following orders and I will continue with that.

[79]      So it is D26. So it is, pursuant to s. 225 of the Family Law Act, S.D. and J.M. shall communicate with each other only by means of email or by other means, including verbal discussions by way of telephone if the parties so agree.

[80]      D27, the parties shall: (a) put the best interests of the Children before their own interests; (b) encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent and the other parent's partner in a positive and respectful manner; and (c) make real effort to maintain polite respectful communications with each other, refraining from any negative or hostile criticism, communication, or argument -- and I am making a slight change, "communication," and then put, "Or any argument in front of the Children."

[81]      D28, the parties shall not: (a) question the Children about the other parent or time spent with the other parent beyond simple conversational questions; (b) discuss with the Children any inappropriate adult, court, or legal matters; or (c) blame, criticize, or disparage the other parent to the Children.

[82]      D29, the parties shall encourage their respective families to refrain from any negative comments about the other parent and his or her extended family and from discussions in front of the Children concerning family issues or litigation.

[83]      I am going to make an order that J.M. will not attend at the Children's school or any place where the Children reside, worship, or happen to be without first notifying S.D. in advance in writing and in accordance with any agreement reached between S.D. and J.M. or further order of the court. I am going to put in: "The Father will not be restricted from any communication with the Children either by text, email, or telephone, and S.D. will use reasonable efforts to facilitate that communication by keeping J.M. updated on the communication particulars for each of the Children, including cell phone numbers and email addresses."

[84]      I am going to make another provision that: J.M. is at liberty to apply for a further hearing with respect to his interim parenting time with the Children, which matter should be set for no more than a half-day hearing.

[85]      Now, -- I am going to pause here for a moment. I do not know if you are going to get that time before that June hearing, but I am going to leave it up to -- leave it up to counsel for the Father whether or not there can be an opportunity to get that date or not.

[86]      I am going to make an order that I am not seized of any further applications with this matter and that -- and, in particular, I should not – well just -- I am not seized of any further applications with respect to this matter.

[87]      CNSL O. KOLAWOLE:  Thank you, Your Honour. Your Honour, I don't know if Your Honour is done -- if Your Honour is through with the reasons of the judgment?

[88]      THE COURT: Sorry?

[89]      CNSL O. KOLAWOLE: I don't know if Your Honour is through with your reading of the judgment? Are you done reading the --

[90]      THE COURT: Yes, I am for the time being.

[91]      CNSL O. KOLAWOLE: Oh, thank you, Your Honour. The school sends an invite to my client just a few minutes ago when we were outside and I don't know if he can attend that program? He wouldn't without the consent of the Mother. He has that invite on his phone. He showed it to me while we were outside waiting for the court to read its judgment.

[92]      THE COURT: So you are asking for a change that he is not to attend the school and the exception would be except at the invitation of the school administration?

[93]      CNSL O. KOLAWOLE: Yeah. Yes, Your Honour, and another application is that she should not -- the other party will not be allowed to bring an application --

[94]      THE COURT: Oh.

[95]      CNSL O. KOLAWOLE: -- without notifying --

[96]      THE COURT: I am going to make --

[97]      CNSL O. KOLAWOLE: -- putting the other party on notice.

[98]      THE COURT: I am going to make that order --

[99]      CNSL O. KOLAWOLE: Thank you.

[100]   THE COURT: -- that -- I am going to order: "No further application by either party will be brought for a protection order without service of notice of that application on the other party."

[101]   CNSL O. KOLAWOLE: Thank you, Your Honour.

[102]   THE COURT: Okay. So I am making exception to not to attend the school as follows: except he may attend at the request and invitation of the administration of the school without necessarily informing the Mother, okay?

[103]   CNSL O. KOLAWOLE: Thank you, Your Honour.

[104]   THE COURT: All right. Now, you are going to prepare the form of the order.

[105]   CNSL O. KOLAWOLE: Right.

[106]   THE COURT: I prepared that last order just to move things along faster, but you are going to prepare the form of the order. Understood?

[107]   CNSL O. KOLAWOLE: Yes, Your Honour.

[108]   THE COURT: And before you submit it to the court registry, I want you to send her a courtesy copy by email --

[109]   CNSL O. KOLAWOLE: Yes, Your Honour.

[110]   THE COURT: -- no less than five days before you submit it to the court registry, and S.D., I am going to waive your signature. That means you do not have to sign anything on the order, but it is going to you to make sure names are spelled correctly or that you do not think there is a mistake in the order she prepares versus what I have said.

[111]   S.D.: Your Honour, if I understood correctly, she is asking additional term that he said he got the school administration invitation for him to participate in some event at school, and then he -- and she said he doesn't need to let me know about it if it -- did I understand correctly?

[112]   THE COURT: Yes, that is right. It is an invitation from the school.

[113]   S.D.: But then Children would feel -- if you could ask my Children, my Children would feel greatly embarrassed. They will refuse to go to school that day.

[114]   THE COURT: Well, look, I do not know what the Children are going to say. You know --

[115]   S.D.: But --

[116]   THE COURT: No, let me finish. I think I made it very clear that I am very concerned about the way that the Children are being handled, actually, by both of you. I mean you used the term "pawn" in a game, I do not think that is an overstatement of my concerns. I think you have to start demonstrating to each other that what is really important here is the best interests of the Children, and I can tell you that the case law and of many court decisions stress that maximum contact of parents with Children is preferred over restrictions. How will the Children get over any embarrassment if they never see their Father, and that question is one that I am not going to decide today. That is going to have to be decided at another time. I think that maybe the order -- well, I am going to leave it the way it is.

[117]   If the school invites him to come in and it is in relation to matters -- or to -- relating -- you may want to put this in, it is relating to matters involving the Children, then he is free to go, all right? I do not know whether or not the school sends out broad invitations to everyone in the world and says, you know, "We are having a great big party, everyone come." I do not know if that is what it is, but he has received a communication which is inviting him, as I understand it, to come to discuss school matters.

[118]   Is that correct?

[119]   J.M.: For next month with the school administrators invite -- invite me to come to the school to be like a human librarian, that's who tells a story of -- a personal story to the students in the school, so like the human librarians.

[120]   THE COURT: All right.

[121]   J.M.: So that's a story there.

[122]   THE COURT: Well, if the Children are so embarrassed and they may just choose to vacate from the school. You know, I am not going to put restrictions, but he has, in my view -- should be taking every opportunity to be building his relationship with the Children, which has gone sadly neglected either through his actions, your actions, or a combination for the past two or three years.

[123]   J.M.: Yes, uh --

[124]   THE COURT: Yes, I am going to speak to mom first.

[125]   S.D.: Your Honour, first of all, this is not per invitation. This is per volunteer. This is for parents to volunteer that. I volunteered. I am the -- alive -- living library single to the rest of the school. Like the Children admire me so much or like the parent listen how I am and that is not per invitation. That is for volunteer and, to my understanding, the Children -- the school is short of volunteer parents and the school administrator is sending repeatedly emails to the parent that, "Please, anyone can volunteer. We need this help," and in addition, as honour judge -- as Your Honour, Judge, please, just ordered everybody have to put the Children's benefit in front of parents' benefit. This is not Children's benefit. This is --

[126]   THE COURT: In your view.

[127]   S.D.: Also in my Children's view.

[128]   THE COURT: Well, okay.

[129]   S.D.: You can interview.

[130]   THE COURT: Well, your Children are not here. Have you discussed -- are you telling me that your Children would oppose him being there under any circumstances? Is that what you are suggesting --

[131]   S.D.: My Children and I --

[132]   THE COURT: -- and if that is -- if your answer is yes, I question how you would know that given that he has just received the invitation.

[133]   S.D.: That is by volunteer, not by invitation.

[134]   THE COURT: Well, but you do not want him to volunteer at the school?

[135]   S.D.: He can -- he has other things to volunteer to school rather than volunteer to stand in front someone, "Hey, this is me."

[136]   THE COURT: Well --

[137]   S.D.: "This is who I am. This is how good I am."

[138]   THE COURT: Well, I am not going to put restrictions on that. If he wants to volunteer and his -- I mean the school will tell him pretty quickly what they want him and what they do not want him to do. If this is trying to be him patting himself on the back, they may say, "Well, that is really not of interest to the Children. You know, this is what we want you to talk about – “your work in high IT or high tech," whatever, you know about, but I am not going to put a restriction on him volunteering. That is the sort of thing that I think every parent should have an opportunity to do. You may not agree whether he has been in the lives of the Children or not, but that does not mean the door should always be closed and I am not going to close the door.

[139]   S.D.: Your Honour -- Your Honour, if his action result in Children refuse to go to the school, I don't think it's beneficial to Children, but it's beneficial for him.

[140]   THE COURT: Well --

[141]   CNSL O. KOLAWOLE: Your Honour, I am so sorry to cut in. Two days she didn't allow the daughter to go to school. The daughter didn't go to school yesterday. [Indiscernible] she's outside. So if she is now saying because the Father is volunteering and that will affect the Children going to school, what about a situation when we do not need to have the daughter in court and she brought the daughter? She didn't allow the daughter to go to school. Is that in the best interests of the daughter, not allowed to go to school, just to come to court and testify against the dad? Is it in the best interests of the dad -- of the child?

[142]   S.D.: My Children is in their spring -- in their spring break, Madam Lawyer, their -- their spring break.

[143]   CNSL O. KOLAWOLE: Okay.

[144]   S.D.: They don't have school yesterday. They don't have school today.

[145]   THE COURT: All right, well, I --

[146]   S.D.: All of them wanted so much to come here to talk to Honourable Judge about their views about how their Father is in reality a person instead of a postmaster, instead of a teacher --

[147]   THE COURT: All right, stop please.

[148]   S.D.: -- in the university.

[149]   THE COURT: Stop.

[150]   CNSL O. KOLAWOLE: Your Honour, I'm very sorry I --

[151]   THE COURT: I am not going to deal with -- so --

[152]   CNSL O. KOLAWOLE: -- didn't know that the Children were on break. I'm very sorry for that.

[153]   THE COURT: All right. Well, the point here is that he will have -- at the invitation of the school for the Father to either deal with issues relating to the Children, that is one; or if he is asked to volunteer and accepts that, that is two. Those are the two exceptions to him being able to attend at the school. I think that will be, a reasonable accommodation, all right, but I am not going to put further restrictions on him. I have not made any orders about and you are both going to have to come back to court in order to try to deal with what the parenting time orders will be. I think I have made enough orders today.

[154]   J.M.: Yeah, yeah.

[155]   THE COURT: Yes, sir?

[156]   J.M.: Yeah, My Honour, I think another exception is that I can send the Children to the school and pick up Children from school because --

[157]   THE COURT: I am not going to --

[158]   CNSL O. KOLAWOLE: We're not -- we are not doing that today.

[159]   THE COURT: -- get into that, no.

[160]   J.M.: -- because your [indiscernible] recording indicates that both Children were always late in the school.

[161]   THE COURT: All right. I am not going to make that order. You live in Richmond. I do not know where you live in Victoria. Unless she agrees with that proposal, but I do not think she is going to agree with that, I am not going to make that order. Therefore you can make that proposal the subject of a further application, okay? I am putting things in a holding pattern. It is going to be at another court time and with another decision about how much parenting time each parent will have and what it should be like and how that is to be arranged --

[162]   J.M.: Okay.

[163]   THE COURT: -- or it may be decided at the end of the full hearing. So it is going to be up to the judge, who it comes before next time; They may say, "I am not dealing with this. You have got a July 27th hearing. You better put that over to that time and date."

[164]   J.M.: Oh, okay, thank you, because my university is in Victoria --

[165]   S.D.: Then why you live in Richmond?

[166]   J.M.: -- Your Honour. Probably I will move to Victoria.

[167]   CNSL O. KOLAWOLE: When the time comes, we will address that.

[168]   J.M.: Okay.

[169]   THE COURT: Hmm?

[170]   CNSL O. KOLAWOLE: I said, "When the time comes, we will address that" --

[171]   THE COURT: Yes.

[172]   CNSL O. KOLAWOLE: -- "at the trial."

[173]   THE COURT: Okay. So do you -- Mr. Clerk, do you want to go over any information we need for your notes?

[174]   THE CLERK: Your Honour, would you like me to put the recital of the Children at the beginning?

[175]   THE COURT: Yes, please. Yeah, just -- but she is -- counsel is going to prepare the form of the order, okay? So you can put in the Children's names and date of birth.

[176]   CNSL O. KOLAWOLE: Your Honour, we are very grateful for your well-considered judgment.

[177]   THE COURT: Okay. Well, the biggest thanks I can get from both mom and dad is you finding a way to work out your differences about your Children. That will be a gift to me and a gift to your Children, and that will be a lifetime gift for them. You do not want to be, as I said, always in conflict with each other and always coming back to court for decisions of the court. It is not going to help your relationships with each other and it is sure not going to help your relationships with your Children. I know that from watching similar matters go through the court. Children get harmed when there is high-level conflict in the relationship between the parents. So you have got your responsibility as caring and responsible parents to minimize that conflict. Understood? That is what I am asking you to do. You do that, it is the best thanks I can get and, as I said, the best thanks you can provide your Children. Understood?

[178]   J.M.: Yes, thank you, Your Honour.

[179]   THE COURT: Okay. All right, I think -- Mr. Clerk, so you have everything you need.

[180]   So the order will be prepared by your husband's lawyer. You do not have to sign anything. I am waiving your signature. You will receive a copy of the order she intends to file with the court registry. The registry will check the order against what the clerk’s notes say. It will be given either to me or to another judge to sign. You will get a copy, but the order is in effect right now. Understood?

[181]   S.D.: Thank you, Your Honour.

[182]   THE COURT: Thanks you.