IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The parties F.L. and P.S. are before this Court in a long running, high conflict case, in which they are each seeking significantly opposing relief under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”).  That includes claims for child support and spousal support, parenting time and parental responsibilities.

[2]         The parties (sometimes collectively referred to as the “Parents”) were in a relatively brief romantic relationship, which produced their child A.L., date of birth [omitted for publication], (“Child A.”).  Accordingly, he is now approximately age five years.  Child A. is at the centre of this dispute and the significant disagreements of the Parents since his birth.  The parties separated in late December of 2019 or the early part of January 2020 (the “Separation”).  Based upon the evidence before me and for convenience purposes, I accept January 6, 2020 to be the date of their final separation (the “Date of Separation”).  FLA litigation commenced in February of 2020.  The parties never married.

[3]         F.L. (the “Mother”) is presently approximately 39 years of age.  Throughout the course of the trial, the Mother has not been residing with an intimate partner.  Child A. has historically lived with the Mother and she has been the primary care giver.  She has no other children by any other relationship.

[4]         P.S. (the “Father”) is presently approximately 49 years of age.  The Father at present and since November of 2020, has been in a committed and stable domestic relationship with G.S.  He resides with her in her house at Youbou, British Columbia.  The Father has one other child, S.S. (“Child S.”) from a previous relationship with P.A.S.  By agreement with P.A.S., the Father has regular and substantial parenting time with his daughter, who is now approximately nine years of age.

[5]         The Father seeks substantially more parenting time with Child A. than he presently has with his only son.

[6]         The Parents have demanded full financial disclosure from each other, resulting in a voluminous amount of documentary evidence.  Each party is highly suspicious about the completeness and accuracy of the other party’s financial disclosure and in particular, the other party’s income.

[7]         All told, since March 4, 2020, the parties have been before the Provincial Court over 30 times up to present date.  I observe that the scheduling and hearing of this trial took place over a lengthy time span.  In that regard, I take judicial notice of the fact that on March 11, 2020, the World Health Organization classified COVID-19 as a pandemic.  Shortly thereafter, the B.C. Provincial Health Officer, Dr. Bonnie Henry, commenced issuing a number of orders under the Public Health Act.  Those orders had a significant disruptive impact generally on trial scheduling within the Provincial Court.  That has in part contributed to challenges scheduling this matter and thereby resulted in the lengthy period of time over which the evidence has been heard.  However, I also note that this matter was originally set down for two days of hearing on January 20 and 22, 2021.  It ultimately took either 13 full or some part days to complete the evidence, and over a period of some 20 months.

[8]         The parties have also been before the court since the conclusion of the trial but prior to the rendering of Reasons for Judgment, to seek directions and orders from me as the seized judge.  Those further appearances have occurred because of the inability of the parties to resolve, as between themselves or through mediation at the Nanaimo Justice Centre, various matters of parenting time relating to Child A.

[9]         For the most part, the Parents have been self-represented throughout these proceedings, but the Mother has obtained counsel to assist her in her most recent submissions to the court.  The Father has obtained legal representation following the completion of the trial, in order to assist him with some of the post-trial applications.

[10]      The Mother prepared on her own and filed an Application to Obtain an Order on February 24, 2020, shortly after the Parents separated (the “Mother’s Application”).  In it she applies for:

[11]      No specific mention is made in the Mother’s Application of parenting time other than to note that the Mother was “asking for Parenting arrangements” and that Child A. had resided with her since his birth.

[12]      Without legal assistance, the Father prepared and filed a Reply with Counterclaim on August 11, 2020 (the “Father’s Counterclaim”).  In it, he specifically opposes the Mother’s applications for spousal support.  He disagrees with the Mother’s unspecified claims for parenting time and the allocation of parental responsibilities in her favour for Child A.  He specifically asks for “more Parenting time with third-party drop-off and a Parallel Parenting approach.”

[13]      In the Father’s Counterclaim, he applies for parenting time, an allocation of parental responsibilities and for an order that Child A. not be left alone with J.L., the maternal Grandmother (the “Maternal Grandmother”).

[14]      No specific mention is made in the Father’s Counterclaim about child support.

[15]      The Mother has not filed a Reply to the Father’s counterclaim.

[16]      The respective positions of both Parents have evolved during the course of the trial and in their lengthy written submissions to the court.  That evolution is described in further detail below.  The enmity within their relationship has remained a constant.

[17]      The Mother has abandoned her claim for an order relating to restrictions on the Child A. having contact with the Paternal Grandmother and the Father has abandoned his claim for an order restricting Child A. from having contact with the Maternal Grandmother.

[18]      The written Reasons for Judgment in this matter have been bifurcated.  These Reasons for Judgment, which I call Reasons for Judgment Number One (“RFJ # 1), are being released to permit my decision regarding guardianship, parental responsibilities and parenting time, to be known in advance of an application set for April 29, 2024.  That is set to resolve the disagreement about the 2024 elementary school registration for Child A.

[19]      The second portion of my Reasons for Judgment, which I call Reasons for Judgement Number Two (“RJF #2), will deal with my decision regarding the financial issues including child support and the claim for spousal support.

[20]      Together, RFJ #1 and RFJ#2 will be read together and upon the rendering of RFJ#2, each will be incorporated into the other.

[21]      There were three distinct phases to these court proceedings, which may be characterized as follows:

[22]      As previously noted, this lengthy trial took place over a number of days, spanning several months.  A substantial portion of the time in the First-Trial Phase was spent dealing with financial matters of the Parents and specifically relating to the Mother’s claim for spousal support and the Father’s contradictory evidence.

[23]      In the course of the Mother’s evidence, she also dealt with many issues relating to relationship of the parties, the Child A’s circumstances, the background of parenting time and the exercise of parental responsibilities.  Similar topics were dealt with in the First-Trial Phase of the Father’s evidence.  The parties were vigorously cross-examined by each other.

[24]      The following orders were made in the Pre-Trial Phase:

[25]      The following significant orders were made during the First-Trial Phase:

[26]      The following are noteworthy:

[27]      As referenced above, in the November 17, 2022 Order, I ordered that there would be a second phase of the trial (the “Second-Trial Phase”), to deal with the “Remaining Issues” of parenting time and parental responsibilities, having regard to the bests interest of Child A., as that term is used in Section 37 of the Family Law Act.  As previously noted, the Parents were unable to resolve the Remaining Issues in the Mediation-Phase.

[28]      The November 17, 2022 Order also ordered that the Second-Trial Phase was to be:  conducted on affidavits to be completed and exchanged between the Parties and with 3½ hours ordered for cross-examination with a brief follow up.  The hearing occurred on January 11, 2023 with some additional time being made available to the Parties.  Written submissions on the Remaining Issues were ordered to be completed and exchanged within the following five weeks with a 25-page limit for each initial submission and a 10-page limit for any Reply submissions.  By way of desk order made on February 7, 2023 by Judge Cutler, the time for the Father’s submission was extend three weeks.  Submissions and Reply Submissions were received from the Parents.

[29]      On December 11, 2023 (and prior to the rendering of these Reasons for Judgment Number One), the Parties were back before me in order to deal with the Mother’s application seeking to take Child A., travelling to Mexico from January 18, 2024 to January 28, 2024 without the Father’s consent, which had been withheld on much the same basis on December 2, 2022..  The “December 11, 2023 Order”  was granted to permit the travel to occur and the Father was granted compensatory parenting time by extending his parenting time that typically ended on Mondays at 11:00 AM to Tuesdays at 9:00 AM, on December 18, 2023, January 1, 8, of 2024 and February 5, 12, 19, 26, and March 4, 2024.  The Father was required to take Child A. to his regular scheduled extracurricular activities during the compensatory parenting time.

[30]      As previously noted, 13 full days or part days of viva voce evidence were heard in this matter, over a span of 20 months, with an expansive amount of documentary evidence contained in 54 exhibits, many extensive in length, containing multiple pages.  The exhibits including sworn Form 4 Financial Statements, affidavits sworn by the Mother and by the Father, unsworn statements of each Party, the contents of which were adopted in viva voce evidence, separate affidavits of other witnesses as well as the other documentation.

[31]      The Mother and the Father were each their own witnesses and each provided viva voce evidence, as well as their affidavit evidence.  As noted above both parties were cross-examined upon their viva voce evidence and extensively upon their Form 4 Financial Statements, their respective affidavits and other documentary evidence.

[32]      The Mother also called her niece J.A.W., who had resided for somewhat less than six months with the Mother and the Father, during their period of cohabitation following the birth of Child A.  Her evidence consisted of affidavit evidence and viva voce evidence.

[33]      K.M.C., a friend and a former foster mother for the Mother, testified on behalf the Mother.  K.M.C. has a Master’s Degree in what I understand to be the field of counselling and has worked in a range of fields for both non-profit organizations and Provincial Government Ministries for a number of years.  She did not testify as an expert witness.

[34]      The Father called his present spouse G.S. who has been a part of Child A.’s life since she met him through the Father.

[35]      All of these witnesses were cross-examined on their testimony.

[36]      Significant findings of fact turn on an assessment of the credibility of the Parties and the other witnesses and the reliability of their evidence.  In particular, the Parents gave conflicting evidence about a number of important facts.

[37]      Both the Mother and the Father seek to impugn each other’s credibility and reliability on a host of issues.  This occurred in the course of providing evidence-in-chief, in cross-examination and in the lengthy submissions of both Parents.  I will resolve the testimonial conflict where relevant to the issues to be decided in this case.

[38]      The FLA, in the usual course, requires the court not to consider the conduct of the parties, except to the extent that it is relevant to the parenting abilities of the parties, or affects the factors that must be taken into account in determining the best interests of the child.

[39]      In this case, many aspects of the Parties conduct is relevant to their parenting abilities and affects the factors that must be taken into account in determining the Child A.'s best interests.

[40]      Thus, the court's fact finding role requires an assessment of the credibility (truthfulness/honesty) of witnesses and the reliability (accuracy) of their evidence.  This requires consideration of many factors.

[41]      Madam Justice Ker summarized these factors in Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at paras. 27-28:

[42]      Besides the credibility of the testifying witnesses, I must also assess their reliability.

[43]      In that regard, I must instruct myself that there is a difference between credibility and reliability of a witness.  In R. v. H.C., 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:

[44]      In summary, I must weigh all of the evidence in assessing a witness.  In so weighing the evidence, I may reject or accept some or all of a witness's testimony, after having taken into account a multitude of factors which include, but are not limited to: appearance or demeanour; ability to perceive, ability to recall; motivation; probability or plausibility; and internal or external consistency.

[45]      I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

[46]      I consider J.A.W. and K.M.C. to be straightforward, credible and reliable witnesses.  In drawing that conclusion, I am mindful of their close and historical relationship with the Mother.  I am also mindful that they were not present when some of the most relevant events involving the Parents may have occurred.

[47]      Similarly, I consider G.S. to be a straightforward, credible and reliable witness.  Again, I am mindful of her close, intimate and historical relationship with the Father.  She, in fact, was present when some of the relevant events occurred.

[48]      The Mother and the Father have both been very partisan witnesses, whose evidence was often given from their own self-interest perspective.  It has required this Court to have to assess their evidence, ever mindful of their self-interest perspective.  Overall, I cannot say that either was trying to mislead or deceive the court.  Where there may be matters of concern in that regard I will make specific mention.

[49]      For the benefit of these parties, who have for the most part been self-represented throughout these proceedings, it is important to understand the approach that I have followed in summarizing the evidence in these Reasons for Judgment.  It is the same approach usefully and concisely set out by the Honourable Judge T.S. Woods in the decision of R. v. Connell, 2017 BCPC 123, at paragraphs 5 and 6 as follows:

[50]      I have used this approach and found it helpful in other similar lengthy and complicated Family Law Matters, such as V.W. v. J. H., [2020] B.C.J. No. 180; 2020 BCPC 13, T.A.G. v. D.C.P., 2022 BCPC 99 and most recently in T.E. v. D.M., 2024 BCPC 51.

[51]      There has been some significant conflict in the evidence that I have heard from both the Mother and the Father in connection with the Background Circumstances.  Some of that conflict in evidence is material to the issues to be decided and some of it is immaterial.

[52]      Therefore, I have been required to use the above-described approach of Madam Justice Ker summarized in Gill Tech Framing Ltd. v. Gill, supra.  

[53]      My evidentiary findings with respect to any conflicting evidence are also set out below and where necessary I have referenced the evidentiary dispute that I have been required to resolve.

[54]      The Mother is now approximately 39 years of age.  She grew up in the Cowichan Valley.  She has moved away and then returned on a couple of occasions.  She presently continues to reside in the Cowichan Valley in her own residence, which she purchased a few years ago.  Her own mother, being the Maternal Grandmother, also lives in the Cowichan Valley.  They maintain what the Mother describes in her evidence as “a pretty good relationship”.

[55]      That apparently has not always been the case.  The Mother’s relationship with the Maternal Grandmother was very strained for a considerable period of time, as was her relationship with other members of her immediate family.  As I understand it, the Mother does not know her own biological Father.

[56]      The evidence supports the conclusion that the Mother’s childhood was very difficult and unstable for her.  The Ministry of Children and Family Development (“MCFD”) became involved in the Mother’s life in her very early teens, apparently because of the Maternal Grandmother’s abilities and challenging circumstances.  At some point, the Mother was the subject of a continuing custody order under the provisions of the Child, Family and Community Services Act, R.S.B.C 1996, c. 46. and became a ward of the Province.  She was placed by MCFD in a group home and then at 15 years, she was placed in a MCFD approved foster home with K.M.C., who was a long time and experienced foster parent resource for MCFD.  The evidence of K.M.C. supports the conclusion that it was positive placement, which continued for a number of years and evolved into an on ongoing friendship between the two of them.

[57]      The Mother maintains a strong relationship with B.S., whom she describes as a “family friend”, her “Godfather” and person whom she refers to as “dad” and whom Child A. calls “grandpa”.  B.S. is in his 60’s and maintains a residence on an island near to the Cowichan Valley.  He is employed as a captain on luxury yachts and plies his profession in Mexico.  The Mother and Child A. have visited him in Mexico on at least three occasions, which, as noted above, have become the subject matter of court applications to obtain the Father’s consent.

[58]      The Mother has overcome a number of these early difficulties and through her own efforts, has succeeded in a number of areas.

[59]      The Mother is qualified as a certified dental assistance and has worked for a local dental clinic for a number of years.  That dental clinic is located not far from the Mother’s own residence.

[60]      Also qualified as a certified [omitted for publication] technician, she has also carried on a home-based [omitted for publication] business known as [omitted for publication] (the “Mother’s [omitted for publication] Business”); the Mother is also trained and qualified as a holistic doula, but throughout the duration of the trial, she had not ever worked in that capacity.

[61]      Her busy work schedule necessitates using day care for Child A., some three to four days during the week. The Mother has selected daycares for Child A., which generally are close to her own home and work place.

[62]      As I understand it, her work schedule at the dental clinic is dependent upon the requirements of the dentist to whom she is assigned by the dental clinic.  Her regular schedule is Tuesday, Wednesdays and Thursdays, from 7:30 AM to 5:00 PM, and on some Fridays.

[63]      The Father describes that he and the Mother had an “abusive childhood in common”.  The Father states that he was physically abused as a child but the evidentiary details are not clear.  The Father presently has a strong relationship with his own mother the Paternal Grandmother.

[64]      The Father is a self-trained carpenter with over 25 years of practical experience.  He has no formal training nor qualifications.  He is not licensed as a contractor.  He works as a self-employed contractor or sub-contractor for various building contractors and developers.

[65]      The Father’s business is conducted as a sole proprietorship known as [omitted for publication] (the “Proprietorship”), which he established in approximately 2017.  At various times, the Proprietorship has had crews of employees besides the Father.  However, in recent years, when required, the Father has retained the services of other self-employed contractors on a casual or part time basis, and usually on Saturdays to accommodate their availability.

[66]      The Proprietorship provides labour to the building contractors and developers for work to the “lock up stage” of structures, including foundations, concrete work, framing, siding and window and door installations.  He does not do finishing carpentry.  He does not generally provide materials to his customers, nor does his business license permit him to do so. 

[67]      The Father’s work schedule has evolved over time from Mondays to Fridays, with occasional weekend work and generally long hours of some eight to 10 hours daily, to a current schedule of Tuesdays to Saturdays, between 8:00 AM to 5:00 PM, but with earlier departures at 4:00 PM on Tuesday and 3:30 PM on Thursday, in order to exercise his scheduled parenting time with Child A. under the Existing Interim Parenting Time Order Schedule.

[68]      Some time prior to his relationship with the Mother, the Father and P.S. were living together over a period of three years including at the time of the birth Child S.  During that period of time, P.S. incurred credit card expenses, including some on behalf of or for the benefit of the Father. This included some travel expenses for their extended international sojourns, which were added to her overall debt load.  P.S. eventually went bankrupt.  After P.S. went bankrupt, the Father provided her with payments in addition to his child support payment for Child S.

[69]      The Father has what he describes as a successful “co-parenting” relationship with P.S. and a strong bond with Child S., whom he sees regularly and specifically on Sundays.  I understand there is both regularity but flexibility in that schedule.

[70]      He pays P.S. child support for Child S., in the amount of $520 per month, apparently being an amount agreed to by P.S. and the Father.  I note that the amount is equivalent to child support based upon a Guideline annual income of just over $55,000.  The Father does not pay P.S. any spousal support.

[71]      P.S. provides childcare assistance and pick-up for Child A., from time to time, in order to help implement the existing Parenting Schedule. She also has a positive relationship with the Mother and declined the Father’s request to testify on his behalf.

[72]      P.S. and Child S. live close to Duncan and within the adjoining portions of the Municipality of North Cowichan, as do the Mother and Child A.  The Paternal Grandmother resides in the same vicinity, but closer to downtown Duncan.

[73]      The Father’s works primarily in the Cowichan Valley, in and around the City of Duncan and the Municipality of North Cowichan.  He shares G.S.’s residence (the “Youbou Residence”), in Youbou, British Columbia, being an un-incorporated electoral area contained within and located in the westerly part of the Cowichan Valley Regional District.  A number of its residences have waterfront homes on Cowichan Lake.

[74]      These geographical and employment factors necessitate almost daily travels for the Father from Youbou, along the Cowichan Valley Highway, Number 18, to the Duncan-North Cowichan area, which is a distance of some 42 kilometres each way, and requires some 30 to 35 minutes of driving time each way. 

[75]      The Father’s spouse, G.S., does not physically commute, but rather works remotely from the Youbou Residence.

[76]      The Father experienced periods of temporary and at times, somewhat unstable housing, up to the time that he and the Mother commenced to cohabitate in her residence, in September 2018.  After the Separation, the periods of temporary unstable housing occurred again, until the Father and G.S. met and they started to cohabit in or around November of 2020.  The periods of the Father’s temporary housing included times when he resided with the Paternal Grandmother.

[77]      Notwithstanding some family issues growing up, the Father places a high priority on family time and relationships.  Some of this is centred around weekly Sunday family meals at the home of the Paternal Grandmother.  Both Child S. and Child A. are involved in these family meals, as are G.S. and on occasion P.S.

[78]      The Father has developed a support network, including the Paternal Grandmother, P.S. and G.S., whom he calls upon to assist him when balancing work commitments with parenting time responsibilities.

[79]      G.S. is in her mid-forties.  She is a minority owner of an international business, which itself designs and builds business systems and online platforms.  Her area of expertise is leadership development.  She is presently director of operations for the businesses’ internet internationals crowd sourcing platform.  As mentioned, she works entirely remotely online from the Youbou Residence.

[80]      As I understand the evidence, G.S. is the sole owner of the Youbou Residence, which she purchased with the use of a mortgage.  In the Father’s cross-examination evidence of May 4, 2022, he described it as a 1950’s era house, not on Cowichan Lake, which had an assessed value in the range of $535,000 to $550,000.  It then came out that he had “gifted” G.S. the amount of $31,000 from his CERB loan, to assist with the down payment.  He says that there were no promises or agreements between them about repayment, although the Father says G.S. has repaid him approximately $10,000.  There are separate bedrooms available in the Youbou Residence for each of Child A. and Child S.

[81]      The Father says that his only expectation in making the gift to G.S. was that he would pay G.S. all-inclusive rent of $1,110 per month.  He denies that she holds an interest in the Youbou Residence in trust for him.

[82]      The Father has contributed his labour to renovations of the Youbou Residence, the materials for the renovations having been paid by G.S. 

[83]      G.S. and the Father first met in in early August 2020.  They moved in together in November 2020.  They had a form of a wedding celebration, which she described as not being “typical” and which the Father described in his evidence as being “a sacred ceremony”.  My understanding is that it was not presided over by a B.C. Marriage Commissioner or other authorized officiant.  That event was being planned for the summer of 2022.

[84]      The Father testified that he and G.S. will sign a prenuptial agreement to protect G.S.’s interest in the Youbou Residence.  

[85]      I will have more to say about the Father’s financial disclosure of this gift to G.S. in RFJ #2.

[86]      G.S does not have children of her own.  In her youth, she worked as a nanny on two separate occasions with two sets of children each under the age of three.  As I understand it, she has maintained a relationship with those children who are now in their twenties.

[87]      G.S. explained that she has developed a strong relationship with Child S. since they met in the early stages of her relationship with the Father.  Child S. calls her “[omitted for publication]”, confides in her, and is affectionate with her.

[88]      Similarly, she has developed a strong relationship with Child A. since they met in in the early stages of her relationship with the Father and notwithstanding a somewhat more limited parenting time schedule for the Father with Child A.  She described Child A. as very alert and intelligent.  She has greatly enjoyed seeing him grow and develop.  Child A. calls her “Momma GG” or “GG”.

[89]      G.S. stated that if anything were ever to happen to the Father, she fears that she would not be able to maintain her relationship with and see Child A.  That prompted the Mother to say to G.S. in court during cross-examination of G.S., that G.S. was a “big part” of Child A.’s life and she would always keep G.S.’s relationship with Child A.

[90]      G.S. was requested in her evidence to compare and contrast her experience of the Father’s “co-parenting” experience with P.S. regarding Child S. and that of the Father with the Mother regarding Child A.

[91]      G.S. was not asked to explain what she understood to be the term “co-parenting”.

[92]      For these purposes, I note that the decision of Wanless v. Wanless, [2001] BCJ No 221, 2001 BCSC 210, at para. 89 et seq. accepted the term of “Co-Parenting” as  being joint or shared custody as it was  defined in a letter of agreement  placed in evidence as follows:

[93]      G.S. testified from the perspective of a person closely involved in the parenting time of Father with Child S. and Child A., as well as an observer of the Father’s relationship with each of the two mothers.

[94]      She noted that she is not involved in the scheduling of the Father’s parenting time for either Child S. or Child A.  However, she does participate in the transitioning of both Child S. and Child A.

[95]      According to what I understand from her evidence, she believes that the Father and P.S. have achieved a successful co-parenting arrangement.  She described her relationship and that of the Father with P.S. as positive and healthy.  It is marked by simple communication during which the Father and P.S. do not discuss matters of concern relating to Child S. in front of her.  Conversations in front of Child S. do occur in order to share positive news.

[96]      Adjustments to the parenting schedule are achieved collaboratively by the Father and P.S and in short order.

[97]      The pick-ups and drop-offs of Child S. occur seamlessly and there is no tension.  On occasion, they do not necessarily even see her or interact with P.S. but are permitted to walk into P.S.’s residence.

[98]      On the other hand, and with some dismay, G.S says that she has “given up hope” of the Father and the Mother achieving a positive co-parenting arrangement for Child A.

[99]      Not surprisingly and likely because of her relationship with the Father, she places the blame on the Mother.

[100]   Simple communications and straightforward communications with the Mother are difficult and the prospect of her anticipated responses and the way she responds produces considerable anxiety for the Father and for G.S.  There is a tendency on the Mother to want to inappropriately discuss matters in the presence of Child A. 

[101]   Email communications to arrange make up required parenting time for the Father involved some 15 to 20 emails to resolve scheduling because of the Mother’s lack of cooperation. 

[102]   Due to the Mother’s unilateral decision making approach regarding the Father’s parenting time, which is not in accordance court orders, there is the anxiety and concern that Child A. will actually be made available by the Mother to the Father for his parenting time, especially if the Father is not extremely punctual.

[103]   G.S. spoke about the unilateral changes invoked by the Mother to the Father’s parenting time, citing by way of example the cancellation and ultimate delay of the Father’s Christmas parenting time with Child A. on December 26, 2021 because of the Mother’s own decision that the roads heading to Cowichan Lake from Duncan were too dangerous due to winter conditions. 

[104]   G.S. testified that drop-offs and pick-ups of Child A. are often fraught with tension.  In that regard, she testified, by way of example, about a March 20, 2021 incident involving the drop-off Child A.  The Father’s drop-off of Child A. was running late.  Notwithstanding the Father’s prior request for the Mother not to approach the vehicle in which Child A. was seated and sleeping, she did so and proceeded to open the door and immediately remove Child A. all the while ignoring the presence of G.S.  As I understand it, the usual practice was to permit the Father or G.S. to remove Child A. from the vehicle.

[105]   As a result of that experience and others similar experiences, G.S. said that she felt “disrespected” and “not considered” by the Mother.

[106]   She concluded that the Mother “follows her own agenda according to her feelings and will”.

[107]   G.S. expressed a willingness and a wish to participate in and to continue to provide assistance to the Father in his quest for enhance parenting time with Child A.  She stated that she has a flexible work schedule and would drop things in the event of an emergency.

[108]   As previously noted, Child A. has been at the heart of this lengthy dispute between the Mother and the Father.

[109]   As noted above, Child A. is approximately five years of age.  The trial evidence of K.M.C. is based upon her observations of Child A. starting when he was younger, and while both of them were in the presence of the Mother.  Further observations were made also on regular occasions when K.M.C. cared for Child A., alone on weekends but not on an overnight basis.

[110]   At the time of presenting her evidence on May 20, 2021, Child A. was approximately two years of age.

[111]   K.M.C. says that Child A. is well adjusted, with a strong sense of self, is secure, is not anxious or needy but rather comfortable, is engaged and not withdrawn.  She went on to suggest that Child A. has a good sense of himself, is not reluctant nor hesitant, laughs, and is secure when the Mother is not around.

[112]   Furthermore, Child A. is easy to direct, but does on some occasions perseverates, in which case the Mother has demonstrated an ability to redirect Child A.  The attachments of Child A. appear quite secure.  She also characterized Child A. as being developmentally secure and meeting his milestones.

[113]   Apparently, Child A.’s speech was “slow in coming” but according to K.M.C., he is now more comfortable with words with stronger articulation and she is of the view that his language will progress.  Although Child A. apparently hears well, he has been taught some basic sign language.

[114]   K.M.C. noted that Child A. hangs back and observes a situation and then mimics it.  She characterized this as being very observant leading her to believe that Child A. may be gifted.

[115]   In conclusion, she described Child A. as “happy and well-adjusted” and secure emotionally, that being “emotionally robust”.

[116]   K.M.C. was one of the first witnesses.  No significant contradictory evidence about her observations was presented by any of the subsequent witnesses regarding any of these topics canvassed by the K.M.C. in her evidence.  I find her evidence helpful.

[117]   The evidence of all of the witnesses supports a conclusion that Child A. is a much-loved child by both Parents and a very important part of the lives of each Parent and their respective families.  Child A. is a happy child.

[118]   There is conflicting evidence from the Parents about Child A.’s health.  However, no formal medical reports are before this Court. The evidence supports a conclusion that he is generally a healthy child with no disabilities or other barriers.

[119]   The Mother says she has almost exclusively taken responsibility for Child A.’s medical appointments and his follow up medical care.  The Mother has also arranged Naturopathic care for Child A.  Her evidence is that the Father has very seldom been involved in attending medical appointments, saying it is because of the priority he places upon his work commitments. 

[120]   The Mother’s evidence is also to the effect that she informed the Father of forthcoming medical appointments and asked the Father about any concerns that she should raise with the medical practitioners, some of which were provided to her by the Father.  She would then inform him of the discussions with and the advice provide to her about Child A. and the prescribed medications. 

[121]   The Mother further contends that the Father does not follow medical advice, including the use of a prescription inhaler for Child A. to deal with respiratory symptoms and the Father also reaches unfounded conclusions about the proper medical regimes for Child A. 

[122]   There have been a number of notable occasions whereupon the Mother has cited Child A.’s illness or health concerns as her reasons for cancelling the Father’s scheduled parenting time.  Accordingly, the Existing Interim Parenting Time Order made specific provision for entrusting the care of an ill Child A. to the Parent who was entitled to scheduled parenting time.

[123]   The Father contends that he has not often been consulted nor informed in a timely fashion about these medical appointments and therefore has not able to attend.

[124]   I accept that the Father was generally kept reasonably well informed by the Mother about the Child A.’s medical visits and information arising therefrom as well as professional medical advice provided to the Mother.

[125]   The Mother testified that Child A. has allergies, and resulting respiratory concerns, which have then resulted in him being prescribed a medication inhaler for respiratory symptoms.  Initially, the Mother’s suggestion was that Child A. has a diagnosis of asthma.  That is denied by the Father, based upon a medical letter from Dr. Robert C. Aitkins of July 28, 2021 that he has seen (and which admitted into evidence) and which states in part “we have not seen any definitive evidence of asthma”.  The Father subscribes to the view that Child A. has post-nasal drip with a resulting cough.  He suggests it a possible environmental cause maybe from the Mother’s residence.  The Father seems to base this hypothesis in part on his own experience with what he referenced as “allergic asthma”.  In the Mother’s cross-examination on April 27, 2022, she did concede, having been presented with Dr. Atkins’ letter (which she in fact obtained) that Child A. did not have asthma.

[126]   Child A. has been taken to the emergency room at Cowichan District Hospital on two occasions during his life, by the Mother.  According to the Mother’s evidence, one occasion was for rectal bleeding when Child A. was very young, and on a separate occasion because of respiratory complications.  There is a dispute between them as to whether the Father actually considered these attendances to be serious in nature as contended by the Mother.  The Father’s evidence is that these were matters of concern that required immediate medical attention.

[127]   Again, there are no formal medical reports that indicate that there are serious ongoing medical issues for Child A.  The Mother’s evidence is to the effect that Child A. residing with her enables rapid access to emergency care, suggesting that a thirty to thirty five minute drive to the Cowichan District Hospital emergency room from the Youbou Residence places Child A. at some significant health risks.  The Father discounts that concern and expresses the belief that the distance to the Cowichan District Hospital from the Youbou Residence is reasonable in the circumstances.  Based upon the evidence that I accept, I agree with the Father’s conclusion.

[128]   The evidence does support that the Mother and the Father may have different approaches to the medical treatment of Child A.  The Mother indicates that she follows conventional medical advice and prescriptions and over the counter remedies, which she suggests is in contrast with the Father’s more natural remedy approach, which lacks a scientific basis.  The Father denies this.  He says that he follows conventional professional medical advice, but he does subscribe to the notion of a regime of healthy food for Child A.

[129]   Parenthetically, it became evident during the hearing that both of the Parents presented as COVID vaccine sceptics or at the very least both are vaccine hesitant.  It is my understanding the Child A. may not have received the usual childhood vaccines, but it is suggested that this is in keeping with the advice of Child A.’s paediatrician.  I find this suggestion to be somewhat surprising.

[130]   Again based upon the evidence I accept, Child A. enjoys good health.

[131]   By the time this Court had received evidence in September of 2021, the Mother had placed and removed Child A. from four different daycares, starting in October or November of 2019.  By May 3, 2022, there was a fifth new daycare.

[132]   In her evidence, the Mother says that she had researched the various options and shared those with Father.  She contends that he agreed to every placement and to every withdrawal.

[133]   The Father’s evidence is that he agreed that some of the changes were necessary.  He also testified to the effect that the Mother gave him a very limited opportunity to respond to or discuss any of the proposed daycare changes and that most changes were a fait accompli by that point and hence he had no meaningful input to the decision making.

[134]   The overall plan was apparently to have Child A. transition from daycare to a pre-school setting prior to starting kindergarten in the fall of 2024.

[135]   Subsequent to the Second-Trial Phase, the issue has arisen about which elementary school kindergarten Child A. will attend in the fall of 2024.  This issue will come before me on April 29, 2024.

[136]   The Parents have never married.  The Mother and the Father entered into a dating relationship in approximately May or June of 2017.  During that initial dating relationship, the Mother and Father were not cohabitating but eventually they did so.  The Parents were somewhat vague or uncertain in their recollections about some of the timelines of their relationship.

[137]   The Father suggests in his evidence that within six months of the start of their relationship, the Mother revealed a “gamut of emotional issues”, which he attributed to her difficult childhood.  Notwithstanding their efforts to put protocols in place to deal with what he described as the Mother’s “drama-trauma” cycles and the counselling for her that he insisted upon, he says all proved unsuccessful.

[138]   My understanding is that at after a period of cohabitation the parties broke up in around June or July of 2018.  The Father moved out of the Mother’s residence and then camped on the Maternal Grandmother’s property in his RV trailer.  The Parents then learned that the Mother was pregnant with Child A, in or around June of 2018.  At that point, they were not living together, but they resumed cohabitation in the Mother’s residence in September of 2018.  They continued to do up to and after the time of Child A.’s birth.

[139]   The evidence confirms that their relationship while together was very tumultuous.  During the course of their cohabitation, the Mother and the Father attended a number of counselling sessions over a period of 12 months, which proved to be unsuccessful in resolving their unhappy personal differences.  The counselling appears to have taken place before their first break up in June or July of 2018 and resumed during the subsequent period of cohabitation starting in September of 2018.

[140]   There is conflicting evidence about the circumstances surrounding the final break up. 

[141]   The Mother explained that she felt the Father “abandoned” her and Child A. in January of 2020, by departing from her residence and not returning.  At this time, she was still on maternity leave from her dental clinic employer and not receiving any Employment Insurance benefits.

[142]   Her evidence suggests that this separation came as a “surprise” to her, given that the Parents had just spent the Christmas season and New Year’s together, complete with the taking of a Christmas family photo.

[143]   It also appears likely that in the face of the considerable problems plaguing the Parents, the Father proposed a six-month separation to sort out their relationship.  It appears that this may have been raised at a counselling session attended by the Parents.  This proposal was rejected by the Mother.  She characterized it as period of time during which the Father would be able to do as he pleased and leave her with the responsibilities of raising Child A. on her own.

[144]   It appears from the whole of the evidence that there was an argument between them, likely around the evening of January 5, 2020, where after the Father left the Mother’s residence and only returned to remove his personal belongings, while the Mother was away with Child A. on trip to San Diego, California.

[145]   The exact circumstances of the final break up are not particularly relevant.  I do accept that in December of 2019, the Parents’ relationship was effectively at an end and with the Father’s final departure occurred in early January 2020.

[146]   Among the numerous texts and emails entered into evidence, it can be seen that the Mother set her phone and email contact for the Father such the moniker that appears to identify him as “Mother Fucker” (the “Obscene Moniker”).  This was apparently not amended during the course of the trial and not before the submission of multiple documents as exhibits containing the Obscene Moniker.  This gives a strong sense of the magnitude of the Mother’s animosity towards the Father.  When the use of that Obscene Moniker was drawn to her attention by the court, she was somewhat dismissive because she says it is in private communications, not shared with other individuals and would not be seen by Child A.  I am of the view that her analysis entirely misses the point about the negative effect that its use has on effective communication between the Parents.

[147]   Prior to the birth of Child A., both the Mother and the Father were both employed.  When they first started their relationship, the Father was working some eight to 10 hours per day and often six days per week.

[148]   There is a dispute on the evidence as to the division of the household responsibilities and financial arrangements as between them while they were cohabitating.

[149]   Following the Separation, the Father started making child support payments to the Mother for Child A. in the amount of $520 per month, commencing in February of 2022.  That equates to a Guideline income of approximately $55,000.

[150]   There is no evidence of physical violence as between the Mother and the Father.  However, the Mother contends that the Father was “mentally abusive” of her, by trying to convince her that she was mentally unstable and had “anger issues”.  In that regard, he apparently relied upon certain incidences whereby the Mother concedes she reacted in an angry manner in front of Child A. and Child S., when unexpected things occurred.  This included incidences at a family photo appointment and the spilling of breastmilk.  The Mother denies the mental health allegations and in that regards relies on an exhibited letter dated May 2, 2020 from her long-time family physician, which states that she “has no mental health issues in the past or present”.

[151]   There is some evidence that on one of these occasions which are relied upon by the Father, the Paternal Grandmother and the Mother became embroiled verbally and physically leaving the Father to remove Child A. and to not to intervene in support of the Mother.  The police were apparently called but the Mother did not pursue the matter in a criminal context.  She indicated that she wished to work towards reconciliation.

[152]   The Father’s parenting time with Child S. and specifically her attendance when the Father was visiting at the Mother’s residence for parenting time, was a point of significant tension between the Mother and the Father.  After the March 4, 2020 Order was in place, it was on or about April 19, 2021 that the Mother contravened that Order by showing up at the Mother’s residence unannounced in the course of the Father’s parenting time. She then took the opportunity to express her frustration and to severely reprimand the young Child S., whom she considered to be too loud and interfering with Child A.’s napping and his other routines.

[153]   In her cross-examination of October 1, 2021, the Mother disclosed that she had operative cameras in her residence, one being in the living room and the other being a doorbell camera, both of which she could access remotely.  The living room camera permitted her to observe the Father while he was exercising his parenting time at her residence.  She suggested in her evidence the Father knew of the existence of those cameras.  More importantly, she did not recall telling the Father that the living room camera was left on all of the time.  I accept that the Father was not aware of the living room camera.  I find that she did not disclose the existence of that camera and the continuum of its operation to the Father.  I find that very concerning.  It is the type of action that undermines the element of trust in the Parents’ relation, which is a vital component permitting the Parents to work in a collaborative manner in the best interests of Child A.

[154]   The Father contends that as it relates to his parenting time with Child A., there has been a continuous pattern of behaviour on the part of the Mother which is combative, inflexible, “agitative” [sic] adversarial, all of which the Father submits “is the opposite of co-parenting.”  Numerous examples are provided in the evidence in support of that contention, leading this Court to accept that there is a strong basis for the Father’s assertion.

[155]   A number of those examples relate to the Father’s court ordered parenting time being cancelled by the Mother.  The Mother rejected the Father’s suggestions and his evidence, that she was acting unilaterally in making changes and she was being inflexible.  The Mother contended that there were reasonable justifications when she unilaterally cancelled the Father’s schedule court ordered parenting time on a number of occasions, including: tardiness on the part of the Father when attending for his parenting time or for the pickup of Child A.; alleged interference with Child A.’s naps, sleep or other routines; inclement weather and difficult road conditions; Child A.’s illness, and COVID protocols.

[156]   On balance, the evidence supports a conclusion that there were very few, if any, occasions, when there was justification to cancel or attempt to reschedule the Father’s parenting time.  For the most part, the Mother’s behaviour in cancelling or restricting the Father’s parenting was not reasonable nor necessary and certainly not in keeping with applicable court orders.

[157]   It is clear on the evidence that the Father’s parenting time schedule, missed parenting time because of the Mother’s unilateral actions and the rescheduling of missed parenting time have been a continuing trigger for the disagreements between the Parents.  It has required various court orders to attempt to resolve those concerning issues.  There were occasions when the Mother breached court orders within a few short weeks of the court order having been made.  Thus, the Father has been required to bring enforcement proceedings.  It leads this Court to say directly to the Mother that she cannot treat a court order as an inconvenient suggestion to her.  A court order must be obeyed in accordance with its terms, not simply in accordance with the Mother’s wishes.

[158]   These actions on the part of the Mother have undermined her credibility on her other evidence when she says she is pleased that the Father is part of Child A.’s life and she wishes to encourage the growth of that strong relationship.

[159]   It is very clear that a court ordered parenting regime must be put in place in place to limit this continuing conflict between the Parents over Child A.  That conflict has continued for almost Child A.’s entire life.

[160]   In the Mother’s evidence heard on September of 2021, she says that from the outset of the birth of Child A., she was 100% responsible for dealing with all the parental responsibilities and medical and dental appointments for Child A.

[161]   She further says that the Father made it clear that he intended on only being a “weekend parent” because of his very high commitment to his work, especially when they were cohabitating.  She asserts that it is she who has provided the home stability and implemented the necessary and appropriate routines for Child A. all of which has continued to present.

[162]   I draw from the evidence, which I accept, that since the birth of Child A., the Mother’s approach to parenting Child A. has been very regimented, structured and protective.

[163]   In her evidence of September 15, 2021, she expressed an unwavering commitment to breast-feeding Child A, which she put at a much higher priority than permitting the Father to have any overnight parenting time.  She offered little in the way of reasonable alternatives about how those two goals could be effectively accommodated at the same time, such as by the use of bottles of expressed breastmilk for feeding Child A.  She was committed to the practice of co-sleeping with Child A. in the “family bed”.  She was adamant that this regime had to be maintained.  She testified that permitting overnight parenting time would be tantamount to “pulling Child A. away from me” and would be “very destructive and not in Child A.’s best interests”.

[164]   These concerns were all cited in opposition to the Father’s requests to have some limited overnight parenting time with Child A.  In her September 15, 2021 evidence, she also suggested that when Child A. was three years of age, there could be a discussion about the Father’s request but that Child A. should be making that choice about overnight sleeps overs at the Father’s residence.  With respect, in my view, that method of decision-making is inappropriate given the age and sophistication of Child A.  My view is supported by ample case authorities such as Fox v. Fox, 2018 BCCA 359.  It is noteworthy that after obtaining legal advice and in her written submissions the Mother properly abandoned that position and in fact cited Fox v. Fox.

[165]   The Father denies the Mother’s characterization that he only wished to be a “weekend parent”.  Prior to the implementation of the Existing Interim Parenting Schedule, he was not able to have enough parenting time to be even that.

[166]   Eventually the Father did get more parenting time in the form of the Existing Interim Parenting Time Order  Schedule pursuant to the June 30, 2022 Order.

[167]   In contrast to the Mother’s approach to parenting of Child A., the evidence does support a conclusion the Father’s approach it is less structured but it is appropriately based on routine, rules and expectations for Child A.

[168]   The Mother says that the Father had not made structured parenting time a priority, citing his lack of commitments to Child A.’s naps, bedtime routine and potty-training as implemented by her.  She is critical of Child A.’s hygiene regime maintained during the Father’s parenting time.

[169]   The evidence suggests that she is generally highly critical of the Father’s parenting approach and in their email communication she has been critically instructive of the Father.  When the Father does respond, it is in a like manner but his criticism is in the form of personal criticism of the Mother and often references issues that apparently arose in their counselling.

[170]   Overall, my conclusion is that the Mother is of the view that the Father’s approach to parenting does not sufficiently meet her high standards.

[171]   Based upon the evidence that I accept, I cannot find any concerning fault with respect to the Father’s approach to parenting.  It is different but it is not wrong nor contrary to the best interests of Child A.

[172]   There is certainly different emphasis on certain priorities such as the Mother’s engagement in extracurricular activities for Child A and the Father’s commitment to family pursuits.

[173]   The Mother has enrolled Child A. in a number of organized activities including swimming, dance and jujitsu.  The Father became aware some of these organized activities from the Mother.  However, by way of an email exchange of December 15, 2021 he told the Mother that she should put Child A. in extra-curricular activities of her choice and that she did not need to consult him and he would do the same.  The Father apparently has not make any financial contribution to these extra-curricular activities.  My sense is that the Father does not put a high priority on these types of extracurricular activities but that may in part stem from his lack of parenting time with Child A. and a wish not to add activities that my interfere with it.

[174]   The evidence also supports the conclusion that to date, that the Father has born a significantly less amount of the burden of certain aspects of parental responsibilities.  There is nothing in the evidence that suggests to me that he is either unable or reluctant to increase his share of the burden of those responsibilities.

[175]   Overall, I have concluded that Child A. will thrive under the diverse approaches that are being used by each of the Parents.  The Parents must coordinate their efforts so that there is some measure of consistency between the routines that Child A. experiences in each Parent’s home.  By way of example, it will not be in Child A.’s best interest to have a bedtime in one Parent’s home at 7:00 PM and then 10:30 PM in the other Parent’s home.

[176]   There is no evidence that Child A.’s situation or the behaviour of the Parents has been the subject matter of involvement of MCFD or the police.

[177]   As noted above since the commencement of these proceedings the various positions of both the Parents have evolved and become more nuanced.  

[178]   Lengthy and detailed written submissions have been provided to this Court for consideration.  Those submissions also provide critical responses to the other Party’s submissions.  In some instances, those responses amount to significant and highly personal criticism of the other Parent.  Both Parents have fallen into a trap of making what may be regarded as inflammatory statements about each other.  That invectiveness is of little assistance to this Court and has likely caused additional harm to the necessary but already diminished trust relationship between the Parents. 

[179]   I am obliged to note that there are significant portions of each of both submissions that make reference to historical background, events, situations and relationships that are not supported by any of the evidence adduced before this Court.  In other words, there have been attempts by both Parents to introduce new evidence by way of submissions.  Accordingly, I have disabused my mind of those offending portions of the submissions and have not taken them into account in my analysis nor in reaching my conclusions.

[180]   Under the essential terms of the Existing Interim Parenting Time Order the Father’s schedule parenting time with Child A. is as follows:

[181]   The Mother agrees that a further increase in the Father’s parenting time is currently justified by Child A.’s developmental stage.  However, she opposes an increased to a 50-50 Parenting Schedule as proposed by the Father as not being in Child A.’s best interest currently or in the near future.

[182]   The Mother proposes that Child A. shall continue to reside primarily with her and that the Father will have parenting time on a two week rotation as follows:

[183]   The Mother proposes a specific allocation of holiday parenting time for both the Mother and the Father’s scheduled parenting time

[184]   The Mother proposes that parental responsibilities under s. 41 of the FLA will be exercised in a manner that requires the Parents to advise each other matters of significant concern affecting Child A.;  an obligation to discuss any significant decisions to be made concerning Child A. ;and in the event that the Parents cannot agree, the Mother will be entitled to make those decisions and the Father will have a right to apply to court for directions on a decision considered to be contrary to the best interests of the child under s. 49 of the FLA.

[185]   The Father seeks equal parenting time with Child A., which of course is a significant increase to that which he has under the Existing Interim Parenting Time Order.

[186]   In summary, the Father proposes equal parenting on the following schedule:

[187]   On several occasions throughout the hearing and in filed documentation, (including his affidavit document admitted as Exhibit 37) the Father indicated that he was seeking “Parallel Parenting” because of the numerous issues that have arisen between the Parents in relation to Child A.  I note that I can find no direct reference to the concept of “Parallel Parenting” in the Father’s lengthy final written submissions.

[188]   However, in my view that proposal of the Father needs to be addressed.

[189]   The decision of Justice L.D. Russell in Askin v. Askin, [2011] BCJ No 2493, 2011 BCSC 1779, provides useful guidance on this topic.  It is yet another example of a case involving high conflict between parents.  Starting at paragraph 138, Justice Russell says as follows:

[190]   In my view and having regard to the overall situation in the matter before this Court, and given the very young age of Child A., I am not satisfied that a “Parallel Parenting” regime is in the best interest of Child A.  Simply put, it may very well provide an opportunity for the continuation of the untoward present behaviour of the Parents as they travel in their individual lanes of life.  That, in my view, is unacceptable. Child A.’s best interest requires more from both Parents.

[191]   I have purposefully set out at the beginning of these Reasons for Judgment Number One (RFJ #1) the dates of the huge number of court appearances that have occurred in the first five years of Child A.’s life.  I can safely infer that the loss of personal and business income for both Parents is very great.  The Parents’ spent resources of time and the emotional toll on the Parents is incalculable.  It will never be recovered. Child A. will never be able to enjoy that lost time with either of the Parents.  I ask rhetorically, how can that ever be in the best interests of Child A.?

[192]   This Court must decide the ongoing Parenting Time Schedule of Child A.  The applicable provisions of the Family Law Act that bear on this issue or are important for contextual purposes are as follows:

[193]   Notwithstanding the high level of conflict between the Parents, I have concluded that the Existing Interim Parenting Time Schedule and its resulting schedule must be substantially amended.  This Court must determine to what degree it must be changed, having regard to the best interests of Child A.

[194]   Now I turn to the required consideration of the Child A.’s best interests and a consideration of all of Child A.’s needs and circumstances.  I will specifically deal with the s. 37(2) factors in this assessment, mindful of course that the s. 37(2) factors are not exhaustive.

[195]   In considering this factor, I am relying to a great extent upon the evidence and findings contained above under the heading: “The Child A.’s Personal Background and Circumstances.”  I have also carefully considered the evidence of K.M.C.  The evidence satisfies me that Child A. is healthy and happy; he is emotionally supported by each Parent.  Both have the abilities and the skills to deal with Child A.’s health and emotional well-being.  Child A. has apparently adapted reasonably well to the transitions between the two homes on the Existing Interim Parenting Time Order and I expect that will continue with any changes that I am considering.

[196]   As recently noted by the Honourable Judge J. Doulis in L.E.V. v. K.V., 2021, BCPC 216 at paragraph 51, another important consideration under the factor of “health and emotional well-being” is the “maximum contact principle.”  In that regard, reliance is placed upon the decision of Justice N. Brown in K.L.G. v. D.J.T, 2013 BCSC 1684 at paragraph 104 where it is stated that maximum contact with both parents is consistent and harmonious with promoting the children’s emotional well-being in s. 37(2)(a) of the FLA and maximum contact should also include sufficient regularity.

[197]   In my view, any decision of this Court regarding parenting time must ensure that Child A. enjoys maximum and sufficient regular contact with each Parent.

[198]   The Parents must be reflective about how their own interpersonal conflict and communications are impacting Child A., and must therefore take appropriate steps to remove those as contributing factors to any negative impact on the his health and emotional well-being.

[199]   The Father seeks court orders for professional treatment of Child A. by a child psychologist.  There is an insufficient evidentiary basis before me to make that type of order for intervention by a child psychologist.  That is not to say that there may be some benefit for Child A. to receive an assessment, possibly from a child development professional and if necessary counselling from a qualified professional.

[200]   The young age of Child A. makes the views of Child A. inappropriate to consider.  At this point in the proceedings and given the age of Child A., I do not see the benefit of obtaining any form of s. 211 Report as suggested by the Father.

[201]   I accept that Child A. has a loving and caring relationship with each of his Parents.  I also accept that G.S. has a close relationship with Child A.  G.S. has provided Child A. with care and support, and has facilitated the transitioning of Child A. for parenting time.

[202]   Child A. also has a close and an important relationship with Child S., which must be preserved.  Similarly, Child A. has an important relationship with the extended paternal and member of the maternal family, including B.S. and K.M.C.  I accept that both Parents will need to be mindful and find ways of fostering those relationships and Child A.’s relationships with his peers at school and in his extra-curricular activities.

[203]   I do not find the Mother’s numerous submissions about the child resulting from the Father acting as a sperm donor to be helpful or relevant.

[204]   I further accept that both of the Parents have been present for Child A. and attentive to Child A.’s physical and emotional needs.

[205]   As stated, all of these relationships must continue to be fostered and promoted by the Parents for the benefit of each other and for Child A., as any decision of this Court must ensure.  Continuing interpersonal conflict between the Parents will not accomplish this goal.

[206]   I have concluded that the Existing Interim Parenting Time Order, which permits the Parents to arrange for additional parenting time for the Father has not accomplished that end.  Again, this is because of the inability of the Parents to resolve matters in a productive fashion either with or without third-party assistance.  Hence, there has been no movement towards a shared parenting arrangement for Child A. within the meaning of s. 9 of the Guidelines or even a marginal increase of the Father’s parenting time.  I have concluded that in the present hostile environment the Parents will not be able to achieve such an agreement.  Again, the hostilities must cease.  Notwithstanding that, the Father has sought to be actively involved in the care of Child A. during the increased parenting time afforded him in the Existing Interim Parenting Time Order.  However, the Mother has not particularly enabled that.  On the other hand, there may very well have been opportunities that the Father did not pursue such as attendance at some of Child A.’s extra-curricular activities that the Mother has arranged.  

[207]   On balance, the evidence further establishes that both of the Parents have dealt appropriately with various important aspects of Child A.’s life since birth.  The Existing Interim Parenting Time Order has continued to place a greater historical burden of parental responsibilities on the Mother.  Any increased parenting time for the Father will necessitate him sharing that burden much more equitably.

[208]   One notable exception to my conclusion that the Parents have dealt appropriately with important aspects of Child A.’s life is Child A.’s exposure to the Parents’ interpersonal conflict.  That must change and there will be court orders to enable that change.

[209]   I am not satisfied that financial motives, relating to child support, can be ascribed to either the Mother, who seeks to avoid a s. 9 shared parenting arrangement or the Father who seeks to gain more time towards that particular arrangement.

[210]   Rather, I have concluded that both the Mother and the Father want to be responsible for the care of Child A. in a very meaningful way.

[211]   In the absence of coordination and cooperation between the Parents there is a great risk that any existing or any proposed new child care arrangement may be adversely impacted and result in  further disharmony.  That will have negative consequences upon Child A.

[212]   That disharmony and resulting negative consequences are not in the best interests of Child A.  The parenting arrangements need to be such that any disharmony or negative consequences will be mitigated.  In my view, simply changing or not changing the Existing Interim Parenting Time Order and its schedule in itself will not provide the required mitigation. It will require extra concerted effort on the part of both Parents.

[213]   I accept that given Child A.’s present age and stage of development it is important and in Child A.’s best interest to have a stable and supportive home environment.  Overall, the evidence allows me to conclude that Child A. enjoys both of those at present time in the respective homes of each Parent.  Given the present type of parenting arrangements, I cannot conclude that there will be less stability or less support or greater stability and greater support with a change in the Existing Interim Parenting Time Order and its resulting schedule.

[214]   Again, what may destabilize Child A.’s situation is an absence of coordination and cooperation between the Parents in the implementation of any parenting arrangement they may agree to or that may be ordered by the court.

[215]   It will be the duty or each Parent to continue to monitor how any parenting time order made by this Court is continuing to provide stability for Child A. as his own schedule evolves, including his schooling schedule.

[216]   Each Parent is a good, loving and caring parent.  The evidence does not raise any specific concerns about the ability of either to exercise his or her responsibilities for Child A.  Both Parents have the ability and the desire to fulfil those responsibilities. There is no discernible differences between their abilities based upon the evidence before the court that I accept.

[217]   The evidence before me indicates that the Parents have different parenting styles.  I do not find that either of these parenting styles meet or even approach a threshold of being contrary to the best interests of Child A.  The evidence that I accept does not raise any significant safety or health risks for Child A.

[218]   The Parents have attended counselling in the past in order to deal with the substantial problems in their own relationship.  Clearly, there is some disagreement about the need for and nature of counselling for Child A. or professional psychological assessment.  The Parents must give serious consideration to attending co-parent counselling together to work on improving communication and decision-making and to increase cooperation between them.  That in my view will be beneficial for Child A.  I do not intend to formalize all of that in a court order.  However, it appears that the Father never has completed the Parenting After Separation Course and in my view, the Mother is due for a refresher.  That will be a good first step towards the Parents considering other co-parenting counselling and co-parenting capacity building options.

[219]   Family violence is defined under s. 1 of the FLA as follows:

[220]   Section 38 of the FLA provides guidance on the assessment of family violence as follows:

[221]   Fortunately, there has been no physical violence in the Parents’ relationship and no involvement of MCFD or the police.  Neither Parent has sought a Protection Order under Part 9 of the FLA.  There is no suggestion of physical family violence being directed against Child A.  There are cross allegations about inappropriate remarks being made by each Parent about the other in the presence of Child A.  I am not satisfied that those allegations meet the threshold of family violence, although they are certainly not in the best interest of Child A.

[222]   Each of the Parents seems to suggest that they have been subjected to a form of emotional or psychological abuse by the other, both in their heated verbal exchanges and as I take it in their unpleasant electronic communications.

[223]   The Mother cites K.R. v J.D., 2017 BCSC 182 at para. 58 in support of her submission that family violence can include demeaning remarks made by one parent about the other in the presence of a child, comments about the other parent being in therapy, accusations of the other parent manipulating the child or accusations of the responsibility of the other parent for failed parental communication.  It is suggested that this is the type of behaviour is being perpetrated by the Father.  The Mother concedes that there is no evidence that Child A. has experienced emotional harm at this point but then goes on to suggest Child A. is so “at risk” if the Father’s “perspective” on the Mother does not change.  I do not find that the situation in this case equates to the impugned behaviour apparently identified in in K.R. v. J.D.  I note parenthetically that K.R. v. J.D. has been deleted from the judgment data bases by way of a court order made December 11, 2019.  However the cited principles of that case still appear in a number of authoritative works.

[224]   The Father submits that he has been subjected to the Mother’s “campaign of denigration” that gives rise to a risk of future parental alienation.  The leading case on parental alienation is Williamson v. Williamson, 2016 BCCA 87.  “Alienation” describes a child’s irrational rejection of a parent because of both direct and indirect deliberate actions on the part of the other parent (Williamson at para. 39).  A finding of alienation requires proper expert evidence.  I have none before me.  Even in absence of that expert evidence, the facts before me fall significantly short of a finding of parental alienation or that Mother’s behaviour is pointed in that direction.  I do accept that the Mother’s behaviour and her criticism of the Father can be viewed as being less than supportive of the Father’s goal of increasing the Father’s parenting time and sharing parental responsibilities with her.

[225]   There has been a historical pattern of unnecessary and unpleasant communication between the Parents both directly and by electronic means.  I find that it is relevant and supportive to my conclusion about the significantly dysfunctional relationship of the Parents.

[226]   In S.M. v. R.M., 2015 BCSC 1344, the court held that “mutually unpleasant exchanges separated parties sometime engage in” and in particular, through email and texting messages, must be distinguished from the act of family violence.  Mere incivility does not attract a protection order (see: paragraphs 24 and 25).

[227]   I am mindful that a volatile, toxic, and dysfunctional relationship between parents even without any physical violence may amount to family violence [see: L.D.M. v. R.H. M., 2014 BCPC 98 (reversed on another issue: 2014 BCSC 1673)].

[228]   On the whole of the evidence that I accept, I have concluded that Child A. has been exposed to untoward behaviour on the part of both Parents which certainly is concerning.  The actual impact on him is presently unclear.  However, I cannot conclude that these Parents have crossed the line of the very concerning behaviour that was considered in L.D.M. v. R.H.M. and which was found to amount to family violence.  That said, these Parents must be made aware that if they continue unabated their pattern of untoward behaviour towards each other then they may very well find themselves heading too close in the direction of that perilous line.

[229]   Therefore, although overall, the cross allegations are concerning, on balance and notwithstanding my conclusion that this relationship is indeed highly dysfunctional the evidence before this Court does not support a conclusion that this relationship and Child A. have been impacted by any “family violence” as defined in the FLA.

[230]   Specifically there is insufficient evidence before me about the impact (if any) of family violence on Child A.’s well-being and specifically there is no evidence to suggest that Child A. has been the subject of or has been materially affected by family violence.  In my view, any risk of that occurring is too great.  As mentioned, co-parenting counselling may be an effective means of mitigation that potential risk.  I want the Parents explore that option further.

[231]   I have concluded that based upon the evidence before me, each of the Parents must bear a measure of responsibility for the continuation of this concerning aspect of their relationship.  Each also bears a mutual responsibility for their own behaviour and for finding proper means to address this concerning circumstance.

[232]   Given my conclusions under s. 37(2)(g) above, no further consideration of this factor under s. 37(2)(h) needs to be completed by this Court. 

[233]   I will say that on balance I have concluded that the level of impairment that may flow from the behaviour of each of the Parents is not of such a level that it results in either being unable to care for and meet Child A.’s needs.  However, I have concluded that to contain that impairment which arises from the Parents negative interactions then specific orders of the court will be necessary.  I have addressed those in my conclusions and orders below.

[234]   These Parents are statutorily presumed under s. 39(1) of the FLA to both be guardians of Child A.  The Parties do not disagree that they should both be guardians.  The arrangements that this Court intends to order with respect to the Child A.'s parenting time will require a reasonable measure of ongoing communication and cooperation by the Parents, as guardians.

[235]   There is no doubt that there is presently a very significant historical strain in the relationship between the Parents, and particularly as it relates to the matters at issue in this hearing.

[236]   At present time this is not one of those very unfortunate cases where the transitioning of children occurs at the local police detachment or only by means of third parties with imposed large "bubble zones" placed upon parental parties or their agents.

[237]   Our Court of Appeal in Robinson v. Filyk, 1996 CanLII 3310 (BCCA) rejected the presumption that joint custody and joint guardianship under the then applicable Family Relations Act 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.

[238]   More recently our Court of Appeal in N.R.G. v. G.R.G., 2017 BCCA 407, directs that as the presiding judge, I must not give less than full and generous consideration of the best interests of the Child A. by instead focusing on the ongoing attitudes and behaviour of the Parents.

[239]   While there have been some notable problems here with cooperation in the recent past, I am not satisfied that there is any risk to the safety and security of the Child A., nor to any other family member, that arises from a parenting arrangement for Child A. which requires interaction, contact, and communication between the Parents, provided that such communication is child focussed and civil.  It is evident to me that both Parents must seek to utilize appropriate means of achieving cooperation and consensus when it relates to decisions that pertain to the Child A. now and in the future.

[240]   Having reached the conclusions about risks to safety, security or well-being, I further conclude there is no reason for any intervention by this Court which would significantly deprive Child A. from the benefits of both Parents being actively engaged in the Child A.'s life and from the opportunity for them to work cooperatively in the best interests of the Child A.

[241]   In the meantime, it is in the Child A.’s best interests to maintain a parenting regime that respects his health, emotional well-being, family supports, structures, safety and routines.

[242]   It is my view that both of the Parents can learn and grow from their past and recent experiences, and the issues that are the subject matters of these proceedings.  I am hopeful the arrangements ordered by this Court will be an opportunity for the Parents to do all they can to make all aspects of the Child A.'s future life experiences positive, enjoyable, and rewarding, as well as free from unnecessary stress or anxiety.

[243]   The evidence does not disclose any civil or criminal proceedings relevant to the safety, security or well-being of Child A.

[244]   While, as noted above, there have been significant problems here with parental cooperation and communication in the recent past, I have concluded that there are not any risks to the safety and security of Child A. or any other family member that arises from the existing parenting arrangement or any other parenting arrangements that I am contemplating and may order.

[245]   However, it is clear to me that both Parents must seek to utilize appropriate means of achieving cooperation and consensus when it relates to decisions that pertain to Child A.  They will be interacting, by necessity, with each other and will be a part of each other's lives for a number of years to come because of their love and devotion to Child A. and because of the orders that I intend to make.

[246]   I am not entirely satisfied from the evidence and even from their submissions that the Parents fully accept that both the focus and the contents of their direct and indirect communication with each other must be both appropriate and civil, such as to produce effective communication between them.  This will be a necessary requirement for them to parent Child A. in a much preferred cooperative manner and on a consensus based foundation.

[247]   Their goal needs to be the implementation of efficient and respectful communication with each other.  It must replace what is clearly the existing default position of difficult and strained communications, with its overlay of significant continuing personal conflict and animosity.  The implementation and adherence to efficient and respectful communication will be in the best interests of Child A. now and for many years to come.  Accordingly, I will be making an order to provide the Parents with further guidance in their ongoing communications.

[248]   Based upon my consideration of all of the FLA s. 37 factors, and based upon the whole of the evidence, I am satisfied that it is in the best interests of Child A. to continue to receive the benefits of a co-parenting arrangement such that the Child A. will reside equally with the Mother and the Father.  Thus there be a significant amendment to on the Existing Interim Parenting Time Schedule.  It will be along the lines of the parenting schedule proposed by the Father in his written submissions.  There will be some exceptions to address some concerns raised by the Mother and some of my own concerns having regard to the best interests of Child A.

[249]   I am further satisfied on the whole of the evidence that the parental responsibilities for Child A. should be shared equally between the Mother and the Father.  A dispute resolution process is essential which limits the Parents seeking to be back continuously in front of the court to resolve any disagreement.  That problematic approach is evident from the sheer number of court appearances the Parents have made in connection with Child A. in a space of under five years.

[250]   Both Parents suggest that to help mitigate the significant tensions between them with respect to Child A. it is necessary to have a number of comprehensive orders from this Court relating to parenting time and parental responsibilities.  Based on all of the foregoing, I make the following final orders (“Final Order Number 1”):

[251]   The Honourable Judge J.P. MacCarthy will not be seized of any matters relating to or arising out of Reasons for Judgment Number One, nor Final Order Number 1, but will remain seized pending the rendering of Reasons for Judgment Number Two.