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S.T.M. v. C.G.H., 2020 BCPC 181 (CanLII)

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Date:

2020-08-13

Citation:

S.T.M. v. C.G.H., 2020 BCPC 181 (CanLII), <https://canlii.ca/t/j9vfb>, retrieved on 2024-04-18

Citation:	S.T.M. v. C.G.H.
	2020 BCPC 181
Date:		20200813
File No:		[omitted for publication]
Registry:		Prince George

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

BETWEEN:

S.T.M.

APPLICANT

AND:

C.G.H.

RESPONDENT

CORRIGENDUM

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE M.J. BRECKNELL

Counsel for the Applicant:	G. Whidden
Counsel for the Respondent:	F. MacLean and A. Sadovska
Place of Hearing:	Prince George, B.C.
Dates of Hearing:	June 19 and July 3, 2020
Date of Judgment:	August 13, 2020

A Corrigendum was released by the Court on May 27, 2022. The correction has been made to the text and the Corrigendum is appended to this document.

[1] B.H. (B.H.) was born on [omitted for publication]. Her parents are S.T.M. (Ms. M.) a forensic identification specialist with the [omitted for publication] and C.G.H. (Mr. H.) an archaeologist who owns a consulting firm.

[2] B.H.’s parents have long been unable to agree on how their parental responsibilities and parenting time with her should be allocated. That disagreement has resulted in this litigation.

[3] B.H. has some complex and not fully addressed mental health and behavioural issues. A number of health care professionals have been engaged and tasked with ascertaining a parenting time regime and other strategies that would be in B.H.’s best interests.

[4] The parents have been unable to agree on how the various experts’ reports should be implemented and what B.H.’s role should be in that implementation.

[5] The June 1, 2020 Notice of Motion before the Court was brought as an Application for Urgent Hearing under the Court’s Covid-19 protocol. The Notice of Motion sought seven paragraphs of relief. The reviewing Judge permitted Paragraphs 1, 2, 3(a), (b), (d), 4 and 7 to be heard on an urgent basis.

A BRIEF HISTORY

[6] Given the interim nature of the relief being sought a detailed history of the parents’ relationship is not necessary. That topic can be explored at trial.

[7] The parents began a spousal relationship in September 2006. B.H. was born about 20 months later. The parents separated in July 2014.

[8] In November 2014, the parents entered into a Separation Agreement (the Agreement). It dealt with all aspects of the dissolution of the spousal relationship. With regard to B.H.’s continuing care the Agreement stated:

PARENTING ARRANGEMENT

7. The Parties agree that joint legal guardianship is in the best interest of the child. The Parties agree that both parents are fit and proper persons to have joint responsibility for the care of the dependent child.

8. The Parties agree that the child will reside with both parents.

9. The Parties also agree that the Parties will have the following parenting time with the child: 50/50 share with specific arrangements for weekdays, holidays, vacations and weekends to be determined and agreed upon by both Parties at a later date.

[9] Ms. M. has been in a spousal relationship with D.H. for over three years. They reside with B.H. and D.H.’s two sons aged 10 and 12.

[10] Mr. H. is in a new spousal relationship with T.C. T.C. has no children.

[11] On January 15, 2018, Ms. M. filed an Application to Obtain an Order seeking guardianship, contact with the child, parenting time, allocation of parental responsibilities and a protection order.

[12] On the same date Ms. M. filed an affidavit requesting a change to the parenting time she and Mr. H. had with B.H. from what was provided for in the Agreement until B.H. was assessed and treated by a child psychologist and a Section 211 Family Law Act report prepared. The affidavit also alleged that despite the Agreement, Mr. H.’s parenting time with B.H. had been sporadic and at his convenience.

[13] On January 31, 2018, Ms. M. requested to withdraw the Application.

[14] On January 29, 2019, Ms. M. filed another Application to Obtain an Order seeking guardianship, contact with the child, parenting time, allocation of parental responsibilities and child support.

[15] On the same date Ms. M. filed an affidavit similar in content to her earlier affidavit of January 15, 2018, but with the addition of child support issues.

[16] On March 13, 2019, Mr. H. filed a Reply opposing the relief sought in the Application and counterclaiming for parenting time, arrears of support be cancelled or reduced and child support.

[17] On April 3, 2019, Ms. M. filed a Reply to the Counterclaim opposing the relief sought by Mr. H.

[18] The parents attended a Family Case Conference on April 4, 2019, where they were ordered to exchange of financial information.

[19] The parents attended another Family Case Conference on August 26, 2019, where they entered into an Interim Consent Order for a parenting time regime between Mr. H. and B.H. which included:

a) every Friday afternoon until Saturday at 6 PM;

b) one Sunday in September, two Sundays in October and three Sundays in November and three Sundays per month thereafter

c) Tuesday from after school until 6 PM; and

d) other times as may be agreed between them.

[20] In November 2019, a Section 211 FLA Report was prepared by Dr. Nicole Aube.

THE EVIDENCE

[21] Each of the parents filed detailed and extensive affidavits in support of their positions. The affidavits also attached:

a) correspondence between the parents;

b) correspondence between counsel;

c) correspondence to and from various health care providers concerning B.H.;

d) the Agreement;

e) drafts of a Memorandum of Understanding and a Family Law Act Written Agreement concerning parenting responsibilities and parenting time with B.H.;

f) reports and assessments prepared by various experts concerning B.H.;

g) Mr. H.’s 2018 work schedule;

h) banking records;

i) photographs of B.H. and her activities with Mr. H.; and

j) photographs of a firearm found by B.H. under Mr. H.’s bed.

[22] There was also an affidavit submitted from D.H. who described his observations on the several times when he took B.H. to the parenting exchange location to meet Mr. H. In that affidavit he contests many of the allegations raised by Mr. H. regarding what did or did not occur at the Sunday parenting exchanges since December 2019.

[23] Between the first and second days of the hearing of this matter there was an exchange of affidavits about B.H. and a friend finding an unsecured firearm in Mr. H.’s bedroom, a place B.H. was forbidden to enter. Although the evidence in those affidavits indicates careless, and possibly illegal, actions on Mr. H.’s part, that information has minimal bearing on the decisions to be reached regarding Mr. H.’s parenting time with B.H. pending trial.

[24] There are many examples in the affidavits where the parents directly contradict each other concerning:

a) particular events;

b) the arrangements concerning their parenting time with B.H. and adherence to those arrangements;

c) their attempts at cooperation in the face of uncooperative behaviour from the other parent;

d) B.H.’s health issues and how to deal with them.

[25] Some of the contested assertions in Mr. H.’s affidavit relevant to the decision the Court must make now include:

a) for approximately the first year after he and Ms. M. separated she would often accompany B.H. during his parenting time. When he raised that as an issue Ms. M. began to send B.H. to his home on some occasions with a friend or cousin. He concluded that Ms. M.’s actions were meant to undermine his regular requests for equal parenting time;

b) B.H.’s anxiety levels became a concern not long after he purchased a new home in December 2015. On many occasions, B.H. confided in him that she missed Ms. M. and was worried that Ms. M. would “die of a broken heart”;

c) around the same time Ms. M. advised him that it was B.H.’s choice not to increase parenting time with him and that she intended to respect B.H.’s wishes in that regard over his objections that B.H. should not be given a choice in the matter and it should be resolved between the parents;

d) in the summer of 2017, B.H. began treatment with a child therapist, Ms. Janice Butler (Ms. Butler). From those sessions Ms. Butler advised that B.H. was ready to start spending more parenting time with him which was also confirmed by Ms. M.;

e) in 2017, Ms. M. raised false allegations about him regarding his parenting time with B.H.;

f) Ms. Butler indicated to the parents that B.H.’s anxiety was related to Ms. M.’s own anxiety issues. Soon after Ms. M. refused to continue engaging Ms. Butler claiming that B.H. no longer liked her. As a result, Dr. Holly Ambrose was engaged to assist B.H.;

g) At some point after she was engaged, Dr. Ambrose noted that his parenting time with B.H. should include a gradual exposure to longer visits up to seven consecutive days;

h) Ms. M. consulted a medical doctor concerning B.H. having Obsessive Compulsive Disorder (OCD) and anxiety without advising him. She did agree that increased parenting time between him and B.H. would occur once she was satisfied that B.H. had the necessary tools to address her OCD;

i) he attempted to engage Ms. M. in mediation through the Family Justice Counsellors office in December 2018 and by March 2019, some minor increase in his parenting time with B.H. had been agreed to;

j) although there were times after he and Ms. M. separated, when he was away from home for work for extended periods there were also many times when he was at home full time, particularly in the winter months, and was available to have parenting time on an almost daily basis;

k) despite his availability, his parenting time with B.H. was further circumscribed in 2019. When he questioned Ms. M. about that topic, she insisted that it was B.H.’s choice and that she would always back up B.H.’s choice. In response he insisted that a child should not be making parenting decisions;

l) throughout 2019 Ms. M. repeatedly requested a Section 211 report. He eventually agreed to such a report and Ms. M. selected the author, Dr. Aube, from a list of four psychologist provided by his then counsel. Ms. M. refused to pay half the cost of the report so he paid the vast majority of it;

m) after Dr. Aube had interviewed Ms. M. in November 2019, Ms. M. began to express displeasure with Dr. Aube stating that Dr. Aube was “not that highly regarded”;

n) he has concerns about B.H.’s prescription medication for OCD and anxiety which seemed to give her frequent headaches for which she takes further medications. He believes the medications may be contributing to B.H.’s unhealthy weight gain and her doing poorly at school;

o) when he does get parenting time with B.H. she often seems extremely anxious and worried about Ms. M. to the point that they are exchanging texts numerous times each day;

p) as noted by Dr. Aube and Dr. Ambrose, Ms. M. displays extreme emotions of unhappiness and separation anxiety through her words, actions and body language when it is his parenting time with B.H.;

q) B.H.’s anxiety has lessened over the past year. Some of that is related to the fact that he now knows she has a stepparent and stepsiblings. That information had been kept from him by Ms. M. and B.H. for many months after the relationship began;

r) despite Dr. Aube’s parenting time recommendations, Ms. M. has continued to refuse to implement them and has not complied with the terms of the Consent Order;

s) he has been denied parenting time on numerous occasions since the Consent Order. In some instances Ms. M. advised him that B.H. would be unavailable due to prearranged activities which Ms. M. had instituted. On other occasions when his pickup of B.H. was to occur B.H. simply announced that she refused to come with him and whoever was dropping her off drove away with her;

t) there was an extended period of time when B.H. and Ms. M. went on vacation where he missed several days of parenting time;

u) based in part on his own observations and Dr. Aube’s report, he is very concerned that Ms. M.’s actions are indicative of parental alienation and that such actions are having a detrimental effect on his relationship with B.H. and B.H.’s overall mental health; and

v) he wants to ensure that B.H. has a healthy relationship with both parents. Ms. M. is undermining those attempts in the face of his wishes; the psychological experts’ recommendations .and what is in B.H.’s best interests.

[26] Some of the contested assertions in Ms. M.’s affidavit relevant to the decision the Court must make now include:

a) she denies the assertions in Mr. H.’s affidavit suggesting any uncooperative or deceitful behaviour by her in their interactions or in what she tells B.H. about the nature of B.H.’s relationship with him;

b) both prior to and in the immediate months following their separation she was the parent primarily responsible for B.H.’s day-to-day care because Mr. H. was often away from home, for school or for work;

c) the sporadic nature of Mr. H.’s parenting time with B.H. was very troubling to B.H. because, due to the nature of her mental health challenges, consistency in scheduling was and is very important to her health and personal well-being;

d) although B.H. was not diagnosed with mental health challenges until 2018, she noticed as early as when B.H. was three that she exhibited a number of behaviours of that nature;

e) She spoke to Mr. H. about B.H.’s worrisome behaviours but he described them as quirks or odd behaviours. When B.H.’s behaviours became more pronounced, Mr. H. was dismissive of them and criticized her for raising them;

f) after an event at Mr. H.’s home in 2016, where he was strongly critical of B.H.’s care of the family’s chickens her behaviours became even more worrisome including not being able to sleep, irrational fears of death and severe gastrointestinal symptoms;

g) throughout 2016 and 2017, she consulted a number of medical practitioners to see if there was some organic basis for B.H.’s behaviours but nothing was found. For most of that time Mr. H. was dismissive of her concerns but by August 2017, he did agree that B.H. should see a counsellor;

h) Ms. Butler was engaged to work with B.H. but when she was made aware that Ms. Butler’s services were not covered by her extended medical plan both she and Mr. H. agreed to discontinue her services. Dr. Ambrose, whose services were covered, was engaged in January 2018;

i) In early 2018, after only a few sessions, Dr. Ambrose diagnosed B.H. with separation anxiety disorder (SAD) and generalized anxiety disorder (GAD) and diagnosed her with OCD in the fall of 2018;

j) As part of B.H.’s treatment Dr. Ambrose began cognitive behavioural therapy. That therapy required engaging B.H. in specific activities at home to deal with her behaviours which Mr. H. was reluctant to assist with;

k) Mr. H. has been dismissive of B.H.’s symptoms and diagnosis blaming her for the symptomology. He has often told B.H. to just “suck it up” when she displays certain behaviours. He has always blamed her for any of B.H.’s mental-health struggles;

l) Mr. H. initially opposed B.H. taking prescription medication for her OCD but eventually relented. Since B.H. has been taking her medication many of her symptoms have been alleviated even though Mr. H. does not regularly provide B.H. with her medications as required;

m) despite Mr. H.’s assertions to the contrary she has made many attempts to ensure a regularized and increasing over time parenting time schedule for him and B.H.;

n) since the separation she has worked diligently to encourage B.H. to spend as much parenting time with Mr. H. as B.H. feels comfortable with even in the face of Mr. H. refusing to accept B.H.’s diagnoses and his refusal to listen to her concerns about a variety of issues;

o) she does not give B.H. the choice as to whether or not she will spend time with Mr. H. even in the face of B.H.’s extreme resistance from time to time. She has made many suggestions to both B.H. and Mr. H. about things that could be done during his parenting time which would encourage B.H.’s comfort in their relationship and her willingness to spend more time with him;

p) she has had extreme difficulty in convincing B.H. to attend some of the parenting time scheduled in the Consent Order. She has done everything short of physically dragging B.H. over to Mr. H.’s vehicle on the occasions where B.H. refuses to go;

q) she disagrees with much of Dr. Aube’s report, particularly the assertion that she would ever tell B.H. that it would kill her to be away from B.H. She does agree, after a suitable transition period, B.H. having equal parenting time with each parent is the best long-term result;

r) in order to achieve any consistent positive results for B.H. it must be recognized that she does not adapt well to unexpected change. When it comes to parenting time consistency within a regular schedule is of extreme importance; and

s) she has discussed Dr. Rocha’s comments about B.H. possibly falling within the autistic spectrum with Dr. Ambrose and it has been suggested that B.H. be further tested and that there be more discussion on that issue.

[Omitted for publication]

[27] [Omitted for publication] is B.H.’s dog. According to the information provided in the evidence and by counsel she has a very close bond with [omitted for publication].

Experts’ Reports

Dr. Aube

[28] Dr. Nicole Aube, PhD., R.Psych. (Dr. Aube) is a Registered Psychologist who was retained in September 2019 to prepare a Section 211 Family Law Act report requested by the parents.

[29] Her report, released in November 2019, addresses the issues of parenting responsibilities and parenting time, focus on the views and needs of B.H., in light of her age, and the ability and willingness of each of the parents to endorse B.H.’s needs in exercising their parenting responsibilities. It was prepared to assist the Court in determining B.H.’s best interests in the face of her parents’ disputes.

[30] Dr. Aube interviewed the parents on several occasions, performed psychometric assessments on each of them and observed their interactions with B.H. and other family members. She also interviewed B.H. on two occasions.

[31] In addition, Dr. Aube interviewed nine collateral witnesses including Dr. Holly Ambrose, B.H.’s treating psychologist, and reviewed numerous documents supplied by the parents. Both parents refused Dr. Aube’s requests to interview certain collateral witnesses.

[32] Although both parents advise that they are in general agreement with Dr. Aube’s recommendations concerning parenting time they disagree with the timing of such implementation.

Dr. Rocha

[33] Dr. Elizabete M. Rocha, Ph.D., R.Psych. (Dr. Rocha) is a Registered Psychologist whose practice includes providing clinical psychological services to children and adolescents.

[34] Dr. Rocha was jointly retained by the parents to perform a psychoeducational assessment on B.H. The parents had concerns around B.H.’s struggling to maintain focus and complete tasks and that she might be falling behind in her academic, social and emotional development.

[35] Dr. Rocha obtained a detailed personal and family history for B.H. and reviewed her educational history and performance. She noted that B.H. has had the benefit of tutoring assistance throughout her school career as well as support from a school assistance worker.

[36] She conducted meetings with B.H. and had her participate in a variety of psychological assessment measurements. Dr. Rocha noted that B.H. used her best efforts in performing the various tasks she was assigned as part of the assessment process.

[37] She prepared a report setting out information about B.H.’s cognitive and academic profile strengths and weaknesses and recommended learning strategies to suit her specific needs at home and school.

[38] Dr. Rocha noted that while B.H. is in the average range on some aspects of her neurodevelopmental profile she has several below average or impaired aspects to that profile that require immediate, concerted, and cooperative efforts by her parents, the school system, tutors and other resource providers to enhance, as much as possible, B.H.’s opportunity for success.

[39] Dr. Rocha also noted that among her other mental health issues B.H. has long-standing anxiety challenges. Dr. Rocha suggested that, based on her observations and other contributing factors, B.H. may have a mild form of autism spectrum disorder. She also noted there are overlapping symptomology challenges in working with children who may present with autism spectrum disorder, GAD and OCD.

[40] At the hearing of this matter there was an issue raised on how the Court should deal with certain aspects of Dr. Rocha’s report as they may pertain to parenting time between B.H. and each of her parents. In a subsequent letter, Dr. Rocha made it clear that she did not provide any recommendations concerning parenting time. Dr. Rocha did clarify her views with regard to how B.H.’s days should be structured to reduce her stress noting that although B.H. may have difficulties managing change it did not mean that change should be avoided but rather that it should be formulated in a fashion to ensure consistency and predictability in her daily life.

Dr. Ambrose

[41] Dr. Holly Ambrose, is a Registered Psychologist retained to treat and assist B.H. They began working together in January 2018, initially weekly then over time to alternate weeks and then monthly sessions.

[42] Dr. Ambrose did not prepare a report but her observations of B.H. and her parents are summarized in Dr. Aube’s report and include

a) B.H. has constant fears that Mr. H. will be mad at her or Ms. M. She also fears that Ms. M. will be mad at her;

b) B.H. has difficulty in communicating with Mr. H. particularly regarding her feelings. Her lack of assertion makes her look much less mature. Her maturity fluctuates from age-appropriate to much younger;

c) B.H. acknowledges that she has a good time at Mr. H.’s house. She would like to go on vacations with him but only for short durations. When B.H. is anxious she distances herself from Mr. H.;

d) Mr. H.’s and Ms. M.’s negative perceptions of each other impact B.H. who is very in tune with and able to pick up on their mutual tension. The parents need to find a way to get along if they want B.H. to be a healthy child;

e) after having it explained to her, Ms. M. understands B.H.’s OCD compulsion loop and is trying to encourage distancing from B.H. and encourage more independence but B.H. has a hard time letting go;

f) B.H. does not feel comfortable when Mr. H. questions her about what goes on in Ms. M.’s home and for that reason she did not tell Mr. H. about her extended step family for a long time;

g) B.H. has difficulty describing positive things that occur in Mr. H.’s home without considerable discussion, reframing and encouragement. She does spontaneously describe positive time spent with T.C.;

h) since B.H. has been on medication her confidence and assertiveness has improved and she has come out of her shell.

THE LAW

Statute

The sections of the Family Law Act applicable to the present motion before the Court include:

a) 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

b) Parenting arrangements

40 (1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a) that parental responsibilities should be allocated equally among guardians;

(b) that parenting time should be shared equally among guardians;

c) Parental responsibilities

41 For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

d) Parenting time

42 (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

e) Denial of parenting time or contact

61 (1) An application under this section may be made only

(a) by a person entitled under an agreement or order to parenting time or contact with a child, and

(b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;

(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(e) require that the transfer of the child from one party to another be supervised by another person named in the order;

(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or

(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay

(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or

(ii) a fine not exceeding $5000.

(3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.

f) When denial is not wrongful

62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child.

g) Children's lawyer

203 (1) The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that

(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and

(b) it is necessary to protect the best interests of the child.

(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer's fees and disbursements.

h) Court may make interim orders

216 (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:

(a) a change in circumstances has occurred since the interim order was made;

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following:

(a) the change in circumstances or the evidence, or both, referred to in subsection (3);

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and

(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled;

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

i) Purposes for which orders respecting conduct may be made

222 At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes:

(a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;

(b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;

(d) to facilitate arrangements pending final determination of a family law dispute.

j) Orders respecting dispute resolution, counselling and programs

224 (1) A court may make an order to do one or both of the following:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.

Case Law

[43] Counsel referred the Court to the following cases:

a) K.R. v. J.W. 2016 BCSC 225;

b) L.A.Y. v. S.A.Y. 2019 BCSC 853;

c) L.B.K. v. M.A.K. 2015 BCSC 226;

d) K.M.D. v. M.E.W. 2010 BCSC 980;

e) J.C.W. v. J.K.R.W. 2014 BCSC 488; and

f) A.A. v. S.N.A. 2007 BCCA 363

but made very few submissions on how those cases should impact the decisions the Court must make here.

SUBMISSIONS

Mr. H.

[44] The written and oral submissions by counsel for Mr. H. can be summarized as:

a) Ms. M. has continued to purposely frustrate a reasonable parenting time regime between Mr. H. and B.H. in the face of the Consent Order, Dr. Ambrose’s and Dr. Aube’s recommendations;

b) there are numerous instances set out in the evidence of B.H. refusing to go with with Mr. H. for parenting time which Ms. M. either supported or acquiesced to;

c) Ms. M.’s actions display several indicia of parental alienation which was recognized and commented on in Dr. Aube’s report;

d) by purportedly leaving to B.H. the decision of whether she wishes to have parenting time with Mr. H. Ms. M. has abdicated her parental responsibility and has not acted in B.H.’s best interests;

e) by forcing B.H. into the position of having to decide, Ms. M. has caused her additional stress and anxiety which has exacerbated B.H.’s mental health conditions;

f) although B.H.’s wishes are worthy of the Court’s consideration she is not of sufficient maturity, and may be subject to intentional or unintentional pressure by Ms. M., such that the Court should make decisions in her best interests even if they may cause B.H. some initial concerns;

g) varying an interim order, although uncommon, may occur if the conditions described in Section 216 (3) of the FLA occur. Dr. Aube’s report and Ms. M.’s non-compliance with the Consent Order are sufficient to meet the tests set out in Section 216;

h) despite her statements that she supports Dr. Aube’s recommendations for parenting time at some point in the future Ms. M.’s actions have frustrated and delayed their implementation and that is not in B.H.’s best interests;

i) various court decisions and learned articles suggest an assertive and monitored approach to rebuilding a child/ parent relationship where parental alienation has occurred. The Court should implement such a response now to ensure B.H.’s best interests and to facilitate a healthy child/ parent relationship with Mr. H. Waiting until a trial, which will be far in the future, will only exacerbate the situation.

Ms. M.

[45] The oral submissions by counsel for Ms. M. can be summarized as:

a) Mr. H.’s affidavit material is replete with falsehoods and exaggeration;

b) since the separation Ms. M. has consistently attempted to engage Mr. H. in participating in regular contact with B.H. and in following the strategies suggested by Dr. Ambrose to alleviate B.H.’s troubling behaviours but he has regularly refused;

c) although she and Mr. H. agreed to a parenting schedule in 2016, Mr. H. did not maintain that schedule and regularly cancelled due to work commitments. That caused additional stress and anxiety for B.H.;

d) Ms. M. regularly encourages and insists that B.H. spend the arranged parenting time with Mr. H. She did not attempt to negatively influence B.H. in that regard and as such is not responsible for his loss of the parenting time;

e) B.H. is now [omitted for publication] and has her own thoughts about things. Mr. H. does not give B.H.’s wishes and desires any reasonable consideration which makes B.H. uncomfortable and she views him as a bully. When B.H. refuses to spend parenting time with Mr. H. her choices must be respected;

f) although Ms. M. agrees with Dr. Aube’s recommendations in the long term she disagrees with some of her conclusions, particularly about the issue of parental alienation and she is concerned that Dr. Aube did not fully consider the information Ms. M. provided;

g) Mr. H. has frequently refused to permit B.H. to participate in activities in which she is enrolled and interested without any reasonable explanation or consideration for B.H.’s wishes;

h) in light of B.H.’s mental health issues it would be appropriate to reduce the number of transitions and put in place a regularized and consistent schedule but not what Dr. Aube recommends in her report at this time; and

i) given the present status quo the Court should give consideration to not varying the Consent Order.

DISCUSSION

[46] Although is not the usual practise of the Court to vary an interim order that establishes a status quo it may be done as provided for in Section 216 of the FLA.

[47] In considering the terms of the Consent Order, the evidence indicating it has not been complied with and the subsequent release of Dr. Aube’s report, the factors in Section 216 (3) are present. Furthermore, when considering the provisions of Section 216 (4), particularly paragraphs (c), (d) and (e), the Court must consider whether a variation to the Consent Order is appropriate and in B.H.’s best interests. In this case it is.

[48] Mr. H. raises some valid concerns on the issue surrounding the parenting he and B.H. are entitled to, based on the Consent Order and Dr. Aube’s report. However, the appointment of a parenting coordinator is not warranted at this time and will not be necessary if Ms. M. and B.H. adhere to the terms of this decision. That matter is adjourned to the trial.

[49] Given the number of witnesses required and the evidence of at least three experts, counsel have agreed that 10 days will be required for the trial. Those dates, by scheduling necessity, will be a long way into the future. Neither counsel raised it as a possibility but they may wish to provide their clients with information on two topics:

a) engaging a private mediator/arbitrator which could shorten the resolution time line considerably; and

b) making B.H. aware of the services available through the Child and Youth Legal Centre so she may obtain independent legal information and advice.

[50] Some of the relief sought in the Notice of Motion requires specific findings of fact, particularly when considering Mr. H.’s allegation of denied parenting time. If, based on Section 61 of the FLA, the lost parenting time is a result of a wrongful denial then Ms. M. faces several possible judicial interventions.

[51] However, if any missed parenting time between Mr. H. and B.H. meets the tests set out in Section 62 then there is only the possibility of compensatory parenting time and no other penalties.

[52] The manifold contradictions in the affidavits make it impossible to make any determinations on the facts in contention. It will require thorough cross examination at trial to resolve those issues.

[53] There is evidence that the parents have in the past, and may still have, significant disagreements about the nature and severity of and the appropriate treatment for B.H.’s interrelated mental health challenges. That must be addressed. Mr. H. has raised “concerns” about B.H.’s treatment but has not presented any medical evidence to suggest the approach recommended by Dr. Ambrose is not appropriate or that it is not showing positive results.

[54] There is nothing in the evidence to suggest that Dr. Ambrose’s work with B.H. is lacking in any way. She has built a trusting bond with B.H. and has made significant progress in addressing B.H.’s mental health challenges. Mr. H.’s request for the appointment of a new counsellor to work with B.H. is dismissed.

[55] Dr. Ambrose’s approach appears to be benefitting B.H. With the obvious level of animosity between the parents, Dr. Ambrose should not be put into the middle of competing perspectives. That will be resolved by temporarily granting all the duties and responsibilities under Section 41 (f) of the FLA to Ms. M.

[56] She will be required to inform Mr. H. of all planned appointments and sessions, in case he wishes to attend and will be required to instruct all health professionals who have contact with B.H. to supply Mr. H. with all information he may request as provided for in Section 41(j) of the FLA.

[57] There are also some troubling allegations concerning B.H. receiving information from and being requested to provide information to each of the parents. They need to take to heart that, despite their categorical differences of opinion on almost all matters in issue, they must be diligent in not involving B.H. in matters that would cause her distress or engage her in discussions and decisions best left to the adults.

[58] The evidence indicates that B.H.’s maturity may not be completely in line with her chronological age. It is also clear that B.H. suffers great emotional distress in wrestling with what her decisions should be in the face of her erroneous perceptions that one parent or the other will be angered or upset by the result. She must be relieved of that burden.

[59] That does not mean that B.H. should be denied a voice in what decisions are made about her time and activities with each parent. Her views, if reasonable and rational, should be listened to and treated with respect, even if in the end the Court does not order what she wished for. What it does mean is that she does not get a veto over what the parents or the Court decides is in her best interests.

[60] In light of the recent history of B.H. believing that she can simply refuse to spend time with Mr. H., particularly on Sundays, without any consequences the Court raised the possibility of invoking a police assist clause to ensure compliance. No one involved in parenting decisions wants to see a uniformed police officer physically escorting a young person from one location to another but sometimes it is necessary. It will be an available option in this case.

[61] The allegations of Mr. H. concerning parental alienation by Ms. M.’s intentional or unintentional actions have received some support in Dr. Aube’s report. Whether that proves to be the case will have to await a full analysis of the evidence at trial.

[62] However, the spectre of that situation makes it incumbent upon the Court to ensure that any delay until trial does not exacerbate that possibility. In considering how to approach that issue the parents and Dr. Ambrose would benefit from carefully reading and give due consideration to the learned paper authored by Mr. J.P. Boyd; Hot Topics in Family Law Part II: Good Lawyering for Bad Parenting Paper 4.1 Parental Alienation CLEBC 2018.

[63] Mr. Boyd, one of Canada’s leading Family Law academics and practitioners, sets out in clear and detailed fashion the issues considered by a court in parental alienation cases. If parental alienation is found it can be catastrophic, personally and financially, for the irresponsible parent and have a significant impact on how the child is cared for going forward.

[64] There is mention in the materials about a “right of first refusal” if one parent is unable to care for B.H. throughout the entirety of their parenting time. Such an arrangement would ensure more contact with each parent when it occurred but it would also disrupt B.H.’s schedule on short notice. When balancing those two considerations it is in her better interests not to be shuttled back and forth based on a change to a parental schedule. B.H. has a good relationship with D.H. and Ms. C. and it would not be detrimental to her to be in their care if the need arose.

[65] It would also be helpful to building B.H.’s relationship with Mr. H. if the following occurred:

a) Ms. M. reduced her electronic availability to B.H. when she is with Mr. H. That is endorsed by Dr. Ambrose. With the exception of a true emergency it is not necessary or beneficial for B.H. to be contacting Ms. M. for every slight matter that might distress or upset her while she is in Mr. H.’s care. Ms. M. should make that clear to B.H.;

b) Mr. H. take more time to listen to B.H. and understand her perspective when she is distressed. Telling a young person addressing a variety of mental health challenges to “suck it up” is often counterproductive and appears unfeeling.

[66] Mr. H. has also raised a concern about B.H.’s unavailability for his parenting time due to other commitments. This has to cease. B.H. should not be accepting invitations for specific activities during either parents’ parenting time without first conferring with that parent and obtaining permission.

[67] B.H. should be encouraged to participate in organized and on-going activities that both parents endorse. If there is an agreement that B.H. should participate in a particular activity both parents will share the cost of those activities equally and each will be required to take B.H. to those activities if they occur on their parenting time.

[68] If the parents cannot agree on B.H.’s activities each may choose one ongoing organized activity at a time. They will be fully responsible for the costs of that activity. Both parents will be required to take B.H. to that activity if they occur during their parenting time.

[69] The evidence and submissions presented make it clear that B.H.’s best interests, as it pertains to her parenting time with Mr. H. should include the following:

a) it must be predictable, with allowances for special events and occasions;

b) it must be consistent with as few last minute changes as possible;

c) it must be of sufficient length to foster a real child/parent daily living routine;

d) it must take into account B.H.’s interests and activities;

e) it must be designed to eliminate, or greatly reduce, B.H.’s concurrent interactions with both her parents or their delegates;

f) it must foster a strengthening of her relationship with Mr. H. with the enthusiastic encouragement of Ms. M.;

g) it must foster a strengthening of her relationship with D.H., his children and T.C.; and

h) it must include [omitted for publication] whenever reasonably possible.

[70] The schedule set out in the decision addresses those considerations until trial. If the parents wish to negotiate changes to the schedule, they are free to do so but any changes must be reflected in a Consent Order.

[71] The decision will not address the issues of B.H.’s or the parents’ birthdays or Mother’s or Father’s Day arrangements. If the parents and B.H. all agree those days may interrupt the schedule but there must be a consensus.

DECISION

[72] Upon the Court being advised that the name and birth date of the child is as follows: B.H., born [omitted for publication]. (the Child)

[73] The Court is satisfied that Ms. M. and Mr. H. are the guardians of the Child under s.39(1) of the Family Law Act (FLA).

[74] Under s. 40(2) of the FLA the guardians will share equally all parental responsibilities for the Child except for s. 41(f).

[75] Under s. 40(3) and s. 41(f) of the FLA, Ms. M. will have the following parental responsibilities: Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Child.

[76] Ms. M. will inform Mr. H. in advance of all medical and related appointments regarding the Child to permit him the opportunity to attend and will instruct all professionals who have contact with the Child to supply Mr. H. with all information he requests as provided for in s. 41(j) of the FLA.

[77] The guardians will comply with and follow all recommendations for the Child’s treatment made by her medical and counselling professionals and will properly administer any medications prescribed for the Child.

[78] The guardians will share parenting time with the Child as set out in Appendix A to this Order.

[79] When the Child is in their care, each guardian will facilitate reasonable electronic communication between the Child and the other guardian.

[80] The guardians will make their best efforts to cooperate in reaching a consensus regarding the Child’s organized activities. If consensus is reached the guardians will equally share the costs of such activities and will ensure the Child attends those activities during their parenting time.

[81] If there is no consensus on the Child’s activities each guardian may choose, in consultation with the Child, one organized activity at a time and will be fully responsible for the costs of that activity. Both guardians will ensure the Child attends those activities during their parenting time.

[82] Under s. 225 of the FLA the guardians will communicate with each other only by electronic means except:

a) in the event of an emergency concerning the Child; and

b) at the exchange location

at which time face to face communication will be permitted.

[83] The guardians will:

(a) put the best interests of the Child before their own interests;

(b) encourage the Child to have a good relationship with the other parent and speak to the Child about the other parent and that parent’s partner in a positive and respectful manner; and

(c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the Child.

[84] The guardians will not:

a) question the Child about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with the Child any inappropriate adult, court or legal matters; or blame, criticize or disparage the other parent to the Child.

[85] The guardians will encourage their respective families and friends to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the Child concerning family issues or litigation.

[86] Upon being satisfied that a person has wrongfully withheld a child from a guardian, this Court orders under s. 231(5) of the FLA that a police officer apprehend the Child, B.H., and take the Child to the guardian entitled to parenting time as specified in Appendix A to this Order.

[87] The relief sought in the Notice of Motion filed June 1, 2020 is resolved as follows:

1. The matter will be scheduled for a 10 day trial unless counsel agree on another time estimate;

2. a. - the Consent Order of August 26, 2019, is varied as provided in this decision;

3. d. - this matter is dismissed;

3 a. b. c., 4, 5, 6 and 7. - these matters are adjourned to the trial.

[88] Under Section 223(1)(b) all further applications in this matter be heard by the Honourable Judge M.J. Brecknell until the earliest of the following events occurs:

a) 100 days before any scheduled trial date;

b) The entry of a Final Consent Order on all issues concerning parenting time and parental responsibilities; or

c) December 31, 2021.

______________________________

The Honourable Judge M.J. Brecknell

Province of British Columbia

Appendix A

B.H.’s Schedule with Her Parents

Schedule

1. Ms. M. will have parenting time with the Child at all times except as specified in this Appendix.

2. Mr. H. will have parenting time with the Child as follows:

a) From after school (or 3:00 pm if school is not in session) until 7:00 pm on the following Thursdays in 2020 and 2021:

I. September 3 and 17;

II. October 1, 15 and 29;

III. November 12 and 26;

IV. December 10 and 24;

V. January 7 and 21;

VI. February 4 and 18;

VII. March 4 and 25;

VIII. April 1, 15 and 22;

IX. May 6 and 20;

X. June 3 and 17.

b) From the commencement of school (or 9:00 am if school is not in session) until the commencement of school (or 9:00 am if school is not in session), inclusive on the following dates in 2020 and 2021:

I. August 28 to 31;

II. September 11 to 14 and 25 to 28;

III. October 9 to 13 and 22 to 26;

IV. November 5 to 9 and 19 to 23;

V. December 3 to 7 and 17 to 22 and 31;

VI. January 1 to 5 and 14 to 19 and 28 to 31;

VII. February 1 to 2 and 11 to 16 and 25 to 28;

VIII. March 1 to 2 and 11 to 16 and 25 to 30;

IX. April 8 to 13 and 22 to 27;

X. May 6 to 11 and 20 to 25;

XI. June 3 to 8 and 17 to 22.

c) At such other times as the guardians may agree in writing.

Notes to the Schedule

1. This schedule commences on August 24, 2020 and continues until June 30, 2021.

2. Exchanges will occur at the Child’s school when it is in session. If school is not in session the exchanges will occur at the Save on Foods parking lot.

3. Exchanges as described in Paragraph 2 above may be attended by the guardians or their delegates.

4. The Child’s school will be provided with a copy of this Appendix to enable it to contact the appropriate parent in the case parental attention or attendance is required.

5. On days where the exchange occurs at the Child’s school the parent dropping her off is no longer responsible for dealing with anything that may arise at school that day and the school should be advised to contact the other parent.

6. [Omitted for publication] will be with the Child for all parenting time lasting longer than 5 hours.

CORRIGENDUM - Released May 27, 2022

In the Reasons for Judgment dated August 13, 2020, the following changes has been made:

1. The counsel for the Respondent are F. MacLean and A. Sadovska.