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JDL v. KLL, 2021 BCPC 191 (CanLII)

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Date:

2021-08-13

File number:

F-18303

Citation:

JDL v. KLL, 2021 BCPC 191 (CanLII), <https://canlii.ca/t/jhlgb>, retrieved on 2024-04-25

Citation:	JDL v. KLL
	2021 BCPC 191
Date:		20210813
File No:		F-18303
Registry:		Terrace

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF

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

BETWEEN:

JDL

APPLICANT

AND:

KLL

RESPONDENT

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE D. PATTERSON

Counsel for the Applicant:	S. Davidson
Counsel for the Respondent:	M. Bridgeman
Place of Hearing:	Terrace, B.C.
Date of Hearing:	July 29, 2021
Date of Judgment:	August 13, 2021

[1] JDL (the “Father”) and KLL (the “Mother”) are the parents and guardians of two children: OL, born July 1, 2010 (“OL”), and TL, born June 6, 2014 (“TL”).

[2] The Father and the Mother separated in July of 2015, and now have what can only be described as an acrimonious and dysfunctional relationship. Upon review of the court file in this matter, it is obvious that litigation, as opposed to discussion and cooperation, is the preferred method for resolving their differences.

[3] On February 14, 2020, Judge Gray rendered a lengthy Reasons for Judgment (document 122) in an attempt to resolve the bitter conflict between the parties, addressing the issues of spousal support, child support, schooling and extraordinary expenses. In relation to parenting time, Judge Gray essentially confirmed and left in place the January 25, 2018 Order of Judge Wright (document 101).

[4] On March 5, 2020, a mere twenty days after Judge Gray rendered his Reasons for Judgment, three separate Affidavits were filed with the court:

1. Affidavit of RM (document 125),

2. Affidavit of KLL (document 124), and

3. Affidavit of KLL (document 123).

[5] On March 11, 2020, the Father filed an Application Regarding Existing Orders or Agreements (document 131) seeking to suspend Judge Gray’s orders of February 14, 2020. The same day, the Mother filed a Reply with Counterclaim (document 129), and the litigation was back on. Trial dates of November 3, 4 and 5, 2021 have been set to decide the various issues that have developed between the Mother and Father since Judge Gray’s Reasons for Judgment on February 14, 2020.

[6] In the interim, as the conflict between the Father and Mother has continued, Judge Wright utilized one of the tools provided for by the Family Law Act (the “FLA”) on July 23, 2020, and he ordered a Section 211 FLA – Full Report to include assessment, recommendations, and views of the children be prepared (document 142). On August 7, 2020, Judge Wright also made an interim Order (document 159) dealing with a number of issues concerning the two children.

[7] As of July 29, 2021, OL and TL have still not been interviewed for the Section 211 FLA – Full Report. Accordingly, despite having been ordered over a year ago, the Section 211 FLA – Full Report still has not been completed.

[8] I have been tasked with deciding two matters in the current dispute between the Father and Mother:

1. An Application About Enforcement filed by the Mother on June 15, 2021 (document 176). The Mother seeks a declaration of the court pursuant to
s. 61(2) of the FLA that she has been denied parenting time with OL by the Father. The Mother seeks one or more remedies, including:

(i) Pursuant to s. 61(2)(d) of the FLA, the Father reimburse to the Mother expenses reasonably and necessarily incurred by the Mother as a result of the Father’s non-compliance with Judge Wright’s Orders of August 7, 2020 and January 25, 2018.

(ii) Pursuant to s. 61(2)(g) of the FLA, as a result of the Father’s non-compliance with Judge Wright’s Orders of August 7, 2020 and January 25, 2018, the Father pay

a. $5,000 to or for the benefit of the Mother, or

b. a fine of $5,000.

(iii) Pursuant to the extraordinary remedy set out in s. 231(4) of the FLA, an Order requiring a police officer to apprehend OL and take OL to the Mother.

2. An Application About Priority Parenting Matter filed by the Father on June 16, 2021 (document 179). The Father seeks an interim Order pending a three-day trial that is scheduled to begin on November 3, 2021. Specifically, the Father seeks an interim Order changing OL’s residence to his residence, giving him parenting responsibilities for OL, and allowing OL to attend public school beginning in September 2021.

[9] In reaching my decision in this matter, I have considered the following:

(i) Judge Wright’s Order dated January 25, 2018;

(ii) Judge Gray’s Reasons for Judgment dated February 14, 2020, Provincial Court of British Columbia, Terrace Court File F-183030 (unreported);

(iii) Judge Wright’s Order dated August 7, 2020;

(iv) Affidavit of RM dated and filed July 21, 2021 (document 183);

(v) Affidavit of MM dated and filed July 21, 2021 (document 184);

(vi) Affidavit of KLL dated and filed July 2, 2021 (document 181);

(vii) Affidavit of JDL dated June 14, 2021 and filed June 16, 2021 (document 177);

(viii) Affidavit of PM dated June 11, 2021 and filed June 16, 2021 (document 178);

(ix) Affidavit of KLL dated and filed June 15, 2021 (document 175);

(x) Affidavit of DL dated and filed June 14, 2021 (document 174);

(xi) Testimony of JDL on July 29, 2021 (including filed exhibits);

(xii) Argument of counsel on July 29, 2021;

(xiii) The FLA; and

(xiv) Relevant case law.

[10] It is hoped by the parties that the Section 211 FLA – Full Report will be completed and available to the parties and court in advance of the first day of trial on November 3, 2021, but the status remains uncertain. Simply put: this is an unacceptable situation.

FACTUAL BACKGROUND TO THE PRESENT APPLICATIONS

[11] OL and TL were at their father’s residence for TL’s seventh barbecue birthday party on June 6, 2021. The Father’s residence is an approximate 15 minute drive outside of Terrace and a 25 to 30 minute drive from the Mother’s residence.

[12] When it was time for the Father to return the children to their Mother’s residence, OL refused to go. According to the Father’s in court testimony on July 29, 2021, they found OL in her bedroom, crying in the corner of the closet. In describing the incident in direct examination, the Father testified as follows:

Q And can you kind of briefly summarize why we're -- why you believe we are in court today?

A Briefly summarized is, it was on June 6th on my son's birthday, my son TL. I had him for four hours for a barbecue birthday party. And when it was time to leave to bring both my children back to their mother's house, my daughter refused to go. We found her in her bedroom crying in the corner of the closet and absolutely refusing to go. She's -- was telling me to call MCFD on her mother. If she is returned, she's going to run away. If she goes to school, she is going to run away. She is not happy there whatsoever, and it's still to this day, this is almost two months later, absolutely refusing to return. She doesn't want to talk with her mother. I am not sure exactly what led up to all this in that household, but I strongly feel this is in the best interest of my daughter to allow her to be a kid and make her own decisions in these aspects of things for her best interest. If she is not happy somewhere, she shouldn't be there.

Q Did she kind of summarize for you some of the reasons she was unhappy at her mom's?

A She really says a lot of emotional abuse. Everything is towards her brother and she just gets pushed aside.

Q And did she say anything about how her mom reacts when she talks about time at your house?

A Yeah. She -- she related to some of that. She gets disciplined for telling her mother that she had a great time at our place over the weekend. She gets sent to her room. Basically what she says, anything positive she gets disciplined for. Anything that is negative coming from my house her mother just cries for that. She wants that information from OL. Those were OL's exact words the way she worded it. She is sick and tired of being stuck in the middle of her mom's information preceding court 'cause this is what she uses it for. Her stepfather is no better as well. She also mentioned Reg in the same way.

Q Okay. And you said -- indicated this happened on June the 6th, can you describe what kind of happened with OL's schooling throughout the rest of the school year?

A OL, we talked about school. And -- and I -- I tried to convince OL to go to school and her exact words were, "If I go to school, mom is just going to remove me from there and -- and I won't be returning to your house." She did mention that she talked with a certain individual at the school. And I believe Ms. M. was the name. And she had told that person about some issues going on at her mother's house. It didn't go anywhere. OL said she did mention this twice to that person. And it wasn't going anywhere. Her mother works at the school. So in OL's views, has everybody wrapped around her finger from the school. I reached out to the principal, told him what was going on. He directed me into I needed a doctor's note if I was withholding or removing OL from the school after two days. So I got on the phone, made an appointment with the doctor. We got that doctor's note from our family doctor. I submitted it to the school. I worked with -- I reached out to this -- OL's teacher herself. And I was given her -- the last remaining three weeks of OL's school, all the necessary schooling that OL needed to complete the school year, which she did. And we just went with that. We got OL's report card. She definitely did not fail. She didn't get held back in any aspects, she is moving on to the next grade.

Q Okay. And can you kind of describe how OL has reacted when you mentioned her mother and what you -- and can you describe your steps that you have done to try and get OL to reconnect with her mother?

A I have encouraged OL a few times over the last two months once or twice a week ask her, "You know, are you ready to communicate with your mom?" stuff like that. Every time so far has been, "No," she is not interested in talking with her mother. She did talk with her mother, I believe, a week ago probably 15 minutes or so. From what I got out of it, it was -- it was just her mother telling her about all the great things going on in her life currently; her new positions at work and it was really nothing relevant to the actual situation up until the very end of the conversation when OL said she was going to go and wanted to go take a shower for the evening. That's when her mother said, "Well, if you want to live with her dad -- at your dad's house, we have to come up with an agreement for some visitations or talking." And OL said she doesn't want to talk to her mom. There is no point in making any arrangements or agreements. And that was it, she hung up the phone on her.

Q Did she go into -- were you listening throughout the conversation or is this OL is telling you afterwards?

A OL was in her bedroom talking with the – over this conversation. They were talking quite loud. It was on speakerphone, so we could hear it through the door. I -- I was in the kitchen, so . . .

Q Did OL ever say why she didn't want to talk with her mother in more detail or anything like that?

A She just says her mother hasn't changed one bit. This is -- this is her playing her mind games.

Q And then have you tried to get any counselling for OL or anything like that since she has remained at your house?

A I have suggested it. OL is opposed to it. She doesn't trust counsellors that she has seen in her past. I believe this Farra [phonetic] counsellor that was set up, I believe it's an MCFD counsellor. There was some controversy and OL has told us that she will no longer speak with a counsellor, or Farra especially, due to being punished for conversations she had in private with the counsellor. And the counsellor obviously told her mother some things that were going on. And OL got disciplined and questioned from her mother. So she -- at this point, she's in no need of a counsellor, in her views. These are all choices that her mother has made for her.

Q And shortly after this incident all had happened, did you record a phone call with Mrs. L?

A The first conversation we had was recorded, that's what's on your laptop there to be played today.

[13] The USB stick with the telephone call recording has been entered as Exhibit 1. According to the Father’s evidence, the telephone call was made by TL to OL. The telephone call occurred approximately two weeks after June 6, 2021, and apparently represents the first contact between OL and her Mother since June 6, 2021. At least six separate voices are heard during the course of the telephone call, including OL, TL, the Mother, the Mother’s partner RM (“RM”), the father, and the Father’s partner PM (“PM”).

[14] In testifying during cross-examination as to why he recorded the telephone call, the Father stated:

We're covering our own grounds in every sort of aspect we possibly can coming from that household and we'll continue to record every conversation. It's as simple as that. It's current and it's relevant.

[15] The telephone call is difficult to listen to. It is clear that OL is displeased with her Mother not agreeing to bring her hamster “Lulu” over to the Father’s residence or to allow TL to bring the hamster to the Father’s residence the next time TL is to have parenting time with his Father. It is equally clear that the Mother is frustrated with the whole situation and perhaps is coaching TL on what to say, especially as it relates to his Father. Overall, the telephone call recording confirms the dysfunctionality of the parties and the inability of the parties to understand that their children’s best interests must be prioritized over their personal animosity for each other.

[16] It is very troubling to the court, given Judge Wright specifically included conduct orders at paragraphs 19, 20, 21, 22, and 23 of his January 25, 2018 Order, that according to the Father during cross-examination:

OL knows the court order, the final court order, where all the parenting time came into play. She knows it. She knows it day to day. She's admitted to me that her mother's changing it on her own benefit and she disagrees. She knows what three weekends in a row means and it -- obviously three weekends in a row doesn't happen on a regular basis. It gets changed day to -- day to day, so a change one day, which changes the whole entire year. Her schedule that she has, that OL knows, is a crapshoot and it's been changed.

[17] During direct examination, the Father testified:

I've tried to follow our court order right to the T as best as I can. And that it unfortunately, gets shuffled around by their mother. She picks and chooses whatever she wants. She apparently according to the final order, she has the final say if we don't come to an agreement on changes. But when I'm being told what changes are and not asked that obviously causes conflict and disagreements.

[18] When asked by his counsel, “If the court today was to make an order that OL has to be returned to her -- her mom, can you explain what she would do?”, the Father, perhaps misunderstanding the question, replied, “I would bring her to her mother's house.” The Father went on to explain, “I know that would be totally crushing on my daughter at this point, but ultimately, if I'm going to get disciplined with a fine of some sort that it's not in my best interest or my family's best interest. OL is not the only child I am raising. There's four others.”

[19] OL completed this past school year attending [redacted for publication] School in Terrace. She would like to attend the public school [redacted for publication] Elementary for grade 6 beginning in September 2021. The Mother would like to see OL continue at [redacted for publication], while the Father would like OL to attend [redacted for publication].

[20] In his Affidavit dated June 14, 2021, the Father swore at paragraphs 27 and 28:

27. On June 12, 2021 I told OL that to change we had to go to court to try to change things and I asked her if she wanted to submit her first letter. OL didn't feel comfortable submitting that letter because she was scared how her mother would react. PM and I told her that her mom wants her to come home and we wanted to include her thoughts about going home. As a result OL wrote the letter attached as Exhibit B, so that the Court could know why she doesn't want to go home. On the copies of this affidavit, I crossed out the portions of the letter that were from the pages behind top pages as the letter was copied.

28. We told her it was possible that a Judge will still order her home and she said, if that happens, I'm running away and she wasn't going to tell anybody where she was going. She said she wouldn't come to my house because it would not longer be safe. PM and I explained to her that if she runs away and doesn't tell us where she is then the Ministry of Children and Family Development would get involved and she might get place in a different home because her mom and I had lost control of the situation. We asked if she wanted that and she said she didn't. I believe this conversation discouraged her from running away.

[21] OL’s message to the court, in her handwriting and attached as Exhibit “B” to the Father’s June 14, 2021 Affidavit, states:

I want my voice to be heard not mom talking for me

June 13^th 2021

I would love to be put into my dad's care permanently. But if I can get put into my mom's care again I will run away. But I will not going to my dad's house I will be going somewhere else because my dad's home will no long be safe. all though I will notify my dad on where I am. I don't want vist’s with my mom at all. Because I don't feel the need to see her. I love being with my step sibling’s and step mom and my dad. But I don't injoy being with my mom. I feel safe at my dad's house but I don't feel safe with my mom. Her anger and fear scare’s me. She scare’s me. A child should not have to know their parent’s foot step’s passing their door. I know the sound of my mom's foot steps.

What I want

• I wan't somethings from my mom's home incloding my hamster and it’s thing’s.

• I want to stay at my DAD's home permantly.

• I want to be able to stay home alone with my two sibling’s M and J. M is turning 12 in July and J 15 in September.

• I want TL to be at my dad's house permantly or I want him there more.

• I want to go to [redacted for publication] elementary for Grade 6 and [redacted for publication] middle school.

What I don’t want

• I don't want to see my mum.

• I don't want to be at my mum's house.

• I don't like/want being home alone with my younger brother TL who is seven for many reason’s.

• I don't want my step sibling’s and/or my dad and PM being harassted by my mom.

• I don't want my mom to minipulate TL into thinking he is scared of his home even though he is not. I don't want to be going to [redacted for publication] School any more

[22] Not surprisingly, the Affidavits of the Mother (x2), RM, and MM speak to the Mother’s excellent parenting skills and style, while complaining of the Father. In a nutshell, according to the four Affidavits, most and no doubt all issues with the children are the fault of the Father.

[23] Meanwhile, the Affidavits of the Father, PM, and DL speak to the Father’s excellent parenting skills and style, while complaining of the Mother. In a nutshell, according to the three Affidavits and the testimony of the Father in court on July 29, 2021, most and no doubt all issues with the children are the fault of the Mother.

[24] Suffice to say, a number of factual assertions are in dispute which can only be resolved at the trial presently scheduled to begin on November 3, 2021.

LEGAL CONCEPTS AND CONSIDERATIONS

[25] Justice Crabtree’s recent decision in M.A.F. v. J.C.F., 2021 BCSC 1447, considered similar issues to those in the present case. He set out the nature of the case at paragraphs 1 to 3:

[1] This is the application of the respondent, J.C.F. (“J.”), filed January 12, 2021. The claimant, M.A.F. (“M.”), is the applicant in a cross-application filed January 21, 2021. The two applications are focused on addressing outstanding parenting time issues to the children, including their primary residence pending trial. There are two children of the relationship namely:

1. “B.”, who is now 13 years of age; and

2. “G.”, who is now 11 years of age.

[2] J.’s application seeks to enforce the existing order in place and have the children returned to his primary care. M., in her application, seeks to vary the existing orders and have the primary residence of the children. In addition, there are a number of the subsidiary orders each party seeks, consistent with their respective applications.

[3] The applications are interim in nature, I note that the matter has been outstanding for a considerable period and counsel should take the necessary steps to schedule the matter for hearing, as soon as possible.

[26] Unlike in the present case, there was a s. 211 FLA Report available to the court, albeit three years old at the time Justice Crabtree heard the matter.

[27] Like in the present case, one party (J.C.F.) sought restoration of the status quo that had been in place since 2015 pending the upcoming trial, while the other party (M.A.F.) sought a variation of the existing Order, such that the primary residence of the children would be with M.A.F., pending the trial of the matter. M.A.F. also sought an order for other relief, including: M.A.F. being allowed to register the children at a school of her choosing, a term that the children attend counselling arranged by her, and the preparation of a Views of the Child report.

[28] Of note is Justice Crabtree’s determination as to the methodology to be applied in analysing the issues in the case.

[59] The fundamental or threshold question is whether the children should be returned to their father in accordance with the court order, or whether they should remain where they currently are with their mother.

[60] Depending upon the outcome of this question, this will determine how to address the balance of the issues raised in the applications.

…..

[63] The onus is on the party seeking a change to demonstrate that it is in the best interests of the children for that party to have primary residence of the children.

[64] Interim orders are stopgap measures, designed primarily to maintain the status quo and to provide short-term solutions until the issues can be fully canvassed at trial, on a full evidentiary record.

…..

[69] In summary, the onus is on the claimant to establish there has been a compelling change of circumstances, or evidence of a substantial nature not available at the time of the interim order that was made. If either is established, then s. 37 of the FLA sets out the criteria to consider in determining what is in the best interests of the children.

[29] I am of the belief that the same methodology and rationale should be employed in the current case.

[30] In employing the same methodology and rationale as Justice Crabtree, I have kept in mind that paramount in all cases involving children in British Columbia is what is commonly referred to as “the best interests of the child.” This basic and fundamental principle is set out in s. 37 of the FLA, with s. 38 of the FLA clarifying the factors to be considered when assessing family violence:

Best interests of child

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

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

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

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

(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.

Assessing family violence

38 For the purposes of section 37(2)(g) and (h) [best interests of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence;

(b) how recently the family violence occurred;

(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child;

(f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

(i) any other relevant matter.

A. Material Change in Circumstances

[31] Under the FLA, there really is no such thing as an absolutely final order involving children. All orders involving parenting arrangements for a child may be changed if there has been a change in the needs or circumstances that affects the best interest of the child.

[32] A concise review of the law was recently set out by Justice Walkem in K.S.L. v. S.A.L., 2021 BCSC 902:

[21] Once parenting orders are made, or agreements reached between the parties, they are not lightly varied. In Williamson v. Williamson, 2016 BCCA 87 at paras. 30–31 [Williamson], the Court of Appeal confirmed that the test set out by the Supreme Court in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 [Gordon], to determine whether a material change in circumstances has occurred under the Divorce Act, applies equally to the replacement provisions (s. 47) of the Family Law Act, S.B.C. 2011, c. 25 [FLA] as it did to s. 20 of the Family Relations Act, R.S.B.C. 1996, c. 128. A material change in circumstances is a threshold required to “embark on fresh inquiry into the best interests of the children” (Williamson at para. 34 ).

[22] Section 47 of the FLA states:

On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

[23] Section 37 of the FLA sets out criteria to be used in determining the best interests of the child. Section 37(2) of the FLA contemplates factors to be taken into account in determining the best interests of the child, including: (a) the child’s health and emotional well-being; (c) the nature and strength of the relationships between the child and significant persons in the child’s life; (e) the child’s need for stability, given the child’s age and stage of development; and, (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. Section 37(3) states that an order is not in the best interests of the child “unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being”.

[24] In Gordon the Supreme Court contemplated the threshold standard of a “material change in circumstances” required to vary a parenting order, holding that such a finding may be made out where there has been: “(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order” (at para. 13).

[25] Gordon continued:

[49] The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[33] So has there been a material change in the circumstances concerning OL? The test, as set out by the Supreme Court of Canada in Gordon, involves considering if there has been:

(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

(2) which materially affects the child; and

(3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[34] I am of the opinion in the present case that the Father has met the threshold requirement of demonstrating a material change in the circumstances affecting OL. Notably:

(i) OL is now eleven years of age. She appears to be a strong minded young woman, with opinions of her own. In the three-and-a half years since Judge Wright made his order of January 25, 2018, much has changed in her life.

(ii) OL initiated the decision to estrange herself from her mother. Although the reasons for the estrangement are unclear from the evidence, this does not appear to be a case of the Father alienating OL from the Mother. As the evidence on July 29, 2021 showed, OL has at times also expressed a desire in the past to not see or spend time with the Father.

(iii) There is a no cost option of public school available to OL, with no evidence before the court that the education OL was receiving at [redacted for publication] School is superior to the education offered in the British Columbia public school system. What is known is that OL has threatened to skip class and run away if she is made to attend [redacted for publication] School for her grade 6 school year.

(iv) Both of the parents appear to have established new blended families and have stable housing.

[35] Having found that there has been a material change in circumstances concerning OL, I have, as I am required by the law to do, embarked on a fresh inquiry into what is in the best interests of OL, having regard to all the relevant circumstances relating to OL’s needs and the ability of the respective parents to satisfy them.

[36] Courts may take a child’s opinion into consideration when making an order on parenting time and which parent the child will live with. The weight, if any, a court places on the child’s opinion depends on the child’s maturity and age. The FLA does not have a defined age at which children can choose where to live and which parent they will spend their time with. Nevertheless, the opinion of an eleven-year-old rarely acts to sway the court one way or the other, unless there is something compelling in the young child’s opinion.

[37] I am of the opinion, based upon the evidence presently before the court, that a s. 211 FLA – Full Report is critical for the judge hearing the trial in this matter that begins on November 3, 2021. Nevertheless, based upon the evidence I do have before me, it appears as though the now eleven-year-old OL’s views are genuinely her own and that she has an understanding of what she is asking for. OL appears to the court to have considered her relationship with her parents, her living and school situation, and expressed a clear preference. While I am left wondering about the strangeness and reasonableness of OL’s desire to have no parenting time with the Mother, I have no doubt that she is serious. Perhaps a judicial interview would have been of assistance to the court, but neither party requested that I conduct a judicial interview with OL.

[38] In A.M.V. v. J.R.M., 2020 BCPC 35, Judge Doulis, as she often does, provided guidance that is relevant to the present case:

[150] Of particular relevance in this case is s. 37(2)(b) which requires the Court to consider the child's views, unless it would be inappropriate to do so. Generally, a child’s views are considered inappropriate where the child is very young or suffers from serious cognitive impairment. Neither of those concerns are present in this case. Typically, the child’s views are presented to the court in the form of a “views of the child report” prepared pursuant to s. 211 of the FLA. In fact, the court had just such a report in this case prepared by the Family Justice Counsellor on September 18, 2017 (Exhibit 13). C.O.M., C.J.M. and G.M.M. have expressed a desire to speak to the court directly. Given the lengthy delay in the receiving of these reports and the age and willingness of the children to attend court, the parties agreed a judicial interview was an appropriate and timely method of obtaining the views of the children.

[151] As Justice Butler noted in G.A.G.R. v. T.D.W., 2013 BCSC 586 (CanLII), the concept of giving effect to the views of a child, where appropriate, is consistent with Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 states:

1. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

[152] Canada signed the Convention on May 28th, 1990. Although it has never been implemented, it was ratified on December 13th, 1991.

[153] Although the courts are encouraged to take account of the views of children, this does not mean that the children’s views are determinative or even presumptively so. A child’s view is not synonymous with a child’s best interest. Still, the child’s view provide “context in which to understand better the whole of the evidence that must be weighed”: M.H. v P.S.W, 2018 BCSC 1318 (CanLII), referencing Rupertus v. Rupertus, 2012 BCCA 426 (CanLII) at para. 13 .

[154] The question as to whether a child has reached an age and degree of maturity where it is appropriate to take his or her views on parenting time into account must be determined on all the evidence, with particular attention to the nature, strength and reasons for the child’s views. It goes without saying, a court should consider whether a child’s views have been unduly influenced by someone else.

[39] In Silva v. da Silva, 2018 BCSC 788, a decision concerning whether an eleven-year and seven-month-old boy should have his views heard by the court on an application by a parent to relocate with the child outside of Canada, Justice Fleming noted at paragraph 59 that, “the views of children as young as nine have prevailed, and that concerns about what underlies his stated reasons are properly considered in determining what weight those views should be given.”

[40] Given the evidence that I have considered in this case, I am satisfied that a change in parenting arrangements is in the best interest of OL, pending the trial of the matter. I have kept in mind that this is an interim application pending trial, and as such, any change to the status quo ought not to be made lightly. Nevertheless, given the unusual facts of this case, I am satisfied that it is in OL's best interest for her to reside with the Father at this time. Furthermore, I am satisfied that it is in OL’s best interest to allow her to change schools and attend grade 6 beginning in September 2021 at [redacted for publication] Elementary.

[41] The Mother is entitled to parenting time with OL, despite OL’s statements that “I don't want to see my mum” and “I don't want to be at my mum's house”. It is appropriate that the Mother’s parenting time with OL be scheduled for the weekends that TL is with the Mother. Such an arrangement will allow OL and TL to spend weekends together at both the Mother’s and Father’s residences. It is also appropriate that the Father’s child support obligations be discontinued pending the trial in regard to OL, but continue with regard to TL.

B. Denial of Parenting Time

[42] Part 4 – Division 5 of the FLA deals with compliance respecting parenting time. Sections 61 and 62 of the FLA are applicable to the present case:

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 $5000 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.

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.

[43] As noted by Justice Crabtree in M.A.F. v. J.C.F.,

[123] The refusal to return the children arose quickly and unexpectedly. There was no specific event that appeared to trigger the reaction by the children. According to the father, the children said nothing to him prior to the exchange with the mother that would suggest there were any concerns. However, the mother indicated that as the children were being prepared to return to the father, G. proceeded to breakdown in tears about 45 minutes prior to leaving for the drop-off location. Both children advised both the mother and her spouse that they were fearful of the father and did not want to return to his residence, voicing concern of neglect and displays of anger, which were unsettling to them.

[124] Did the mother deny parenting time? The mother’s position was that “the children were avoiding the father’s home at their own request”, and given this, she was not denying the father parenting time.

[125] In my view the mother’s position ignores the legal reality of the situation. The mother was aware of the court order and the parenting arrangements in place. By failing to return the children in accordance with the court order, the mother denied parenting time to the father.

[126] Was the mother’s denial of parenting time, wrongful? Section 62(1) of the FLA while not specifically defining what constitutes wrongful denial, set outs certain circumstances which are not wrongful:

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;

(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.

[127] It was not argued by the mother that any of the circumstances set out in s. 62(1) of the FLA were applicable. That said, justification for the denial turns on whether the reason for doing so was reasonable in the circumstances.

…..

[134] In circumstances where the children expressed a concern over being returned to their primary residence, the denial of parenting time until the matter can be more fully explored may be considered reasonable. However, this does not relieve the parent denying parenting time from the obligation to gather the necessary information in order to make a proper assessment of the situation.

[135] In this case, the father had an existing court order for primary care of the children. The mother, in denying parenting time, was refusing to comply with it. To justify an ongoing denial of parenting time, it was incumbent upon the mother to gather the necessary information why the children were expressing reluctance to return to the father’s care. Having done so and if denial of parenting time is to continue, to have the matter reviewed by the court.

[136] In my view, the failure to take such further steps converts what was initially a reasonable temporary denial into an unreasonable one. In this circumstance, the denial was ongoing and the mother took no steps to address the matter within a reasonable period. Accordingly, I find the mother wrongfully denied parenting time to the father.

[44] In the present case, the Father was aware of the court order and the parenting arrangements in place. By failing to return OL as he was required to do by Judge Wright’s orders of August 7, 2020 and January 25, 2018, the Father denied parenting time to the Mother.

[45] Furthermore, I cannot say that the Father has convinced this court on a balance of probabilities that any of the circumstances set out in s. 62(1)(a) to (e) of the FLA exist such as to make the denial of the Mother’s parenting time with OL since June 6, 2021 not wrongful. Specifically, in regard to the Father’s argument that OL had or was suffering family violence when she was with the Mother or speaking on the telephone with the Mother, the evidence falls short on that point.

[46] Accordingly, justification for the Father’s denial of parenting time to the Mother turns on whether the reason for doing so was reasonable in the circumstances.

[47] In these unique circumstances, I cannot say that the Father’s denial of the Mother’s parenting time since June 6, 2021 was unjustified or wrongful, given the evidence that has been placed before the court. Given the unusual events of June 6, 2021 and the seven weeks since, I do not find that the Father has acted inappropriately. There was clearly a basis for not forcefully returning OL to the Mother’s residence. There is evidence to support the conclusion that the Father has not coerced OL into refusing to see the Mother, speak to the Mother, or expressing a desire to change schools. OL, at a couple of weeks shy of her eleventh birthday, when she decided to take the action she did, is old enough to have her voice and wishes heard and considered.

[48] As testified to by the Father,

She's – was telling me to call MCFD on her mother. If she is returned, she's going to run away. If she goes to school, she is going to run away. She is not happy there whatsoever, and it's still to this day, this is almost two months later, absolutely refusing to return. She doesn't want to talk with her mother. I am not sure exactly what led up to all this in that household, but I strongly feel this is in the best interest of my daughter to allow her to be a kid and make her own decisions in these aspects of things for her best interest. If she is not happy somewhere, she shouldn't be there.

[49] Like Justice Crabtree, I find that in circumstances where a child has expressed a concern over being returned to their primary residence, the denial of parenting time until the matter can be more fully explored may be considered reasonable.

[50] Unlike in M.A.F. v. J.C.F., where M.A.F. waited almost seven months before filing her application to the court to vary the existing orders, and then continued to deny J.C.F. parenting time for an additional five months until Justice Crabtree’s decision, the Father in the present case filed his Application About Priority Parenting Matter just ten days after OL refused to return to the Mother’s residence. Furthermore, the hearing of the Father’s Application About Priority Parenting Matter and the Mother’s Application About Enforcement took place seven-and-a-half weeks after June 6, 2021.

[51] Accordingly, in the unique circumstances of the present case, I find that sufficient justification for the denial of parenting time by the Father since June 6, 2021 exists and the denial of parenting time is reasonable.

CONCLUSION

[52] The Mother’s Application About Enforcement is dismissed.

[53] The Father’s Application About Priority Parenting Matter is granted pursuant to
s. 47 of the FLA.

[54] I make the following interim orders:

Previous Orders

1. Any interim or final orders made previously in this proceeding that relate to OL and are inconsistent or incompatible with the following orders are superseded by this order or cancelled.

2. Judge Wright’s order of August 7, 2020, as it relates to OL, is terminated as of June 6, 2021.

3. Judge Wright’s order of January 25, 2018, as it relates to OL, is terminated as of June 6, 2021, with the exception of the provisions regarding Conduct Orders at paragraphs 19 to 23, and with the exception of the provisions at paragraph 25 dealing with the exchange of financial information.

4. Judge Gray’s order of February 14, 2020, as it relates to OL, is terminated as of June 6, 2021. For greater certainty, the Father is no longer obligated to pay child support, special or extraordinary expenses for OL to the Mother as of June 6, 2021. Any and all arrears of child support, special and extraordinary expenses owed by the Father to the Mother as of June 5, 2021, remain owing.

5. Paragraph 7 of Judge Gray’s order of February 14, 2020, as it relates to child support, is terminated.

Guardianship of OL

6. The court is satisfied that the Mother and the Father are the guardians of OL under s.39(1) of the FLA.

7. The Mother and the Father shall have the obligation to advise each other of any matters of a significant nature affecting OL.

8. Pursuant to s. 49 of the FLA, if the Mother and the Father cannot agree on a parental responsibility, the Father may make the decision and the Mother may apply for a review of that decision.

9. In the event of the death of a guardian, the surviving guardian will be the sole guardian of OL.

10. Each guardian shall have the right to obtain information concerning OL directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers.

Parenting Responsibilities for OL

11. Pursuant to s. 40(3)(a) of the FLA, except as set out elsewhere in this order, the Father will solely have all of the parental responsibilities for OL as set out in s. 41 of the FLA:

a. Making day to day decisions affecting OL and having day to day care, control and supervision of OL;

b. Making decisions about where OL will reside;

c. Making decisions respecting with whom OL will live and associate;

d. Making decisions respecting OL’s education and participation in extracurricular activities, including the nature, extent and location;

e. Making decisions respecting OL's cultural, linguistic, religious and spiritual upbringing and heritage;

f. Subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for OL;

g. Applying for a passport, licence, permit, benefit, privilege or other thing for OL;

h. Giving, refusing or withdrawing consent for OL, 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. Subject to any applicable provincial legislation:

i. Starting, defending, compromising or settling any proceeding relating to OL; and

ii. Identifying, advancing and protecting OL's legal and financial interests;

k. Exercising any other responsibilities reasonably necessary to nurture OL's development.

Parenting Time

12. The Father shall have the majority of the parenting time with OL, and OL’s primary residence will be with the Father.

13. The Mother shall have reasonable parenting time with OL on weekends when the Father does not have weekend parenting time with TL as set out in the January 25, 2018 order of Judge Wright. For greater certainty, on weekends when TL is at the Father’s residence per the January 25, 2018 order of Judge Wright, OL will also be at the Father’s residence. On weekends when TL is at the Mother’s residence per the January 25, 2018 order of Judge Wright, OL will also be at the Mother’s residence from Friday at 6 PM until Sunday at 7 PM. If the day preceding or following the weekend is a statutory holiday, a school non-instructional day or a school administrative day, the parenting time shall include that extra day.

14. Effective September 1, 2021, the regular parenting time schedule for OL is suspended during winter school holidays, spring school break, and summer holidays. OL shall spend half of winter school holidays, spring school break, and summer holidays with each parent. The parents shall agree in writing to the dates OL will be at their respective residences during winter school holidays, spring school break, and summer holidays. If the parties are unable to agree, then the Father will decide which parent’s residence OL will be at for which half of the winter school holidays, spring school break, and summer holidays.

15. OL will spend Mother’s Day at the Mother’s residence. If OL is not scheduled to be at the Mother’s residence for Mother’s Day, then it shall be an exception to the parenting schedule, and OL will be at the Mother’s residence from noon until 7 PM on Mother’s Day.

16. OL will spend Father’s Day at the Father’s residence. If OL is not scheduled to be at the Father’s residence for Father’s Day, then it shall be an exception to the parenting schedule, and OL will be at the Father’s residence from noon until 7 PM on Father’s Day.

17. Unless otherwise agreed to by the parties, the Father shall be responsible for transporting OL to the place of exchange for the Mother to exercise time with OL. If the parties cannot agreed to a place of exchange, then the Father shall be responsible for transporting OL to the Mother’s residence and the Father will be responsible for picking up OL from the Mother’s residence.

Child Support

18. The Father is found to be a resident of British Columbia and is imputed to have a gross annual income of $75,000.

19. The Mother is found to be a resident of British Columbia and imputed to have a gross annual income of $12,330.

20. The Father shall pay to the Mother $701 per month child support for TL. The Mother shall pay to the Father $48 per month child support for OL. The difference of the amounts is $653 per month. The Father shall therefore pay $653 to the Mother commencing on July 1, 2021 and continuing on the first day of each and every month thereafter for as long as the child(ren) are eligible for child support under the FLA or until further court order.

[55] The Mother shall immediately arrange for OL’s hamster Lulu to be reunited with OL and relocated to the Father’s residence.

[56] All of which is ordered this 13^th day of August, 2021.

______________________________

The Honourable Judge D. Patterson

Provincial Court of British Columbia