[1]         C.R. and D.M. began living together in a marriage like relationship in 2006. There are two children of their union, D.W.R. born [omitted for publication], and K.M.R. born [omitted for publication], (together, the children). C.R. says the parties separated in 2016. D.M. says they separated in 2020.

[2]         The issues to be decided in this case are:

[3]         On July 21, 2020, C.R. applied for orders seeking, among other things, that D.W.R. and K.M.R. primarily reside with him, that he have most of the parental responsibilities for them, and that the order of the Honourable Judge Rogers dated October 30, 2019, which sets out parenting time and prohibits relocation of the children from Richmond, be complied with (the 2019 Order). C.R. also sought a “views of the child” report for both children, and a number of conduct orders, including an order to prohibit D.M. from making further applications without leave of the court.

[4]         On October 22, 2020, D.M. replied and counter-claimed seeking, among other things, a protection order against C.R., a declaration of parental alienation as it relates to D.W.R., all parental responsibilities for D.W.R. and K.M.R., spousal support, child support, and extraordinary expenses. D.M. claimed that she is the victim of domestic violence and that C.R. is the abuser. She claimed that C.R. alienated her children and other family members from her.

[5]         C.R. disputes every aspect of D.M.’s counter-claim in his reply filed on October 22, 2020. C.R. claimed that the parties separated in 2016, and since then, D.M. has made false claims of family violence and obstructed his access to his children.

[6]         I heard the evidence of 12 witnesses over 11 days of trial on September 7, 8, 9, 10, 13, 14, 15, 16, 2021 and October 26, 28, and 29, 2021.

[7]         C.R. testified and called five other witnesses in support of his case.

[8]         R.T. is a foster parent who fostered K.M.R. in Richmond from March 2020 to September 2020.

[9]         A.W. is D.M.’s younger sister. They grew up together. She lives in Calgary and is a registered nurse. She has two biological children. She also has guardianship over D.M.’s older daughter, D.W.

[10]      J.K. is C.R.’s mother.

[11]      B.H. is the biological father of I.H. who is D.M.’s second oldest son. B.H. and D.M. were together for approximately two years before D.M. met C.R.

[12]      M.W.M. is D.M.’s eldest child. He lived with his mother, for the most part, from his birth until he was 13 years old. He was in foster care for some time around the age of 7 years. He started living with his father, N.M., when he was 13 years old. He is currently 23 years old.

[13]      D.M. testified and called five other witnesses in support of her case.

[14]      M.L. is a friend of D.M. and former neighbour. M.L. lived next door to D.M. in Nanaimo for approximately three months from June 2020 to August 2020. M.L. looked after K.M.R. in Powell River when D.M. went to Calgary in February 2021.

[15]      O.W. is D.M.’s mother.

[16]      A.B. is the biological father of one of A.W.’s children. He testified by way of telephone from Quebec.

[17]      K.V. is a friend of D.M. and former neighbour. They share an interest in bodybuilding and fitness train together in Nanaimo.

[18]      W.C. rented a house to the parties on [omitted for publication] Drive in Richmond from December 2019 to April 2020. The names of C.R. and D.M. were on the lease.

[19]      Section 37(1) of the Family Law Act says that the court must only consider the best interests of the child when making a parenting order. To determine what is in the best interests of a child, the court must consider all of the child’s needs and circumstances including those factors set out in s. 37(2) of the Family Law Act:

[20]      No order will be in the child’s best interest unless it protects to the greatest extent possible a child’s safety, security, and well-being.

[21]      An overarching consideration of the Family Law Act is to protect the child from family violence that can be harmful. When making an order respecting care and time with a child, the court must consider whether family violence creates a risk of harm to the child.

[22]      Section 1 of the Family Law Act defines family violence to include various acts against the child or a family member, such as physical, sexual, or psychological abuse, and exposure of the child to those acts. Family violence encompasses any conduct by a family member towards another family member that is violent, threatening, or amounts to a pattern of controlling behaviour, which causes that other family member to fear his or her own safety or the safety of others. It does not matter whether the harm was intentional. What is relevant is the resulting harm to the child.

[23]      At issue, in this case, is the impact of the family violence on the children’s best interests. Section 38 of the Family Law Act provides that, in assessing the impact of any family violence on the best interests of the child, the court must consider:

[24]      Judges are required to apply an intersectional and contextual approach to assessing family violence cases because of the wide variety of different ways in which violence can arise in a family: Michel v. Graydon, 2020 SCC 24. I have interpreted the Family Law Act as set out by the Supreme Court of Canada in Michel v. Graydon, 2020 SCC 24, which identified three key principles to statutory interpretation under the Family Law Act: paras. 21, 54; Concurring judgment, para. 97. First, I consider the statutory provision in its entire context and grammatical and ordinary sense, in harmony with the statute’s scheme and objects with the key object being the best interests of the child. Second, I consider that the legislator is taken to know the social and historical context in which it makes its intention known. Third, it is presumed that the Family Law Act takes into account Canada’s international obligations including the United Nations Convention on the Rights of the Child [Convention].

[25]      Below, I apply these legal principles to the facts in this case.

[26]      The parties have provided very different, and often, irreconcilable versions of events. This has required me to resolve conflicting evidence. Where I have had to resolve conflicting evidence, I am guided by the principles summarized in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused [2012] S.C.C.A. No. 392 at para. 186:

[27]      My findings on the credibility and reliability of evidence are set out below.

[28]      There is no dispute that D.M. and C.R. are the guardians of the children under s. 39(1) of the Family Law Act.

[29]      I find that these guardians cannot communicate directly due to the high conflict nature of this dispute, and that requiring cooperation between D.M. and C.R. would increase the risk to the safety, security, and well-being of their children. This is borne out by the overwhelming amount of evidence detailing the conflict that has arisen between these guardians, which has played out through a multitude of family and criminal justice proceedings in two provinces over five years.

[30]      Pursuant to court orders, a children’s lawyer has been appointed for D.W.R. and K.M.R. under s. 203(1) of the Family Law Act. These orders recognize the severe high conflict nature of these proceedings. Under s. 203(1) of the Family Law Act, children's counsel are appointed to represent the interests of the child when the degree of conflict between the parents is so severe that it impairs the parties' abilities to act in the best interests of the child and it is necessary to protect the best interests of the child. The role of children's counsel is to protect the child's interests, which includes shielding the child from parental conflict and the adversarial nature of family law proceedings.

[31]      The evidence is clear that it is not possible for D.M. and C.R. to cooperate on issues affecting D.W.R. or K.M.R. Their inability to work together has caused tremendous harm to D.W.R. and K.M.R. As such, an arrangement that would require these guardians to cooperate on issues affecting their children is not appropriate in the circumstances. Since these parents cannot make decisions about D.W.R. or K.M.R. as a team, one parent will have to make significant decisions.

[32]      In cases dealing with the well-being of children, a court is not obliged to reach specific factual conclusions as to what has transpired while children have been in their parents’ care in making an order respecting parenting arrangements: NDT v. TFT, 2016 BCSC 134 at para. 103. This principle is recognized implicitly in s. 37(3) of the Family Law Act, which provides only that the best interests of a child be advanced through an order that protects a child’s physical, psychological and emotional safety, security, and well-being to the greatest possible extent. This wording contemplates that evidence in family cases is often of a type that may be only suggestive of the truth, and that resists drawing specific conclusions: NDT v. TFT, 2016 BCSC 134 at para. 103.

[33]      In this case, however, D.M. has asked me to draw specific conclusions on who is responsible for the family violence. D.M. claims that she has proven, on a balance of probabilities, that she is the victim of domestic violence, that D.W.R. and K.M.R. are the victims of domestic violence, and that other family members have been alienated from her by her abuser, C.R. The issue that D.M. is asking me to decide is whether the court should place the children with the abuser in a domestic violence family matter.

[34]      On its face, there appears to be support for her argument. D.M. has obtained seventeen without-notice protection orders against C.R. in Alberta and British Columbia. She has reported serious allegations of domestic violence against C.R. in British Columbia that has resulted in C.R. facing two sets of criminal charges in two years. D.M. testified that C.R. sexually assaulted her in Nanaimo in 2018 and assaulted her and K.M.R. in Richmond in 2019.

[35]      After a careful consideration of all the evidence, I have determined that the allegations of family violence made by D.M. are not true. I find that D.M. fabricated allegations of domestic violence after the parties separated in 2016 and C.R. started a new relationship in 2017. In reaching this conclusion, I have considered the myths and stereotypes that may be imbedded in assessing a woman’s credibility in family violence cases. One such myth is that women are particularly prone to making false allegations in family law cases to gain an advantage. Evidence presented to support that conclusion should be carefully evaluated to ensure that it is bias free. I have done so, and my reasons for reaching these conclusions are set out below.

[36]      The evidence on how the parties met is not in dispute, and illustrates the power dynamic between D.M. and C.R.

[37]      C.R. and D.M. met working over the summer at a concession stand in Alberta. C.R. was still a teenager living at home, having recently graduated from high school. D.M. was ten years his senior and the mother of three children with three different fathers. Her first child, M.W.M., was born on [omitted for publication]. Her second child, D.W., was born on [omitted for publication]. Her third child, I.H., was born on [omitted for publication]. All of her children were, at that time, in foster care.

[38]      D.M. was living in a home that she had shared with the biological father of I.H., B.H. Shortly after the parties met, D.M. got pregnant with her fourth child, D.W.R. She invited C.R. to live with her. They moved in together, D.M. testified, a month after they met and before her other children were returned to her. In response to the question of whether C.R. was aware of her children being in care, she responded that she was embarrassed of the situation “and slowly told him once he was fully moved in”. She testified that he was okay with it and wanted to support her. She was pregnant with D.W.R. when her other children were returned to her. C.R. got a job in construction to support the whole family.

[39]      J.K. testified that her son did his best to look after his children. She explains that he was only a teenager when he met D.M. and was “thrown into having four children.” I find that J.K. was a credible witness. Although she is C.R.’s mother, I did not detect any bias in her testimony. For example, she testified that C.R. was not the easiest child to raise, and that her relationship with her son has been strained. J.K. stuck to the facts, and was a balanced witness.

[40]      There is conflicting evidence on when the parties separated. C.R. testified that the parties separated in 2016. D.M. testified that the parties separated in 2020.

[41]      I accept C.R.’s evidence that he separated from D.M. in July 2016. C.R. found a house for D.M. and the kids in Calgary and paid for two-months of rent. He told her that they were done, and that he could not deal with her drinking anymore. His evidence is corroborated by D.W.R., who attests in his affidavit that his parents stopped living together in 2016. C.R.’s evidence is also corroborated by members of D.M.’s family who did not see him after this time. O.W. does not remember seeing C.R. after 2015. A.W. did not see too much of C.R. in 2015 or 2016. M.W.M. did not even see C.R. when he visited his siblings in Nanaimo over the Christmas holidays in December 2015.

[42]      D.M. denies the separation occurred in 2016. She testified that C.R. wanted them to return to Calgary temporarily because of her father’s health. She relies on the fact that they both signed the lease to a house as evidence that they came back as a couple and were living together in Calgary in July 2016.

[43]      I reject D.M.’s evidence on the basis that it is internally inconsistent, and at times, contradictory. D.M. provided a shifting account in her evidence of when the parties separated that ranged over 18 months from 2019 to 2020. Her evidence does not reconcile with independent evidence, such as the court proceedings in Alberta in 2017 that involved parenting orders and her application to relocate the children to Nanaimo. Although D.M. introduced a voluminous record of police reporting incidents from Alberta, they do not support her case. Rather, the police report from 2017 corroborates C.R.’s evidence that the parties were separated and he was concerned about the welfare of the children in D.M.’s care.

[44]      Rather than acknowledge the separation, D.M. accuses C.R. of cheating on her. In her evidence, D.M. often conflated cheating with abuse. D.M. testified: “he was cheating on me and it was abuse, I had to leave”.

[45]      Based on the evidence I do accept as credible and reliable, I conclude that the parties separated in 2016.

[46]      In early 2017, C.R. met S., who is a nurse who lives in Calgary with her two children. They started dating in 2017, and aside from a short separation, C.R. has been in a relationship with S. since then.

[47]      D.M. followed C.R. to S.’s house, knocked on the door, and confronted her. She followed S., took photos of her car, searched her on social media, and accused her of prostitution. This unwelcome conduct prompted court proceedings between the former spouse and new girlfriend of C.R. On October 31, 2017, an Alberta judge issued a mutual no contact order between S. and D.M.

[48]      D.M. presented a number of photos of S., including photos of her car at C.R.’s house in Richmond, photos of her children on social media, and photos of her dog. All of those photos were entered into evidence, including naked photos purportedly from a porn website that D.M. claims were of S.

[49]      D.M. insisted C.R.’s girlfriend was a prostitute and her dog contributed to D.W.R.’s asthma attacks, all of which was denied by C.R. There is no independent evidence to support D.M.’s allegations. On a balance of probabilities, I find none of these accusations have been proven. I find D.M. was motivated to fabricate allegations about C.R.’s girlfriend because she could not accept the fact that C.R. left her and entered into a new relationship.

[50]      D.M. sent frequent angry correspondence to C.R. saying he would not see the children again, and that he would go to jail. In a number of text messages in November and December 2018, D.M. confronted C.R. about his relationship with S.

[51]      On November 17, 2018, D.M. texted C.R. congratulating them on their engagement and wrote, “you will never have my kids or me round you” and “what hate I feel for you is more than any of my baby fathers”. The following week, D.M. texted, “we are moving INTERNATIONALLY  so go ahead lol … don’t [sic] contact me no more gonna let them handle you now…they asked if I want you in jail…and I said [sic] yes… so 6-12 months they know all the movements thought I would give you the heads up.” C.R. responds, “Yah going to jail for what…not wanting to be with you!!!  I can’t [sic] wait for you to tell this to the judge in Feb!” In another text exchange, D.M. wrote to C.R., “u lost u kids for ever [emoji] but keep it coming”. She warned C.R. that he has no idea what is going to happen to him over the next few weeks, and keep provoking her and he is going to jail for a long time.

[52]      On December 2, 2018, C.R. texted D.M.: “Can I see my kids today please?” D.M. sent the following response referring to S. as “trick trash” or “T.T”:

[53]      On December 5, 2018, D.M. sent another text to C.R.:

[54]      On December 28, 2018, there was another text exchange between D.M. and C.R.  D.M. wrote a number of text messages that included, “U lost your kids for ever [emoji] but keep it coming”, “marry the bitch I dont care”, “U have no idea.. what’s gonna happen [in] the next weeks love it!!! For both of you!!!!”, “Keep provoking me [emojis] funny how God has worked out for me”. C.R. responds, “Explain it to the courts!” D.M. responds, “Your going to jail for a long time explain that to the courts.”

[55]      D.M. made false complaints about C.R.’s whereabouts to the police, which he disproved on several occasions through a location setting on his phone. C.R. testified that, from 2017 to 2019, he did not take the location setting off his phone because he was getting so many calls from the RCMP after they had received reports from D.M. C.R. testified that he needed something to prove where he was, which assisted him, because he was able to take a screen shot of his location. For example, he was in Calgary or Victoria when he got calls from the Nanaimo RCMP asking where he was.

[56]      D.M. repeatedly contacted C.R.’s place of employment to make false allegations that he has engaged in improper conduct that could result in adverse employment consequences. C.R. testified to these incidents, but had difficulty remembering dates. His evidence is corroborated by a letter from one of his employers, and B.H. who testified to similar conduct from D.M.

[57]      A letter from one of C.R.’s employers is in evidence. In that letter, an employee describes receiving a phone call from a supervisor in early October 2019 asking her about C.R. She informed him that C.R. worked on the construction site as a concrete foreman. She was informed by her supervisor that “C.R.’s ex called our regional office and made claims that C.R. was committing inappropriate behaviour during work hours”. After investigation of the claims, it was determined that no inappropriate behaviour had taken place on the job site and her allegations were unfounded. Approximately three weeks later, she was informed that C.R.’s ex-partner “D.M.” had called the office to follow up and was “extremely upset” after being told that her allegations were investigated and deemed to be unfounded. She ended the call by hanging up.

[58]      B.H. testified that D.M. made false allegations against him to his employer, which got him fired. B.H. testified to an agreement that he had with D.M. to take over the payments of an extra vehicle registered in her name, a Ford Explorer. D.M. got angry with him, he is not sure what over, so she called the police and said that he stole her vehicle. When he arrived at work, he was met by police. He was a new employee, and his boss witnessed the police incident. He was immediately fired and lost his job.

[59]      I find that B.H. is a credible corroborative witness. He was honest and forthcoming and readily acknowledged facts that went against his interests. For example, he acknowledged that he had issues with alcohol and engaged in domestic violence when he was involved with D.M. He testified that things were “not civil” with C.R. and “we shared words sometimes”. Although D.M. repeatedly accused B.H. of lying, his evidence on this incident was not challenged or shaken on cross-examination. I have taken into account that B.H. exaggerated the number of times he went to court with D.M. when assessing the reliability of his evidence. I have discounted his impressions accordingly, but rely on his recollection of events as corroborative.

[60]      A.W. testified that her sister, D.M., was posting on social media between 2018 and 2020. Even though she was not seeing her sister, she was aware of some things that were going on through social media. She described a number of social media posts from D.M. as “erratic” and gave the following example. She testified that her sister would post words to the effect: “watch” what she is about to do to C.R. now and “get out your popcorn”. She also testified that her sister announced that C.R. is back in her life after posting a statement that she is deathly afraid of him.

[61]      I find that A.W. is a credible and reliable corroborative witness. She was honest and forthcoming, and readily acknowledged facts that were adverse to her interests. She acknowledges that her perceptions of her sister are negative. She describes her relationship with her sister as “toxic” and that there is “bad blood” between them. She acknowledges that her opportunity for knowledge is limited because she has not physically seen her sister since a 2019 court appearance in Alberta that involved guardianship over D.W. She stuck to the facts of what she observed and experienced. Her evidence was unshaken on cross-examination and corroborated by independent evidence.

[62]      Based on the evidence I do accept as credible and reliable, I conclude that D.M. has engaged in post-separation violence towards C.R.

[63]      There is conflicting evidence on what happened in Nanaimo in 2018.

[64]      D.M. testified that C.R. sexually assaulted her in two separate incidents after following her to Nanaimo and moving back in with her and the children as part of a reconciliation.

[65]      C.R. testified that no such incidents took place. He testified that he travelled to Nanaimo to attend a court hearing to get Alberta orders recognized in British Columbia because D.M. was denying him access to D.W.R. and K.M.R.

[66]      I disbelieve D.M.’s evidence for the following reasons.

[67]      First, the impossibility of the event occurring because C.R. was not in Nanaimo when the incident was first alleged to have occurred. On March 14, 2018, D.M. went to the hospital in Nanaimo to report that C.R. sexually assaulted her on March 3, and 4, 2018. Reference to those hospital records was included in a Report to Crown Counsel that was admitted into evidence. However, C.R. was not in British Columbia at this time. A letter of employment confirms that C.R. started a new job in Alberta on March 4, 2018.

[68]      Second, the internal inconsistencies in D.M.’s evidence. D.M. provided a shifting account in her evidence of when the sexual assaults occurred, ranging from February 28, 2018 to March 4, 2018. Although D.M. reported to hospital staff that the sexual assaults took place on March 3 and 4, 2018, she reported to police the following day that the sexual assaults took place on February 28, 2018 and March 1, 2018.

[69]      Third, the external inconsistencies in her evidence. D.M. testified that these sexual assaults occurred in the context of a reconciliation with C.R. and that C.R. was living with her and the children in Nanaimo at the time. However, that evidence does not accord with the parties’ separation in 2016, C.R.’s residency and employment status in 2018, or the nature of the order that C.R. obtained in Nanaimo. That order was issued on March 3, 2018 recognizing the Alberta orders for parenting time with the children. There would have been no need for C.R. to obtain such an order had the parties been living together and C.R. had unimpeded access to his children.

[70]      D.M.’s testimony does not accord with what she reported at the time. On March 14, 2018, a constable was alerted by a hospital social worker that D.M. was requesting information about restraining orders:

[71]      The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. D.M. reported that she was sexually assaulted approximately two weeks after the alleged incidents took place. Non-reporting is a stereotype that privileges complainants who resist and report immediately. A person may choose not to report for a variety of reasons. The issue I have with D.M.’s evidence is not with any delays in reporting. Rather, it is with her shifting account of what happened.

[72]      An inability to recall the sequence of such a traumatic event from years ago is not very surprising, and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of events was put forward by D.M. as a sincere and accurate recollection.

[73]      When a witness is comfortable with giving different versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of a witness. D.M.’s evidence in direct examination was shaken. Under cross-examination, the value of her evidence suffered irreparable damages. The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism.

[74]      I prefer C.R.’s evidence because his evidence is corroborated by independent evidence and consistent with the probabilities affecting the case as a whole and shown to be in existence at the time.

[75]      C.R. testified that he was living in Alberta when D.M. left the province with the children in December 2017. There were a number of parenting time orders in place. When C.R. travelled to see his children over the Christmas holidays in British Columbia, D.M. refused him. Although the Alberta order was “police enforceable”, it did not appear to be police enforceable in British Columbia. When C.R. tried to enforce the Alberta order in British Columbia, he was told by the police that he first had to get the order recognized by the courts in British Columbia. C.R. travelled to Nanaimo in February 2018 to get the Alberta orders recognized in British Columbia so that he could see his children. C.R. testified that he did not see D.M. during this visit. After the court hearing, C.R. returned to Calgary to work.

[76]      By his own admission, C.R. had trouble remembering dates. My finding that C.R. was in Nanaimo on February 23, 2018 and returned to Alberta to start a new job on March 4, 2018 is based on independent documentary evidence. The court record shows that C.R. attended a court hearing in Nanaimo two days before [omitted for publication] birthday. The Nanaimo court order indicates that C.R. was the only party present in court on February 23, 2018. D.W.R. affirmed in his affidavit that he did not see his father for extended periods of time in 2018. His employment record indicates that he started a new job in Alberta on March 4, 2018.

[77]      While I find that his evidence was not reliable as to the timing of events, I find that C.R. was a credible witness. Although there were some inaccuracies and mistakes in C.R.’s evidence, there was no aspect of evasiveness in his responses. He readily admitted facts that went against his interests. By his own admission, C.R. had a poor memory and was unable to recall days, months, and even, years. He found the number of court proceedings overwhelming and was emotional when recalling some of the events. His inability to remember dates was consistent, regardless of whether that memory would have assisted or not assisted his case. There was no evidence of reconstruction during testimony. His evidence was corroborated by independent documentary evidence.

[78]      Although the order was issued pursuant to a date stamp on March 2, 2018, the hearing actually took place before The Honourable Judge Saunders on February 23, 2018. C.R. and D.M. would have received a copy of that order after the date it was issued. I observe that the actual date of the hearing on the court order, the 23^rd day of February, is blurry and could have easily been mistaken for the 28^th day of February, which D.M. testified was the earliest date of the sexual assault. The dates that D.M. gave for the sexual assault ranged from approximately five days to ten days after C.R. attended the court hearing in Nanaimo.

[79]      The Crown did not approve the charge of sexual assault. Rather, the Crown applied for a Peace Bond. On June 1, 2018, C.R. was charged for incidents that occurred from March 3, 2018 to March 4, 2018, in Nanaimo contrary to s. 810(1)(a) of the Criminal Code. C.R. was alleged to have caused D.M. to have “reasonable grounds to fear and does fear that he will cause personal injury to her in that he threatened her” on these dates.

[80]      On September 17, 2018, C.R. provided confirmation to Crown counsel that he was not in the province at the time the alleged incident occurred. He attached a letter of employment confirming that he started his new job in Alberta on March 4, 2018. C.R. was self-represented, and asked Crown counsel whether he still needed to appear in court in Nanaimo. Crown counsel responded to C.R.:

[81]      On September 18, 2018, a new information was sworn and C.R. was charged for incidents that occurred from February 28, 2018 and March 1, 2018 in Nanaimo under s. 810(1)(a) of the Criminal Code.

[82]      C.R. entered into a Peace Bond on October 25, 2018, for one year. I accept his explanation for doing so. He testified that the Crown asked him to agree to a Peace Bond. He assumed it was a peace bond to keep the peace between two parties. He found out months later that he agreed that something happened when he should not have. He did not have legal representation and just wanted the charges to go away so that he could see his children again.

[83]      The Recognizance was for one year, and C.R. was ordered to have no contact or communication, directly or indirectly, with D.M. except through legal counsel, by written communication for the purpose of arranging visits with children, or when picking up or dropping off children at a time and place agreed by D.M.

[84]      I have accorded little weight to the fact that C.R. entered into a Peace Bond given my findings on his whereabouts. C.R. was not in the province of British Columbia when D.M. first alleged that the sexual assaults took place. C.R. attended the court hearing five days before the earliest date of the amended sexual assault allegation on February 28, 2018.

[85]      Based on the evidence that I do accept, I conclude that D.M. made a false allegation that C.R. sexually assaulted her.

[86]      An incident that occurred between C.R. and D.M. on November 21, 2019. There is conflicting evidence on what happened that evening.

[87]      D.M. testified that C.R. assaulted her and K.M.R. after he went into one of his “anger and rages”. D.M. gave evidence that she was strangled and assaulted, near death, had K.M.R. not entered the room and tried to get C.R. off her. She testified that C.R. assaulted K.M.R. during that incident. She provided photographs of the purported injuries that she and K.M.R. suffered.

[88]      C.R. testified that D.M. fabricated these allegations after he told her to move out and they had an argument. C.R. gave evidence of an argument that occurred after he confronted her about her drinking and asked her to move out.

[89]      I disbelieve D.M.’s evidence for the following reasons.

[90]      First, her evidence is internally inconsistent as it relates to K.M.R.  D.M. testified that C.R. hit K.M.R. However, D.M. said the opposite to her three oldest children during a meeting with them in February 2021 that M.W.M. surreptitiously recorded. In the surreptitious recording, D.M. told her children that the Crown prosecutor will not let C.R. have K.M.R.  M.W.M. asks her whether C.R. hit K.M.R. Her response is no. She said that she caught C.R. cheating on her for the tenth time. She said that they moved to Victoria because C.R. would not stop calling the police on them.

[91]      M.W.M. surreptitiously recorded his mother during a meeting that he and his two other siblings – I.H. and D.W. – had with her in Alberta in February 2021. It appears the meeting took place on Saturday February 27, 2021 at around 3 pm [surreptitious recording]. I find that M.W.M. was sincere and honest in his reasons for doing so. M.W.M. was not invited to attend that lunch. His siblings invited him to attend the lunch for support. He recorded the conversation on his phone to “keep everyone in their truth so they can’t take back what they said”. He explains that there have been words put in their mouths so he records conversations with his mother to keep the conversation “honest” and “everyone to the truth”.

[92]      The authenticity of the surreptitious recording is not in dispute. Rather, D.M. feels betrayed by her son, M.W.M. She describes the surreptitious recording as abusive. D.M. accuses her children of provoking her and then recording her responses. She believes that C.R. manipulated her three oldest children to provoke her into making incriminating statements and then used those recordings to have the criminal charges stayed against him. D.M. challenged the admissibility of that recording primarily on these bases. I admitted that recording into evidence in an oral ruling dated September 10, 2021, which is appended to this decision as Appendix “C”.

[93]      I find that M.W.M. was a credible witness, and for the most part, his evidence is corroborated by independent evidence. I have taken into consideration whether M.W.M.’s feelings for his mother have coloured his perception of events. M.W.M. describes his mother as manipulative and abusive, and it has affected every aspect of his life. He does not want to hurt his mother, but feels responsible as the oldest sibling to look out for the best interests of his siblings. M.W.M. explains that it would have saved him a lot of pain had he been out of his mother’s care sooner. He felt traumatized by the sheer number of people who went in and out of his life as a child under her care, and the cut-off of communication. As a result, some of his impressions were not reliable. For example, M.W.M. testified that D.W.R. does not want a relationship with his mother, but that is not consistent with D.W.R.’s affidavit that indicates that he wants a relationship with his mother. I have accorded less weight to his impressionistic evidence when not corroborated by independent evidence.

[94]      Second, I disbelieve the evidence of M.L.  M.L. testified that K.M.R. spontaneously confided in her that she had witnessed her father assaulting her mother in November 2019. M.L. testified that K.M.R. told her that she saw her dad choking her mom and that it went on for a while. M.L. testified that K.M.R. told her the exact same story a couple of times and it has not waivered.

[95]      I was troubled by M.L.’s testimony about the frequency of her interactions with K.M.R. given the impossibility of those interactions.

[96]      D.M. and M.L. were neighbours in Nanaimo only for approximately three months from June 2020 to August 2020. M.L. testified that she spent at least five days a week with K.M.R. between June 2020 and August 2020. She described them as a “dynamic duo” and that they “did pretty much everything together”. M.L. would spend hours alone with K.M.R. in her craft room when D.M. was purportedly working next door.

[97]      However, K.M.R. was living in foster care in Richmond between June 2020 and August 2020. It was simply not possible for M.L. to have seen K.M.R. daily during this time period. Since K.M.R. was in foster care during the COVID pandemic, she was initially only seeing her parents on video. When in-person visits resumed, they took place in Richmond. Although K.M.R. visited D.M. in Nanaimo, those in-person visits only took place towards the end of the summer. Both sets of foster parents confirmed that those visits took place in August 2020 and early September 2020.

[98]      A letter from D.W.R.’s foster parents was entered into evidence. They confirm that they took D.W.R. and his sister K.M.R. every Monday at 8 pm to the Horseshoe Bay Ferry to meet with their mother. They were weekly visits and would typically last 3 days. D.M. would return the children every Wednesday to the Tsawwassen ferry terminal. R.T. picked them up at the ferry terminal and drove them to her home. The B.’s would then pick D.W.R. up at her home and drive him back.

[99]      In re-direct, it was put to M.L. the possibility of her being mistaken about the frequency of her interactions with K.M.R.  M.L. was steadfast in her belief that she saw K.M.R. daily. M.L. testified that it was not possible that she just saw K.M.R. on weekends.

[100]   M.L.’s description of the frequency of her interactions with K.M.R. was an important feature of her recollection of what she remembers K.M.R. saying to her. And yet this memory is simply wrong. The impossibility of this memory makes one seriously question what else might be honestly remembered by M.L., and yet, actually be wrong. This demonstrably false memory makes me question all of her evidence. I have rejected her evidence for these reasons.

[101]   Third, I have accorded little weight to the documents that D.M. has submitted in support of her allegations. D.M. submitted a number of photographs of bruises that she testified were taken of her and K.M.R. shortly after the incident. These photographs are not dated, and there is no independent corroborative evidence as to when they were taken and of whom. The medical documents show that D.M. reported symptoms to different doctors and are of limited assistance.

[102]   Counsel for D.M. asks me to consider the heightened awareness of D.M. being the victim of domestic abuse, as demonstrated by her seeking domestic violence support services and counselling. D.M. testified that the domestic violence has been so severe and traumatizing that she has only sought counselling and support services over the past few years in British Columbia. A.W. testified that her sister had been in past relationships that involved domestic violence. The timing of when D.M. accessed these services does not assist me in determining whether the allegations against C.R. in November 2019 are true.

[103]   I prefer C.R.’s evidence because it harmonizes with independent evidence that has been accepted.

[104]   On November 21, 2019, C.R. told D.M. to leave the house because her drinking was out of control. He was upset that D.M. had returned from the gym, with K.M.R. in play care, and had been drinking. They had a verbal argument in the presence of both children, and D.M. left the house not long after. D.M. called the police and alleged that C.R. had choked her, hit her, and that he had also hit and threw K.M.R. against the wall. She also told police that K.M.R. was a witness to the assault. That evening, C.R. was arrested by police in his home in the presence of both children.

[105]   My conclusion is bolstered by D.W.R.’s observations. There is no dispute that D.W.R. was in the house that evening. D.W.R. attests that he has never seen his dad hit his mother or K.M.R.: para. 15. D.M. made bald assertions that C.R. has “rages and anger”. However, D.W.R. attests that his mother says that his father “yells and has a temper but it’s not true”: para. 15. D.W.R. has witnessed both of his parents yelling at each other. The police have been called but he believes they have been called for no reason.

[106]   On November 22, 2019, C.R. was charged with assaulting D.M. and K.M.R. contrary to s. 266, and uttering threats to D.M. to cause death or bodily harm to her contrary to s. 264.1(1) of the Criminal Code. The Crown proceeded on a new information a few weeks later. On December 9, 2019, C.R. was charged on four counts with assault with choking D.M. contrary to s. 267(c), assaulting D.M. and K.M.R. contrary to s. 266, and uttering threats to D.M. to cause death or bodily harm to her contrary to s. 264.1(1) of the Criminal Code. The Crown issued a stay of proceedings on these charges on April 23, 2021.

[107]   I find that C.R. readily acknowledged facts against his interests. He acknowledges that his children have experienced family violence, and that he bears responsibility for the family violence that they experienced. He described that family violence as mostly verbal. He also readily acknowledged one incident when it was physical. His evidence is corroborated by the police incident reports from Alberta. In 2009, C.R. sustained injuries in an incident with D.M. that involved him spitting on her and her hitting him with a cell phone. In 2017, C.R. attended anger management counselling, as part of the parenting time orders, and found the courses to be 100% valuable. These admissions add to the credibility of his evidence.

[108]   After a careful consideration of all of the evidence, I have determined that D.M. has engaged in a pattern of coercive and controlling violence towards C.R. after each of the criminal charges. My finding of fact is based on the following evidence.

[109]   I find that D.M. followed C.R. to Victoria, and then Richmond, and used their children to gain access to his home.

[110]   Around May 2018, C.R. obtained employment in Victoria and moved there. He visited the children on weekends in Nanaimo.

[111]   At some point, there was a conflict between C.R. and D.M.’s downstairs tenants. The fact that C.R. had conflict with K.V., the downstairs tenants in Nanaimo, is not material to the issues that I need to decide. It shows, at best, that both parties behaved poorly in dealing with television noise and the downstairs tenant’s dog.

[112]   Although D.M. denies that C.R. was living in Victoria at that time, C.R.’s employment records show that he was employed in Victoria from June 15, 2018, to March 2019.

[113]   When it was put to D.M. that C.R. got a job in Victoria in June 2018, she testified in cross-examination that he was living with her in Nanaimo and she bought him a car so he could commute for work in Victoria. She says that he begged to come back to her and her family at the end of May 2018, and he took the greyhound bus to do that.

[114]   In April 2019, C.R. was hired by his former employer, E.D., to work on a construction project in Richmond. He moved to Richmond and rented a house on No. 5 Road. Soon thereafter, D.M. moved to Victoria.

[115]   D.M. testified that she moved to Victoria with D.W.R. and K.M.R. after the school year in Nanaimo finished in June 2019. She claims that it was for a reconciliation with C.R. When it was put to her that C.R. had already left Victoria in March 2019, D.M. acknowledged that she did not know whether he was in Victoria when she moved there with the children.

[116]   On July 16, 2019, there was a court order in Victoria that gave C.R. parenting time once a week and an October court date. Before the next court date, D.M. had moved to Richmond. D.M. claims that the move to Richmond was a reconciliation with C.R. who wanted to be with her, one of several times that she has claimed that she and C.R. reconciled since 2016. She says that he invited her back because he wanted to be a family again.

[117]   I have rejected her evidence of a reconciliation for the reasons set out above. Given my credibility findings, where there is a conflict in the evidence between D.M. and C.R., I prefer the evidence of C.R.

[118]   C.R. testified that D.M. contacted him in the middle of August 2019 that she and the children were going to be homeless. D.M. denies saying this. D.M. testified that she was not evicted, but rather, left because it was no longer safe for her children. She testified both that she did and she did not register her children for that school year in Langford.

[119]   C.R. testified that he invited D.M. and the children to move back in with him in Richmond temporarily because D.M. told him that she was going to be homeless in Victoria. He did not want to see his children in a shelter.

[120]   C.R. testified that he invited them to stay with him in Richmond for three months while D.M. got back on her feet. He laid out the ground rules: three months, no rent, no alcohol, and no reconciliation. D.M. moved into the house with the children, who attended school in Richmond. C.R. testified that D.M.’s drinking was excessive, and he asked her to leave after three months. D.M. denies that the “no alcohol rule” existed and claims that she did not drink there.

[121]   In October, two things happened. On October 10, 2019, Judge Rogers ordered that the children not be removed from Richmond, gave the parents equal parenting time, and ended C.R.’s child support and accumulation of arrears. Finally, the court terminated all of the outstanding protection orders against C.R. That is the same month, D.M. made a false allegation of impropriety against C.R. to his employer.

[122]   In November, after C.R. told D.M. that she had to move out, D.M. made a false allegation that C.R. had assaulted her and K.M.R.  C.R. was criminally charged. He was in jail briefly and had to leave the house.

[123]   On December 11, 2019, the Honourable Judge Raven released C.R. on a release order with a number of conditions. C.R. was restricted from having any contact with D.M. and his children except for the purposes of arranging finances for the family. C.R. was also allowed to have contact or communication with K.M.R. or D.W.R. as permitted by the Ministry of Children and Family Development.

[124]   D.M. was required by Crown counsel to produce a lease with her name on it, which she could not do, because C.R. was on that lease for the house on No. 5 Road. C.R. found another house on [omitted for publication] Drive for D.M. and the children. He signed the lease and D.M.’s name was added later. C.R. was ordered not to attend at the residence on [omitted for publication] Drive.

[125]   W.C. was the landlord of [omitted for publication] Drive. He testified about problems that arose when the rent was due. He only saw C.R. once. All of his dealings were with D.M. Although I found that W.C. was a credible witness, his evidence was largely not relevant to these proceedings.

[126]   On January 16, 2020, the Honourable Judge Raven issued an order that the Director would supervise the care of K.M.R. and D.W.R. In that order, D.M. must not allow C.R. access to the children unless approved in advance by the Director. D.M. and C.R. must allow the Director to visit and inspect the home and to have direct access to the children whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the children.

[127]   In March 2020, K.M.R. and D.W.R. were placed in foster care because D.M. failed to follow the supervision order and failed to ask the Ministry for permission to let C.R. watch K.M.R. The parties were evicted from [omitted for publication] Drive. D.M. testified that after the children were taken into foster care, she had to leave the home on [omitted for publication] Drive because C.R. was not paying rent anymore.

[128]   C.R. found a new residence in [omitted for publication] where he still lives. D.M. went into a transition house. She then sought that the bail conditions be changed to allow her access to C.R.’s new home at [omitted for publication]. After she got there, she appears to have quit her job.

[129]   D.M. now claims that the [omitted for publication] house was hers, and the parties had reconciled. When it was put to her that C.R. rented the house on [omitted for publication], she responded that “the house we were supposed to be living in together, he is still there”. When it was put to her that it was his house, she says “where my furniture and children’s stuff is”.

[130]   On the one hand, D.M. testified that the parties broke up in March 2020. On the other hand, D.M. testified that the parties moved back in together in April 2020 for the purposes of reconciling.

[131]   D.M. testified that C.R. suggested to her to work from his home so they could start couples counselling and that house would be both be theirs.

[132]   When it was put to her that they were not going into couples counselling, she said that it was “absolutely true”. D.M. testified that C.R. really wanted to stay with her and “make our family work”. She also testified that they were going into couples counselling. However, this is in the context of C.R. being arrested for breaching his bail conditions by looking after K.M.R., which resulted in both children going into foster care.

[133]   She was evasive in her testimony when it was put to her that there was a no communication order between her and C.R., and that a clause in the bail order allowed her to work in his house between 7 am to 5 pm. Rather than answer the question, D.M. testified about attending couples counselling. She testified that they never attended couples counselling because he was cheating on her again. When it was put to her that there was no relationship between her and C.R., she testified “absolutely there was.”

[134]   I find that D.M. asked that the bail order be changed under the pretense that she needed a secure internet connection to work. The release order was ultimately varied to allow D.M. to work in C.R.’s house.

[135]   She asked Crown counsel to change the bail order so that she and C.R. could reside together. Crown refused. A month later, she asked again, and after C.R. agreed for her to use the house when he was at work, the bail was changed. She quit work. He wanted her to leave and get his keys back. She refused. This was around April to May 2020 when the children were in foster care.

[136]   D.M. approached Crown counsel in March 2020 shortly after she was evicted, to have C.R.’s bail conditions changed so that she could stay with him. She said that she could not work on her computer at the transition house (which she called a woman’s shelter).

[137]   On March 30, 2020, Crown counsel advised D.M. that they would not be changing C.R.’s bail conditions. “MCFD does care if you live together when it comes to determining whether you are able to provide a safe environment for [K.M.R.] and [D.W.R.]. If you and [C.R.] are living together they will conclude that that is not a safe environment for your children. You could lose your children for some time.”

[138]   Later that day, D.M. responded to Crown counsel. She wrote, “I have been keeping the kids safe except for when I need emergency help from [C.R.] and no help from MCFD.” She wrote that it was “unsettling” that MCFD is telling her “they have no concerns with this situation”, and once again, she is “hearing the opposite” from Crown counsel. She wrote that she “needed emergency care for [K.M.R.] due this Virus nothing else”. I understand her email to be referring to COVID. She says that the police apprehended C.R. by mistake and that it was “bad luck”. She accused the Ministry of “pure lies” but “confirmed truth by my Son”. She writes that she is seeking this as a “temporary solution” because the shelters and transition homes are full, and she does not meet the criteria for a woman fleeing abuse.

[139]   On April 20, 2020, Crown counsel wrote to defence counsel for C.R.:

[140]   On April 21, 2020, the release order was varied by the Honourable Judge Milne.

[141]   I find that after the release order was changed, D.M. quit her job. On April 27, 2020, defence counsel emailed Crown counsel:

[142]   D.M. said that it was “incorrect” that once she was in that house, she stopped working. She testified that she was working and only took a leave of absence from work after she left the house. She testified that she left the house because she caught him cheating.

[143]   I find that after she quit her job, D.M. refused to return the house keys to C.R.

[144]   The following day, on April 28, defence counsel reported to Crown counsel that D.M. refused to return the keys, and when C.R. said to her that he would not permit her to return if she did not give him the keys, she replied that she would be back tomorrow and “…don’t worry, the cops will be here to let me in in the morning”.

[145]   When it was put to her that C.R. wanted his keys back, and she refused to give the keys to him, she responded that “I did give him his keys”. She was evasive. When the correspondence between Crown counsel and C.R.’s defence counsel was put to her, she acknowledged that Crown counsel talked to her about the situation, brought it up, and suggested that she return the keys. She finally gave the keys back by putting them in the mailbox. She explained that she had company equipment in his home, and that he wanted his keys back but she wanted the keys because she wanted the equipment back. She testified that he “purposely wanted me to get fired and lose my job”.

[146]   On May 5, 2020, defence counsel reported to Crown counsel that C.R. will no longer be allowing D.M. to attend at his residence. He reported to his lawyer that when he advised her of this, she was “very angry” and told him that she was “going to arrange with the police to attend the residence” the following day to collect her belongings, but he says that none of her belongings are at the residence.

[147]   On May 19, 2020, defence counsel reported to Crown counsel that C.R.’s residence is at the end of a cul-de-sac, and that C.R. saw D.M. twice that weekend coming out of the cul-de-sac when he was about to enter it. On one occasion, he saw her with someone else. Defence counsel advised him to call the police.

[148]   Children are uniquely impacted by family violence. One of M.W.M.’s first memories is being 4 years old hiding in the closet while his biological parents were “going at it” and the police came. He says that he has been traumatized his whole life by that incident.

[149]   The Ministry removed the children from the care of D.M. after she left K.M.R. in C.R.’s care when she went to Victoria with D.W.R. for an orthodontics appointment on March 10, 2020. D.M. asked C.R. to watch K.M.R. because she says that K.M.R. was sick. C.R. was arrested in front of K.M.R. in a very traumatic incident for her.

[150]   D.M. gave inconsistent evidence as to her awareness of her obligations under that court order. In response to the question of whether she was concerned that she was breaching a court order by not consulting with the Ministry, D.M. gave a number of different responses. She responded that her daughter was sick and C.R. was the only support she had. On the one hand, she denies that she knew she was in breach of that court order. On the other hand, she testified that she knew she was not supposed to do it. She testified that she told the Ministry afterwards what she did. She acknowledges that C.R. called her to tell her that police had arrived at the house. When it was put to her that she told C.R. that she got permission from MCFD to have him look after K.M.R., D.M. says “that is a lie”.

[151]   I accept R.T.’s evidence that K.M.R.’s experience in foster care was very hard on her. R.T. fostered K.M.R. for approximately six months from March 2020 to September 2020. That coincided with the start of the COVID pandemic. K.M.R.’s only contact with both parents was through phone or video. During this time, she would “retire in the evenings crying, she missed her mom and dad”. Once the COVID restrictions lifted, and in-person visits began, “the emotional upset before bed was not as intense”.

[152]   In assessing the impact of family violence on the best interests of D.W.R. and K.M.R., I must consider whether there is a pattern of coercive or controlling behaviour in relation to a family member.

[153]   In Fielding v. Fielding, 2013 ONSC 1458, Mackinnin J listed 17 alienating strategies which she found could be used as a checklist of parental misconduct which may impair the child’s relationship with the other parent: badmouthing; limiting contact; interfering with communication; limiting mention and photographs of the targeted parent; withdrawing love or expressions of anger; telling the child that the targeted parent does not love them; forcing the child to choose; creating the impression that the targeted parent is dangerous; confiding in the child personal adult and litigation information; forcing the child to reject the targeted parent; referring to the targeted parent by their first name; referring to a step-parent as mom or dad and encouraging the child to do the same; withholding medical, social and academic information from the targeted parent and keeping their name off records; changing the child’s name to remove association with the targeted parent; and cultivating dependency on self or undermining the authority of the targeted parent.

[154]   My assessment of the evidence is that D.M. has engaged in the following alienating behaviours.

[155]   D.M. gave evidence that she does not want her children to have a relationship with C.R. because of her experiences with domestic violence.

[156]   D.W.R. attests that his mother tells his sister, K.M.R., bad things about his father and makes him seem bad. By way of example, D.W.R. explains that his father has tried to send K.M.R. presents, but his mother will say that he forgot when in fact she returns the presents to make him look bad.

[157]   D.W.R. attests that he is able to talk to both of his parents “although my mom often tries to put stuff in my head about dad”: affidavit, para. 19.

[158]   D.W.R. has experienced his mother saying negative things about his father. D.W.R. attests that “she talks badly about him”: affidavit, para. 16. By contrast, D.W.R. has not experienced his father saying negative things about his mother. D.W.R. attests that “my father does not badmouth my mother at all in our home”: affidavit, para. 18.

[159]   In the surreptitious recording, D.M. described C.R. as the “master manipulator”, “narcissist”, “sabotages everything”.

[160]   D.M. has demonstrated through her actions that she is not prepared to accommodate any relationship that K.M.R. would like to have with anyone who she perceives as working against her interests. The fallout for K.M.R. is that she has not been able to see her father, most of her siblings, aunts, or paternal grandparents for extended periods of time when under her mother’s care.

[161]   D.M. has not let K.M.R. see or speak with anyone in her family except her maternal grandparents, and D.W.R., when he visits her in Nanaimo, for over one year. D.W.R. only sees K.M.R. at his mother’s home because K.M.R. “is not allowed to visit at my father’s home”: affidavit, para. 21.

[162]   There is no court order preventing K.M.R. from spending time with her father. When D.M. was asked what court order prevents C.R. from having contact with his daughter, she says the bail condition. Those conditions do not deprive these visits as long as the Ministry was agreeable. When it was put to her that the bail conditions put the contact between K.M.R. and C.R. at the hands of the Ministry and the Ministry withdrew in September 2020 and took no position, her response was the K.M.R.’s birthday was only one month later and she had safety concerns.

[163]   For K.M.R.’s first birthday out of care, which was October 2020, D.M. allowed K.M.R. to talk to her older sister D.W. She does not remember whether K.M.R. talked to D.W.R., and that was it.

[164]   D.W.R. gave evidence that his mother has made it difficult for K.M.R. to see her father and other siblings. D.W.R.’s evidence is corroborated by an exchange between him and his mother on K.M.R.’s birthday on [omitted for publication], 2020. D.M. wrote:

[165]   J.K. has not seen K.M.R. since she returned into her mother’s care in September 2020. J.K. tried calling K.M.R. four times, and called her for Thanksgiving and D.M. hung up on her. She called K.M.R. for her birthday in October 2020 and D.M. hung up on her. The third time that she called D.M. said that it was too late for her to be bothering with her grandchildren and hung up on her. The fourth time she called, it rang busy so she assumed that her phone number was blocked.

[166]   A.W. testified that some family members, including some of K.M.R.’s siblings, have not seen K.M.R. in four years. In the surreptitious recording, M.W.M. confronted his mother that she has not seen all three of her kids together in four years. M.W.M. testified that, over the past year, he has spoken to K.M.R. for a very short period of time, maybe 30 seconds. She had called from a private number to speak with D.W. on her birthday. He told her that he missed her and loves her and hopes that one day they can be together again, and that it does not have to be this way. A.W. testified “we are missing [K.M.R]”.

[167]   In the surreptitious recording, D.M. acknowledges that “[K.M.R] loves [C.R.]” but blames the criminal charges for why K.M.R. is not allowed to talk to C.R. In the surreptitious recording, D.M. tells her children that K.M.R. is happy. D.W. says that “she never sees her dad though.” D.M. says she can’t because there are bail conditions. D.W. says “because of you”. D.M. says it is because of the Crown prosecutor who laughed when C.R. asked to get the charges dropped.

[168]   D.W. says that she should let K.M.R. “go with [C.R.] so she does better”. D.M. says “so I don’t see her again” and her daughter replies “so you can get better.”

[169]   D.W. asks her mother to “let [K.M.R.] call us like you promised multiple times”. D.M. says to her three older children that she was told not to let K.M.R. speak with them because “nobody wants to jeopardize the stuff that’s going to court in the next couple of months”. D.W. asks her whether she is scared of hiding something. D.M. says to her three older children “that they told me you guys can talk to her but to make sure that I’m actually in the room so that [K.M.R.] is not getting manipulated in family court”. D.M. was, in effect, accusing her three older children of trying to manipulate their youngest sister. M.W.M. responds to his mother by saying that she has, in fact, manipulated them.

[170]   D.M. told her children that C.R. threatened to take away all of her kids from her because she exposed his abuse. She also said that J.K. phoned and threatened to take K.M.R. away from her.

[171]   K.M.R. was not allowed to see her siblings or other members of her family during the August 2021 visit to Alberta. J.K. only found out from D.W.R. that K.M.R. was in Alberta in 2021, and she did not get a chance to see her. K.M.R. had a phone call with her sister, D.W., when she as in Calgary in August 2021. D.M. testified that K.M.R. wished her sister a happy birthday over the phone, even though both of them were in Calgary and could have met in person. D.M. testified that she did not let K.M.R. visit with any of her older siblings because “no body contacted me”. D.M. explained that her relatives are very toxic, and she does not want that toxicity around K.M.R.

[172]   D.M. limited D.W.R.’s contact with his father when he was younger. At para. 13 of his affidavit, D.W.R. attests “In 2018 I was not allowed to see my father or have contact with him for a period of time”. His evidence is corroborated by J.K. During a visit in Calgary, sometime around 2017, she took D.W.R. swimming and had a conversation with him. D.W.R. mentioned that he can’t call his father because his mother would get mad at him. She told her grandson that when he turns 18 years old, he can call whomever he wants, but until then, he has to be respectful. When they got home, she got the nastiest text from D.M. She did not tell D.M. what D.W.R. said. Rather, she said that they discussed D.W.R.’s future and what they can do in the future. She acknowledged that C.R.’s name came up and explained that D.W.R. should be able to hear his father’s name.

[173]   M.W.M. testified that D.M. had rules for them as children, and one of those was an expectation not to talk at all. It was imbedded in them that they can’t talk about what is happening at home because it is private and no one else’s business. If they said something, it felt like the end of the world, because they were not supposed to talk at all.

[174]   I find that D.M. did not tell any family members in Alberta that D.W.R. and K.M.R. were in foster care.

[175]   J.K. remembers that D.M. called her at the end of March and asked her if she can take the kids. She said yes, and was waiting for D.M. to call her back. After 48 hours, J.K. called her back and asked her whether she needed her to take the kids. She never heard back from D.M. The lack of communication was not unusual for her. Both she and O.W. only found out from D.M. about a week before that she was leaving for Nanaimo again in 2017.

[176]   J.K. eventually got the call that the children were apprehended from C.R. because D.M. had gone to a doctor’s appointment with D.W.R. and C.R. got arrested and they took K.M.R. who had been with him.

[177]   J.K. offered to foster D.W.R. and K.M.R., and went through the process of being approved as a foster parent which included a police record check and social worker visit to her home. She would have driven from Alberta to British Columbia to get them in an instant. The Ministry did not give her the children, but she was in touch with their foster parents. She talked to K.M.R. and described R.T. as a lovely lady. She thanked R.T. for taking care of her granddaughter. She travelled to British Columbia for a week in August 2020 and saw K.M.R. as much as the Ministry allowed her to.

[178]   While in foster care, D.W.R. reached out to M.W.M. separately. They were playing games online, and while playing and chatting on their microphones, he told him that he had to get off soon because he was in a foster home and they did not let him play after a certain time. D.W.R. told M.W.M. that he and K.M.R. were separated and put into different foster homes, and it had been that way for almost two months before he confided in his brother. D.W.R. did not want M.W.M. to tell anyone, and was really hesitant on coming forward, but M.W.M. felt it was important to tell the family. M.W.M. contacted his A.W. and his siblings, D.W. and I.H., to let them know. They were not sure what was going on.

[179]   A.W. found out that her nephew, D.W.R., was in foster care after he reached out to let her know. A.W. testified that D.W.R. told her, “Auntie, I am sorry, I was not allowed to talk to you”. A.W. described D.W.R. feeling like he had to apologize to her for not being able to talk to her. She told D.W.R. that it was not his fault, that he is family, and that he is cared for and loved.

[180]   The three older siblings decided to confront their mother. A.W. testified that M.W.M., D.W., and I.H. called D.M. on Mother’s Day in May 2020, which was also [omitted for publication] birthday that year. They called from her home, and although she was not listening to the call, she heard bits and pieces. D.M. did not know that her children were aware that D.W.R. and K.M.R. were in foster care. They asked to speak with their younger siblings. D.M. lied to them and said that they were with her, that she had left K.M.R. with someone, because she had gone hiking with her girlfriends. They then confronted her and told her that they knew the kids were in foster care.

[181]   In the surreptitious recording of February 2021, D.M. said “[D.W.R.] cracked and he called you guys”. D.M. testified that D.W.R. apologized to her for calling his other siblings.

[182]   D.M. is not financially supporting D.W.R., and she may not have the means to do so. There is no court order requiring her to. However, D.M. could have supported D.W.R. in other ways such as provided D.W.R. with love, affection, comfort, and emotional support. D.M. has made a decision to reduce or terminate contact with D.W.R. after he expressed an interest to live with his father. In doing so, D.M. has withdrawn those ordinary supports.

[183]   In Chartier v. Chartier, [1998] S.C.R. No. 79, the Supreme Court of Canada discussed the parental obligations towards children by approving this statement from the Alberta Court of Appeal in Theriault v. Theriault (1994) ABCA 199:

[184]   Failure to take responsibility for one’s child is neglect or abandonment. The refusal of affection or comfort has real negative impacts on a child: it causes harm.

[185]   D.W.R. made significant efforts to schedule a summer visit with his mother. He provided a summer schedule to his mother via text on June 9, 2021, where he outlined that he would be going to Calgary from June 28 to July 10, then to Richmond from July 10 to 16, and then he asked if he could come to Nanaimo to visit with her and K.M.R. from July 16 to 26. D.M. never confirmed the July 16 to 26 visit despite him asking again. He called and texted her while he was in Calgary, but she had disconnected the phone and did not pick up or return messages.

[186]   D.W.R.’s view is that his mother was unhappy that he was visiting extended family in Alberta because of her own negative relationships with them. His view is corroborated by the evidence of D.M. who testified that her family is toxic and sabotage her time with her children.

[187]   I find that D.M. reduced contact with D.W.R. after he expressed an interest to visit his extended family in Alberta. Rather than facilitate a visit between her youngest children before D.W.R.’s departure on June 28, D.M. made herself unavailable.

[188]   D.W.R. wanted to see his mother the weekend of June 19 before he left for Calgary on June 28. D.M. asked him for more information and then delayed her decision until three days before her son’s proposed visit. On Wednesday June 16, 2021, D.M. texted her son to say that she is not available for him to visit in Nanaimo that weekend, because she and K.M.R. had a dentist appointment in Victoria. She wrote, “I will definitely see you next weekend” for “our regular weekend visits”. D.W.R. reminded his mother that he could not come the following weekend and that he already sent her the itinerary that he was travelling to Alberta. D.M. texted her son that she does not agree with him leaving for Alberta, and “I am not going through this right now I have to get [K.M.R.] ready for bed”.

[189]   D.M. blamed D.W.R. for sending her an itinerary but not following through on his plans. When it was put to D.M. that she did not confirm the July 16 to 26 visit with D.W.R., D.M. testified that she phoned him and that is why there is no record of her response. D.M. gave evidence that June 28 was her weekend with him, and that on July 16, she and K.M.R. were waiting for him but he never showed up. She testified, “I came to find out that he was in Calgary still on my time”.

[190]   D.W.R.’s view is that his mother ignored him for the first half of the summer. She was unresponsive and unavailable for visits. She then threw D.W.R. into the litigation by sending him long emails accusing him of lying and spying on her. It is not in the best interests of a child to be placed in an adversarial position against their parents: JESD v. YEP, 2018 BCCA 286, para. 55.

[191]   His view is corroborated by email correspondence between him and his mother. Based on my review of that correspondence, I find that D.W.R. asked politely many times if he could visit D.M. and K.M.R. in Nanaimo in August 2021. I find that D.M. travelled with K.M.R. to Calgary from August 11 to 22, 2021, but did not tell her son, D.W.R., where she was.

[192]   On August 10, 2021, D.W.R. tried calling his mother but her phone did not work. D.M. testified that she changed her phone number in July for security reasons, but that D.W.R. could have gotten a hold of her by email. D.W.R. emailed his mother on August 11 asking whether he could visit before school started. D.W.R. emailed his mother a few days later on August 13 asking whether she changed her phone number. D.M. acknowledges that she did not respond to him “for security reasons again” and she “did not go into why her phone changed.” D.W.R. emailed his mother on August 21 and asked if she would be home that weekend.

[193]   D.M. perceived D.W.R. as being disrespectful in his email communications. She testified that D.W.R. was “demanding to come to my home”. She testified that she did not respond to some of his emails “for safety reasons”. D.M. testified that she lied to her son about her whereabouts and provided the following explanation:

[194]   D.M. told D.W.R. that she would let him know when she got back home, but she was not sure when that would be. She acknowledged that this made her son upset. D.M. testified that:

[195]   On Saturday August 21, D.M. responded to D.W.R. that she is “going to be away still”. When it was put to her that she was returning to Nanaimo the following day, she testified that she did not know that because her plans were still up in the air and it depended on how her dad was feeling. She testified that the trip “was not planned”.

[196]   D.W.R. emailed his mother again on August 22 and asked if he could visit her and K.M.R. before school. D.M. responded that she was worried about a fire in Ladysmith and that smoke from that fire might impact his asthma. D.W.R. responded by email, “I could probably still come cause ladysmith is far from your house”.

[197]   At the end of August, and the weekend before a court hearing on D.M.’s application to cross-examine her son on his affidavit, there were a flurry of emails between D.M. and her son, D.W.R.

[198]   The email exchange began with D.W.R. asking his mother whether he could come for a weekend visit to Nanaimo to see her and K.M.R. On Saturday August 28, 2021, at 7:07 pm, D.W.R. wrote to his mother, “if your home around the 10^th could I come for the weekend mom?” Rather than respond to his request, D.M. wrote him a flurry of long emails accusing him of lying and telling him that she did not trust him. At 8:34 pm, D.M. wrote:

[199]   Four minutes later, D.M. wrote:

[200]   At 9:08 pm, D.W.R. responds to his mother:

[201]   At 10:18 pm, D.M. wrote:

[202]   It appears that D.W.R. did not have a good night, because he emailed his mother in the early hours of the following morning at 3:33 am on Sunday August 29, 2021:

[203]   D.M. waited three hours before responding. On Aug 29, 2021, at 6:40 am, D.M. wrote to her son:

[204]   D.W.R. responded approximately ten hours later. On Sunday August 29, 2021 at 4:21 pm, D.W.R. wrote to his mother:

[205]   The result was that D.W.R. was deprived any visits with his mother and sister over the summer.

[206]   D.M. did not want D.W.R. to visit for two reasons. First, she testified that D.W.R. should have been there visiting her in July. She did not want her other child, K.M.R., to suffer or have her summer on hold because D.W.R. did not follow through on his plans. When it was put to her that she did not confirm D.W.R.’s plans, she testified that she called him just before she changed her phone number, but he never picked up the phone because he was in Calgary. This had happened before, and she had enough of it and had to move on. She does not believe it is true that D.W.R. tried to call her and text her when he was in Calgary but she did not respond. When it was put to her that she blew D.W.R. off, she responded that “you are 100% wrong”.

[207]   Second, D.M. testified that she did not want D.W.R. coming to her home and recording her and taking down notes and giving it to his lawyer. D.M. testified that she “did not feel safe with him being in the home especially with the trial coming up”. When it was put to her that she drew D.W.R. into the conflict by accusing him of lying, she said that “he is lying and she was correcting him”. She believes that he said sorry to her because he was acknowledging that he was lying and she accused his lawyer of not reading the emails properly.

[208]   I find that D.M. involved D.W.R. in the litigation and blamed him, which is not in his best interests. During the continuation of the trial in October 2021, D.M. blamed D.W.R. for purportedly getting her and K.M.R. sick. Although her son had asked to come visit at the end of October to celebrate K.M.R.’s birthday and take her trick or treating, D.M. had not yet confirmed whether he could come that weekend, which was only three days away. D.M. testified that there is “toxicity around him”.

[209]   The experiences that D.W.R. has had with his mother is consistent with the experiences of his older siblings. A.W. describes her sister as “discarding” her children, D.W., I.H., and M.W.M.

[210]   M.W.M. wanted to live with his father because there was more room and more structure. His mother did not try to get him back: “she let me go”. M.W.M. has probably spent a total of one to two weeks in total with his mother over the past four years.

[211]   M.W.M. would have preferred to have lived with his dad earlier, but wanted to stay connected with his siblings. Although he was able to escape by living with his father, he felt badly for his younger brothers and sisters. After M.W.M. decided to live with his father, he tried to maintain contact with his siblings. He could call his mother, but it would go to voice mail. He was a hurt teenager and genuinely felt that his mother hindered his ability to communicate with his siblings. As he got older, and turned 18, he realized that his mother did not have that control on him and he tried to rebuild a relationship with his siblings.

[212]   In the surreptitious recording, M.W.M. accuses his mother of abusing them and hurting them. M.W.M. says “we hurt for a long time” and have never felt her love. M.W.M. tells her that, as her kids, they get the scraps and are like puzzle pieces in her life. He says it was “like we were not going to grow up and be people. It is almost like if you could have us in your control still you would”.

[213]   B.H. testified that I.H. has not visited D.M. in Nanaimo since Christmas 2018. He believes that was the last time. He does not think the spring visit in 2019 happened. He has had contact with D.M. over the phone every 2 or 3 months. He is not aware whether I.H. texts with his mother.

[214]   M.W.M. testified that his mother fought for D.W. just to fight with her sister, A.W. A.W. explained that the court process with her sister dragged on over 2018 and 2019. Even after she was appointed as a guardian for her niece, they had to go back into court because D.M. wanted the final order updated so that A.W. paid for D.W. to visit D.M. in British Columbia. A.W. agreed, and despite this, D.M. has not accessed her parenting time with D.W. and just “cut her child off”.

[215]   D.M. argues that she tried to see her daughter, but that her sister prevented those visits. I reject that argument based on the following evidence. Although D.M. was supposed to give 30 days’ written notice, she gave 48 hours’ notice requesting her daughter to visit over the Christmas holidays one year. A.W. did not know where her sister was living and did not want to put D.W. on a plane without an updated address. D.M. was upset with her sister. A.W. explains that D.W. had school, work, and family plans with her biological father over the Christmas holidays. She was frustrated with her sister for not following the court order and not appreciating the other things that needed to be coordinated for her daughter.

[216]   D.M. did not call her daughter D.W. for her graduation from high school. When D.W. graduated from high school, it was C.R. and A.W. who celebrated her graduation and organized a party with the whole extended family. A.W. testified that together with C.R. they organized a graduation party for D.W. in June 2021. C.R. wanted to do a surprise party for D.W., and foster D.W.R.’s relationships with his older siblings. A.W. testified that he was active in keeping the siblings together. J.K. hosted the party. They wanted K.M.R. to be there. Everyone was there except K.M.R. The photographs emphasizes D.M.’s isolation of K.M.R. from her siblings, her father and extended family on both sides.

[217]   R.T. testified that, during her initial conversation with D.M., she did not ask questions about her or her home, about where her daughter was living or staying. Rather, R.T. remembers D.M. warning her that C.R. was a “narcissist”, stay away from him, and that he was trouble. R.T. was totally under the impression that D.M. had suffered years of physical and emotional abuse from C.R. and she was doing a lot of counselling to break the cycle of abuse.

[218]   R.T. gave evidence that D.M. “made it very clear” that she wanted her and K.M.R. to have as little contact as possible with C.R. As time went on, D.M. also asked her to limit and supervise phone contact with K.M.R.’s paternal grandmother, J.K.  R.T. remembers D.M. often making derogatory remarks about C.R. to her and K.M.R.

[219]   I found R.T. to be a credible and reliable witness. Her opportunity for knowledge spanned six months when K.M.R. was living under her foster care. She stuck to the facts and provided her evidence free of bias. She made admissions of fact that were against her interests, which included an incident where she left K.M.R. unattended in a park. Counsel for D.M. argues that R.T. blamed K.M.R. for that incident, but did not raise that issue in cross-examination. Rather, Counsel for D.M. only asked one unrelated question in cross-examination, so her evidence was largely uncontested.

[220]   M.W.M. testified that up until September of 2020, he still had the narrative that D.M. put in his head that C.R. was a bad person. M.W.M. then saw how well C.R. treated D.W.R.

[221]   A.W. acknowledges that in a court proceeding in Alberta for guardianship of D.W., she referred to C.R. as a “concern” and an “abuser”. She was relying on an affidavit of her sister, D.M., that she was fleeing domestic violence in December 2017. D.M. did not attend the court proceeding regarding her older daughter, D.W.

[222]   C.R. has had difficulties getting access to any information regarding K.M.R.’s school. When it was put to D.M. that she is telling professionals that are providing services to K.M.R. that they cannot talk to C.R. for safety reasons, she said “I have not said nothing to anybody.” She says she has given the school bail conditions, which they have on file, and has shared her history of domestic violence and abuse. She testified “right now, they have safety issues because that is what happened to me”.

[223]   D.M. testified that she told the school of the history of violence and assaults on K.M.R. when she tried to save D.M.’s life. She told the school that C.R. does not live on the island and she was afraid that if they did not put these things in place, C.R. would come and remove K.M.R. just like he did to D.W.R. and then “I would not have my kids”.

[224]   When it was put to her that the most recent criminal charges were stayed, and that no bail conditions are present, D.M. explained that she has not had time to withdraw those bail conditions from K.M.R.’s school.

[225]   When it was put to her whether she has corrected the information after the Ministry withdrew and the charges were dropped, D.M. said that “the school did not have to know about the ministry”. She testified that “she told them in April that the charges have been stayed but she still has concerns” and that her allegations of domestic violence are the “truth”.

[226]   D.M. testified that she has not provided report cards to C.R. because she does not have them and “they do it differently on the island”. She testified that she does not know what the school records say about K.M.R.’s biological father, but she confirms that he is not listed as an emergency contact for K.M.R.  D.M. suggested that M.L. is listed as an emergency contact for K.M.R.

[227]   I find that D.M. has obstructed the ability of her children to have and foster loving and supportive relationships with other family members. M.W.M. said that his mother gets vindictive and does not want her kids to have a good time so she calls the cops.

[228]   D.M. has made false reports to the police, which had the effect of preventing her son D.W.R. from seeing his family.

[229]   C.R. made a trip with D.W.R. to Alberta to see his siblings and both sides of his extended family. D.W.R. was only there for about a day when A.W. got a call from the police saying that D.W.R. had been kidnapped. She explained to the police that, no, D.W.R. had not been kidnapped but rather had been taken by one of his guardians in British Columbia to visit his family in Alberta. C.R. had no idea what was going on, but did not want any trouble so he rushed back with D.W.R. to British Columbia. A.W. believes that her sister called the police. She explains that her sister often calls the police when she does not like what is going on.

[230]   In the surreptitious recording, her children confront D.M. about that incident. M.W.M. said that he “came out here to see us”. D.W. said, “he seen us and then you got them in trouble and [D.W.R.] had to go back”. D.M. explains that her lawyer told her to do that and she did not get them in trouble.

[231]   I find that D.M. did the same to her older daughter, D.W., who travelled to British Columbia to see her younger siblings, D.W.R. and K.M.R., when they were in foster care in the summer of 2020. A.W. made arrangements for D.W. to stay with C.R.  C.R. paid for the ticket for D.W. to come, and D.W. came with her blessing.

[232]   A.W. did not know how her sister found out, but she was upset. R.T. testified that K.M.R.’s social worker recommended that D.W. visit her while she is in foster care.

[233]   On the second or third night of D.W.’s trip in British Columbia, A.W. got a call from the police in Alberta at around midnight who were doing a safety check on D.W.  A.W. explained to them that she is D.W.’s guardian and had arranged for D.W. to travel to British Columbia to see her younger siblings. She said that it was a planned visit and that her niece was staying with C.R.  A.W. told the police in Alberta that her sister, D.M., abuses the system and uses the police and the courts in an improper manner.

[234]   A.W. described her sister as “vindictive” and “malicious”. She isolates the parents from the child. Her pattern involves over two decades of engaging the courts if she is not receiving money. She says that her main form of income is child support because she does not work. There is a lot of conflict, if she perceives that someone is cheating on her.

[235]   Her older children confronted D.M. in February 2021. In the surreptitious recording, D.W. tells her mother that she has called the cops every time she went to see C.R. Her mom said why didn’t they just tell her they were coming. D.W. says that she does not want to tell her mother when she is visiting because her mother would just call the cops.

[236]   B.H. testified that after a confrontation with D.M. in 2015, his contact with I.H. was “limited and regulated and censored”. She listened to their conversations, and if she did not like something, she would steal the phone away from I.H.  B.H. denies that C.R. caused these difficulties. B.H. testified that he did not communicate and rarely saw C.R. after the first year of his relationship with D.M.

[237]   In assessing the impact of family violence on the best interests of D.W.R. and K.M.R., I must consider the physical, emotional, and psychological harm or risk of harm to the child. I find that D.M. has engaged in controlling coercive behaviour which could place her children at risk.

[238]   Take, for example, what transpired during their transition from foster care. D.M. disconnecting her son’s phone and prevented him from leaving Nanaimo on the pretense that they had contracted COVID.

[239]   On September 10, 2020, the parties appeared before the Honourable Judge Craig including the Director for the Ministry. C.R. sought an order to return D.W.R. to him, and sought direction from the court on the issue of D.M. refusing to return D.W.R. to the Ministry or C.R.

[240]   That day, the Director withdrew from the proceedings. The withdrawal form was the only documentary evidence that I received from the Ministry, and confirms the understanding of the Director. It was the Director’s understanding that, although both children have been returned to their parents, due to C.R.’s current bail conditions, K.M.R. must reside with D.M. It is the Director’s understanding that D.W.R. has expressed a desire to live with his father. The Director took no issues with this arrangement as any issues pertaining to the children’s residency will be addressed through the Family Law Act proceedings. Since the Ministry withdrew from proceedings, the underlying reasons for the removal of the children were never ruled on by a court.

[241]   D.W.R. chose to live with C.R., and when D.M. tried to make him stay with her at their last foster care visit, he left and met his father. The court approved his residence on an interim basis.

[242]   Since C.R. was still on a release order from the criminal charges from Richmond, his release order was changed. On September 9, 2020, the Honourable Judge Craig issued a new release order that lifted the protective conditions as they relate to D.W.R.:

[243]   According to D.W.R., it was his understanding that he would spend one week in foster care at the end of the summer, have a weekend visit with his mother in Nanaimo, and then move in with his father in September.

[244]   D.W.R. attests that when he left his mother’s home in September 2020, his mother said that his father had kidnapped him. D.W.R. says that his mother “makes stuff up” about his father: affidavit para. 13.

[245]   D.M. tried to prevent D.W.R. from returning to his father. In his affidavit, D.W.R. attests at paragraph 12:

[246]   D.M. denies telling her son that they had COVID. She testified that she was concerned that they had COVID and that she was just following the public health rules by requiring her children to quarantine with her until they had their COVID test results.

[247]   Her evidence about her concerns of being exposed to COVID does not reconcile with her actions or the timeline of events regarding her ferry travel. D.M. testified that she was feeling sick and had concerns that she had contracted COVID before she took the ferry with the children from Richmond to Nanaimo. When it was put to her that she was sick on the ferry, she said that she was not sick, just “not well”.

[248]   When it was put to her that she let D.W.R. go up to a public part of the ferry, and interact with others, she says “that is incorrect” and “[D.W.R] knew previously that I was sick and it did not get worse until the next day. She says that she was not sick on the ferry, but she got sick the following day. However, that day, while D.W.R. was at her house, she allowed him to have friends over.

[249]   R.T. was liaising with the social worker as to the transition from foster care to the parents. They were organizing where the kids would sleep for one night or two, because they were being released from care on a Wednesday. D.W.R. was supposed to come back on the ferry on Tuesday because D.W.R. was returning home into the care of his father. K.M.R. was allowed to stay one extra night in Nanaimo because there was no point in bringing her back to R.T. only to have her return into the care of her mother.

[250]   R.T. testified that she heard from D.W.R.’s foster parents that D.M. was not returning either K.M.R. or D.W.R. because she claimed that they contracted COVID from her foster home. She was told by D.M. that they were going for testing on Friday, and that it would take about a week for the results to come back, so D.W.R. was also staying in Nanaimo.

[251]   R.T. phoned the public health emergency line for COVID regarding the other kids in her care. She was instructed to allow them to go to school, and that if the test results were positive, the health authorities would contact her and they would be required to do two weeks of isolation. R.T. said that from D.M.’s perspective, she was already starting the two weeks of isolation. She was not contacted by the health authorities, and she assumes that she would have been contacted by the health authorities had D.M. or K.M.R. tested positive for COVID.

[252]   M.L. testified that D.M. told her before she left to attend a trauma treatment centre in Powell River that both her and K.M.R. had a rash and were sick to their stomachs. She was also told that D.W.R. was not well and they all had to get tested for COVID.

[253]   In the surreptitious recording, I.H. asked his mother whether K.M.R. had COVID in September 2020. D.M. did not answer the question, but rather explained how her daughter developed a rash, and that they were both feeling sick, and that they booked their appointments to get tested and BC health recommended that they quarantine.

[254]   D.M. was very upset with the circumstances of D.W.R.’s departure from her home. D.M. testified that D.W.R. left her home when she was sleeping in the middle of the night, without her knowing, when he was supposed to be isolating for COVID in September 2020. She testified that he was supposed to stay in Nanaimo because they were in isolation for COVID.

[255]   D.M. testified that D.W.R. did not have a cell phone because she disconnected his cell phone the night that he left her home in September 2020 “because that was disrespectful behaviour” and he was “provoking me”. D.M. testified that she took his phone away because he was recording her and provoking her, and was “very disrespectful to me”, “I paid for that phone”, “I told him to stop it”. As a parent, she said that she took the phone away because she warned him to stop being disrespectful and he did not.

[256]   D.M. denies that this act prevented D.W.R. from having contact with his father, because “he had X box”.

[257]   D.W.R. confirmed in a text to his father on September 9, 2020, that his mother was going to cut off his phone. This made it more dangerous for her son to return to Richmond. She put his safety at risk. However, a text exchange between D.W.R. and his father was admitted into evidence. That text exchange is from September 9, 2020:

[258]   This evidence is corroborated by a letter drafted by the B.’s who said that on Tuesday September 8, 2020, they texted D.M. to confirm D.W.R.’s arrival. She did not respond until the following night, Wednesday September 9, 2020, stating that she would not be returning with D.W.R. and would be keeping D.W.R. with her. D.W.R. had expressed concerns to them that he was not being allowed to return to Vancouver. He asked for their intervention. She lost contact with him because his phone became disconnected and placed out of service. D.W.R. returned to them on September 11, 2020, to retrieve the remainder of his belongings from the foster parents.

[259]   D.M. testified that her communication with D.W.R. was limited from September 2020 to March 2021 in part because she took away his cell phone.

[260]   I conclude from the evidence as a whole that D.M. has a history of alcohol abuse, and her evidence about current use of alcohol is internally and externally inconsistent. This causes me to find that her use of alcohol continues to be a risk factor for the child in her care. My conclusion is based on the following evidence.

[261]   C.R. testified that D.M. has a problem with alcohol. His evidence is corroborated by her family members, children, and ex-partner. Her sister and oldest son confirmed her ongoing abuse of alcohol. They expressed concerns about her inadequate parenting and noted that the older daughter, D.W., was essentially raising K.M.R.

[262]   A.W. testified that they have a history of alcohol use in their family. She remembers her parents picking D.M. up in high school because she got inebriated over the lunch hour. She was taken to the hospital, and had to get her stomach pumped. She describes her sister as a functioning alcoholic. She observed her sister hide boxed wine in her closet.

[263]   M.W.M. testified that he remembers seeing his mom drink alcohol, and there was never really a time when alcohol was not involved. M.W.M. testified that, during his visit to see his siblings over Christmas in 2015, M.W.M. could tell that his mother was in tough times. He observed that there was not a lot to eat in the house, but there was a lot of alcohol. There were no decorations or presents for Christmas. M.W.M. cooked and cleaned for his younger siblings during that visit. It was nice to see his siblings, but other than that, it was not a great time.

[264]   B.H. testified that he has witnessed D.M. drinking when they were together. He acknowledged that they both had “issues with alcohol”. His son, I.H., told him that he did not like his mother’s alcoholism and that his mother drank less when C.R. was around.

[265]   A parenting time order from Alberta requires D.M. to abstain from using alcohol before her visits with her daughter, D.W.  A.W. testified that D.W., who was represented by her own legal counsel during those proceedings, made the request and D.M. fought her daughter’s request in court.

[266]   I am concerned about the impact of D.M.’s alcohol use on her ability to care for K.M.R.  A.W. is concerned that D.M.’s alcoholism impacts her functioning and coping mechanisms, just the consistency of being able to make those choices that she needs a clear mind to be able to make in the best interests of her children.

[267]   A.W. described the impacts of her sister’s alcohol use on her ability to care for her children. She observed her sister sleeping in, not taking her children to school, not keeping a job. The children have had to move multiple times, and she has observed her be highly irritable with them when she has been drinking. She does not regularly cook meals for her children. Her children cannot approach her because she is intoxicated, or they are sneaking out of the house because she is passed out. There is no routine at bed time and no consistency with school.

[268]   A.W. testified that I.H. tried to keep his mother away from driving after she had been drinking. She remembers one party where I.H. asked her not to leave. He was 11 or 12 years old at the time. He was adamant that he did not want her to drive. He offered to comb her hair and put her to bed. She ended up passing out in the hallway.

[269]   A.W. testified that her niece, D.W., would creep along the floorboards when she first moved in with her. Her aunt asked her why, and she said that if she walked in the middle of the floor and her mother heard her while she was drinking, there would be conflict.

[270]   M.W.M. remembers his mother driving them home after she had been drinking at his auntie’s house. He remembers being woken up, along with his siblings, and told to get their pyjama’s on. She then drove them home.

[271]   B.H. testified that he has seen D.M. intoxicated and picking up I.H. with all of the kids in the car. B.H. testified that when he picked I.H. up and brought him from Nanaimo to Victoria for a visit, D.M. was upset that he drove down a highway that she considered unsafe. She drove down that highway with more kids and picked them up. She was drunk and her actions put her children at greater risk than the actions of B.H.

[272]   A.W. testified that she got a call from her sister, D.M., after getting into a car accident and expressing concerns that the police may test her blood alcohol level. Her car was hit on the passenger side shortly after she dropped off M.W.M. at his biological father’s residence. A.W. was at a social gathering with D.M. earlier in the evening, and observed her drinking.

[273]   D.M. denies that she was drinking alcohol when driving that evening. She testified that she was “fully awake” and that someone hit her car and was at fault.

[274]   I find that D.M. has taken no steps to address her alcohol abuse. D.M. denies that she has an alcohol use problem. She argues that C.R. has brought allegations of alcoholism for improper purposes and has brainwashed her family members into testifying against her. D.M. testified “I do not have a problem with alcohol”, and “why would I have a date if I am not an alcoholic”.

[275]   D.M. testified that M.W.M.’s evidence that she drank a lot when he was little, “is a lie”. She denied that the three older children were removed from her care because of her alcohol use and family violence. She testified that they were removed from her care because of abuse from their fathers. D.M. denies that she hid alcohol. She testified that it is 100% lies that she was leaving wine bottles in the trunk of her car and in her purse.

[276]   I disbelieve D.M.’s evidence based on the internal inconsistencies. On the one hand, D.M. testified that she does not have an issue with alcohol. On the other hand, D.M. testified that she has been sober for a number of years.

[277]   The shifting of facts was remarkable, and each version was put forward by D.M. as a sincere and accurate recollection. In closing submissions, her counsel argues that D.M. can establish her sobriety to February 2017 when she made some lifestyle changes. D.M. testified that she no longer drinks because she has been training in earnest to be a fitness model. K.V. testified to her belief that D.M. is not drinking alcohol because it would interfere with her performance goals.

[278]   In the surreptitious recording, M.W.M. confronts his mother about her alcoholism. D.M. initially denies that she has any issues with alcohol. She then acknowledges that there were issues in Alberta, but denies any issues with drinking and driving while in British Columbia.

[279]   However, D.M. also testified that the last time she consumed alcohol was on January 1, 2020. That evidence, however, is not consistent with the evidence of M.L. who testified that she regularly consumed alcohol with D.M. during meals they shared together between June 2020 and August 2020. M.L. testified that she saw D.M. drink alcohol socially with her over meals, but “it has never been an issue”. M.L. testified that D.M. only had wine during supper. In terms of who provided the wine, M.L. testified that “my fridge was her fridge” and “her fridge was my fridge”. When D.M. was confronted with that discrepancy in cross-examination, she accused M.L. of lying. D.M. denies that she consumed alcohol with M.L. She testified that she had ginger ale, and it was only M.L. who had glasses of wine.

[280]   D.W.R. should have started secondary school in Richmond at the beginning of September 2020. Due to the dispute between his parents, his father was unable to register him in secondary school.

[281]   After D.W.R. chose to live with his father, D.M. refused to let D.W.R. register in school in Richmond. Between September 2020 and February 2021, D.W.R. was not attending school in-person in Richmond because his mother did not want him to live at his father’s home and would not agree to let him register in school in Richmond: affidavit, para. 24.

[282]   This is despite the fact that D.W.R. wanted to attend that high school in person, and it was only a 10 minute walk from his father’s home. It was only after a court order in February 2021 that allowed his father to register him in school that D.W.R. has been attending school in-person. That transition was also difficult for D.W.R., because he had to join a new school half way through the school year. In the interim, he had to take online courses, which he also found difficult.

[283]   Between September 2020 and February 2021, during the period of time when his mother would not allow him to attend school in-person in Richmond, his father made arrangements for D.W.R. to do online schooling under the direction and supervision of his grandfather, K., who lives in Calgary. C.R. arranged with his stepfather, K., to assist D.W.R. with online schooling by setting up a schedule of courses for D.W.R., setting up a daily routine for D.W.R. to follow, and monitoring his course work: affidavit, para. 22. D.W.R. explained that while he was home schooling, he started school around 9 am each morning and took classes until 3 pm. His grandfather was able to log in and check his progress on whether he was attending. D.W.R. took classes in math, science, English, social studies, world history, and computer programming. His grandmother, J.K., corroborated his evidence. She was involved and provided support for his schooling.

[284]   On February 11, 2021, the Honourable Judge St. Pierre made a without prejudice interim order that D.W.R. be registered in a Richmond school. Within a week, D.W.R. advised his counsel that his father had taken care of the registration process and one of his dad’s first priorities was to register him in school.

[285]   On February 19, 2021, the Honourable Judge Chen made an interim order that the primary residence of D.W.R. shall be with C.R. who shall be the parent to determine where D.W.R. is enrolled in school. C.R. and D.M. will cooperate with each other in facilitating the flow of information from any doctors, dentists, or medical professionals that are treating D.W.R., or school information to each parent. Any notices which prevent treating professionals from doing so will be vacated.

[286]   D.M. acknowledges that she required this issue to go to a hearing. D.M. testified that she enrolled D.W.R. in school in Nanaimo on September 3, 2020, but did not consult C.R. because there were bail conditions for no contact. She says that D.W.R. told her he wanted to go to school in Nanaimo with his friends from elementary school. When it was put to her that she would not let D.W.R. enrol in school, she testified “he was going to school online” and “[D.W.R.] left my house in the middle of the night and I did not know he was in Richmond.”

[287]   The impact for D.W.R. is that he missed forming friendships with other students and connections with teachers at a new school.

[288]   D.W.R. chose to remain in Richmond and would not return to Nanaimo until there was a court order allowing him to return to Richmond.

[289]   D.W.R. explains that “I suspended calling my mother for a period of time after moving in with my father because I was afraid she would say things about me that were not accurate”: affidavit, para. 20. D.W.R. explains that he “needed to know there was a court order in place allowing me to live at my father’s home before I returned to having visits at my mother’s home”: affidavit, para. 20. On February 19, 2021, counsel for D.W.R. provided a summary of his views:

[290]   D.M. acknowledges that her contact with D.W.R. was limited during that time. The result was that it also limited D.W.R.’s contact with K.M.R.  D.M. testified that D.W.R. called her for her birthday on [omitted for publication], 2020, and “the next time he called me was when the order of Judge Chen on February 19, 2021, was made” and “he was excited to see me and [K.M.R.] and he wanted to make plans with me.”

[291]   When it was put to D.M. that D.W.R. did not come to see her in Nanaimo until there was a court order requiring her to return him, D.M. testified “his dad would not let him”. She denies objecting to D.W.R. having his own lawyer. On the one hand, she testified that she never said that D.W.R. could not have his own lawyer. On the other hand, she testified that she did not want him to have his own lawyer because “they put things in my children’s head.”

[292]   To visit his mother on weekends, D.W.R. travels by ferry between Nanaimo and Richmond. C.R. drives his son to the ferry terminals to facilitate these visits. Although it is more convenient for D.W.R. to leave from the Tsawwassen ferry terminal, his mother wanted him to leave from the ferry terminal in Horseshoe Bay because it was more convenient for her.

[293]   D.W.R. explains that his mother has told him that she would prefer that D.W.R. arrives at Departure Bay ferry terminal in Nanaimo, which would require him to depart from Horseshoe Bay in West Vancouver. Since D.W.R. was visiting his mother on weekends, this would require C.R. to drive through rush hour traffic on Friday afternoons. Travel to Horseshoe Bay from his home in Richmond after school on a Friday would take well over an hour, depending on bridge and tunnel traffic: affidavit, para. 11. Notwithstanding the inconvenience, C.R. drove his son to the Horseshoe Bay ferry terminal to facilitate his visits with his mother.

[294]   I find that it is in D.W.R.’s best interest to use the Tsawwassen terminal because it reduces the amount of time he has to travel in order to spend time with both of his parents. The Tsawwassen terminal is about a 30 minute drive from where D.W.R. lives in Richmond. D.W.R. explains that the drive to and from his mother’s home from Duke Point is about 20 to 25 minutes: affidavit, para. 10. Although D.M. did not want to disclose where she lives in Nanaimo, there is no dispute that the drive between her home and Departure Bay is less than that.

[295]   I find, as an undisputed fact, that K.M.R. lived with M.L. for two weeks over February 2021.

[296]   I find that D.M. exercised poor judgment in leaving K.M.R. with someone she hardly knew, and who was also in the process of receiving treatment for trauma. M.L. testified that she was living in Powell River at a treatment facility for trauma that she had experienced in the military.

[297]   The decision to leave K.M.R. with M.L. meant that K.M.R. missed almost two weeks of school. M.L. testified that she looked after K.M.R. for about 10 days, and that K.M.R. was not attending school while in her care. Rather than follow the school curriculum, M.L. testified that she did her own version of schooling that week, which included spelling, math, and French. They “just did it”. M.L. testified that K.M.R. was amazing and that she is always amazing.

[298]   Notwithstanding that K.M.R. was missing school, D.M. told her three older children that she left K.M.R. behind in British Columbia so that she would not be missing school. In the surreptitious recording, D.M. says to her older children that she did not want to take K.M.R. with her to Alberta because she would be missing 14 days of school.

[299]   D.M.’s decision to leave K.M.R. with M.L. resulted in missed opportunities for K.M.R. to spend time with her siblings. D.M. was in Calgary at that time meeting with three of K.M.R.’s siblings. In the surreptitious recording, her older children ask her why she did not bring K.M.R. to visit her sick father. Her children confront her about whether she came to visit a new boyfriend. She said no, she is just visiting her sick father and the man she was staying with is just a friend of her boyfriend in Kelowna. M.W.M. tells his mother that what she is doing is irrational because “a real parent” would have done a video call with their grandfather and would not have left K.M.R. with “some random person”. M.W.M. tells his mother that C.R. is “more of a parent to [D.W.R.] and [K.M.R.]” than she is.

[300]   D.M.’s decision to leave K.M.R. with M.L. also meant that K.M.R. missed an opportunity to see D.W.R. on his birthday. M.L. testified that there was a time around D.W.R.’s birthday when they tried to do a three-way call to wish him a happy birthday. It is not clear from her evidence whether that call came through.

[301]   D.W.R. is not a party to this proceeding. Pursuant to an order dated November 26, 2020, legal counsel from the Child and Youth Legal Centre was appointed to represent D.W.R. for the purposes of advocating his expressed views and interests [Child counsel].

[302]   I have recent independent evidence of D.W.R.’s views. I have received D.W.R.’s evidence by way of affidavit affirmed on August 24, 2021, which was marked as an exhibit in these proceedings. D.W.R. wanted to share his views through a summary of evidence filed by his lawyer. Since D.M. applied to cross-examine her son on his evidence, I issued an order on July 16, 2021, that D.W.R. file an affidavit and scheduled a hearing to receive submissions on this application.

[303]   I denied D.M.’s application to cross-examine her son on his affidavit for the reasons set out in my oral ruling of September 2, 2021, which is appended to this decision as Appendix “A.”

[304]   D.W.R. wishes to live with his father in Richmond. D.W.R. has expressed an interest in living with his father at para. 8 of his affidavit:

[305]   D.W.R. would like his father to have the responsibilities set out in ss. 41(a), (b), (c), (g), (h), and (i) of the Family Law Act. D.W.R. would like his guardians to share the responsibilities set out in ss. 41(d), (e), (j), (k), and (l) of the Family Law Act. Following his 16^th birthday, on or after [omitted for publication], 2013, D.W.R. would like to be able to apply for his own passport without the written consent of either guardian. D.W.R. would also like his guardians to jointly share healthcare responsibilities pursuant to s. 40(2) and (3) and s. 41(f) of the Family Law Act relating to giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child subject to s. 17 of the Infants Act.

[306]   It is D.W.R.’s view that his father has made decisions in his best interests. Since D.W.R. has been living with his father, C.R. has made significant efforts to support D.W.R.’s relationships with all members of D.W.R.’s extended family, which are in his best interests.

[307]   It is extremely important to D.W.R. to maintain close family relationships with K.M.R., his older siblings, his maternal aunts, and his grandparents on both sides of the family.

[308]   D.W.R. is close to his younger sister, K.M.R.  D.W.R. has confided in M.W.M. that he feels like he is the last sibling for K.M.R. and needs to be there for her. He wants to be a good big brother and have a normal relationship with her. In addition to K.M.R., D.W.R. has three older siblings who live in Calgary, Alberta: M.W.M., D.W., and I.H. They share the same mother but they each have different fathers. D.W.R. maintains a close relationship with his siblings, aunts, and grandparents, and visits them whenever he is in Calgary.

[309]   C.R. supported D.W.R. in celebrating the Christmas holidays with his siblings last year. Both D.W. and I.H. came to visit D.W.R. in Richmond during the Christmas holidays in 2020: affidavit para. 24. B.H. testified that I.H. is very attached to all of his siblings, and that he allowed I.H. to spend Christmas with D.W.R. and C.R. in Richmond in 2020. B.H. testified “when my son tells me that he trusts [C.R.] and wants to spend Christmas there, then I am going to be supportive of my son’s request and allow that.”

[310]   C.R. supported D.W.R. in visiting family members in Alberta last summer. D.W.R. describes being close and having a good relationship with his mother’s family and father’s family in Calgary: affidavit para. 21. During the summer holidays, he stays with each of his two aunts who are his mother’s sisters, A.W. and K.W. He also visits and spent time staying with his paternal grandparents. His last visit was over several weeks in July 2021.

[311]   M.W.M. has seen a positive change in D.W.R. since moving in with his father. M.W.M. described D.W.R. as “coming into himself”, and despite the challenges of going through puberty, being “more open” and “more willing to talk”. M.W.M. testified that it is nice to build a relationship with his younger brother that is not being controlled by their mother, D.M.

[312]   D.W.R. attests that he does a lot better living with his father: affidavit, para. 16. When D.W.R. lived with his mother, she would not let him have contact with his extended family. This is corroborated by similar experiences from M.W.M. who testified that when he left his mother’s care at the age of 13 years, she also hindered his relationships with siblings who were still in her care.

[313]   D.W.R. attests that he was not allowed to see his father or have contact with him for period of time in 2018: affidavit, para. 13. D.W.R. attests that there were also times when his mother would not let him have contact with other family members who live in Calgary: affidavit, para. 14.

[314]   A.W. tried to speak with D.W.R. on his birthday on February 25, 2018. He was not allowed to speak with her. He sent an Instagram message that he does not want to set off his mother or make more problems.

[315]   A.W. was not allowed to see D.W.R. and K.M.R. when they were living with her sister. She was only able to talk to D.W.R. after he moved back with C.R. in 2020. M.W.M. started connecting with D.W.R. in September 2020 after he returned into the care of C.R.

[316]   D.W.R. would like parenting time to be at his discretion. He has given five main reasons for this request.

[317]   First, the importance of school and social activities. D.W.R. loves his mom and it is important to maintain a relationship with her. However, he is nearly 15 years old and involved in school and social activities that are increasingly important to him as older teenager. I heard evidence from C.R. and R.T. that D.W.R. is social and excited to participate in school activities like basketball. D.W.R. is interested in playing basketball, and considers himself a decent player but he has been unable to play competitively due to COVID restrictions: affidavit, para. 23. Arranging visits at his discretion would give him the flexibility to engage in school and weekend activities.

[318]   Second, the issue of drug testing. D.M. insists that D.W.R. undergo drug testing before visiting her in Nanaimo, and that she will not allow him to visit K.M.R. unless he takes the drug test before each visit:

[319]   D.M. testified that D.W.R. comes off the ferry smelling like weed and has glassy eyes. She believes that D.W.R. is experimenting with drugs because C.R., and other members of her family – her sister, A.W., and her son, M.W.M. – smoke marijuana. She testified that her biggest fear is that K.M.R. will get into drugs.

[320]   D.W.R.’s position is that drug testing is inappropriate and unnecessary. D.W.R. refutes her allegation that he comes off the ferry smelling like weed and glassy eyes. I accept D.W.R.’s evidence as credible and reliable.

[321]   C.R. testified that he uses marijuana at night to help him sleep, and that he keeps it stored in a secure location. A.W. and M.W.M. both acknowledge using cannabis.

[322]   A.W. expressed concerns that D.W.R. was experimenting with drugs in the middle of the night during D.M.’s parenting time in Nanaimo. She testified that she found a snap chat photo that was posted by D.W.R. at 2 am in Nanaimo. A.W. found the photo and contacted D.M.  D.M. was not aware of the photo and accused her sister of lying. Given my credibility findings, I prefer the evidence of A.W.

[323]   D.M. denies that her children have done any drugs under her care. Her evidence is not consistent with the experience of B.H.  B.H. testified that I.H. was experimenting with drugs before he came into his care. He was already using marijuana, and there was a bottle of 4 mg hydro-morphine pills in his bag with D.M.’s name on it.

[324]   D.M. views herself as a “very good parent”. She denies that she is trying to control D.W.R. by requiring him to do a drug test before visits. She cannot contemplate that he might resent this request, or for this issue to be a source of conflict between them. She does not believe that K.M.R. is affected by this decision.

[325]   A.B. gave evidence that D.M. was a good person and a good parent. He had happy memories of D.M. at social gatherings with family and friends. However, his evidence was impressionistic and his opportunity for knowledge was limited. His evidence was of limited assistance in this proceeding.

[326]   I find that requiring a child to undergo drug testing without good reason is highly detrimental to the relationship between a child and their parent. It emphasizes a parent’s distrust of a child. D.M. testified that she does not trust her son, D.W.R. Such a requirement is another example of D.M. drawing D.W.R. into conflict with C.R.

[327]   Third, summer visit issues. I find that D.W.R. made significant efforts to schedule a summer visit with his mother. He provided a summer schedule to his mother via text on June 9, 2021, where he outlined that he would be going to Calgary, then to Richmond, then asked if he could visit her in Nanaimo. She never confirmed the July 16 to 26 visit despite him asking again. He called and texted her while he was in Calgary but she had disconnected phone and did not pick up or return his messages. D.W.R.’s view is that his mother was unhappy that he was visiting extended family because of her own negative relationships with them. Although she contends that he was being disrespectful in email communications to her, her perception does not accord with a reasonably objective observer. Those email communications clearly and expressly demonstrate that D.W.R. asked politely four times if he could visit her in August. In D.W.R.’s view, his mother ignored him for half of the summer, and when they were in touch by email, she was unresponsive and unavailable for visits. She then threw him into the litigation by sending him long emails by accusing him of lying and spying on her. She sent those emails to D.W.R. after she had received his affidavit on August 28 and 29, 2021. Her application to cross-examine her son on his affidavit was heard in court the following week on September 2, 2021.

[328]   Fourth, despite the scheduling issues, it is D.W.R.’s view that the arrangement has generally been working well. D.W.R. reported to his lawyer that the visits are going quite well. D.M. acknowledges that C.R. supports those visits. D.M. agrees that D.W.R. absolutely wants to maintain a relationship with her and K.M.R.  D.W.R. has demonstrated maturity by taking on active role in arranging visits in Nanaimo with his mother. D.W.R. continued to have visits with D.M. in September and had two visits with her and K.M.R. before the end of October.

[329]   Fifth, ferry travel. Although D.M. prefers that D.W.R. travel between Horseshoe Bay and Departure Bay, D.W.R. seeks permission to travel between Tsawwassen and Duke Point. He lives in southern Richmond, and the drive to Tsawwassen is shorter than the drive to Horseshoe Bay. It is important to facilitate the visits for D.M. to pick D.W.R. up at Duke Point. She testified that she is currently picking him up at Duke Point to make him happy.

[330]   I find that D.W.R.’s wishes are sincerely held for the following reasons. I have followed the procedural guidance on how to evaluate the credibility of children’s evidence: McMurray v. McMurray, 2007 MBQB 82 at para. 6:

[331]   First, the affidavit was prepared by D.W.R. and independent legal counsel. D.W.R. is represented by his own lawyer from the Child and Youth Legal Centre, which brings life to the foundational principles of the United Nations Convention of the Rights of Children when it comes to children’s participation in proceedings that affect them. His lawyer has expressed D.W.R.’s views on his behalf.

[332]   Second, his legal counsel provided services to him pro bono through the Child and Youth Legal Centre. His counsel began meeting with D.W.R. on February 1, 2021, and met with him seventeen times via video and telephone, and once in person. They also corresponded through text messages and email. As it relates to that affidavit, counsel met with D.W.R. over approximately seven months.

[333]   Third, through the course of their relationship with D.W.R., his legal counsel found him to be a “grounded, mature, and articulate young person”. Counsel observes that, “he is more than capable of expressing his views and has done so consistently over a period of time.”

[334]   Although I found one discrepancy in his affidavit, it is not material to the issues that I need to decide in this case. The affidavit states that D.W.R. and K.M.R. lived together in the same household until September 10, 2020. However, that is not accurate, as they were living separately in foster care for approximately six months between March 2020 and September 2020.

[335]   For all these reasons, I find that D.W.R. has the ability to exercise mature and independent judgment, and has formed his views in a reasonable and independent manner.

[336]   I have placed considerable weight on D.W.R.’s views for the following reasons. Since D.W.R. has the ability to exercise mature and independent judgment, and has formed his views in a reasonable and independent manner, his views must be considered as a significant factor in this case: LCT v. RK, 2018 BCSC 1016, at para. 34. This is even more so given that D.W.R. is now a teenager and 14 years old. For orders relating to teenagers to be practical, they must reasonably conform with their wishes: O’Connell v. McIndoe, 1998 BCCA 5835 at para. 13.

[337]   It is important for children to know that their views are heard and considered by the adults in their lives. Courts are called to “recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny”: SS v. RS, 2021 ONSC 2137 [SS v. RS], para. 27. The court in SS v. RS explained, “in practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall well-being”: para. 28.

[338]   While I acknowledge that the extent to which the input of a child affects the “best interests” assessment is as variable as the child’s circumstances, I accept the Supreme Court of Canada’s statement that “one thing can be said with certainty is that the input becomes increasingly determinative as the child matures”: AC v. Manitoba (Director of Child and Family Services) 2009 SCC 30 at paras. 87, and 92.

[339]   There is conflicting evidence between D.W.R.’s expressed views and what his mother, D.M., believes are his actual views. D.M. testified that D.W.R. told her that he wanted to live in Nanaimo, and that is why she did not agree to enrol him in school in Richmond.

[340]   I find that D.W.R. did not tell his mother this. I rely on the conversation on September 7, 2020, where D.W.R. told his mother multiple times that he would not stay in Nanaimo and wanted to go home to Richmond. D.W.R. chose to remain in Richmond and would not return to Nanaimo until there was a court order allowing him to return to Richmond.

[341]   D.W.R. indicated that living with his father felt better. In July 2020, while living in foster care, he indicated to his lawyer that his long term wish to be reunified with his father. D.W.R. refutes his mother’s allegations that he has been brainwashed or manipulated to live with his father.

[342]   D.W.R. expressed concerns that his mother would tell the court that he wanted to live with her even though “that is not true”: affidavit, para. 20. D.M. said that D.W.R. has been brainwashed to live with his father, but he has told her that is “not true”: affidavit, para. 7. D.W.R. attests that his father has not made any promises to him to get him to live with him. Rather, he has confided in a number of people that he genuinely wants to live with his father because his father’s home provides more stability.

[343]   I find that D.W.R.’s evidence has been corroborated by evidence that I found to be credible and reliable.

[344]   M.W.M. testified that D.W.R. confided in him about wanting to live with his dad because there was more stability. D.W.R. told M.W.M. that he has a routine and things to do at his dad’s place. With mom, he was alone, played games forever, and no one would know.

[345]   A.W. testified that D.W.R. told her that he would rather live with C.R. He missed his family and friends when he was living with his mother. It has been hard and he feels responsible for K.M.R.  D.W.R. complains about his mother’s drinking and makes sure that K.M.R. has lunch or breakfast when he visits.

[346]   R.T. testified that D.W.R. expressed to her that he really wanted to be with his dad but did not believe that his mom would let him do that. R.T. asked him why. D.W.R. responded that they move too much when with his mom. She encouraged D.W.R. to talk to his mom about his feelings, and he replied that he did not think she would listen to him. This conversation took place in the context of R.T. driving both children to the ferry terminal so that they could visit their mother in Nanaimo. R.T. acknowledged that D.W.R. did not talk about his feelings to strangers, and she was basically a stranger to him. She testified that towards the end of their time in foster care, and on the way from picking them up at the ferry, the issue of where the children would be living came up.

[347]   I disbelieve D.M.’s evidence because her subjective beliefs are not objectively reasonable. They do not harmonize with independent evidence or evidence that I have found to be credible and reliable.

[348]   D.M. testified that she moved away from Richmond expecting the Ministry to give both children to her. D.M. testified that the Ministry canvased D.W.R.’s views and ended foster care letting the parties sort out primary residence on their own. D.M. testified that the Ministry also facilitated counselling between C.R. and D.W.R.  D.M. argues that D.W.R.’s views changed during these counselling sessions and after unsupervised one-on-one contact with his father.

[349]   Although D.M. testified that D.W.R. told her he wanted to live with her, she also testified that “[D.W.R.] tells everyone different stories”. D.M. blames the Ministry for being misled. She testified that the social worker told her to pick up both kids and their belongings and register them in school in Nanaimo, which is what she did.

[350]   D.M. believes that D.W.R. has been brainwashed to live with his father. She testified to her belief that a number of people, professionals, and organizations have conspired against her to brainwash her child into saying something that is not true. Her belief is not that of a reasonably objective observer. When it was put to D.M. that D.W.R. told everyone that he wanted to live in Richmond, she testified that he told her that he wanted to live with her up until July 2020. D.M. testified that D.W.R. told her every day, when he was in foster care, that he wanted to come home and live with her.

[351]   D.M. testified that when everyone got a hold of her plans – C.R., her sister A.W., and the Ministry – they said “no, no, no, go with your dad”. D.M. says that she missed one of the weekends with her kids, and the Ministry lied to her and said that D.W.R. did not want to come to her home. She says that the Ministry got a lawyer for D.W.R. to put on the record that he wants to live with his dad.

[352]   D.M. testified to her belief that D.W.R. was manipulated through these counselling sessions with his father and visits with family in Calgary. There is no independent evidence to support this belief.

[353]   D.M. also believes that C.R. manipulated D.W. to spend time with him. However, R.T. gave evidence that she facilitated the visit between D.W. and her younger siblings, D.W.R. and K.M.R., while they were in foster care. D.M. chose not to participate in a visit that with both of her daughters.

[354]   Although D.M. also claims that C.R. solicited letters about her being an alcoholic, there is nothing in the evidence to support this claim.

[355]   Where there are conflicts in the evidence between D.W.R. and his mother, I prefer D.W.R.’s evidence for the following reasons. D.M. is unwilling to believe that anything D.W.R. says is true when it differs from her own deeply entrenched narrative. D.W.R. has continued to maintain relationships with both parents. He describes having a very positive relationship with his father, C.R. He describes having a generally positive relationship with his mother, D.M., aside from her accusations of lying and brainwashing. D.W.R. is more impartial, and his evidence has been corroborated in material respects by the evidence of other witnesses that I have found to be credible and reliable.

[356]   D.M. seeks a declaration of parental alienation as it relates to D.W.R. However, the Family Law Act does not allow a judge to make a declaration of parental alienation. Even if I had jurisdiction, there is no credible or reliable evidence to support a finding that C.R. has alienated D.W.R. from his mother: MYTC v. LHN, 2018 BCSC 1174 at para. 61.

[357]   There were challenges in obtaining K.M.R.’s views and facilitating her wishes to participate in this proceeding. Although the criminal charges against C.R. were stayed in April 2021, the issue of how to receive the views of this child was not resolved before the commencement of this hearing in September 2021.

[358]   D.M. gave evidence on K.M.R.’s views. She testified that K.M.R. wants to live with her in Nanaimo. D.M. submitted a letter that was handwritten by K.M.R. in August 2021 purportedly setting out her views about not wanting to live with her father:

[359]   I have placed little weight on this handwritten note given the evidence of D.W.R. who states in his affidavit at para. 17:

[360]   D.W.R.’s evidence about being asked by his mother to do things that were not true was corroborated by his older brother M.W.M. who said that D.M. told him to say many things in his life that was not true.

[361]   Section 202 of the Family Law Act gives the Court a broad discretion to admit hearsay and determine how the “child’s evidence” is received. “This section is protective of children in the litigation context as it does not require them to be witnesses in any litigation. It allows a neutral third party to prepare a report setting out the child’s views and this report can be received by the court notwithstanding its reporting of hearsay evidence”: Goldsmith v. Holden, 2020 BCSC 1501, para. 9.

[362]   On September 10, 2021, I issued an order pursuant to s. 202 of the Family Law Act that the Child and Youth Legal Centre meet with K.M.R. in person for the purposes of ascertaining, among other things, whether K.M.R. wishes to participate in this family law proceeding, and if so, how she wishes to participate. K.M.R. met in person with an advocate from the Child and Youth Legal Centre on September 14, 2021 [Child Advocate].

[363]   On September 15, 2021, I received a letter from the Child Advocate stating that K.M.R. “expressed surprise and excitement to learn that she could be involved in the court process and share her views”. K.M.R. expressed a preference to have her own lawyer represent her views to the court, like her brother does, but if she is not able to get her own lawyer, she would also be okay with a non-evaluative View of the Child report. After receiving submissions on the feasibility of appointing a lawyer for K.M.R. during trial, and given the evidence to date, I made the following order.

[364]   On September 20, 2021, I ordered an evaluative Views of the Child Report pursuant to s. 211(1)(b) of the Family Law Act to be prepared by a clinical psychologist before the continuation of the trial in October 2021. There is no dispute that the order was not complied with. I invited submissions on what inferences can be drawn from the fact that the order was not complied with.

[365]   I am not satisfied with the explanation provided by D.M. as to why she did not comply with the order. D.M. argues that she was misled regarding the cost of the report. She was expecting to split the cost of a $1500 report, not a $4000 report. D.M. argues that she did not have the time or money to meet with the clinical psychologist in Vancouver.

[366]   However, the initial cost estimate was for a non-evaluative views of the child report. The order made by this court was for an evaluative views of the child report, and it was clear on the record that the cost of such a report would be higher. This would have been what prompted counsel for C.R. to seek an alternate and more costly assessor.

[367]   I accept the submissions of Child counsel as to the timeline of events and counsel correspondence. Counsel for C.R. immediately contacted the other parties after the order was issued on September 20, 2021. On Sep 27, 2021, counsel for C.R. provided a list of clinical psychologists, their availability and fees, and sought comments. Counsel for C.R. gave the parties notice that Dr. Elterman met all of the criteria, confirmed his fee as $4000, and without further input, Dr. Elterman would be chosen. Child counsel provided input. On Sep 29, 2021, counsel for C.R. advised that Dr. Elterman’s name would be provided to the court as the assessor. There were several emails between Child counsel and counsel for D.M. thereafter. On October 12, 2021, there was email correspondence seeking an update between D.M. and Dr. Elterman. Several more emails were exchanged over the next five days. On October 17, 2021, counsel for D.M. advised by email that D.M. did not have the money for the report, was sick with the flu, and may have COVID.

[368]   Based on this timeline, I find that D.M. did not make sufficient efforts to comply with order. Counsel for C.R. highlighted the fee as early as September 27, 2021. The first time that Child counsel heard of D.M.’s inability to pay the retainer was 3 weeks later. If that was the reason D.M. could not comply then that could have been communicated much earlier.

[369]   For these reasons, I find by reasonable inference that D.M. did not comply with the order of September 20, 2021.

[370]   On October 29, 2021, I ordered that K.M.R. be represented by a Child Advocate for the purposes of attended two judicial interviews scheduled for December 3, 2021, and December 20, 2021. The interviews were recorded, but have been sealed pursuant to a court order. The purpose of the judicial interview was not to gather evidence or have K.M.R. provide information about a factual matter. Rather, I wanted to get a better understanding of K.M.R.’s views and feelings.

[371]   I decided to conduct a judicial interview of K.M.R. because judges have a legal responsibility to ensure that children are heard and that their views are properly weighed in most family violence cases. Relevant information is required to properly assess risk and to reach just and sustainable outcomes. Obtaining relevant information from children in family violence cases involves recognizing children as full rights bearers. In Michel v. Graydon, 2020 SCC 24, children are described as full rights bearers, and “courts are not to be discouraged from defending the rights of children when they have the opportunity to do that”: para. 87. This includes the right to be free from violence and right to be heard and right to have their views taken seriously in court proceedings.

[372]   Such an interpretation of the Family Law Act is consistent with children’s human rights and Canada’s obligations under international law. Article 1 of the Convention defines the child. Article 19 protects the child from all forms of violence when they are in care. Article 12(1) provides all children with two rights: the right to express their views and the right to have those views given due weight in accordance with the child’s age and maturity. Article 12(2) says the right to be heard specifically applies to any judicial proceeding affecting the child, which includes family violence cases. The General Comments created by the UN Committee on the Rights of the Child may not be binding, but I have found them highly persuasive.

[373]   The evidence as a whole supports a finding that D.W.R. and K.M.R. enjoyed strong bonds of love and affection with their parents, siblings, grandparents, and extended family members. A parenting arrangement should facilitate all of these relationships.

[374]   After D.W.R. was born, C.R.’s mother, J.K., babysat all of her grandchildren (D.W.R., I.H., D.W., and M.W.M.). She took care of them on weekdays, and after K.M.R. was born, she continued to look after the younger siblings during the week until their move to Nanaimo in 2015. She has fond memories of spending time with them.

[375]   Although C.R. is her son, J.K. called D.M. when she wanted to see her grandchildren. Most of the time, she would pick D.W.R. and K.M.R. up from school on Fridays and spend the weekend with the grandchildren at her house. J.K. is on good terms with O.W. who also helped with childcare. Both J.K. and O.W. celebrated together birthdays and holidays for D.W.R. and K.M.R.

[376]   I find that K.M.R. has a special relationship with her older sister D.W.  D.W. was approximately 8 years old when K.M.R. was born. M.W.M. remembers his mother telling his sister D.W. that she had another girl for her so she could take care of her. His evidence is corroborated by J.K., who remembers D.W. telling her that her mother gave her a little sister, and she was grateful for it.

[377]   M.W.M. described the relationship between K.M.R. and D.W. as “very strong”. J.K. described their relationship as special and close, “two sisters to the heart”. J.K. observed D.W. changing K.M.R.’s diaper, feeding her, cuddling with her. She described D.W. as “her little mamma”. M.W.M. observed that K.M.R. sometimes would not go to sleep unless her sister put her down.

[378]   R.T. took K.M.R. to her visits with her parents when she was in foster care. R.T. facilitated a visit between K.M.R. and her older sister D.W. K.M.R.’s social worker suggested that K.M.R. see her older sister, D.W., who had travelled from Alberta to see her younger siblings in foster care. R.T. testified that C.R. organized a visit that allowed K.M.R. to see her older sister.

[379]   R.T. tried to organize a visit with K.M.R., D.W. and D.M. but D.M. did not want to do it. R.T. talked to D.M. about perhaps meeting up during her visit hours at a restaurant. R.T. suggested the visit because she thought it was important for K.M.R. to see her sister, and she was under the impression that D.M. would enjoy seeing her other daughter while she was visiting the Lower Mainland for the week. R.T. testified that D.M. “refused”, said “absolutely not”, and “firmly rejected”. R.T. remembers D.M. saying that she wanted nothing to do with D.W. during this visit, and that C.R. was turning the kids against her and did not have the right to invite D.W. down to the lower mainland. R.T. did not bring it up again.

[380]   D.M. acknowledges that the last time K.M.R. saw her older sister, D.W., in person was in July 2020 in the Lower Mainland during visits with C.R.

[381]   R.T. testified that, for the most part, the visits between K.M.R. and her mother were not consistent once D.M. moved back to Nanaimo. D.M. arrived late either due to the ferry, she missed the ferry, so the time had to be rearranged between R.T. and D.M. One time, she was 1.5 hours late for the visit which was only scheduled for 3 hours. R.T. asked her why she was late. D.M. texted that she was on her way – got lost in traffic – was stuck in traffic. When she arrived, D.M. said that she had an appointment with a lawyer and it took a lot longer than expected because he was the “flirting type”. R.T. just “shook her head.”

[382]   R.T. was only asked one question in cross-examination by counsel for D.M.: whether she reported the mother’s lateness to MCFD. R.T. said for the most part, she handles those things on her own. She said that the ministry usually gives the parent a warning and she believes that they did in this case.

[383]   R.T. testified that one of the consistent things that K.M.R. had with her relationship with her father, C.R., was that he would make food for her to eat. K.M.R. told R.T. that she baked with her dad, and they would do this together, like make cookies or bread, and it was a fun activity that she would enjoy doing with her dad before coming into the care of the Ministry.

[384]   The initial visits with C.R. were supervised at Touchstone and then at his home. The visits were about 1 hour and 30 minutes because of the supervision order. R.T. testified that the first visit stands out in her mind in the sense that K.M.R. was so happy and excited to be seeing her father. R.T. observed K.M.R.’s sadness that she had to leave the visit that was short.

[385]   K.M.R. was excited about what they were going to eat. C.R. asked her what she wanted, K.M.R. would provide the wish list, and C.R. “met her needs in that department”. R.T. remembers K.M.R. telling her what she did on her visits with her father – what they ate, whether it was home-made or take out – what their activity was. Sometimes they watched a movie or TV show. R.T. testified that K.M.R. talked about swimming and was excited to go to C.R.’s house to go swimming in the swimming pool because that was one of her favourite activities. R.T. had the impression that C.R. was quite active and engaged in his visits with K.M.R.  R.T. testified that there was never a time when K.M.R. did not want to see her father.

[386]   R.T. remembers that K.M.R.’s last visit with her father was on September 5, 2020, after her visit, they took a different route home. R.T. was driving K.M.R. in the car the last weekend that K.M.R. was in foster care with her. They turned a different direction to go home. K.M.R. asked her where they were going, and R.T. said that they have to pack up all of her clothes and toys. K.M.R. said, “oh great, we need a felt pen or marker”. R.T. asked her what for, and she said “so that we can mark the boxes: kitchen, D.W.R.’s room, K.M.R.’s room.” R.T. asked her how does she know this and how many times has she moved. K.M.R. responded that she has moved “too many to count”. R.T. looked in her rear view mirror and noticed that K.M.R. was crying. R.T. asked her if she was crying because she was going to miss her and her granddaughter. She said “no.” R.T. asked “why the tears.” K.M.R. responded that she was afraid that she may not be able to see her dad. R.T. responded, “Oh [K.M.R.], I think your mom will be brave enough to let you see your dad because hopefully she will know how important your relationship with your dad is.” Her reply was, “I do not think my mom will.”

[387]   I have placed greater weight on the evidence of R.T. as an independent and unbiased witness. The evidence of R.T., which I have found to be credible and independent, strongly favours C.R.’s ability to act in the children’s best interests over D.M.’s ability.

[388]   K.M.R. has remained in her mother’s care since the parties separated except for the time she was in foster care.

[389]   D.W.R. has remained in his mother’s care since the parties separated until he went into foster care. Thereafter, he chose to live with his father and has remained in his father’s care since September 2020.

[390]   D.W.R. and K.M.R. have had an upbringing that involves moving back and forth from Alberta to British Columbia, and with British Columbia, moving back and forth from Vancouver Island and the Lower Mainland. They also spent six months living in foster care.

[391]   D.W.R. currently lives with his father. He spends almost all of his time at his father’s home. Since September 2020, C.R. has been the parent primarily responsible for the day-to-day care of D.W.R. I find that C.R. has provided stability for D.W.R.

[392]   I find that K.M.R. is young and requires supervision, regular hands-on care, loving and supportive attention, and a stable and predictable environment. R.T. testified that she had five kids in her home, ranging from 7 years to 18 years. K.M.R. was her youngest child. R.T. had house rules and routines for the children. Although K.M.R. had a regular bedtime, she had a difficult time with K.M.R., who believed that she should stay up and go to bed at the same time as the older children. She would complain mostly to D.M. as to why she can’t stay up. R.T. learned that K.M.R. was complaining because she had a conversation with D.M. who would say words to the effect, “oh well, let her stay up just this one time”. R.T. did not think that a 7 year old should be up at 11 pm to 11:30 pm on a school night. On the occasional day, her rules would change, but she tried to maintain consistency in her home with all of the children in her care. R.T. enforced the 9 pm bedtime by allowing K.M.R. to go to bed and read a book.

[393]   R.T. observed K.M.R. call her father mostly at night time, and she observed C.R. ask her parental questions like what she had for dinner, what schoolwork she did; and she would relay that information. They would also talk about their “show and tell” on Fridays. Those were scheduled zoom visits that K.M.R. had with her father. K.M.R. was calling her mother in the morning and again in the evening, and that K.M.R. was calling her mother excessively towards the end of the lockdown, particularly when D.M. was not answering her skype calls.

[394]   I find that C.R. will provide more stability for K.M.R. than D.M.

[395]   M.W.M. remembers that before D.W.R. was born, they did not settle down and there was a lot of moving all over the place. He estimated that they lived in 7 to 10 different places. He described the impact of those moves on his schooling and friendships. For example, he started grade 2 in one school was pulled out and went to another school in Calgary and then returned the following year to his old elementary school but only stayed there for ½ a year. He also described that, as a young child, he had a parental role in raising his younger siblings. M.W.M. gave evidence that his mother would often leave him at home alone with his younger siblings. He would have to cook dinner, and get them ready for bed. He described running baths for his siblings and packing their lunches.

[396]   M.W.M. remembers things feeling more stable when C.R. was in the house. M.W.M. gave evidence that C.R. took them out to do things – they went for walks, they went to parks -- and there was food on the table. M.W.M. gave evidence that “it felt more like a home.” Despite M.W.M. working full-time, he connects with D.W.R. by playing video games together. M.W.M. observed that, when D.W.R. was living with his mother, he could be playing video games until 2 am. Now that he is living with his father, D.W.R. has homework and other routines that are appropriate for his age.

[397]   D.M. has asked me to disbelieve M.W.M.’s evidence on the basis that her son has been brainwashed against her. D.M. testified that they had to move so many times because C.R. could not keep a job because of his “rage and anger”. However, her evidence does not reconcile with C.R.’s employment history. M.W.M. was referring to the time before C.R. joined the family, not after. D.M. has provided no credible or reliable evidence to dispute M.W.M.’s recollection of what transpired before C.R. joined the family.

[398]   A.W. testified that, between 2017 and 2021, D.W. has moved five times in British Columbia. During trial, D.M. testified that she and K.M.R. will be moving again. She attributed the move to the house being sold. These moves are disruptive to the children. K.M.R. told R.T. that she has moved “too many times to count.”

[399]   A.W. described her sister’s tendency to just pick up and move as the “midnight moves”. She said that, over the years, this has undermined her children’s access to education and healthy peer relationships. She described her nieces and nephews having to move schools as frequently as once a year and in the middle of the school year. B.H. corroborates that I.H. moved schools every couple of years when living with D.M.

[400]   A.W. regarded C.R. as the person who kept the household stable. He supported the household financially and made sure there was food on the table. A.W. testified that her sister would not have been able to support 5 children as a single mother. C.R. also kept the kids in a safe environment, protected, and encouraged D.M. to stop drinking, as they all did.

[401]   I find that the conflict between D.M. and C.R. has had a tremendous negative impact on the children’s health and emotional well-being. This has resulted in missed opportunities for D.W.R. to attend school, for K.M.R. to have a relationship with her father, for both children to have a relationship with their siblings, share special moments with extended family, and experience the enrichment of extra-curricular activities and stable peer relationships.

[402]   D.M. made a decision to relocate with only her two youngest children. Her decision separated them from their older siblings and their father.

[403]   In the surreptitious recording, M.W.M. says to his mother that K.M.R. should not be in her care. He says that none of her children wanted to stay with her past the age of 13 years. M.W.M. tells his mother that although she thinks that her sister is disrespecting her, auntie has done a better job than her “with us” and “it sucks” and “if auntie wasn’t there one of us probably would end up dead.”

[404]   Some cases have recognized that at a certain age, children will “vote with their feet” in the sense that they are acknowledged as having the capacity to make choices about preferred parenting arrangements: PJD v. WKW 2019 BCSC 1188 at para. 42.

[405]   M.W.M. testified that the three older siblings voted with their feet, as soon as they were old enough and chose not to live with their mother. D.M. wanted to move back to Nanaimo in 2017 with four of her children, but two of them did not want to go. A.W. described this as a sudden decision, and one that was not in her children’s best interests.

[406]   After they found out that their mother wanted to move back to Nanaimo, D.W. and I.H. were very upset. I.H. was 12 years old at the time and had expressed thoughts of committing suicide. D.W. reached out to her oldest brother, M.W.M., for help. She also texted her father in the early morning hours at 3:30 am asking for help because her mother was drinking and she was worried about her siblings. D.W. and I.H. confided their concerns to M.W.M. that they did not want to be in their mother’s care any longer.

[407]   M.W.M. testified that he took his siblings – D.W. and I.H. for school shopping and dinner at Denny’s. He was buying them shoes for school. After they went shopping, they had a meal at Denny’s before he took them home. They told him that their mother was getting ready to move back to British Columbia again. They felt unhappy and uncared for. He encouraged them to express their feelings, as the oldest sibling, and wanted them to know that they could reach out to him. I.H. told him that he was suicidal, and that after he brought it up to their mother, her response was that it runs on his father’s side of the family. D.W. brought up her concerns about mothering K.M.R. all the time, and making sure that her lunches are ready, and basically doing for K.M.R. what her mother should be doing. They felt unhappy, unwanted, and unappreciated. M.W.M. stepped in and tried to bring their concerns up with his mother. He was trying to take a “light approach” with his mother and he “babied the conversation” with suggestions that maybe she should leave the older two siblings back in Alberta. He tried to bring up their worries plenty of times but they were shoved off to the side. He was seeing his siblings weekly at this time.

[408]   M.W.M. reached out to his aunt, A.W., for adult help to support his siblings. A.W. approached her sister to ask for supports for I.H. She testified that D.M. laughed off the concerns and said that that her son I.H.’s whole family is crazy on his father’s side. A.W. told her sister that if she did not take steps to support her son, she would report her concerns to child protection services. A.W. engaged the support of child protection services, and together with M.W.M., put a safety plan in place that identified their grandparent’s house as a transition home. The plan was for I.H. to live with his biological father. Since D.W.’s biological father was not in the picture at that time, the plan was for D.W. to live with her aunt. M.W.M. picked I.H. and D.W. up from school one day and took them to their grandparent’s house.

[409]   D.M. was not aware of what was going on until after it happened. After she found out, D.M. got really upset with her sister. A.W. testified that her sister retaliated by preventing A.W. from seeing her niece and nephew for the next three months. A.W. testified that her sister “cut off contact and disappeared”. The only way the children were able to connect with each other was through snapchat.

[410]   O.W. gave evidence about the discord that arose between her daughters after I.H. and D.W. refused to return to British Columbia with their mother.

[411]   A.W. asked for an emergency protection order on behalf of D.W.R., K.M.R., and D.W. She withdrew for D.W.R. and K.M.R. because she was under the mistaken impression that C.R. and D.M. were still together. Although she did not have communication with C.R. for most of that year, she relied on what her sister told her that he was working and did not feel comfortable around her family.

[412]   D.M. left for the airport with D.W.R. and K.M.R. on December 2, 2017. D.M. left her daughter D.W.’s suitcases and belongings in the backyard of A.W.’s residence in Calgary. D.M. did not attend the final court date for D.W. As a result, A.W. got an interim parenting order for D.W. on December 21, 2017.

[413]   B.H. testified that he returned to Alberta at the end of 2017 to support his son. He started court proceedings to get day-to-day care of his son, I.H., in April 2018. It went to trial in August 2018. Although D.M. got parenting time 6 weeks over the summer and 10 days over Christmas and Spring Break, I.H did not want to go that long of a time at her house. B.H. was supporting his son and his decision and wishes.

[414]   I conclude from the evidence as a whole that C.R. has demonstrated that he is able to exercise all parental responsibilities over D.W.R. and K.M.R.

[415]   A.W. believes that C.R. can provide the same stability and structure for K.M.R. as he is providing for D.W.R.  A.W. appreciates his efforts to keep the siblings and family together, “kudos to him.”

[416]   A.W. testified that her sister confided in her that C.R. was good to all of her children. They had places to live, and in addition to D.W.R. and K.M.R., he was an active participant in the lives of M.W.M., D.W., and I.H.  C.R. threw birthday parties for the children and had barbeques and took them on outings.

[417]   In the surreptitious recording, M.W.M. tells his mother that the only reason they had a good Christmas growing up was because C.R. was there to put food on the table and did fun things with them. D.M. said that M.W.M. was right and that C.R. always made Christmas a priority for “you guys”. M.W.M. says it was not just for Christmas and that C.R. “did a lot” for them.

[418]   I acknowledge that C.R.’s work schedule is not a great fit for K.M.R. given her young age. D.W.R. says that his father leaves work around 6:30 am and is home by 4:30 pm: affidavit, para. 22. D.W.R. has a phone to call him if there are emergencies. This works for D.W.R. because he is a teenager. However, K.M.R. is only 9 years old and needs a parental figure to ensure that she has breakfast and gets safely to school.

[419]   Although M.W.M. had reservations about C.R., he sees that C.R. is trying to be the better parent by being stable, creating a stable household that has structure, and by letting the children talk to their family, which is how it is supposed to be. D.M. testified that it is best for his two youngest siblings to live with C.R.

[420]   Section 199 of the Family Law Act requires the court to conduct proceedings in a manner that minimizes conflict, promotes cooperation, and protects children and parties from family violence. Courts must respond effectively to deliberate, inappropriate attempts to interfere with a children’s relationship with a parent. Such attempts are not in the best interest of a child.

[421]   It is clear that these guardians cannot communicate directly due to the high conflict nature of this dispute, and that requiring cooperation between D.M. and C.R. would increase the risk to the safety, security, and well-being of their children. Since these parents cannot make decisions about D.W.R. or K.M.R. as a team, one parent will have to make significant decisions. Based on my review of all of the evidence, I conclude that C.R. is best able to make decisions in his children’s best interests.

[422]   After a careful consideration of all the evidence, I have determined that the allegations of family violence made by D.M. are not true. I find that D.M. fabricated allegations of domestic violence against C.R. after the parties separated in 2016 and C.R. started a new relationship in 2017. These false allegations against C.R. have resulted in criminal proceedings that have caused tremendous harm to D.W.R. and K.M.R. As part of the bail conditions, C.R. was restricted from seeing his children in 2018 and 2019. D.M.’s failure to follow the supervision order of the Honourable Judge Raven resulted in both children being removed from her care and placed into foster care for six months in 2020. Foster care was very hard on both children.

[423]   It is very important to both D.W.R. and K.M.R.’s well-being to have a parenting regime that allows them to maintain the close connections they have with their parents and siblings, while meeting their health and educational needs. Since September 2020, C.R. has been the parent primarily responsible for the day-to-day care of D.W.R. I was impressed with C.R.’s ability to remain focused on D.W.R.’s needs throughout his evidence. I find that C.R. has provided stability for D.W.R. and met his educational needs. I find that C.R. has fostered all of the relationships that are important to D.W.R., including with his mother, D.M.

[424]   D.M., on the other hand, has obstructed D.W.R.’s ability to attend school and pulled K.M.R. out of school without good reason. She has engaged in a number of alienating behaviours that have impeded her children’s ability to have loving and nurturing relationships with their father, siblings and other family members. Her use of alcohol continues to be a risk factor for any children in her care.

[425]   Based on my review of all of the evidence, I conclude that the actions of D.M. indicate that she may be impaired in her ability to care for her children and meet their needs. D.M. has demonstrated that she will not return her children into the care of their father when required to do so. This was demonstrated when she fabricated exposure to COVID to prevent her son from returning to Richmond. After he indicated his desire to go, she took away his cell phone, which made it more difficult for him to return to his father. It was also unsafe for D.W.R., because he was waiting outdoors by himself in the middle of the night to be picked up by his father.

[426]   D.M. interfered with D.W.R.’s visits to see his siblings and extended family in Alberta, and then obstructed his ability to see his sister K.M.R. She has continued to undermine the relationship between K.M.R. and her father, and has acted in ways that are detrimental to K.M.R.’s psychological well-being. D.M. continues to deny that she has obstructed K.M.R.’s relationships with family members. She continues to re-argue positions that are demonstrably false. She has no insight into the ways that her conduct detrimentally affects her children.

[427]   I am not satisfied that D.M. will comply with any court order that she perceives as not in her interest. This puts K.M.R. at greater risk of harm. D.M. has indicated that she will not abide by court orders in her evidence:

[428]   D.M. has also demonstrated that she is unable to abide by court orders, or act in K.M.R.’s best interests, during this hearing.

[429]   D.M. testified in this proceeding by video after granting her request for accommodation to testify from her home in Nanaimo. During the direct examination of C.R., K.M.R. was visible on video from her mother’s home. On September 9, 2021, I issued an order excluding K.M.R. from the proceeding in an oral ruling that is appended to this decision as Appendix “B.” I ordered D.M. to testify by video from the Nanaimo courthouse.

[430]   On September 20, 2021, I ordered an evaluative Views of the Child Report for K.M.R. pursuant to s. 211(1)(b) of the Family Law Act. D.M. did not comply with that order.

[431]   D.M. then sought to adjourn the continuation of the trial in October 2021 on the basis that she and K.M.R. were “so sick they had to be tested for COVID”. I declined the adjournment request, but permitted D.M. to testify from her home provided that she complied with my order excluding K.M.R. from these proceedings. That week, D.M. testified that they did not test positive for COVID.

[432]   During her testimony, D.M. blamed D.W.R. for getting them sick during his last visit over the Thanksgiving weekend and that he apologized to her for getting them sick. D.M. then contemplated withholding D.W.R.’s access to K.M.R.  D.W.R. asked his mother whether he could visit the in Nanaimo to celebrate K.M.R.’s birthday and take her trick-or-treating. On Wednesday October 27, 2021, D.M. testified that she had not yet confirmed whether D.W.R. could come but that she would let him know. K.M.R. was celebrating her birthday on [omitted for publication], 2021.

[433]   On October 29, 2021, I ordered that K.M.R. participate in two judicial interviews. D.M. did not comply with the terms of that order when she transported K.M.R. directly to her first judicial interview at the Richmond courthouse on December 3, 2021. That court order, which was police enforceable, clearly required C.R. to pick K.M.R. up in front of the Nanaimo police station that morning.

[434]   On December 9, 2021, D.M. sought a protection order in the Nanaimo court without notice while this matter was before me in Richmond. Since this application arose from interactions that C.R. and D.M. had in relation to my order, I found that the threshold for urgency had not been met. I thus required D.M. to serve her application on the other parties. The hearing of this application was set for December 13, 2021.

[435]   On December 13, 2021, D.M. sought an adjournment of her application to retain new counsel. I declined to adjourn the application because D.M. was, in essence, seeking to adjourn an urgent application on the basis that it was no longer urgent. I subsequently received submissions on that application and am satisfied that D.M. had a full and fair opportunity to be heard on the issue that I need to decide. I dismiss the application based on my evidentiary findings in this decision that neither D.M. nor K.M.R. are in need of protection from [C.R.]. It is on this basis that I also dismiss D.M.’s other application for a protection order against C.R. Evidence on that application was heard during the hearing.

[436]   On December 14, 2021, D.M. made a priority parenting application seeking to travel out of province with D.W.R. and K.M.R. on an urgent basis. D.M. says that her father passed away on December 10, 2021 and that his funeral was scheduled for December 17, 2021. To accommodate the urgency of the matter, the hearing of this application was set for December 16, 2021.

[437]   On December 16, 2021, I adjourned the hearing of submissions on this application because the Child counsel was unable to obtain instructions from K.M.R. because D.M. did not make her daughter available for a meeting with Child counsel the day before. Child counsel explained that her assistant called D.M., but was unable to make arrangements to meet with K.M.R.  D.M. acknowledges that she received a call from the assistant. She explains that K.M.R. already had plans after school that day. D.M. says that she told the assistant that they could make something work, but she never received a phone call back. Child Counsel says that when she called D.M. back, the call went straight to voice mail. I am not persuaded with the reasonableness of D.M.’s explanation given my credibility findings. Based on these submissions, I conclude that D.M. did not comply with my October 29, 2021 order by not making K.M.R. available to meet with Child counsel in advance of an application that she had requested must be heard on an urgent basis.

[438]   I heard submissions on this application this morning. D.M. now blames C.R. for the inability of her children to fly to Alberta to attend her father’s funeral on December 17, 2021. D.M. says that she had booked a one-way ticket for D.W.R. to fly from Nanaimo to Calgary on the morning of December 17, 2021. It is not clear whether she had also booked flights for herself and K.M.R. She accuses C.R. of preventing both of his children to fly with her, against their wishes, despite the fact that D.M. had made plans to take the children out of the province before I was able to hear or decide her application. D.M. wants to take her children to Alberta over the Christmas holidays to mourn the passing of her father. She feels badly that she has missed his funeral. She “wants to be able to take both children to Calgary” over the Christmas holidays to “spend time with family and siblings” and “extended family”. She says that she has already put security plans in place in Alberta because of the years of domestic violence from C.R. She has made submissions that are demonstrably false. Her evidence in support of this application contradicts her evidence at the hearing. I dismiss this application on the basis that it has not been made in good faith.

[439]   D.M. also seeks to relocate K.M.R. from Richmond to Nanaimo. D.M. argues that she was not required to give notice of the relocation because she was fleeing domestic violence. Given my finding that D.M. fabricated allegations of domestic violence against C.R., and given my decision to allocate all of the parental responsibilities to C.R., I dismiss this application. Relocation only becomes an issue if D.M. is the primary caregiver for the children. Since I have decided that K.M.R. will live primarily with her father in Richmond, and there is an existing order that the children not be moved from Richmond, I find that D.M. has breached the October 10, 2019 order of the Honourable Judge Rogers.

[440]   For all these reasons, I have decided that the short-term and long-term best interests of D.W.R. and K.M.R. require that C.R. shall have sole parenting responsibilities for the children, and that D.M. shall not have unsupervised contact with K.M.R. until further order of the court.

[441]   Since D.M. has conducted herself in this proceeding in a manner that frustrates the court process, I grant C.R.’s application for an order under s. 221 of the Family Law Act to prohibit D.M. from making further applications or continuing a proceeding without leave of the court. Based on her conduct during this proceeding, I conclude that D.M. has made applications that are trivial, and has conducted herself in a manner that frustrates or misuses the court process.

[442]   Although no one has sought an order that I be seized of this matter for future applications, I am doing so on my own motion. In A.A. v. S.N.A., 2009 BCSC 387 at paras. 77 to 87, Madam Justice Martinson held that, in certain high conflict family cases where the parties are likely to reappear before the court even after judgment, it is appropriate for the trial judge to seize themselves of future applications. These reasons were endorsed in T.A.O. v. D.J.M, 2021 BCSC 1704 at paras. 357 to 359. For the reasons set out in A.A., I will remain seized of this matter for any applications related to parenting orders for a period of one year or further order of this court.

[443]   Each parent has a responsibility to support their child, commensurate with their income earning capacity or opportunities, in accordance with the Child Support Guidelines: DMP v. GEA, 2013 BCPC 117, paras. 11-12.

[444]   I find that there is no child support payable to D.M. for the following reasons. On October 10, 2019, the Honourable Judge Rogers ordered that the parents have equal parenting time and ended C.R.’s child support and accumulation of arrears. It is not clear from the submissions whether D.M. is seeking to appeal or vary that order. To the extent that D.M. is seeking to appeal that order, that appeal should be brought before the British Columbia Supreme Court. To the extent that D.M. is seeking to vary that order, I have considered the factors set out in s. 14 of the Child Support Guidelines and s. 162 of the Family Law Act. I am not satisfied that the application has been made in a timely manner, or that there has been a change in circumstances in the children to justify the variations contemplated by D.M.  D.W.R. and K.M.R. were in the care of both parties between October 11, 2019, until March 10, 2020, and C.R. was financially supporting the children. He was also financially supporting the children during a period of time when D.M. is seeking extra-ordinary expenses. The children were in foster care from March 2020 to September 2020. Since September 10, 2020, each parent has had the care of one child. For these reasons, I dismiss the application for child support and extraordinary expenses.

[445]   I find that D.M. is not entitled to spousal support for the following reasons. First, I reject D.M. request that C.R. pay spousal support based on a long relationship from 2006 to 2020 given my finding that the parties separated in 2016. In this way, no basis for support has been established on the evidence.

[446]   Second, I have considered the objectives of spousal support set out in s. 161 of the Family Law Act. None of those objectives weigh in favour of granting this application. I have considered the length of time the spouses lived together, and the objective of promoting the economic self-sufficiency of each spouse is as far as practicable and within a reasonable time-period. D.M. came into the relationship with a work history, and by her own admission, has worked in similar jobs the entire time. She is seeking spousal support because she wants to upgrade her skills. She testified that she is currently studying on-line and needs to work less and study more to finish the courses on time. There is no reliable evidence to support a finding that any economic disadvantage, or economic hardship, that arises from the breakdown of that relationship has been borne by D.M. Finally, I have considered the objective of apportioning between spouses any financial consequences arising from the care of the child, beyond the duty to provide support for the child. The total amount of spousal support depends on how many children are placed in D.M.’s primary care and the amount of child support payable to her. Given my decision to place both children in the primary care of C.R., the financial consequences of raising both children is borne by C.R., not D.M.

[447]   Therefore I order as follows:

[448]   D.M.’s applications are dismissed in their entirety.

[449]   The court is satisfied that D.M. and C.R. are the guardians of the children under s. 39(1) of the Family Law Act.

[450]   Pursuant to s. 40(3)(a) of the Family Law Act, C.R. will solely have all of the parental responsibilities for the children as set out in s. 41 of the Family Law Act:

[451]   Both parties may exercise the parental responsibility set out in section 41(j) to request and receive from third parties health, education, or other information respecting the children, except in relation to health care provided pursuant to s. 17 of the Infants Act.

[452]   Following his 16^th birthday, on or after [omitted for publication], 2013, D.W.R. shall be entitled to apply for his own passport without the written consent of either guardian.

[453]   D.W.R. shall have parenting time with D.M. at his discretion which may include: (a) alternative weekends from Friday to Sunday during the school year; (b) holiday time during school holidays including Christmas break, Spring Break, and Summer School holidays; (c) such further and other times as agreed by the parents and D.W.R.

[454]   So long as D.M. is living in Nanaimo, and D.W.R. is living in Richmond, during D.M.’s parenting time, C.R. shall ensure that D.W.R. is available to walk onto the ferry from Tsawwassen to Duke Point in Nanaimo and D.M. will ensure that D.W.R. is available to walk onto the ferry from Duke Point to Tsawwassen at the end of her parenting time.

[455]   C.R. shall have all other parenting time with D.W.R.

[456]   D.M.’s parenting time with K.M.R. shall be supervised by Touchstone Family Association in Richmond, British Columbia, or another parenting time supervisor at C.R.’s sole discretion in consultation with K.M.R.

[457]   Commencing in January 2022, and continuing until further agreement of the parties or order of the court, D.M. shall have supervised parenting time with K.M.R. in Richmond, British Columbia, every other Saturday from 2:00 pm to 4:00 pm or at another time as agreed through the parenting time supervisor.

[458]   C.R. shall be responsible for transporting K.M.R. during all exchanges.

[459]   Pursuant to s. 224(2) of the Family Law Act, and to the extent necessary, D.M. shall pay any fees in relation to her supervised parenting time with K.M.R.

[460]   Pursuant to s. 225 of the Family Law Act, D.M. and C.R. shall communicate with each other only through OurFamilyWizard software, or through the parenting time supervisor, and only for the purposes of facilitating parenting time arrangements for the children.

[461]   C.R. shall have all other parenting time with K.M.R.

[462]   D.M. shall not consume any alcohol during the exercise of any parenting time and during 24 hours before having any parenting time with the children.

[463]   Under s. 222(c) of the Family Law Act, D.M. is prohibited from filing any further applications without leave of the Court, save for seeking leave of the Court to file a further application.

[464]   I will remain seized of this matter for any applications related to parenting orders for a period of one year or further order of this court.

[465]   This order as it relates to the supervised parenting time of K.M.R. is reviewable in six months. I direct the parties to obtain a review date from the Richmond judicial case manager before the end of January 2022.

[466]   Counsel for C.R. will prepare this Order. I dispense with any requirement to obtain D.M.’s approval as to the form of the Order.