IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The parties, R.K. (the “father”) and V.S. (the “mother”), are the biological parents of twin children, a boy and a girl, R.S.K. and S.S.K., born [omitted for publication], (the “children”). 

[2]         The father brings an application and a notice of motion to vary an interim consent order for supervised contact with his children.  He seeks gradual unsupervised visitations that transition to overnight access pending the trial in this matter in September 2022. 

[3]         The trial will determine the father’s application for guardianship, parenting time, and parenting responsibilities.  The father contends that he resided with the mother as spouses and that he regularly cared for the children until their relationship ended in August 2019.

[4]         The mother contests the father’s application for guardianship on two principal grounds, first, she submits that they never lived together as spouses after the children were born, and second, she submits that the father did not and does not regularly care for the children.  The mother also brings a counter-application seeking sole guardianship of the children, child support, and s. 7 expenses.

[5]         The parties are subject to three interim orders that address interim child support and grant the father limited weekly supervised contact with the children, as well as two brief weekly video calls.  The initial order was a consent order granted by Judge McQuillan on July 30, 2021 (the “original consent order”).  At the time the original consent order was made, the father had not seen the children in person since November 2019, although it is acknowledged that the mother offered him video calls and third party supervised visits. 

[6]         The central issue at the hearing is whether the father has met the threshold test under s. 216 of the Family Law Act, S.B.C. 2011 c. 25 (“FLA”) to vary an interim consent order, and if so, whether it is in the best interests of the children that he have unsupervised visits pending the trial.

[7]         The applications proceeded before me on March 22, 2022.  At the conclusion of the evidence, the hearing was adjourned for completion of written submissions.  After receiving the submissions of the parties, I delivered an oral summary of my reasons and my orders today, and informed the parties that a written decision would follow.  These are my written reasons.

[8]         I will begin with a summary of the evidence.

[9]         The parties met “online” in 2015 and had a 4 year “on again off again” tumultuous relationship which finally ended in August 2022 after their third reconciliation attempt. 

[10]      The father is a skilled journeyman who worked full-time as a direct lead hand with a local manufacturing firm.  He took medical leave from his employment from December 2019 until September 2020 due to anxiety, depression and alcohol abuse which he attributes to his difficult relationship with the mother.  He is currently unemployed and receives approximately $2,000 per month in employment insurance benefits.

[11]      The father pays monthly child support to the mother of $375 plus his proportionate share of the children’s special expenses.  His payment history under original consent order was inconsistent until December 2021, and since that time, his support payments have been on-time and paid in full.

[12]      The father is also the parent of two boys from a previous relationship, P and B, currently ages [omitted for publication]. He shares joint guardianship and equal parenting time with his previous partner, D.O.

[13]      The father lives in rented accommodations in Maple Ridge.  His older sons live with him during his parenting time.

[14]      The father and D.O. maintain a cooperative co-parenting relationship since their separation that continues to this date.  This is important as P struggles with ADHD that requires structure, supervision, and support from both parents.

[15]      The mother is a Chartered Professional Accountant who works full-time in the private sector.  The children live with their mother in Langley in a 4 bedroom town home she owns. 

[16]      The mother does not consult with the father on any aspect of the children’s care and does not involve the father in parental decision-making.  Instead, the mother provides the father with photographs and periodic updates when the children reach certain milestones in their development as her way of keeping the father informed.

[17]      The reason, according to the mother’s testimony, for taking this approach to parenting is because she contests the father’s claim to guardianship of the children. 

[18]      Indeed, the children only know their father as [omitted for publication].  According to the mother’s March 15, 2022 affidavit, the children “have no concept” that he is their father as she has not told them.  She deposes that she “appreciates” that the father “has taken the Children’s lead on their comfort zone to call him [omitted for publication].”

[19]      The children attend full-time day care at a location that is unknown to the father.  The reason the mother deposes as to why she has not disclosed the name or location of the children’s day care is because she believes the father will interfere with the day care if he knew its whereabouts.  The mother further claims that his interference will result in the termination of the children’s day care placement.  Such assertions are speculative as the mother’s affidavit and testimony in court lacked the necessary factual foundation to support her stated concerns about the day care.  As such, I place little weight on this evidence.

[20]      The children also participate in extra-curricular activities chosen by the mother that include martial arts and soccer.  The father is asked to help pay for the costs of the children’s activities but is unaware of the location and schedule for these activities.  He has not been invited or encouraged by the mother to observe or participate with the children in their activities despite his requests to attend. 

[21]      Both parties make several allegations of family violence towards the other in their sworn affidavits. The mother contests the father’s allegations of her acts of violence during the relationship. 

[22]      The father deposes that there were instances where he shoved the mother in “retaliation” in response to her acts of pushing, shoving, and throwing items at him, that she fell on at least one occasion from the force of his shoving, and that they each made holes in the walls in anger. 

[23]      The father admits that the “constant conflict” within the parties’ relationship led to the father’s over-consumption of alcohol.  The father’s alcohol abuse culminated in an incident on October 22, 2018, where he punched the mother on the left side of her head during an altercation in the home.  The mother was pregnant with the twins. The father was inebriated at the material time.  The police were called to the home. 

[24]      The father was arrested, charged with assault, and placed on no contact conditions with the mother, the children, and his older sons.  He acknowledges full responsibility for the assault. The charges were ultimately stayed in March 2019. 

[25]      MCFD subsequently became involved with the parties after this incident.  MCFD completed an investigation and determined there were no protection concerns in relation to the father’s parenting of his older sons.  They were then returned to his care. 

[26]      The children were born early and remained in hospital for nearly 5 weeks after they were born.  The no contact conditions of the original release order were varied on December 18, 2018, to allow the father to have permissive contact with the mother, in light of his proactive efforts to stop drinking and to attend counselling. 

[27]      The father and his older sons visited the children and the mother in the hospital.  During the course of this 5-week period, the parties decided to reconcile. The father and his sons then moved into the mother’s home after the twins came home from hospital. 

[28]      The mother in her affidavit and oral testimony asserts that the father did very little in the way of day to day care of the children during their reconciliation period, stating that he has “not done bedtime or [had] overnight contact time with all 4 of his children on his own at any point”.  She also deposes that the father had at most 2-3 hours of unsupervised time with all four children in his care between January and November, 2019.  These assertions are disputed by the father.

[29]      The parties’ relationship finally ended in August 2019.  The father continued to visit the children in the mother’s home until mid-October 2019.

[30]      On October 17, 2019, there was another altercation between the parties.  According to the mother’s evidence, the father entered the mother’s garage to retrieve his personal belongings without her permission.  She intervened and a heated argument ensued.  During the course of this argument, the mother alleges the father threw a metal sawhorse intentionally at her that injured her leg.  The father claims this was accidental and that he threw the sawhorse in frustration as a result of the argument he had with the mother.  Although each party in their affidavits describe a different account of what transpired between them in the garage, the fact remains that the mother sustained a leg injury in the course of their argument. 

[31]      The mother deposes from that date forward, she refused to allow the father in her home to see the children unless another adult was present as she did not feel safe in the father’s presence. 

[32]      In cross-examination, the mother also testified that she was informed by the father’s older sons that the father would beat them.  This evidence was given by the mother as a further example of her safety concerns about the father parenting young toddlers.  In closing submissions, counsel for the father submitted that this was the first time in the litigation that such an allegation was made by the mother against the father.

[33]      I do not accept the mother’s evidence on this aspect of her testimony as credible.  The mother did not state in her testimony that she personally observed the father strike his sons at any point in their relationship, nor did she raise this allegation in her affidavits as a safety concern.  In my view, such an allegation was an attempt to buttress the mother’s stated safety concerns about the father’s parenting skills which particular evidence I reject. 

[34]      After the October 17 incident in the garage, the father had two visits with the children supervised by the mother in the community.  One visit occurred at a McDonald’s restaurant and one visit occurred at a community swimming pool.

[35]      This was also the last time the father’s older sons saw their younger siblings in person. 

[36]      The father stopped going to the mother’s home for visits with the children in November 2019 due to the tension and conflict that arose between them.  

[37]      On December 6, 2019, the mother wrote to the father proposing “supervised visits to get him reacquainted with the children”, suggesting video calls three times a week for a duration of 10 minutes, and supervised visits through a list of the mother’s family and friends.  It is unclear from the mother’s affidavit as to why she felt there was a need for the father to “get reacquainted” with the children when he had last seen them in November.  The mother did not provide a satisfactory answer in cross-examination as to why she felt there was such a need.  In any event, according to the mother’s affidavit, the father did not respond to these offers.

[38]      The father viewed the mother’s proposals as wholly unsatisfactory from the very outset.  He did, in fact, respond to the mother by making several requests to see the children unsupervised. The father’s continued efforts to see the children and the mother’s responses are documented in various email exchanges and text messaging between the parties in late 2019 and throughout 2020, and in correspondence between counsel.

[39]      The father then retained counsel in early March 2020 just prior to the public health emergency declaration owing to the COVID-19 pandemic.  The father’s counsel wrote to the mother on March 16, 2020, requesting visits with the children.  This request was refused.

[40]      The father then brought an urgent notice of motion for parenting time, which application was rejected by the Court on the basis that the application did not meet the urgency threshold required at that time during the early stages of the pandemic. 

[41]      Subsequently, the parties, through counsel, engaged in extensive back and forth communications in an effort to implement a visitation schedule.  The father deposes in his March 8, 2022 affidavit that the mother “would not even agree to allow me to see the children for 1 hour per week at a public outdoor location, like a park.” 

[42]      The principal reasons for the mother’s refusal to permit unsupervised visits were predicated on health and safety concerns owing to the COVID-19 pandemic, the father’s history of domestic violence, instability, and alcohol abuse.

[43]      In August 2020, the father brought an application for parenting time, guardianship, and parental responsibilities.  On September 15, 2020, the mother filed her reply and counter-application for child support, section 7 expenses, and sole guardianship.

[44]      The parties appeared for their initial appearances on these applications on December 1 and 15, 2020.  The father sought an in-person visit with the children on their second birthdays and he sought parenting time over the Christmas holidays.  In his  February 23, 2021 affidavit, the father deposes:

[45]      On December 21, 2020, in a follow-up letter to these court appearances, counsel for the father wrote to the mother’s then legal counsel to request a letter from the children’s doctor to confirm why the father could not have in-person visits.  The letter also included a without prejudice offer requesting Zoom calls with the children three times per week.  Counsel for the mother responded to this letter almost a month later on January 21, 2021, stating that the “judge upheld the health care directive by the Province of remaining physically distanced from those not already in each other’s bubbles” as the principal reason for the mother’s position on visitations, and further stating that the father had not provided detailed visitation schedules before and after the Christmas holidays.  The mother, did, however, agree to the Zoom calls three times per week for 10 minutes per call.  

[46]      A family case conference was then held on February 25, 2021.  It was unsuccessful.

[47]      The father then brought a notice of motion on May 4, 2021, seeking gradual unsupervised visits leading to alternating overnight weekend parenting time.

[48]      A half-day hearing on the father’s application for contact and his notice of motion was then set before Judge McQuillan in May 2021.  The hearing did not complete and was adjourned to a continuation date on July 30. 

[49]      By the time of the continuation date, the parties had reached an agreement on supervised visitations and child support on an interim basis pending the trial.  This agreement was incorporated into the original consent order.  

[50]      Under the terms of Judge McQuillan’s July 30, 2021 Order (the “original consent order”), the father was granted two ten minutes video calls with the children on Sundays from 9:00 am until 9:10 am and on Wednesdays from 6:00 pm until 6:10 pm.  Additionally, the order granted the father “weekly supervised visits at a supervised visitation centre commencing as soon as practicable and continuing until further agreement between the parties or further Order of this Honourable Court.” 

[51]      This Order required that the father participate in the calls on his own, which meant that his sons were not to participate in calls, except by agreement or further order of the court.  That rarely happened.

[52]      The Zoom calls did not proceed smoothly from the outset.  Both parties filed extensive materials about their complaints about the other parent in facilitating and implementing the Zoom calls.  The father complained that the mother would not let him into Zoom meetings and further complained the children were frequently off camera during the meeting.  The mother, on the other hand, complained that the father frequently missed his Zoom meetings or was late, which in turn was a disappointment to the children.

[53]      With regard to the Zoom calls, the mother deposes that “… I am doing my best to get the children to participate … The children are smart, articulate, kind, and caring and they have rights to say what they do and do not participate in.  I give them the respect they deserve in regards to their bodies and choice of activities they participate in within their comfort zone and what is age appropriate”.  In addition, the mother has “on several occasions” facilitated the longer video calls “as the children wanted to go longer.”

[54]      The supervised visits did not occur in a timely way as contemplated by the original consent order.  The father deposes:

[55]      The mother deposes that around August 18, 2021, the father planned to switch supervision providers, which led to a delay in setting up the visits.  This delay ultimately led to another court appearance.

[56]      A family management conference was then set before Judge Dossa on October 12, 2021.  As of this hearing, the father had not yet had a single supervised visit. 

[57]      Judge Dossa varied the original consent order to include further details for the supervised visitation schedule.  Judge Dossa also imposed conduct orders to improve communications between the parties with respect to the children. 

[58]      The parties appeared again before Judge McQuillan on December 14, 2021.  This appearance was in response to the father’s application for the parties to share the costs of the supervised visits.  This application was granted and Judge McQuillan ordered that the costs of the professional supervision and supervision reports be shared equally between the parties.

[59]      The father’s supervised visits finally began in mid-November.  He saw the children on November 14, 25, and 28, 2021, and December 14, 2021.  The visit on December 5 did not proceed as the children, particularly R.S.K., were out of sorts following their birthday celebrations the previous day.  The visit on December 11 did not proceed for similar reasons. The father cancelled his visits on December 22, January 1, and January 5 because he tested positive for COVID. 

[60]      The mother informed the supervised visit provider in February 2022, that she was unable to pay the costs of the visits.  The reasons given by the mother in her testimony was she could no longer afford this expense. 

[61]      Since December 2021, the father has paid his monthly child support payments.  Currently, he pays the full costs of the supervised visits and caught up on the payment arrears for the mother’s share so the visits could proceed. 

[62]      The parties appeared at a further family management conference before Judge Brown on February 8, 2022.  The reason for the court attendance was in part because the father’s last visit with the children occurred on December 14 and the visitation schedule had not resumed due to payment issues.  He also sought unsupervised visits during this appearance.  Judge Brown further varied the original consent order and adjusted the supervised visitation schedule to recommence on February 12, 2022.  Judge Brown also set down a half-day hearing on the father’s applications for unsupervised visits which proceeded before me on March 22, 2022.

[63]      On February 12, 2022, the father’s weekly supervised visits with the children resumed in accordance with Judge Brown’s amended order.  Under the current schedule, the father’s weekly visits have now increased to two hours once per week.

[64]      Since January 2022, the mother requires the father and the children to wear masks.  She also insists that he not provide the children with any food or drink owing to the transmissibility of the Omicron variant of the COVID-19 virus.  The father has acceded to these conditions and continues to wear a mask during his weekly visits. 

[65]      The father admits he assaulted the mother on October 22, 2018, when she was pregnant with the twins.  He additionally acknowledges other instances when he pushed and shoved the mother in the context of heated arguments and fending off “assaults” by the mother. The last incidence of violence in the home occurred in mid-October 2019 where the mother’s leg was injured during a heated argument between the parties in the garage. 

[66]      MCFD assessed the father on two occasions, the first time following the October 22, 2018 incident, and the second time occurred around February, 2020 as a result of an incident at his oldest son’s school.  On both occasions, MCFD assessed and affirmed that his older sons were safe in his care as there were no child protection concerns. 

[67]      The father provided a brief report from his treating physician, Dr. Richard Matthew, dated April 17, 2020, confirming the father’s diagnoses of depression and anxiety.  Dr. Matthew opined that the father was managing his mental health in a healthy and appropriate manner and that there were no concerns with the father’s ability to parent himself or his children.

[68]      The father parents his older sons on a shared parenting basis. D.O., the father’s former partner, wrote a letter of support describing the father’s positive parenting skills with respect to B and P and noting the father’s role and responsibility for home schooling his children during COVID.  It is also noteworthy that the father also looks after D.O.’s youngest son (B and P’s younger brother) from time to time. 

[69]      The father’s supervision reports are positive.  For each visit that took place with one or both of the children, the supervisor reported that the father’s level of engagement was high during visits, that he maintained a child focused approach, that he interacted with the children in a responsive and meaningful way given the limited time constraints of the visits, and that he was “supportive, warm, and inclusive” with the children. 

[70]      For example, in the report of February 19, 2022, the writer notes that the children “seemed at ease and engaged while colouring and playing with [the father].  They invited him to play and requested his assistance with tasks.”  At the end of the visit, S.S.K. held [her father’s] hands in the elevator.  He crouched down at the end of the visit and exchanged hugs with the children “which the children seemed comfortable with”.

[71]      In the February 16, 2022 report, the writer notes that both children “seemed to seek their father’s attention, requested his assistance with tasks and seemed at ease near him … They seemed happy and engaged as they played with their father.”

[72]      The FLA requires the court to consider only the best interests of a child.  This principle applies to all existing child custody questions, including the question of parenting time and contact. Section 37 of the FLA provides guidance as to the factors for the court to consider in determining the best interests of the child.  It is clear from a reading of this section that these factors are not exhaustive and they are reproduced below:

[73]      Section 37(3) and (4) also provide:

[74]      Section 38 of the FLA mandates that a court must consider the impact of family violence on the child’s safety, security and well-being and whether the actions of a person responsible for family violence indicate that s/he may be impaired in their ability to care for the child under s. 37(g) and (h).  In assessing the impact of family violence on a child, all of the following factors must be considered:

[75]      A person’s conduct is only to be considered if it “substantially affects” a factor set out in s. 37(2).  When assessing the impact of family violence on a child, the “inquiry into the past conduct of the parties is not an end unto itself” as the real question for the court to decide is what parenting arrangements are in the best interests of the child “bearing in mind all relevant circumstances, including those set out in s. 37(2)”: B.K.G. v. H.S.G., 2013 BCSC 1942, at para. 48.

[76]      An order for supervised access is “just one step away” from a complete termination of the parent-child relationship, and thus requires evidence of exceptional circumstances:  F.K. v. M.K., 2010 BCSC 563, citing V.S.J. v. L.J.G., 2004 CanLII 17126 (ON SC), [2004] OTC 460 (S.C.J.), at para. 147. 

[77]      Where supervised access is sought, the following factors are to be considered by the court in assessing the child’s best interests:

[78]      All of the parenting orders made in this proceeding to date are interim orders.  The relevant statutory provisions to vary an interim order are found in s. 215 and ss. 216(3) and (4) of the FLA.  These sections provide:

[79]      Interim orders, such as the parenting orders in this case, are intended to be “stopgap” measures to provide parents with short term solutions until issues on the best interests of the children can be fully canvassed at trial on a full evidentiary record:  Fitzgibbon v. Fitzgibbon, 2014 BCCA 403, at para. 22; M.A.F. v. J.C.F., 2021 BCSC 1447, at paras. 64-69. 

[80]      The focus on an application to vary or suspend an interim order under s. 216 is on maintaining the status quo, unless there is a relevant change in circumstances or new evidence: B.K. v. J.B., 2015 BCSC 1481, at para. 34; R.R. v. S.L., 2016 BCSC 1230, at para. 67.  Thus, there is a heavy onus on the party seeking to vary an interim order prior to trial:  Huculak v. Huculak (1998), 1998 CanLII 4878 (BC CA), 103 B.C.A.C. 276, at para. 3, cited in M.A.F. v. J.C.F., supra, at para. 67.

[81]      In Hama v. Werbes,1999 CanLII 5828 (BC SC), at para. 12, Martinson J. discussed what this onus of proof requires:

[82]      The leading authority on the application of these provisions to an application to vary an interim parenting order is the case of B.K. v. J.B., supra, where Holmes J. discussed the threshold that must be met for a variation application to proceed and its interplay with the best interests principle found in s. 37(1) of the FLA.  At paras. 28-34 of her decision, Holmes J. held: 

[83]      The father’s position is he is an able and willing parent who has been denied meaningful contact with the children by the mother since November, 2019.  He submits there is no juristic reason for the “extremely” restrictive and expensive parenting regiment found in the original consent order except that it was the only access that would be agreed to by the mother. 

[84]      The mother stated at the outset of her testimony that while she wants the father to have a good relationship with the children, but she believes this will evolve over time on an incremental basis provided the father demonstrates that he is able to care for the children and that they are safe in his care. 

[85]      The point in which this will occur is still an unknown from mother’s standpoint as she deposes that the children’s behaviour following the supervised visits has been demonstrably poor.  The behaviours exhibited by the children following visits include: temper tantrums, refusing to go to bed, saying they are scared of [omitted for publication], and refusing to leave the mother’s side. 

[86]      The mother further submits that the father needs to demonstrate a pattern of consistency with his visits by participating in the weekly video calls on time and as scheduled.  She opposes the father’s application for unsupervised visits contending that professional third-party supervised visitations are still required in order for the father to bond with the children and to demonstrate he is capable of looking after them.  She submits that it is in the children’s best interests that they get to know him in a controlled setting.  Therefore, she maintains that the status quo as found in the interim orders should remain until trial. 

[87]      The mother is, however, agreeable to a further variation of the original consent order to increase the father’s weekly supervised visits (now 2-hours once per week) to a 4-hour visit.  She further agrees to extend the father’s twice weekly video calls with the children from 10 minutes to 20 minutes.

[88]      The first issue is whether the father has met the threshold test required under s. 216 of the FLA to vary an interim order. 

[89]      The mother submits there has not been a material change in circumstances since the original consent order was made to support the variation sought.

[90]      I disagree.

[91]      The parties reached an agreement, the terms of which were incorporated into the original consent order granted by Judge McQuillan after protracted discussions between the parties and counsel that had been ongoing for several months.  As of that date, the father had not had a single in-person visit with the children since November 2019 despite his repeated efforts and requests for unsupervised contact.   As a result of the agreement reached between the parties, no findings were made by Judge McQuillan as to whether there were “exceptional circumstances” that warranted supervised visits.

[92]      I accept the father’s explanation for the reason as to why he consented to this restrictive order is found in his March 5, 2022 affidavit.  He deposes:

[93]      The intent of Judge McQuillan’s order was to provide a temporary arrangement to give the father some time (albeit very limited time) each week to become reacquainted with two very young children whom he had not seen for many months.  There was an obligation on both parties under the terms of this order to cooperate and set up the visits as “soon as practicable”.  That did not occur.  It was clearly not within the father’s contemplation that he would require a further court order before he had his first supervised visit with the children in November 2021, almost 4 months after the original consent order was granted. 

[94]      I find on my review of the affidavits and testimony of the parties that the mother was uncooperative with the father and that the delays in implementing Judge McQuillan’s order were occasioned by this lack of cooperation.  

[95]      I also find there is evidence of a “substantial nature” that was not available at the time this order was first made.  That evidence includes: two further orders of this Court made by Judges Dossa and A. Brown which varied the supervision terms, the favourable supervision reports from the access provider regarding the father’s interactions with his children, the letter of support from D.O. regarding the father’s parenting skills, and the fact that the father pays both halves of the supervision costs in order to maintain the visits (despite the fact the mother was ordered by Judge McQuillan to share those costs). 

[96]      Finally, the mother has not permitted the father to bring his older sons to the supervised visits. The father deposes that his older sons have expressed great sadness and confusion by the prolonged separation from their younger siblings.  The impact of the separation of the children on the older siblings is profound and constitutes further “evidence of a substantial nature” that was not before the court at the time the original consent order was made.

[97]      Thus, I am satisfied there is a compelling change of circumstances such that the father’s applications for parenting time and guardianship would be seriously prejudiced by keeping the status quo until trial:  Hama v. Werbes, supra,  at para. 12.  Accordingly, I find the threshold for the father’s application to vary the original consent order has been met.

[98]      Pursuant to s. 38 of the FLA, I must consider the impact of family violence in this case on the children’s safety, security and well-being and whether the actions of the father indicate that he may be impaired in his ability to care for the child.

[99]      I accept the mother’s evidence that she does not feel safe in the father’s presence given the physical and emotional abuse she experienced in the relationship, which has had a profound and negative impact on her wellbeing.

[100]   The children were exposed as infants to family violence in home.  The impact of family violence on the children was of limited duration as the parties’ relationship ended in August 2019 when the father and his older children left the mother’s residence. 

[101]   The October 2018 assault on the mother was a low point in the father’s life that motivated him to seek counselling and medical treatment. Since the ending of the parties’ relationship, the father has accepted responsibility for his actions in the relationship.  He also completed several programs for alcohol dependency, anger management, conflict resolution, and positive parenting.

[102]   I am satisfied that the father is not a risk to the children in light of his continued sobriety and efforts to address his underlying mental health issues.  He continues to be bound by a conduct order to abstain from alcohol and drug use when exercising contact with the children.

[103]   The evidence demonstrates that the parties have had very little face to face contact since early 2020.  They communicate by email, text messaging, and through legal counsel.  They are each bound by mutual conduct orders that serve to remind both of them of the importance of communicating with each other in a respectful manner in keeping with their duties, as parents, to act in the best interests of the children.  These orders should put an end to some of the intemperate remarks made by each party towards the other found in some of the text messaging and written communications exhibited to each party’s affidavits.

[104]   The mother firmly believes the father has not made “a consistent effort to bond” with the children and that there “has simply not been enough contact time for the supervision to cease”.  I disagree.

[105]   I am satisfied on the evidence that the father is an able, and caring parent who has demonstrated an unwavering commitment to all four of his children. 

[106]   Having regard to the factors enumerated in s. 37 of the FLA, I have concluded that it is in the children’s best interests that they have a reasonable chance to get to know their father and their older brothers and that they cannot possibly do so under the current visitation regiment.  The children have been deprived of that opportunity for more than two years.  Their older siblings have also suffered from the long period of separation from their younger siblings. 

[107]   Therefore, I have further concluded that the current regiment is unduly restrictive and fails to meet the objective of the maximum contact principle.

[108]   I, therefore, grant the father’s application for unsupervised contact.  In place of the video calls and weekly supervised visitations, I am granting the father weekly visits with the children which will transition to also include overnight weekend visits commencing in early June. 

[109]   The mother acknowledged that the children required a period of adjustment when they started day care in 2020 when she went back to work.  She agreed in cross-examination that the transition period took approximately two weeks and that they have adjusted well to the routine of day care.  The children currently are almost 3 ½ years of age and by now have already had several weekly supervised visits with their father. 

[110]   The children will need some time to adjust to seeing their father and brothers weekly.  In my opinion, there is no reason why the children cannot adapt in the same way as they adapted to the routine of going to day care with the gradual visitation schedule I have determined. 

[111]   It is not surprising on the evidence of both parties that the weekly Zoom calls are an unsatisfactory medium for the children to get to know their father and that the Zoom calls are a constant friction point for both parties.  Despite the mother’s stated efforts to persuade the children to participate in the calls, the video calls are futile as the children, given their very young ages, do not have the attention span or interest to engage in these calls in a consistent and meaningful way.  It is for these reasons that I am suspending the father’s weekly video calls until trial.

[112]   Accordingly, I make the following interim orders: 

[113]   Judge McQuillan’s interim consent order made July 30, 2021 (the “original consent order”), as amended by the Orders of Judge Dossa made October 26, 2021, and Judge A. Brown made February 8, 2022, is further varied as follows: