D.S. v. T.N., 2023 BCPC 26 (CanLII)
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2023 BCPC 26 |
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Date: |
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File No: |
[omitted for publication] |
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Registry: |
Prince George |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
D.S.
APPLICANT
AND:
T.N.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE J.T. DOULIS
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Counsel for the Applicant: |
D. M. Duncan |
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Counsel for the Respondent: |
J. Rempel |
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Place of Hearing: |
Prince George, B.C. |
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Dates of Hearing: |
January 24, and February 1, 2023 |
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Date of Judgment: |
February 8, 2023 |
Introduction
[1] D.S. and T.N. separated in late 2017 or early 2018 after a 21 year relationship. They have two children, C.E., who is 14 years old, and C.N., who is 10. Although on separation they initially agreed to an equal parenting arrangement with respect to the children; they have now been embroiled in family law litigation since April 27, 2018. This matter is currently before me for trial. I heard and received evidence on December 15 and 16, 2021, and October 17 and 18, 2022. The trial is scheduled to continue on February 22 and 23, 2023, and May 8, 2023.
[2] On December 1, 2022, mid-trial, D.S. filed an Application for a Case Management Order with Notice (Court Electronic Information System (“CEIS”) Document 54) asking the Court to order that Children and Youth Legal Centre appoint legal counsel for C.E. and C.N. pursuant to s. 202 and/or 203 of the Family Law Act. T.N. opposes the application. D.S.’s December 1, 2022 Application (CEIS 54) came before me for hearing on January 24, 2023, and February 1, 2023. At its conclusion I reserved my decision. These are my reasons for judgment on the interim application.
Issues:
[3] The issue before me is whether the Court ought to obtain further evidence on the views of the children with respect to parenting arrangements, and if so, how that should be done. Specifically, should the Court:
a. order an updated s. 211 Views of the Child Report from the Family Justice Report Services; and/or
b. conduct a judicial interview of C.E. and C.N.; and/or
c. make an order that C.E. and C.N. may be represented in these proceedings by counsel appointed by the Child and Youth Legal Centre.
[4] As neither party has been represented by their current legal counsel since the inception of these proceedings, I have set out below the history of these proceedings together with some relevant background facts.
Procedural history and background facts
[5] D.S. and T.N. are the biological parents of C.E., born [omitted for publication] 2008 (“C.E.”) and C.N., [omitted for publication] 2013 (“C.N.”, and collectively with “C.E.”, the “Children”).
[6] D.S. and T.N. met and began living together as a couple while still attending high school in [omitted for publication], BC. D.S. was 18 and in Grade 12, and T.N. was 15 and in Grade 9. Over the years D.S. and T.N. lived in various communities in British Columbia and Alberta. C.E. was born in [omitted for publication] and C.N. in [omitted for publication]. D.S. and T.N. separated in late 2017 or early 2018. At the time of their separation, D.S. and T.N. lived in a Prince George, BC. C.E. was approximately ten years old and C.N. was five.
[7] On January 29, 2018, D.S. and T.N. entered into a Separation Agreement in which they agreed to share joint guardianship, parenting responsibilities and parenting time with the Children. Specifically, D.S. and T.N. agreed to an alternating seven-day parenting schedule which accommodated T.N.’s work schedule.
[8] Post-separation, both T.N. and D.S. continued to reside in Prince George, BC. T.N. resides in his own home at [omitted for publication] Avenue, Prince George, BC, which he purchased on November 1, 2019. T.N. has re-partnered twice since separating from D.S. Initially, he lived with L.K., until they separated in July 2020. His current partner is L.K.’s sister, E.K., also known as B.K. E.K. has three children from a previous relationship, I.B., born [omitted for publication] 2015 (7 years old) H.B., born [omitted for publication] 2017 (5 years old), and A.B. born [omitted for publication] 2019 (2 years old). T.N. and E.K. commenced their relationship in November 2020 and lived together at [omitted for publication] Avenue, Prince George, BC from April 2021, until the August 1, 2022. T.N. and E.K. are the biological parents of R.K. born [omitted for publication] 2022 (now 8 months old). Although T.N. and E.K. are still a couple, E.K. has obtained alternative accommodation because T.N.’s residence at [omitted for publication] Avenue, Prince George, BC was too small to house the parents and all their children.
[9] D.S. has not repartnered, although she has had various roommates in the past five years. She currently resides in a mobile home at [omitted for publication] Prince George, BC. This is a mobile home in which she and T.N. resided with their Children prior to their separation.
[10] T.N. has worked various jobs since his adolescence. It recent years, he has worked in mines in northern British Columbia. He is now employed fulltime as a mine equipment operator at [omitted for publication] Mine, which is about [omitted for publication] of Prince George. D.S. has and continues to work at various retail and serving jobs.
[11] On April 27, 2018, D.S. commenced these Family Law Act proceedings in the Provincial Court of British Columbia in Prince George under Court File [omitted for publication]. On that date she filed an Application to Obtain an Order (CEIS 1) seeking, (a) primary residence of the Children; (b) primary parenting responsibilities for the Children; (c) ongoing and retroactive child support; and (d) ongoing and retroactive spousal support. Also on April 27, 2018, D.S. filed an affidavit in support of her application (CEIS 2).
[12] On May 10, 2018, W.H. personally served T.N. with D.S.’s April 27, 2018 Application, Notice of Motion and Affidavit (CEIS 5).
[13] On May 15, 2018, T.N. filed a Reply with Counterclaim (CEIS 3), disagreeing with D.S.’s April 27, 2018 Application and seeking an order for guardianship of the Children and an order enforcing the January 29, 2018 Separation Agreement (CEIS 17).
[14] D.S.’s April 27, 2018, Application and T.N.’s May 15, 2018, Reply and Counterclaim were scheduled for a first appearance in Prince George on July 5, 2018 (CEIS 8).
[15] On June 7, 2018, D.S. and T.N. appeared before Judge Keyes in Prince George Provincial Court. T.N. appeared in person and was represented by Ms. S. Grattan, as duty counsel, and D.S. appeared in person, self-represented. On that date, Judge Keyes made an interim order, by consent (CEIS 10):
1. Neither party will relocate the children, C.E. born [omitted for publication] 2008, and C.N. born [omitted for publication] 2013, from Prince George, British Columbia, without first obtaining the written approval of all guardians and persons having contact, unless he or she has provided all guardians and persons having contact with 60 days' written notice, and no one receiving such notice has filed an application under ss. 59, 60 or 69 of the Family Law Act to maintain contact or prohibit relocation within 30 days of receiving the notice.
2. All other issues stated in the Notice of Motion filed April 27, 2018 are adjourned generally.
[16] The first appearance for D.S.’s April 27, 2018, Application (CEIS 1), and T.N.’s, May 15, 2018, Reply with Counterclaim (CEIS 3) was scheduled for June 5, 2018 (CEIS 8). On June 21, 2018, however, D.S. and T.N. filed a Request to Adjourn Generally or Withdraw Application (CEIS 9).
[17] On June 20, 2019, T.N. filed an Application to Obtain an Order for guardianship, allocation of parenting responsibilities, and a Protection Order (CEIS 11). In this application, T.N. states that the present parenting time arrangement was a seven day on seven day off schedule. He sought “full guardianship for the children the majority of the time, arrangements for visitation will be made eventually." With respect to his request for a Protection Order, T.N. states:
Due to the living conditions in which they are in, I would like to ensure that the children are with me so they have proper living necessities including routine, proper nutrition and living/learning space.
[18] On June 20, 2019, D.S. filed a Reply with Counterclaim disagreeing with T.N.’s application and counterclaimed for guardianship, spousal support retroactive to the date of separation, child support retroactive to the date of separation, and allocation of parental responsibilities, (CEIS 12). D.S. states in her Reply that the children have been in her care their whole life.
[19] On June 20, 2019, the Court Registry schedule a first appearance on D.S. and T.N.’s reciprocating applications for August 1, 2019 (CEIS 13).
[20] On June 26, 2019, D.S. filed an Amended Reply (CEIS 14) seeking an order to set aside or replace the January 29, 2018 Separation Agreement. In this Amended Reply with Counterclaim, D.S. states the Children have been in her care their whole lives, and she had always provided adequate care.
[21] On July 29, 2019, D.S. filed a Form 4 Financial Statement (CEIS 15) claiming to be unemployed since January 10, 2019, and her Employment Insurance ended on July 15, 2019. D.S. declared an annual employment income of $11,570, with $30,200 in expenses, $14,700 in assets, and $26,128 in debts.
[22] On August 1, 2019, this matter came before Judge Malfair for a first appearance. Neither party appeared in person, or by counsel, or agent. Judge Malfair struck the appearance date. On August 29, 2019, D.S. applied to reset the court date (CEIS 18).
[23] On May 13, 2020, Kyle Parker became legal counsel for T.N. (CEIS 18).
[24] On May 14, 2020, T.N. filed an Application for Urgent Hearing (CEIS 19) on the basis that D.S. had withheld the Children from him and was breaching the January 29, 2018 Separation Agreement. He states that D.S. had followed the Separation Agreement (CEIS 17) up until May 6, 2020, when she began denying him parenting time. Based on the material provided to the Court, Judge Brecknell granted T.N.’s application for an urgent hearing.
[25] On May 14, 2020, T.N. filed a Notice of Motion (CEIS 20) seeking interim orders for the enforcement of parenting time and conduct orders,
[26] On May 14, 2020, Stephanie Leach, legal assistant to Kyle Parker, legal counsel for T.N., filed an Affidavit (CEIS 24), setting out T.N.’s allegations that D.S. had denied him parenting time and attached as exhibits text messages D.S. sent to T.N. on April 29, 2020.
[27] On May 19, 2020, T.N.’s application for an urgent hearing (CEIS 19 and 20) came before Judge Malfair. Both parties appeared remotely. T.N. was represented by Mr. K. Parker and D.S. was self-represented. At that time, Judge Malfair made the following interim order (CEIS 22):
Upon the Court being advised that the name and birth date of each child is as follows: C.E. born [omitted for publication] 2008, and C.N. born [omitted for publication] 2013.
The Court is satisfied that T.N. and D.S. are the guardians of the children under s. 39(1) of the Family Law Act.
THIS COURT ORDERS:
Parenting Time
1. The parents will share parenting time with the Children. The Children will be in the care of each parent as follows:
a. 8 days in the care of D.S., and
b. 6 days in the care of T.N., as described hereafter.
2. T.N. will have parenting time with the Children commencing Wednesday, May 20, 2020, at 9:00 am and ending Tuesday, May 26, 2020, at 7:30 pm, and continuing on the same alternating weekly schedule until further order of the court, pursuant to s. 45 of the Family Law Act.
Conduct Orders
3. The parents will communicate with each other only in respect to matters directly involving the Children. Such communications will be restricted to text, email, or other written medium as agreed between the parents, pursuant to s. 225 of the Family Law Act.
4. The parents will:
a. put the best interests of the Children before their own interests;
b. encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent and that parent's partner in a positive and respectful manner; and
c. make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children,
pursuant to s. 222 of the Family Law Act.
5. The parents will not:
a. question the Children about the other parent or time spent with the other parent beyond simple conversational questions;
b. discuss with the Children any inappropriate adult, court or legal matters; or
c. blame, criticize or disparage the other parent to the children.
pursuant to s. 222 of the Family Law Act.
Family Justice Report
6. A Family Justice Counsellor will prepare a report to assess the views of the Children in relation to the Children’s residency in each parent’s respective home, pursuant to s. 211 of the Family Law Act.
Exchange of Financial Information
7. D.S. will file and deliver a copy of her 2019 Income Tax and Benefit Return to T.N. by August 15, 2020.
8. T.N. will complete, file with the Registry, and deliver to D.S. a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form by August 15, 2020.
Dispense with Signature
9. The requirement to obtain D.S.’s signature approving the form of this Order is dispensed with. Mr. Parker will prepare the Order.
10. CEIS Documents 1, 3, 11, 12, and 17 were adjourned to the Judicial Case Manager to set a date for a Family Case Conference.
[28] Through inadvertence or oversight Judge Malfair’s order for the preparation of the s. 211 Report was not sent to Family Justice Services until July 20, 2021 (CEIS 44).
[29] On August 11, 2020, T.N. filed a Form 4 Financial Statement (CEIS 26), declaring a guideline annual income of $84,235 and benefits of $5,376.54, expenses of $87,264.88, assets totalling $95,367.45 and debts in the amount of $13,500.
[30] On August 20, 2020, the Court scheduled a family case conference for September 22, 2020 (CEIS 27).
[31] On September 22, 2020, T.N. and D.S. appeared before me for a family case conference. At the conclusion of the conference, I made an interim order by consent (CEIS 36):
Conduct Order
1. Neither party will:
a. make disparaging remarks to third parties about the other party;
b. discuss the other party on social media without the other party’s written consent,
pursuant to s. 222 and 225 of the Family Law Act;
Exchange of Documents
2. Not less than 30 days prior to hearing, parties will exchange:
a. all documents they intend to rely on at trial; and
b. any will-say statements of any witnesses that will be called, other than the parties.
Trial Dates
3. Documents 1, 11 and 12, in this proceeding are adjourned to the Judicial Case Manager to fix 1.5 days for trial.
Trial Preparation Conference
4. A Trial Preparation Conference will be scheduled not less than 30 days prior to the trial.
Dispense with Signature
5. Counsel with T.N. will draft this order. The requirement to obtain D.S.’s signature approving the form of this Order is dispensed with.
[32] On September 23, 2020, T.N. filed an affidavit (CEIS 28), setting out offensive communications D.S. sent to him, his former girlfriend, L.K., and his new partner E.K., also known as B.K.
[33] On October 9, 2020, the Court scheduled a trial of these matters on January 18, 2021, with a trial preparation conference on November 27, 2020 (CEIS 29, 30).
[34] On November 16, 2020, Mr. D. Duncan became legal counsel for D.S. (CEIS 31).
[35] On November 27, 2020, this matter came before Judge Brecknell for a Pre-Trial Conference. T.N. appeared represented by Mr. K. Parker, and D.S. appeared represented by Mr. D. Duncan. Judge Brecknell made the following orders (CEIS 37):
a. The issues to be determined at trial on January 18, 2021, [are] limited to guardianship, child support and spousal support;
b. The Applicant [D.S.] [must] prepare, file and deliver her financial statement to the Respondent [T.N.] by December 14, 2020;
c. The Applicant [must] prepare, file and deliver an affidavit enclosing her technical certificates by December 14, 2020; and
d. The Applicant and the Respondent [must] prepare and deliver to the opposing party all income from all sources from January 1, 2020, to the December 14, 2020, by December 14, 2020.
[36] On December 10, 2020, Mr. K. Parker ceased to be T.N.’s legal counsel of record (CEIS 32).
[37] On December 11, 2020, D.S. filed a Form 4 Financial Statement (CEIS 33), in which she states she has been unemployed since October 12, 2020, after working for [omitted for publication] for one month. In this financial statement D.S. claims a Guideline income for child support purposes of $9,900, and $18,300 in income and benefits for a spousal support claim. She claimed expenses of $37,540, assets worth $33.72, and debts totalling $26.400.
[38] On December 11, 2020, D.S. filed an affidavit attaching copies of her training certificates (Forklift Operator, WHMIS) as well as her diploma as a Dental Office Receptionist (CEIS 34).
[39] On January 11, 2021, T.N. filed a Notice of Change of Address to his home address, [omitted for publication], Prince George, BC (CEIS 35).
[40] On January 18, 2021, this matter came before Judge McDermick for trial. T.N. was present in person represented by Mr. J. Rempel; D.S. was present in person and represented by Mr. D. Duncan. At that time, the matter was adjourned generally without rescheduling the trial (CEIS 38).
[41] On June 2, 2021, D.S., through her legal counsel, asked that the trial adjourned on January 18, 2021, be rescheduled.
[42] On June 11, 2021, this matter came before me for a Family Management Conference. Mr. D. Duncan appeared as counsel and agent for D.S. and as agent for Mr. J. Rempel. On that date, I directed the Judicial Case Manager (”JCM”) to schedule a two-day trial on CEIS Documents 1, 3, 14, and 17.
[43] On June 24, 2021, D.S., T.N., E.K. and C.N. were all present at [omitted for publication] Elementary School for C.E.’s graduation from Grade 7. It was supposed to be T.N.’s parenting time, however, D.S. came to the school to pick up C.N. in the company of her friend, N.S.. D.S. began yelling at T.N. and E.K. and refused to allow C.N. to go with his father. This verbal confrontation escalated into a physical altercation between D.S. and E.K. There were a number of witnesses to this event. D.S.’s friend, N.S., also present, video-recorded a portion of this altercation. The police attended at the school and investigated the incident. Ultimately, the Crown declined to approve charges and none were laid against D.S. or E.K.
[44] On July 8, 2021, the Judicial Case Manager scheduled a trial on CEIS 1, 3 and 14, for a trial on December 15, and 16, 2021, with a Pre-Trial Conference on October 28, 2021 (CEIS 46 and 47).
[45] On July 12, 2021, T.N. filed an Application About a Priority Parenting Matter (CEIS 39) seeking the following orders:
a. that D.S. have supervised parenting time; in the alternative
b. that the parenting schedule set out in the order of May 19, 2020, be made police enforceable;
c. that D.S. pay a fine in the amount of $5,000 for breaching the order of May 19, 2020; and
d. that T.N. have compensatory parenting time.
[46] T.N. states in his July 12, 2021 Priority Parenting Application (CEIS 39):
a. An order was made on May 19, 2020, that the parties are guardians of the children and that the parenting schedule be 8 days with D.S. and 6 days with T.N. There are additional terms to the order of May 19, 2020.
b. On or about July 24, 2020, T.N. attended [omitted for publication] School to pick up C.E. D.S. was there. When T.N. went to pick up C.N. D.S. initiated a confrontation. D.S. assaulted T.N.'s girlfriend. She then left with C.N.
c. T.N. has not had parenting time since then.
[47] On July 12, 2021, in support of his Priority Parenting Application T.N. filed an affidavit (CEIS 40) of in which he avers that on June 24, 2021, he went to the [omitted for publication] Elementary School with his girlfriend, E.K.]. He states:
a. D.S. was at the school, waiting in a friend's truck. I went to the truck.
b. D.S. came out and started calling my girlfriend names such as “stupid slut.” She punched my girlfriend. She pulled my girlfriend to the ground and continued the assault. Her friend joined in on the attack on E.K.. I separated them. Eventually she stopped the assault and left with C.N.
c. D.S. started this incident without provocation by me or my girlfriend.
d. I have not seen C.E. or C.N. since then.
[48] On July 12, 2021, E.K. filed an Application About a Protection Order (CEIS 1), in Prince George Family Court File F-[omitted] against D.S. E.K. filed this application on her own behalf and on behalf of T.N., her children, I.B., born [omitted for publication] 2015, H.B., born [omitted for publication] 2017, and A.B. born [omitted for publication] 2019, and on behalf of D.S. and T.N.’s children, C.E. and C.N. E.K. accused D.S. of stalking her, bullying her, harassing her, threatening her, using her vehicle to run her off the road, attempting to push her down an embankment, and attempting to assault her with a baseball bat. E.K. says that in many of these instances, her children were present.
[49] Also on July 12, 2021, E.K. filed an Application for a Case Management Order without Notice or Attendance (CEIS 2; File [omitted]). She claims that D.S. attacked her at C.N.’s school on June 24, 2021. E.K.’s applications came before Judge Brecknell on July 12, 2021. E.K. appeared in person as did T.N. and his legal counsel, Mr. J. Rempel. D.S. did not appear in person or by counsel or agent. The matter was adjourned to July 13, 2021.
[50] E.K.’s applications came back before me on July 13, 2021. D.S., T.N. and E.K. appeared in person, all self-represented. I adjourned E.K.’s applications (CEIS 1 and 2, File [omitted]) to the JCM to schedule a one-half day in person hearing with notice to both parties. The applications were subsequently scheduled for trial on September 15, 2021.
[51] On July 13, 2021, D.S. filed an Application About a Protection Order against T.N. (CEIS 41) on behalf of herself, C.E. and C.N. She alleged T.N. had a criminal history linked to drug and alcohol abuse. She claimed he was threatening, controlling and suicidal. D.S. further alleged that it was E.K. who attack her on June 24, 2021. D.S. says that as a result of this attack, she sustained injuries requiring medical attention.
[52] On July 16, 2021, the JCM scheduled a one day hearing on September 15, 2021, with respect to E.K.’s Application for Protection Order and Application for Case Management Order (CEIS 1 and 2, File [omitted]). The Court Registry mailed the Scheduling Notice to E.K. and to D.S. on August 10, 2021.
[53] On July 16, 2021, in support of his Priority Parenting Application (CEIS 39) T.N.’s counsel, Mr. J. Rempel, filed an affidavit of his legal assistant, Lisa Miller (CEIS 42), attaching text messages exchanged between T.N. and D.S. on July 6, 2021.
[54] On July 16, 2021, this matter came before Judge Brecknell. T.N. attended in person and represented by Mr. J. Rempel, D.S. appeared in person and represented by Mr. D. Duncan. At that time, Judge Brecknell made the following interim order (CEIS 48):
1. The order of May 19, 2020, remains in force except as altered by the terms of this order.
2. T.N.’s parenting time with the children comprising of six (6) day blocks will commence on July 21, 2021.
3. D.S.'s parenting time in eight (8) day blocks will commence on July 27, 2021.
4. The parenting regime described above will continue until further order of the court, with T.N.’s next parenting time commencing on August 3, 17, and 31 and D.S.’s parenting time commencing on August 9, 23, and September 6, 2021.
5. The parenting time pattern will continue in six day blocks for T.N. and eight day blocks for D.S.
6. T.N.’s applications set out in the application about a priority parenting matter filed July 12, 2021, are adjourned generally, if not provided for in this order.
7. The exchanges shall happen on the Fifth Avenue side of the RCMP detachment at 455 Victoria Street, in Prince George, BC unless the parties agree to a different location in writing, in advance.
8. T.N. will pick up the children to start his parenting time on 10:00 am.
9. E.K. shall not be within 100m of the agreed upon exchange location.
10. The file is adjourned for a subsequent appearance on August 19, 2021.
11. Upon being satisfied that T.N. has been wrongfully denied parenting time with C.E., born [omitted for publication], 2008, or C.N., born [omitted for publication], 2013, by D.S., this court orders under s. 231(4) of the Family Law Act that a police officer apprehend the children and take the children to T.N.
12. Upon being satisfied that D.S. been wrongfully denied parenting time with C.E., born [omitted for publication], 2008, or C.N., born [omitted for publication], 2013, by T.N., this court orders under s. 231(4) of the Family Law Act that a police officer apprehend the children and take the children to D.S.
[55] On July 19, 2021, D.S.’s Application About a Protection Order was scheduled for hearing on August 5, 2021 (CEIS 43).
[56] On July 20, 2021, Judge Brecknell advised legal counsel for the parties that through inadvertence or oversight, Judge Malfair’s May 19, 2020 Order for a s. 211 report was never provided to the Family Justice Services (CEIS 44).
[57] On August 5, 2021, this matter came before Judge McDermick for a trial on D.S.’s July 13, 2021 Application for a Protection Order (CEIS 41). D.S. and T.N. appeared in person and self-represented. D.S.’s application was adjourned generally.
[58] On August 19, 2021, T.N.’s Application about a Priority Parenting Time Matter (CEIS 39) came before Judge Nadon. Mr. J. Rempel appeared as counsel and agent for T.N. D.S. was present by MS Teams, self-represented. Judge Nadon adjourned T.N.’s application to September 16, 2021, for a Family Management Conference.
[59] On August 27 2021, Family Justice Counsellor (“FJC”) Vanessa St. Louis filed a s. 211 report she prepared at the direction of Judge Malfair’s May 19, 2020 Order (CEIS 18). In preparation of the s. 211 Report FJC St. Louis interviewed D.S. on August 9, 2021, and C.E. and C.N., on August 16, 2021. She did not interview T.N. because she was unable to connect with him.
[60] In the s. 211 report D.S. told FJC St. Louis she believed the “children are old enough to decide when and how they spend time with their father.” D.S. said she wanted to change the parenting arrangement so she has primary care of C.E. and C.N. and T.N. would have parenting time on the weekends. She says she is happy to allow the children to have greater time with T.N. if they wish.
[61] In the s. 211 report, C.E. has all manner of positive things to say about his mother and nothing but negative things to say about his father or his new partner, E.K., who C.E. calls “B.K.”. C.E. describes his father as a “terrible” person and that his relationship with him is “horrible.” C.E. is unequivocal that he would like to live with D.S. and visit his father when he wanted.
[62] C.N. witnessed the physical altercation between his mother and E.K., which frightened him. Like C.E., C.N. has nothing but positive things to say about his mother and practically nothing positive to say about spending time with his father other than he likes the different videogames available at his father’s house. Like many children, C.N. wishes his parents were still a couple, even though they separated when C.N. was two years old and he has no memory of them being together.
[63] On September 15, 2021, E.K.’s Application About a Protection Order (CEIS 1 and 2; File [omitted]) came before me for hearing. E.K. attended in person, self-represented. Although notified of the court date, D.S. did not attend in person or represented by counsel or agent. At that time, I heard evidence from E.K., and received into evidence witness statements, text messages between D.S. and E.K., and a video-clip showing excerpts from the June 24, 2021 altercation at the [omitted for publication]Elementary School. At the end of the hearing, I was satisfied the criteria for a Protection Order pursuant to s. 183 of the Family Law Act, had been satisfied and ordered:
a. Pursuant to s.183(3)(b) of the Family Law Act, D.S. must have no contact or communication, directly or indirectly, with E.K. except with further order of this court.
b. Pursuant to s.183(3)(a) of the Family Law Act, D.S. must not go to any place where E.K. lives, works, attends school, or worships, or happens to be, even if you are an owner of any such place or otherwise have a right to possess or enter such a place. If you see them, you must leave their presence immediately without any words or gestures.
c. D.S. has leave to apply to vary this Order within reasonable notice to E.K.
[64] On September 16, 2021, T.N.’s Application about a Priority Parenting Time Matter (CEIS 39) came before Judge Malfair for a Family Management Conference. T.N. was present and represented by his counsel, Mr. J. Rempel. D.S. was present represented by her counsel, Mr. D. Duncan. Judge Malfair adjourned T.N.’s application to October 7, 2021.
[65] On October 7, 2021, T.N.’s July 12, 2021 Application about a Priority Parenting Time Matter (CEIS 39) came before me. T.N. was present and represented by his legal counsel, Mr. J. Rempel. D.S. was present and represented by her legal counsel, Mr. D. Duncan. On that date I adjourned T.N.’s application to the judicial case manager for scheduling.
[66] On October 28, 2021, this matter (CEIS 1, 3 and 14) came before me for a Pre-Trial Conference. I ordered the parties complete, file with the Registry, and deliver to the other a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments set out on page two of Form 4, by November 19, 2021.
[67] On December 9, 2021, D.S. filed a Form 4 Financial Statement (CEIS 49) in which she claims a Guideline income of $21,389.44.
[68] On December 14, 2021, T.N. filed a Form 4 Financial Statement (CEIS 50), in which he claims a Guideline income of $104,653.36.
[69] The trial of this matter commenced on December 15, 2021. D.S. was present in person and represented by her legal counsel, Mr. D. Duncan. T.N. was present in person and represented by his legal counsel, Mr. J. Rempel. At that time Mr. Duncan and Mr. Rempel advised the Court the issues the parties wished adjudicated were: (a) parenting arrangements; (b) child support, both ongoing and retroactive to the date of separation (January 29, 2018); and (c) spousal support, on-going and retroactive to the date of filing (April 27, 2018). The only point of agreement was guardianship. The parties agreed they are both guardians of C.E. and C.N.
[70] The trial continued on December 16, 2021, October 17, 2022, and October 18, 2022, with a Pre-Trial Conference on August 22, 2022. Throughout the trial, T.N. was presented by his legal counsel, Mr. J. Rempel, and D.S. was represented by her legal counsel, Mr. D. Duncan.
[71] On October 18, 2022, the fourth day of trial, I heard from D.S.’s friend and roommate, W.H. W.H. attested to having heard all manner of negatives comments C.E. and C.N. made about T.N. and E.K.
[72] On December 1, 2022, D.S. filed an Application for a Case Management Order with Notice (CEIS 54), in which she sought an order pursuant to section 202 and/or 203(1) of the Family Law Act, that the Children may be represented by counsel appointed by the Child and Youth Legal Centre of the Society for Children and Youth of B.C. or by a lawyer appointed by them.
[73] On January 6, 2023, D.S.’s December 1, 2022, Application for a Case Management Order (CEIS 54) came before Judge Mengering for a first appearance. Judge Mengering adjourned the application to the Judicial Case manager to schedule a hearing before me for 45 minutes. It came before me for hearing on January 24, 2023, in Prince George Provincial Court. Mr. D. Duncan appeared as counsel and agent for D.S.; Mr. J. Rempel appeared as counsel and agent for T.N. At the conclusion of the hearing of this application, I reserved my decision.
[74] Also on January 24, 2023, the trial matters came before me for a Pre-Trial Conference in anticipation of the February 22 and 23, 2023 trial continuation dates.
[75] On January 26, 2023, the Judicial Case Manager notified Mr. Rempel and Mr. Duncan by email (CEIS 57) my decision on D.S.’s December 1, 2022 Application for a Case Management Order (CEIS 54), was scheduled in Court Room 102, in Prince George Provincial Court on February 1, 2023.
[76] On February 1, 2023, Mr. Duncan appeared before me as counsel and agent for D.S. No one appeared on behalf of T.N., although his legal counsel was duly notified of the court date. At that time I invited Mr. Duncan to provide further submissions on alternatives to communicating to the court the Children’s views and preferences with respect to parenting arrangements. Mr. Duncan submitted that given the circumstances in which the August 27, 2021 s. 211 report was prepared, the Court ought to revisit the Children’s views on the current parenting arrangement. He proposed three alternatives in the following priority: (1) appointment of Children’s counsel pursuant to s. 203 of the Family Law Act; (2) a judicial interview with the Children; (3) an updated s. 211 report. Mr. Duncan asked the Court to appoint legal counsel both C.E. and C.N., not simply for C.E. Given the impending trial dates, he feared it would take too long to procure an updated s. 211 report from Family Justice Services.
[77] These are my reasons for judgment on D.S.’s December 1, 2022 Application for a Case Management Order (CEIS 54).
Legal Analysis
Best interests of the child
[78] Section 37(1) of the Family Law Act, SBC 2011, c. 25 mandates that when making an order regarding parenting arrangements the court must only consider the best interest of the children. It states:
37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
[79] Section 37(2) of the Family Law Act sets out a non-exhaustive list of the needs and circumstances of the child that must be considered:
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
a. the child's health and emotional well-being;
b. the child's views, unless it would be inappropriate to consider them;
c. the nature and strength of the relationships between the child and significant persons in the child's life;
d. the history of the child's care;
e. the child's need for stability, given the child's age and stage of development;
f. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
g. the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
h. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
i. the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
j. any civil or criminal proceeding relevant to the child's safety, security or well-being.
[80] Subsection 37(3) and (4) of the Family Law Act state as follows:
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
The child’s views unless it would be inappropriate to consider them
[81] Section 37(2)(b) of the Family Law Act requires the court to consider the child's views unless it would be inappropriate to do so. A child’s views are considered inappropriate where the child is very young or suffers from serious cognitive impairment. Although the child’s views is but one factor the court must consider in assessing the child’s best interest, it is a factor that increases in significance with the child’s age.
[82] Incrementally, the courts have recognized children as full rights-bearing individuals. Giving effect to their views, where appropriate, is consistent with Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 states:
Article 12
1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[83] Canada signed the Convention on May 28, 1990. Although it has never been implemented, it was ratified on December 13, 1991, with the support of all the provinces and territories.
[84] In E.M.B. v. M.F.B. 2021 ONSC 4264, Justice Renu Mandhane adopted an interpretation of the parenting provisions of the Divorce Act consistent with children’s human rights and Canada’s obligations under international law, She states:
58. A human rights-based approach to the amended Divorce Act calls on courts 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. 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.
. . .
61. A human rights-based approach fundamentally recognizes children as subjects of law rather than objects of their parents. Making children more visible in legal proceedings that affect their rights is fundamentally important in Canada because children are not guaranteed legal representation in family law proceedings…
[85] In J.E.S.D. v. Y.E.P., 2018 BCCA 286 (CanLII), the BC Court of Appeal, discussed the weight to be given to a child’s views in assessing the child’s best interests in light of the child’s evolving capacities for autonomous decision-making. Groberman J.A. for the unanimous court states:
[51] In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the Supreme Court of Canada considered the concept of “best interests of the child” in the context of legislation that permitted a court to authorize medical treatment, even against a child’s wishes. Justice Abella, writing for the majority, noted that as children gain maturity, their wishes become proportionately more important in determining what is in their best interests. She stated:
[87] The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion under s. 25(8). In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor. …
…
[92] The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them. … With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the “best interests” assessment is as variable as the child’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures.
[52] Inherent in the Court’s analysis in A.C. is the recognition that circumstances will exist when the child’s wishes do not conform to what is in his or her best interests. Children are sometimes incapable of identifying what is in their own best interests.
[53] While the views and wishes of a mature child . . . will be important in determining what is in her best interests, they will not be determinative.
How can the Court hear the views of the child?
[86] A child’s views and preferences can be communicated to the Court directly through oral testimony at trial or through a judicial interview or through child-inclusive mediation. In their treatise, Hearing the Voices of Children in Family Disputes (Canada, Themis 2021), Professors Nicholas Bala and Rachel Birnbaum, state (at p. 28):
There is no single “best way" to hear from children during the family justice process, as each approach has its own strengths and limitations. The method chosen will depend on a number of factors including:
• the issues in dispute;
• the resources available;
• getting the best information possible before the decision-maker·
• the efficiency of the justice process; '
• the child's age and capacity;
• the attitude of child;
• the stage of the process (e.g. case conference, interim proceeding, trial or variation of prior order or agreement);
• the nature of dispute resolution process (e.g. mediation/negotiation/ litigation);
• concerns about fairness to parties;
• concerns about fairness to the child; and,
• legal framework and attitude of decision-maker.
There is great variability across Canada in judicial practice and in the extent to which professional services are available, especially for parents who lack the financial resources to hire lawyers and mental health professionals. Arguably, the needs and views of the child involved should always be the dominant factors in deciding how to involve them. In practice, however the resources available and the attitudes of various adults involved, including those of the parents and professionals, often play the most significant role.
[87] The Family Law Act legislates various methods available in British Columbia for bringing the views of a child to the court’s attention.
[88] Section 202 of the Family Law Act allows the court to admit hearsay evidence of a child and give any other direction the court considers appropriate concerning the receipt of a child's evidence. It states:
Hearsay Evidence
202. In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following:
(a) admit hearsay evidence it considers reliable of a child who is absent;
(b) give any other direction that it considers appropriate concerning the receipt of a child's evidence.
[89] In Goldsmith v Holden, 2020 BCSC 1501 (CanLII), Justice Baker notes (at para. 9) that s. 202 is protective of children in the litigation context as it does not require them to be witnesses in any litigation. It allows a child to participate in family law proceedings without having to testify at trial. The Court can hear a child’s view through submissions of legal advocates, or through evidence from the parents or other witnesses. The Court can also receive hearsay evidence through an assessment report undertaken by a mental health professional or social worker or from a neutral third party in a “Views of the Child” report. These reports are routinely ordered pursuant to s. 211 of the Family Law Act, which states:
Orders respecting reports
211 (1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:
(a) the needs of a child in relation to a family law dispute;
(b) the views of a child in relation to a family law dispute;
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
(2) A person appointed under subsection (1)
(a) must be a family justice counsellor, a social worker or another person approved by the court, and
(b) unless each party consents, must not have had any previous connection with the parties.
(3) An application under this section may be made without notice to any other person.
(4) A person who carries out an assessment under this section must
(a) prepare a report respecting the results of the assessment,
(b) unless the court orders otherwise, give a copy of the report to each party, and
(c) give a copy of the report to the court.
(5)The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.
Appointing legal counsel for a child
[90] Section 203 of the Family Law Act is statutory authority for this court to appoint a lawyer for a child. In reads:
203 (1)The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that
(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and
(b) it is necessary to protect the best interests of the child.
[91] The BC Court of Appeal in J.E.S.D held that before appointing a lawyer for a child, the Court must be satisfied the conditions of s. 203 have been met.
[92] In J.E.S.D. the child “S” was 17 years old. Her parents had been involved in litigation over the father’s parenting relationship with S. for most of her life. S wanted nothing to do with her father. She applied to become a full party to her parent’s family law litigation, and asked the court to appoint legal counsel to represent her. The trial judge refused S.’s application, and S. appealed. On appeal, Justice Groberman commented at the outset on the limitations a court has in effecting a reconciliation between the father and 17-year-old child in the face of the daughter’s recalcitrance:
[3] Given S.’s age and level of maturity, her attitude toward Mr. P. would seem to make any relationship between the two of them impossible. It is difficult to understand what order a court might make to resolve the situation. Without cooperation from S., no order can be effective in restoring or building a relationship between S. and Mr. P. There is no indication that S. is prepared to cooperate or to relinquish the effective control she has over Mr. P.’s relationship with her.
[4] Mr. P. is, nonetheless, pursuing litigation with a view to securing a court order giving him parenting time and parental responsibilities. It appears that he will also seek an order requiring S. to participate in an intensive counselling program.
[93] In her appeal, S. relied heavily on the UNCRC. In dismissing her appeal Justice Groberman noted that S.’s voice had already been heard directly through affidavits and an interview with the chambers judge and indirectly through the report of her psychologist. The Court acknowledged the possibility that S. might also be called upon to give further evidence at the trial. The appellate court held that Article 12(2) of the UNCRC does not, on its face, provide for a greater level of participation that S. already had enjoyed. Judge Groberman states:
[35] Care must be exercised in interpreting the provisions of international conventions. The UNCRC applies across diverse legal systems and traditions. In the result, a purposive approach to its interpretation is required; it would be a mistake to assume that words in the convention necessarily correspond to specific concepts established in the Canadian legal system.
[36] Article 12, in its terms, does not go so far as to guarantee children a right to legal representation or to party status in a legal dispute. Rather, it requires that children’s voices be heard in proceedings that affect them. This requirement is echoed in various provisions of the Family Law Act, including ss. 37(2)(b) (requiring the court to consider children’s views in determining their best interests); 199(2)(a) (requiring the court to consider the impact of the proceeding on the child); 202(a) (allowing a judge to admit hearsay evidence of absent children); 202(b) (permitting other directions to receive a child’s evidence); and 211 (providing for the appointment of a person to assess the needs and views of a child), as well as the ability of the judge to interview the child.
[94] The Court of Appeal in J.E.S.D. was not persuaded the UNCRC would allow the Court to ignore the clear limitations on the appointment of counsel set out in s. 203(1) of the Family Law Act. The appellate court rejected the argument the trial judge ought to defer to the child’s own assessment of her best interests. Justice Groberman states:
[49] Adding the phrase “from a child-centred perspective” to “best interests of the child’ can, unfortunately, lead to confusion. In this case, for example, S. argues that the court is bound to accept her view of her best interests as definitive, because the best interests of the child must be assessed from the child’s viewpoint. Such an interpretation would make the child, rather than the court, the final arbiter of her/his best interests. In my view, such an interpretation conflates the best interests of the child with the child’s wishes.
[50] I do not suggest that the child’s wishes are to be ignored in assessing what is in the child’s best interest. Under s. 37(2)(b) of the Family Law Act, the views of children are a relevant consideration in determining their best interests, unless it would be inappropriate to consider them. This consideration, however, is only one among many that helps a court determine what is in the best interests of the child.
[95] In Fox v. Fox, 2018 BCCA 359 (CanLII), Griffin J.A., states:
[23] Generally speaking, the prevailing wisdom is that parents should not involve a child in the parents’ disputes about what is best for the child. This is because it is highly stressful for the child and divides the child’s loyalties. It can also be a tool by which one parent tries to alienate the child from the other parent.
[96] J.E.S.D. is the governing authority on the interpretation and application of s. 203 of the Family Law Act. However, I have also found helpful and take guidance from a number of lower court decisions on the manner in which the court can learn the views of a child in family law proceedings under both ss. 202 and 203.
[97] K.J.C. v J.E.C, 2019 BCSC 1908 (CanLII), is a decision of Justice S. Wilson of the B.C. Supreme Court, involving an eleven-year old girl. The mother sought an order for the preparation of a s. 211 report and an order appointing a lawyer to represent the child pursuant to s. 203 of the Family Law Act. Justice Wilson did not find the conflict in that case rose to such a level as to justify the appointment of legal counsel for the child under s. 203. Upon considering J.E.S.D. Justice Wilson states:
[25] With reference to s. 203(1)(a), there is no evidence before me that would satisfy me that the conflict between the parties is so severe that it impacts upon their ability to act in K.C.'s best interests. . . .
[26] Moreover, even if the conflict were so severe, I would not conclude that legal representation of an 11-year-old is necessary to protect her best interests, especially since the involvement of Dr. Elterman will necessarily be focused on ensuring that K.C.'s best interests are protected. . . .
[98] Justice Wilson also discussed the mother’s general non-compliance with court orders:
[28] While I think it better not to say too much about the conflicting evidence here given my decision to refer the matter for trial, there are nonetheless some matters here that are troubling and warrant comment. I am concerned about the mother acting as if she was K.C.’s sole guardian when she is not. This includes arranging for medical and counselling appointments without the father’s consent or knowledge. A consent order has now been entered into regarding appointments, but no such order should have been needed. I am particularly concerned about an appointment with the mother’s own therapist or counsellor.
[29] Arranging extra-curricular activities without consent or discussion during the father’s parenting time is also inappropriate. The most recent example was signing K.C. up for acting lessons without consultation. The father is entitled to an equal say, and while he may not have even opposed the acting lessons, he is put in an impossible position of either acquiescing or being painted as the bad parent in the eyes of the child, as the mother was likely well aware.
[30] It is important that the mother understand and appreciate that court orders are binding. Compliance is not optional. It is concerning that K.C. in the Views of the Child Report when asked what she would do if a court order ordered her to live with her father, told the interviewer that she would not comply.
[31] A court order that requires a child spend time with a parent is no different from whether or not the child should attend school. A child does not have the option of choosing not to go – it is not a decision like whether she prefers waffles or pancakes for breakfast or which movie to watch. If the child does not wish to go to school, a parent has an obligation to ensure that it happens, and an order to go to the care of the other parent is no different.
[99] In M.C. v B.A, 2020 BCSC 1205 (CanLII), Justice Steeves refused the father’s application to order a Views of the Children Report (s. 211) or appoint legal representation (s. 203) for a 12 year old boy because the father had unilaterally and without notice simply refused to return the child to the mother:
[21] The respondent’s recent actions have set in train significant, unilateral and sudden changes in the life of a vulnerable 12-year-old child. Those actions have also caused disruption in the relationship between D and his mother, made her the subject of an investigation by the Ministry, and undoubtedly caused her anxiety and additional cost. None of this is in the best interests of D. Further, the idea of appointing separate counsel for D of course assumes that the claimant mother is not acting in D’s best interests or is even acting contrary to the best interests of D, and there is no evidence of that at all.
[100] In A.W. v. J.M., 2020 BCPC 108 (CanLII), Judge Merrick appointed legal counsel for the child who was seven years old. Judge Merrick found that after three-and-one-half days of testimony from a number of the adults in the child’s life, there was still an absence of evidence respecting the child’s views. Because of this deficiency, the appointment of counsel was necessary to protect the best interests of the child. Moreover, the parents, through their respective legal counsel, consented to the appointment of a lawyer from the Child and Youth Legal Centre to represent the child pursuant to s. 203 of the Family Law Act. Judge Merrick found that by consenting to the order, the parties acknowledged the applicability of s. 203. He states:
[13] By the parents essentially agreeing to this, they are saying to the court 1) that they were unable to present the testimony the court needed, 2) they agree that was because of the conflict and the effect of the conflict on them, and 3) that the appointment of counsel is necessary to protect J.'s interests. That does not diminish the conflict or suggest that because they agreed, the conflict is not so severe. What it says to the court is both parents have made an acknowledgment which they should be commended for and, by doing so, they are assisting the court in coming to its determination of what is in J.'s best interests which, with respect to the issues of guardianship and parenting time, is the sole and fundamental consideration and the purpose of the court -- to make orders that are in the best interests of J. only . . .
[101] Goldsmith v Holden, 2020 BCSC 1501 (CanLII), is a decision of Justice Baker of the British Columbia Supreme Court. In Goldsmith the mother of twin girls sought an order that the girls be appointed a legal advocate from the Child and Youth Legal Centre in any future court proceedings that affects their rights. In the alternative, the mother sought an order pursuant to s. 202 of the Family Law Act that a non-evaluative Hear the Child Report be prepared for the children. The girls were almost 13 years old. The father opposed the application out of concern the girls would be drawn into their parent’s litigation, which he considered unhealthy. He did, however, consent to an evaluative report being prepared pursuant to s. 202 of the Family Law Act. The father accused the mother of engaging in behaviours suggestive of parental alienation. Justice Baker declined to appoint a legal advocate for the children or order a s. 211 report. Instead, Justice Baker ordered that counsel for the children would be appointed pursuant to s. 202 of the Family Law Act to advise the children on any court applications which may affect their interests and to communicate the children's views on such applications to the court.
[102] Goldsmith v. Holden was referenced by this Court in D.M. v. C.R., 2021 BCPC 318 (CanLII). Judge Vandor 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. This did not happen because of the mother’s non-compliance. Judge Vandor ordered pursuant to s. 202 of the Family Law Act that an advocate from the Child and Youth Legal Centre meet with the parties’ ten year old daughter in person for the purposes of ascertaining whether she wished to participate in the family law proceeding, and if so, how she wished to participate. Judge Vandor further ordered the child be represented while attending two judicial interviews, which were recorded and sealed. *
[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.
[103] In Clayton v Clayton, 2021 BCSC 525 (CanLII), Justice MacIntosh was faced with the mother’s application to vary an order the parents shared equal parenting time with the children. Their 16-year old daughter went to live with her father full-time, which the mother did not oppose. The son, who was 12, expressed reluctance to spend parenting time with his father. The mother’s text messages indicated she was conversing with the children in a manner that could alienate them from their father. Justice MacIntosh concluded that 12 was old enough that a child can properly be heard from and their views considered, but not so old as to permit their views to be determinative or close to being determinative in parenting time disputes. Justice MacIntosh directed the parties to obtain a Views of the Child report, but declined to make an order appointing the son a lawyer under s. 203 of the Family Law Act. He states:
[7] . . . I do not find that the statutory conditions for making such an order are present at this stage. In particular, I am not satisfied that it is in this 12‑year‑old's best interests to "lawyer up," as the saying goes, given the facts of this case.
[8] When the Views of the Child report is obtained, either side may apply to vary the 2016 parenting time order. In the meantime, both parents will honour their obligations to Kai and to this Court, to do all they reasonably can to obey the existing order, and will refrain from saying or doing anything that may impede or frustrate compliance with that order.
[104] S.C v T.J.P.B, 2022 BCSC 418 (CanLII) is a decision of Master Robertson of the B.C. Supreme Court in which she considered the appointment of legal counsel for the child. Ultimately, she declined to do so in favour of commissioning a s. 211 report. Master Robertson states at paras. 82-84:
[82] With respect to the legal counsel, the court has the authority to make an order for the retainer of counsel under either ss. 201 or 203 of the FLA. Under those provisions, the court may “at any time” appoint a lawyer for the child.
[83] A legal counsel is generally appointed where the conduct of the parties is so severe that neither party is able to act in the children’s best interests. As noted in J.E.S.D. v. Y.E.P., 2018 BCCA 286 at para. 64 there must be an advantage, apart from convenience, that would be afforded by such an appointment.
[84] In K.J.C. v. J.E.C., 2019 BCSC 1908, the Court concluded at para. 26 that even if there was severe conduct to warrant an appointment, it was not necessary where a s. 211 report was pending.
[85] The evidence before the court today does not show conduct that supports such an order being made at this time, or that such representation will be available. As such, I will not make that order, however, that is without prejudice to any further application that the respondent may wish to make in that respect.
[105] Master Robertson also addressed issues of wrongful denial of parenting time, and s. 62 of the Family Law Act, which states:
When denial is not wrongful
62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:
(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
(f) other circumstances the court considers to be sufficient justification for the denial.
(2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child.
[106] In S.C v T.J.P.B, Master Robertson goes on to state:
[17] In this respect, the starting point on any application regarding wrongful denial of parenting, as noted in A.N. v. A.M.N., 2021 BCSC 2228 at para. 17 (“A.N.”), is that court orders are to be complied with and once a denial of parenting time has been established the onus shifts to the offending parent to show that the denial was not wrongful. Only reasonable denials of parenting time will excuse a denial.
[18] The basis for the denial is the Child’s reluctance to participate or attend parenting with the claimant. A child’s reluctance to participate in parenting, on its own, is not a reasonable basis for a denial. It is wrongful for a parent to deliberately fail to use his or her parental authority to override children’s wishes: A.N., citing (K.E.F.) v. (T.W.P.), 2016 BCSC 1706.
[19] In K.R. v. J.W., 2016 BCSC 225 (“K.R.”), the Court concluded as follows:
[59] A parent need not say the word “no” to scheduled parenting time for them to communicate a denial nor must they physically prevent the parenting time from occurring for it to be a wrongful denial. The cumulative effect of less definitive words and actions may suffice
[60] When a child is resisting the parenting time accorded a parent by the order or agreement, it is appropriate to view the origins of that resistance. A parent who encourages that resistance by words and/or actions can, in my view, be said to be denying parenting time and, depending on the circumstances, it may be a wrongful denial.
[20] The claimant argues that it is this type of a scenario which has occurred here, in that the respondent, at best, has failed to exercise her parental responsibility by taking all appropriate steps to encourage and facilitate the parenting or, at worst, has contributed to the alienation that now exists.
[107] S.T.C. v D.J.B, 2021 BCSC 1987 (CanLII) and D.R. v K.A, 2022 BCSC 1257 (CanLII), are two decision of Justice Mayer with respect to appointment of a children’s counsel in high conflict custody cases. In S.T.C. v D.J.B, the children were 16 years old and 13; in D.R. v K.A, the oldest child was almost 13 and the youngest was six. Justice Mayer appointed lawyers from the Child and Youth Legal Centre in each of these cases to represent all but the six-year old child. In both cases, Justice Mayer relied on the decision of Justice Martinson in B.J.G. v. D.L.G., 2010 YKSC 44, at para. 47. Justice Mayer states in D.R. v. K.A.:
[39] . . . Justice Martinson discussed the importance of meaningful participation of children in family proceedings and identified five ways to accomplish this. Children should:
1) be informed early in the process of their legal rights to be heard;
2) be provided the opportunity to participate early and throughout the process;
3) have a say in the manner in which they participate;
4) have their views considered in a substantive way; and
5) be informed of the result reached and the way in which their views were considered.
[108] In B.J.G. v D.L.G., at para. 48, Justice Martinson commented that legal representation can be one of the most effective methods of ensuring the participation rights of children at a hearing to parenting arrangements. Justice Martinson determined that federal, provincial, and territorial legislation relating to the parenting of children should be interpreted to reflect the values and principles found in the UNCRC and its key premise that hearing from children is in their best interests. All children capable of forming their own views have the legal right to be heard, without discrimination. No exception is made for high-conflict cases that may involve family violence and/or parental alienation. Decision makers have no discretion to disregard the legal rights conferred by Article 12 of the Convention because of the particular circumstances of the case or because of the view the decision maker may hold about children’s participation. Legitimate concerns about hearing from children, particularly in complex cases such as those involving high conflict, family violence, or parental alienation, can be accommodated within the flexible legal framework provided by the Convention.
[109] I have also considered C.D.M. v K.M.A.W, 2019 BCSC 608 (CanLII), wherein Justice Gomery refused to appoint legal counsel to a nine year old boy because the court was not satisfied the child was mature enough to recognize his best interests and instruct counsel. Justice Gomery conclude at para. 91, “As in J.E.S.D., I do not think it would be at all in J’s interests to draw him into this litigation as an adversary to one or both of his parents.” In that case the Court had the evidence of the parents, the access supervisor, and an evaluative s. 211 report by Dr. Michael Elterman, a well-regarded clinical psychologist with expertise in child-related matters.
Application to the Circumstances in this case
[110] The Family Law Act provides the wishes of a child are a relevant factor to be considered in determining the best interests of a child in parenting disputes. As C.E. is 14 years old and C.N. is 10, their views are an important factor in assessing their best interests and deserve considerable weight. As the B.C. Court of Appeal points out in J.E.S.D., the best interests of a child are not to be confused with the wishes of the child, but a child’s views and preferences fall within the parameters of a child’s best interests.
[111] In this case, I have considered:
a. the Children are 14 and 10 years old and are therefore old enough to have their views heard and considered by the Court;
b. C.E.’s views and preferences will carry more weight than C.N.’s given C.E. is older and more mature;
c. I do not consider it in C.E.’s or C.N.’s best interests to testify directly at trial and be subjected to cross-examination;
d. Given the intensity of the conflict between the parents, I do not consider the parents’ evidence as to what the children have told them sufficiently reliable to give it significant probative weight. In high conflict cases, Children will often say what they believe will appease the parent who is present;
e. Although the Court has the benefit of a Views of the Child Report, it is now dated. Moreover, the Family Justice Counsellor interviewed the children in August 2021, not long after D.S.’s physical altercation with E.K. at the children’s elementary school. It appears this traumatic incident informed their views on parenting arrangements;
f. The children have expressed reluctance to spend parenting time with their father. It is not apparent whether the children’s views and preferences are the result of their own experiences with their father or whether they are born of or fueled by their mother’s hostility toward their father and/or his new partner;
g. The parties are of modest means and unable to retain professionals to provide the court with an independent assessment of the children’s views and preferences concerning parenting arrangements. In any event, such assessments usually take a significant period of time to prepare;
h. I am aware that many children in high conflict family law proceedings appreciate an opportunity to meet with and express to the trial judge their views on parenting arrangements; and
i. D.S. has closed her case, and the trial is ongoing.
Issue # 1: Should the Court order an updated s. 211 Views of the Child Report from the Family Justice Report Services with respect to C.E. and C.N.’ views on parenting arrangements?
[112] Given the time that has elapsed since the August 27, 2021 s. 211 report, I find an updated report is in order. Given the Children’s extreme views conveyed in that report, I would prefer a full report as opposed to a basic “Views of the Child” report. Unfortunately, I do not believe that such a report could be produced in the near future. Typically, these reports take several months to a year to complete. I find it is not in the children’s best interest to delay this trial to facilitate the preparation of a new and fulsome s. 211 report.
Issue #2: Should the Court conduct a judicial interview of C.N. and C.E.
[113] L.C.T. v. R.K., 2016 BCSC 417 (CanLII), is decision of Justice Weatherill of the BC Supreme Court in a high conflict family law case where the central issue was whether the father’s parenting time with his two children, ages 7 and 8, should continue to be supervised. Justice Weatherill wanted to know why the children were acting out prior to visits with the father. He proposed two options to the parties to assist in obtaining this information: (1) a judicial interview, or (2) appointment of counsel to represent the interests of the children under s. 203(1) of the Family Law Act. With respect to the benefits of a judicial interview, Justice Weatherill states:
[15] I do not know the children. I have never met them. Yet I am being asked to make an order that will have a significant impact on them, regardless of what the order might be, and that is based on conflicting positions and affidavits on what the parties say is happening with the children.
[16] There are benefits to me interviewing the children in private. Some of those benefits are:
(1) The children will be able to express their respective views to the person who is responsible for making the decision that will affect them.
(2) It will facilitate a better decision that will be in the children's best interests.
(3) The children will benefit from expressing their views in private and in confidence.
(4) It will ensure their wishes are correctly interpreted and not through the sanitization or buffer of their parents and others.
(5) It would likely put their apparent distress, meltdowns and acting out into context.
(6) Their views, expressed in private, may play a significant role in my determination of whether or not a stay should be granted.
[114] I am not opposed to conducting a judicial interview with the children if they wish to meet with and speak directly to the trial judge.
Issue # 3: Should the Court appoint C.E. and C.N. a lawyer pursuant to s. 203 of the Family Law Act?
[115] The evidence before me thus far clearly indicates the degree of conflict between D.S. and T.N. is so severe that it significantly impairs their capacity to act in the best interests of the child. Although we are in mid-trial, s. 203 permits the court to appoint legal counsel at any time. In my view, the appointment of legal counsel for the Children is necessary to protect the Children’s best interests.
Disposition:
[116] Pursuant to section 202 and/or 203(1) of the Family Law Act, C.E., born [omitted for publication], 2008, and C.N., born [omitted for publication], 2013, may be represented by counsel appointed by the Children and Youth Legal Centre, whose address for service and location is Suite 303-1720 Grant Street, Vancouver, B.C., V5L 2Y7, phone/facsimile 778- 657-5544;
[117] Counsel for the Children shall have full power to act for the Children and is authorized to:
a. Receive copies of correspondence between counsel (or the parties, if unrepresented) in relation to the proceedings;
b. Receive copies of all professional reports and all records relating to the Children;
c. Appear and participate in this proceeding and make submissions to the Court, such submissions to include positions advanced on behalf of the Children;
d. Talk to and meet with the Children alone and confidentially or with others at any location without prior notice to the parents, including but not limited to the Children's school;
e. Talk to and meet with the Children alone and confidentially, with reasonable prior notice to the parents, at the residence of either parent;
f. Communicate directly with the parents of the Children for the purpose of scheduling any matters relating to the Children;
g. Apply to be removed as the legal representative of the Children, if counsel for the Children believes that such involvement is no longer in the Children's best interest or as instructed to do so by the Children; and
h. Take other steps as authorized by the Court.
[118] All third parties involved with the Children and their guardians, including but not limited to the Children's teachers and school authorities, family and children counsellors and assessors, mediators, church representatives, visit supervisors, health care providers, psychologists, social workers and Children welfare authorities are hereby authorized to release any and all information about the Children to counsel for the Children without the consent of the parents and/or guardians.
[119] The parties may communicate with counsel for the Children via email or written correspondence. All communications between the parties and counsel for the Children are not confidential and may be disclosed to the other parties.
[120] Counsel for the Children shall be permitted to provide a summary to this Court of the information acquired in the course of performing his or her duties and by doing so counsel for the Children shall not be deemed to be a witness in these proceedings.
[121] The Court Registry is directed to provide an entered copy of my decision and order of this date to the Children and Youth Legal Centre.
[122] The Court Registry is directed to provide the Children and Youth Legal Centre a copy of Views of the Child report filed in these proceedings by the Family Justice Services on August 27, 2021.
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Judge J.T. Doulis
Provincial Court of British Columbia