N.M.B. v. K.D.B., 2019 BCPC 291

Citation: N.M.B. v. K.D.B. 2019 BCPC 291 Date: 20191129 File No: F-18205 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.M.B. APPLICANT AND: K.D.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Applicant: Greene, G. E. Appearing in person: K.D.B. Place of Hearing: Smithers , B.C.

Date of Hearing: November 18, 19, 20, and 22, 2019 Date of Judgment: November 29, 2019 Introduction [ 1 ] N.M.B. and K.D.B. separated on December 30, 2018, after a 10 year marriage. They have two children, R.B. and Q.B., who are now nine and seven years old. When they first separated, N.M.B. and K.D.B. agreed to share equally parenting time of their children. Since then, they have been embroiled in acrimonious litigation over parenting time for their children.

Before the trial commenced, they have filed over 40 documents with the court registry and have been before the Court on nine different occasions before six different judges. The Court has made five interim orders. N.M.B. and K.D.B. have exchanged an exhaustive amount of communiques with little movement.

K.D.B. complains that incrementally N.M.B. began denying him parenting time with the children until he was left with a highly restricted supervised parenting regime arising from N.M.B.’s disingenuous and exaggerated concerns about the children’s safety while they are in his care. [ 2 ] It is uncontested that between the spring of 2018 and June 2019, K.D.B. struggled off and on with a cocaine addiction. N.M.B. defends her parenting time decisions on the basis K.D.B. is an addict who is untruthful about when he is using.

Her paramount consideration is to keep the children safe and does so by restricting K.D.B.’s parenting time until he proved to her satisfaction he had stopped using drugs. [ 3 ] On February 1, 2019, N.M.B. and K.D.B. attended court on a notice of motion for which N.M.B. obtained short leave. The parties left with what the Court intended to be a short-term interim without prejudice consent order, which still persists. From K.D.B.’s perspective, the order was highly prejudicial as it became the instrument N.M.B. brandished to justify denying him parenting time.

N.M.B. is resolute that until such time K.D.B. provides her with a hair follicle test proving he has been drug free for some unspecified period of time, she is entitled to deny him over-night and unsupervised parenting time. Although K.D.B. has provided numerous negative urine drug screening tests, he has not provided the hair follicle test. N.M.B. asserts that even though the urine drug tests were taken by K.D.B.’s family physician, the Court should presume they are falsified.

Because K.D.B. failed to provide a hair follicle test, N.M.B. asks the Court to divest K.D.B. of his guardianship and all parental responsibilities. She asks his access to the children be limited to supervised contact at her discretion. K.D.B. asks for the Court to terminate the February 1, 2019 order and impose a court ordered unsupervised parenting time

schedule which transitions into a shared parenting arrangement. [ 4 ] N.M.B. and K.D.B. are good citizens, hard workers, and loving parents. Although they acknowledge it is in their children’s best interest to have a meaningful relationship with both parents, this has not happened. Since January 2019, N.M.B. has incrementally constricted K.D.B.’s parenting time until it resembled the type of access provided to unrepentant criminals or to parents whose children are in the continuing custody of the Director of Child, Family and Community Service.

Despite K.D.B.’s months of regular negative urine drug tests, N.M.B. would not even agree to him having unsupervised parenting time with the children in a public place for a couple of hours. Issues before the Court [ 5 ] The issues before the Court are as follows: a. Should the Court terminate Judge Dossa’s February 1, 2019 Order as amended on February 22, 2019? b. Who should be the children’s guardians? c. How should the Court allocate parenting responsibility for the children? d. How should parenting time be allocated? Background and Procedural History [ 6 ] N.M.B. and K.D.B. were married on January 19, 2008.

They began dating about a year and one-half before they married. They have two children of their relationship, a son, R.B., born [omitted for publication], who is now nine years old and a daughter, Q.B., was born [omitted for publication], now seven. [ 7 ] N.M.B. was raised in the [omitted for publication] and now resides with the children and her parents, J.Z. and M.Z., at [omitted for publication], BC.

J.Z. and M.Z. have a home large enough to comfortably accommodate themselves, their daughter, and their grandchildren, R.B. and Q.B. [ 8 ] N.M.B. and K.D.B. have both been present and engaged parents to R.B. and Q.B. since their birth. [ 9 ] K.D.B. says over the years he became unhappy with his life and marriage. Both N.M.B. and K.D.B. had used cocaine recreationally in the past. By the spring of 2018, K.D.B. was in a “dark place” and lost control of his cocaine use.

At first he denied his drug use but in April 2018 provided N.M.B. with a letter in which he confessed he was using drugs and unable to stop: Exhibit 1. [ 10 ] Despite his drug use, K.D.B. worked full-time as the principle wage earner for his family.

N.M.B. and K.D.B.’s financial statements filed on February 14, 2019, and April 11, 2019, respectively, indicate: a. in 2015, K.D.B. earned a total of $140,753.16 (including $25,486 RRSP income), and N.M.B. earned $4,088 and received $3,840 for the Universal Child Care benefit; b. in 2016, K.D.B. earned a total of income of $103,571.29 (inclusive of RRSP income) and N.M.B. earned $3,169 in income which included $1,920 for the Universal Child Care benefit;

c. in 2015 and 2016, K.D.B. had worked in camps. In 2017, K.D.B. gave up his camp jobs to be closer to home and his family. He began working for the [omitted for publication]. In 2017, K.D.B. earned $46,276.54, inclusive of $5,973 from employment insurance and $1,000 from RRSP income. During the 2017 taxation year, N.M.B. earned an income of $4,069.16, inclusive of RRSP income of $249; d. in 2018, K.D.B. earned $47,606.25 working full-time for the [omitted for publication]; and e. in 2019, K.D.B. earned $58,150 working full-time for the [omitted for publication].

N.M.B. anticipated earning $25,000 from her house cleaning business, $10, 800 from child support and $9000 from the UCCB. [ 11 ] Until his addiction took hold, all K.D.B.’s income went to support his family. In 2018 K.D.B. began diverting income and accruing debts to purchase drugs. Although she had always controlled the family finances, N.M.B. increased her vigilance on K.D.B.’s spending when she learned of his drug abuse. [ 12 ] Unfortunately, in 2018, in addition to his escalating cocaine addiction, K.D.B. began suffering from stress and depression.

Nevertheless, he was still able to continue to work full-time at his employment with the [omitted for publication]. He also actively participated in caring for the children. There is no suggestion the children came to any harm while in K.D.B.’s care, notwithstanding his drug use. [ 13 ] K.D.B. took various prescribed antidepressants but suffered such adverse reaction to those medications and he no longer takes any. K.D.B. also attended counselling through Northern Health Mental Health and Addiction Services. He believed he had overcome his addiction, but admits suffering a few incidental relapses in early 2019.

He has now been clean since June 2019. [ 14 ] K.D.B. and N.M.B. separated permanently on December 30, 2018. [ 15 ] Shortly after their separation N.M.B. agreed with K.D.B. they would have parenting time with the children on a 50-50 basis, which I understand to mean R.B. and Q.B. would be in N.M.B.’s care 50% of the time and in K.D.B.’s care 50% of the time. [ 16 ] Shortly after leaving the marriage, K.D.B. formed an intimate relationship with N.W. N.M.B. believed N.W. also abused drugs and had shown her compassion and support in her rehabilitative journey.

N.M.B. was shocked and upset when K.D.B. left their marriage; she felt betrayed and angry at his relationship with N.W. It is apparent that N.M.B.’s animus towards this relationship has fuelled her intransigence in these proceedings. [ 17 ] K.D.B. moved out of the family residence and was house sitting until February 10, 2019, after which he began living with N.W.

N.M.B. and the children continued to reside in the family home until it was sold in April 2019. [ 18 ] Because the children were more comfortable there, K.D.B. exercised his parenting time in the family home while N.M.B. went elsewhere. [ 19 ] Upon their separation N.M.B. and K.D.B. split their modest debts and assets. K.D.B. paid half the household expenses and loan payments until the residence was sold. He also paid child support pursuant to a set-off formula based on an equal shared parenting time arrangement.

He paid $160 per month above that sum because at the outset he exercised parenting time in the former family residence. At the February 1, 2019 hearing, N.M.B. advised Judge Dossa she and K.D.B. were working on the financial aspects of their separation and that was not her main concern going to court. N.M.B. and K.D.B. had not decided whether one or the other would keep the home or if it would be sold to a third party. [ 20 ] Initially, N.M.B. and K.D.B. agreed to an equal shared parenting arrangement. This regime, however, had to be postponed until K.D.B. secured stable housing.

Until then, K.D.B. spent three night per week between 5:30 and 8:30 p.m. with the children in the former family home. N.M.B. would leave when K.D.B. arrived. K.D.B. also picked up the children and took them to school. On the weekends he took the children on outings. For example, K.D.B. took the children skiing and sometimes they stayed overnight in a cabin on the ski hill. [ 21 ] N.M.B. and the children remained in the family home until April 2019, when it was sold to a third party. They now live with J.Z. and M.Z. K.D.B. lives with N.W. in a rental accommodation near [omitted for publication], BC.

Originating court proceedings [ 22 ] On January 24, 2019, N.M.B. filed an Application to Obtain an Order (Document #1) in which she sought guardianship, parenting time, allocation of parental responsibilities, spousal support, child support, and a protection order with respect to R.B. and Q.B.. In her originating application, N.M.B. states: I am asking for guardianship, parenting arrangements or contact with a child as follows: Parenting time as agreed upon by both parties with me having primary care.

The main parenting responsibilities to myself and to be able to remove the children from the respondent’s care if bad decisions are being made. [ 23 ] With respect to her application for a protection order, N.M.B. says she “will seek this in the event of a relapse with K.D.B.’s cocaine addiction and if he falls into depression again [and] doesn’t deal with it.” February 1, 2019 hearing and its aftermath [ 24 ] On January 24, 2019, N.M.B. filed a notice of motion returnable February 1, 2019, (Document #3), seeking an interim order that “K.D.B will not consume any illegal drugs and if he does he will [forfeit] his parenting time of children.

K.D.B will ensure that N.W. will not be around the children when they are in his care.” In support of that notice of motion N.M.B. filed an affidavit on January 24, 2019, (Document #2). In this affidavit N.M.B. expressed concern for K.D.B.’s cocaine use and states:

We were married [omitted for publication] & share 2 children. Throughout the years seasonable depression became noticeable. 2 years ago it got worse and in Oct 2017 he began self medicating with cocaine. And started using more. He’s been off & on. His actions since separating lead me to believe he’s been using again. He is also in a new relationship with a woman who has a history of alcohol & cocaine addiction. I will be seeking protection if behaviour continues but for now only seeking conduct orders to help define parenting guidelines.

Due to the increasing concern around the cocaine addiction I’m asking the court to order he undertake random drug tests. I am seeking counselling for the children as their behaviour has changed since our separation. K.D.B is an amazing father. [ 25 ] N.M.B.’s application, notice of motion, and affidavit were served on K.D.B. on January 24, 2019. [ 26 ] N.M.B.’s January 24, 2019 notice of motion came before Judge Dossa (via video) for hearing on February 1, 2019. N.M.B. and K.D.B. attended the hearing, both were self-represented.

K.D.B. explained to the motion’s judge he had just received all of N.M.B.’s application materials and had not had an opportunity to retain legal counsel. He said he did not want to respond without legal representation. There is no indication of any family duty counsel present in court on February 1, 2019, assisting K.D.B. or N.M.B. [ 27 ] Judge Dossa asked K.D.B. if he would consider an interim consent order without prejudice, which would be in place until the next court date. She explained to him “without prejudice” meant he was not precluded by his consent from arguing something different in the future.

K.D.B. understood the consent order would be in place for only a few weeks until the next court date. He also insisted it be without prejudice, as did N.M.B. On that basis, K.D.B. agreed to most of the terms of what was to become the February 1, 2019 “without prejudice interim consent order.” [ 28 ] As to parenting time, N.M.B. represented to Judge Dossa she wanted the children to have their father in their life. She said she had no doubt K.D.B. was a good father and supported a 50/50 shared parenting time and parental responsibilities with K.D.B.

Nevertheless, she suspected K.D.B. might be using drugs and she had concerns about N.W. N.M.B. said, “I don’t feel she is fit to be around children.” [ 29 ] At the time of the February 1, 2019 hearing, K.D.B. had yet not procured his own housing. Sometimes he would stay with N.W.; sometimes he stayed elsewhere. Unlike N.M.B., K.D.B. had no extended family in the area. K.D.B. exercised his parenting time at the family residence and during weekend activities. Generally, when he arrived, N.M.B. left.

K.D.B. believed that during this transitional phase, the children were most comfortable in the family home. [ 30 ] N.M.B. and K.D.B. were in the throes of determining what would become of the family residence which N.M.B. and the children continue to occupy post-separation. Because K.D.B.’s housing was uncertain and the parties seemingly got along, Judge Dossa ordered K.D.B. have parenting time with R.B. and Q.B. “as agreed between the parties.” K.D.B. believed his housing issues would resolve by February 15, 2019, with the disposition of the family home.

He confirmed he wanted joint guardianship and 50/50 parenting time with the children. [ 31 ] Judge Dossa made an interim order, by consent, on a “without prejudice basis.” As the parties were self-represented, the court registry drafted the order, initially as a final order, but later amended to indicate it was an interim order. The order, as drafted stated: This Court orders: a. K.D.B. would have parenting time with R.B. and Q.B. as agreed between the parties; b.

K.D.B. will abstain from the possession or consumption of any drugs as defined by the Controlled Drugs and Substances Act 48 hours before, and during, any parenting time except with a valid prescription; c. K.D.B. will consent to attending substance abuse counselling; d. K.D.B. will ensure that N.W. is not present when he has parenting time with the children, including overnights; e. N.M.B. and K.D.B. will file and complete a Financial Statement in Form 4 with the necessary attachments on or before February 15, 2019; f. K.D.B. is to provide one clean random drug test at his cost; and g.

This order is without prejudice. [ 32 ] Neither K.D.B. nor N.M.B. signed the consent order. [ 33 ] I signed the draft order on Judge Dossa’s behalf on February 12, 2019. I did so in error because it omitted the words “by consent” and did not clearly indicate it was to expire or be reviewed at the next court date. These were significant defects because without these endorsements, another judge may, as in this case, believe it was ordered after an evidentiary hearing.

Moreover, because the order did not indicate an expiration or review date, a subsequent judge and the parties would likely presume it remained in force until further court order. [ 34 ] Although K.D.B. did not expressly agree to all the terms of this “consent order,” it was made without prejudice with the intention it would be in place until the parties’ residence was sold or to the next court date. At one point (at DARS 10:52 p.m.) Judge Dossa asked the parties, that given the drug in issue was cocaine, if the random drug test would be a hair follicle test or something else.

N.M.B. responded she was not sure of the type of drug test.

[ 35 ] After some discussion with N.M.B., Judge Dossa said she could order one random hair follicle drug test, at K.D.B.’s expense. K.D.B. agree to a drug test, but did not agree to the hair follicle test on the basis it was expensive and may not be locally available. In addition to the cost of the test ($575), K.D.B. would have to miss work and incur the cost of travel. Judge Dossa stated that she did not know what sort of drug testing was available in [omitted for publication], and K.D.B. may have to make inquiries in that regard.

At the conclusion of the hearing, Judge Dossa confirmed on the record the order as drafted on February 1, 2019. Specifically, she ordered, by consent and without prejudice, K.D.B. provide one clean random drug test at his cost. [ 36 ] Following the February 1, 2019 court hearing, K.D.B. continued to try and negotiate with N.M.B. a 50/50 shared parenting schedule. N.M.B. maintained she would not agree to any parenting

schedule until such time as K.D.B. provided a hair follicle test showing he was drug free. K.D.B. did not agree to and Judge Dossa did not order this restriction. [ 37 ] Upon receiving a copy of Judge Dossa’s January 24, 2019 order, K.D.B. inquired with Jade First Aid & Safety about drug testing. The test centre operative assured him the court usually accepts urine drug screening tests. K.D.B. obtained a urine drug test on February 19, 2019, which was three days before the next court date.

The test screened negative for all the controlled substances tested, including cocaine, amphetamines, methamphetamines, marijuana, MDMA, opiates, and phencyclidine (PCP) . K.D.B. provided these results to the Court in his Affidavit # 1 filed February 21, 2019, (Document 10). From his perspective, K.D.B. had complied with the condition set out in Judge Dossa’s February 1, 2019 order. [ 38 ] N.M.B., however, understood K.D.B. was to provide a hair follicle drug test and interpreted his failure or refusal to do so as evidence of his continuing drug abuse.

N.M.B. was concerned that a urine drug test only detected drugs if they had been consumed within three or four days of the test. A hair follicle drug test can detect repeated drug use up three or four months before the test depending on the length of the hair strand analysed.

Despite the tensions over the type of drug testing, K.D.B. was actively engaged in the children’s lives, spending time with them when and where he could, engaging them in various activities, such as skiing, archery, and swimming. [ 39 ] On February 14, 2019, N.M.B. filed her financial statement in Form 4 (Document 6). [ 40 ] On February 15, 2019, K.D.B. filed a Reply and Counterclaim (Document #7) to N.M.B.’s January 24, 2019 application.

He disagreed with her application for guardianship, parenting time, spousal support, protection order, and allocation of parenting responsibilities and stated: I feel joint legal custody and joint physical custody would be in the best interests of our children. [ 41 ] K.D.B. counterclaimed for allocation of parental responsibilities and 50/50 parenting time with the children. [ 42 ] On February 15, 2019, K.D.B. filed his financial statement in Form 4 (Document 9). [ 43 ] On February 21, 2019, K.D.B. filed an affidavit (Document 10), attaching the following exhibits: a.

A Jade First Aid & Safety drug and alcohol test record dated February 19, 2019, indicating he tested negative for the controlled substances tested; b. Workshop documentation from Personality and Human Relationships Workshops and training modules in which K.D.B. had participated over the years; c. Photographs of K.D.B.’s residence at the time in a condo complex in [omitted for publication], BC; d. Correspondence between K.D.B. and N.M.B. on issues of parenting time; and e.

And a ledger of monies he had paid towards supporting N.M.B. and the children in January and February 2019. [ 44 ] On February 19, 2019, the Court scheduled for hearing N.M.B.’s application for an order and K.D.B.’s reply, for two hours on February 22, 2019. The court registry sent the parties a notice of hearing. Ordinarily, the first significant court appearance in a family law proceeding is a family case conference. It is unclear why in this case the matter was scheduled for hearing.

A family case conference is a private, informal meeting between the parties, their counsel, and the judge to see if the parties can resolve some of the issues short of a trial. [ 45 ] On February 22, 2019, K.D.B. filed Affidavit #2 with the court (Document 11).

In this affidavit, K.D.B. complains of N.M.B. telling R.B. his “new girlfriend is a bad person and doesn’t make good decisions.” The February 22, 2019 hearing and its aftermath [ 46 ] On February 22, 2019, the parties returned to court before Judge Mengering for a two hour hearing on N.M.B.’s originating application filed January 24, 2019, and K.D.B.’s reply. K.D.B. was self-represented and N.M.B. was represented by her legal counsel, Mr. Greene. [ 47 ] K.D.B. understood he was present to determine issues of guardianship and parenting time of the children.

He complained to Judge Mengering that N.M.B. was denying him overnight parenting time. Judge Mengering was surprised the matter was scheduled for hearing without a family case conference. She asked if the parties wished to use the scheduled court time for a family case conference. Mr. Greene, advised the Court that N.M.B. could not make decisions as to parenting time without K.D.B. first providing a clean hair follicle drug test. Mr. Greene understood from his client that Judge Dossa had ordered K.D.B. provide a hair follicle drug test at his own cost.

K.D.B. was unsure of what Judge Dossa ordered at the February 1, 2019 hearing beyond that which appeared in the order he received from the court registry. As she was given no transcript of the February 1, 2019 hearing, and neither she nor Mr. Greene had listened to the DARS recording of that hearing, Judge Mengering initially declined Mr. Greene’s request. She understood Judge Dossa

made her order after a 45 minute evidentiary hearing. [ 48 ] Judge Mengering eventually agreed to listen to only that portion of the February 1, 2019 hearing where Judge Dossa discussed the hair follicle test. The clerk queued up the DARS recording at 10:52 am which is the time when Judge Dossa stated she could order K.D.B. take one random hair follicle test at his own cost.

Judge Mengering was satisfied that Judge Dossa had contemplated a hair follicle test and amended term 6 of the February 1, 2019 order to state that “K.D.B. provide at his own cost one clean random drug test analysed by way of a hair follicle test.” [ 49 ] Judge Mengering then asked Mr. Greene if K.D.B. produced a clean hair follicle test would he get overnight parenting time. Mr. Greene confirmed, “that is the plan.” K.D.B. again protested the cost of the hair follicle test.

Judge Mengering told him, “it sounds like you are not getting overnight parenting time until you provide it.” [ 50 ] As Judge Dossa was appearing at the February 1, 2019 hearing remotely by video, I found the DARS recording was of very poor quality and some portions are actually unintelligible. Upon listening to the entire hearing several times, I discerned that after the discussion of the hair follicle test at the 10:52 a.m. time stamp, K.D.B. weighed in on the issue. He objected to taking an expensive test that required him to travel out of town and miss work.

At the conclusion of the February 1, 2019, hearing, Judge Dossa confirmed the orders as read in by the clerk, with the express inclusion the order was by consent and without prejudice. Whether or not Judge Dossa ultimately intended the drug test to be a hair follicle test is unclear. What is clear to me is that K.D.B. did not provide his unequivocal informed consent to providing a hair follicle drug test. [ 51 ] There was no discussion at the February 22, 2019 hearing that Judge Dossa’s February 1, 2019 order, was spent or revived or subject to review.

Since then, the parties have treated the order as in force and on-going. [ 52 ] Judge Mengering further ordered K.D.B. provide a Form 4 Financial Statement with the appropriate attachments including the last three years of tax assessments by March 11, 2019. Judge Mengering’s order was filed in the [omitted for publication] Court Registry on April 1, 2019. [ 53 ] On April 11, 2019, K.D.B. filed his updated financial statement in Form 4 with attachments (Document 14).

K.D.B.’s April 12, 2019 notice of motion [ 54 ] On April 12, 2019, K.D.B. filed a notice of motion (Document 15), seeking “court ordered parenting time & to remove line item 4 on the Interim Order dated February 1, 2019, which stated “K.D.B. will ensure that N.W. is not present when he has parenting time with the children, including overnights.” On April 12, 2019, K.D.B. filed an Affidavit (3 and 4) (Document 16), in support of his notice of motion. In this Affidavit # 3, K.D.B. attached numerous communiques with N.M.B. attempting to negotiate parenting time issues.

K.D.B. pointed out he only agreed to term 4 in Judge Dossa’s February 1, 2019 order because it was supposed to be temporary for the next three or four weeks until the next court date. He also pointed out the order was supposed to be “without prejudice.” [ 55 ] At this time K.D.B. was living with N.W. N.W. has two children of her own. In his Affidavit #4 filed April 12, 2019, K.D.B., describes N.W. as someone without a criminal record or having any dealings or open files with MCFD. [ 56 ] K.D.B. says that on March 13, 2019, N.W. saw R.B. and Q.B. in passing as she left the house and the children arrived.

N.M.B. characterized that fleeting encounter as a breach of the February 1, 2019 court order. She told K.D.B. she would no longer agree to him taking the children to N.W.’s residence, even though N.W. was ordinarily absent when the children were present. April 12, 2019 family case conference [ 57 ] On April 12, 2019, the parties attended a family case conference before Judge Jackson. N.M.B. sought an adjournment because Mr. Greene was not available to attend on that day and in any event, she was not prepared to make any agreements as to parenting time because K.D.B. had not provided a hair follicle test.

K.D.B.’s May 6, 2019 notice of motion [ 58 ] On May 6, 2019, K.D.B. filed a new notice of motion (Document #17) seeking an order (

a) for parenting time; (

b) to remove the requirement he take a hair follicle test from Judge Dossa’s February 1, 2019 order; and (

c) to ask N.M.B. to volunteer to take psychological and emotional behaviour counselling and an evaluation by a professional regarding this behaviour. [ 59 ] On May 6, 2019, K.D.B. filed Affidavit # 3 attaching as exhibits, various emails and text messages, Affidavit # 4 and Affidavit # 5 (Document 18). In Affidavit #5, K.D.B. complains of N.M.B.’s increasing restrictions on his parenting time with R.B. and Q.B. He also claims that N.M.B.’s behaviour toward N.W. had become so irrational he wondered about N.M.B.’s mental health. He accuses N.M.B. of vindictively spreading slanderous rumours about N.W.

K.D.B. wanted an order requiring N.M.B. “to voluntarily undergo a psychiatric evaluation as well as voluntarily taking counselling for her psychological and emotionally abusive behaviour.” [ 60 ] K.D.B. set this matter down for hearing on May 16, 2019. [ 61 ] On May 15, 2019, N.M.B. filed an affidavit in response to K.D.B.’s May 6, 2019 motion for parenting time, psychological testing, and changing a previous court order (Document 21). In this affidavit N.M.B. postulates K.D.B.’s refusal to provide a hair follicle drug test is evidence of his continued drug use.

N.M.B. has maintained this position until this day. [ 62 ] K.D.B. defended his failure to provide a hair follicle test on the basis: (

a) it was too expensive; (

b) it required him to travel out of town and miss work; (

c) he could provide frequent urine tests locally without any significant cost; and (

d) it can test positive for historical drugs use. K.D.B. believed even if he was not currently using drugs, if the hair follicle drug test showed he did so months earlier, N.M.B. would use this evidence to justify denying or further restricting his parenting time.

[ 63 ] In her May 15, 2019 affidavit, N.M.B. recounts an incident which occurred at the home of M.H. This is an incident to which N.M.B. also testified at trial. N.M.B. arranged for K.D.B. to have overnight parenting time with R.B. and Q.B. at M.H.’s home. The following morning M.H. told N.M.B. that K.D.B. was sleeping and they could not rouse him. He did get up for a while, but then went back to sleep. [ 64 ] M.H. did not provide an affidavit nor did she testify at trial. K.D.B. acknowledges the incident, although not necessarily as N.M.B. relays it. K.D.B. says he went to the hospital and Dr.

Abu (his psychiatrist) advised him the incident was likely related to stress and an adverse reaction to his antidepressants. K.D.B. denies his difficulty in keeping alert was due to his consuming illicit drugs. K.D.B. told N.M.B. of Dr. Abu’s opinion as N.M.B. indicates in her May 15, 2019 affidavit. [ 65 ] In her May 15, 2019 affidavit, N.M.B. also says K.D.B. is frequently late, complains of been sick “all the time,” and financially distressed. K.D.B. also repeated these allegations at trial.

K.D.B. acknowledge he did have adverse reactions to various antidepressants the doctor prescribed, which is why eventually he stopped taking them entirely. K.D.B. also suffers from a yet to be fully diagnosed seizure disorder which likely manifested itself months before Dr. M.Q. identified it in the summer of 2018. (Exhibits 2 and 3). K.D.B. says the seizures may have some connection to the multiple concussions he has suffered over the years.

K.D.B. also admits to having a few incidental relapses in his drug use up until June 2019. [ 66 ] As to being financially distressed, K.D.B. says that after his separation from N.M.B. he continued to pay half the household bills and half the loan payments. Since the family residence sold, N.M.B. has lived with her parents. Although K.D.B. lives with N.W., he still has to pay his share of the rent and household expenses. [ 67 ] Also, in her May 15, 2019 affidavit N.M.B. appends correspondence from Mr.

Greene advising he was not available to attend court on May 16, 2019, and this date was set without regard to his calendar. N.M.B. attended the May 16, 2019 court appearance unrepresented. K.D.B. did not appear and Judge Jackson ordered K.D.B.’s May 6, 2019 application be struck from the list. At the May 27, 2019 family case conference, Mr. Greene acknowledged K.D.B.’s non-attendance in court on May 16, 2019, was likely due to Mr. Greene’s May 15, 2019 letter. May 27, 2019 family case conference [ 68 ] This matter came back before the Court for a family case conference on May 27, 2019.

K.D.B. appeared on his own behalf and Mr. Greene appeared on behalf of N.M.B. The parties made no agreements as to parenting time and Judge Jackson referred the matter to the Judicial Case Manager on June 5, 2019, to

schedule a one day hearing. [ 69 ] On June 5, 2019, the Judicial Case Manager set a one day trial on August 7, 2019 of N.M.B.’s Application to Obtain an Order filed January 24, 2019, and K.D.B.’s Reply and Counterclaim filed February 15, 2019. This August 7, 2019 trial date was subsequently adjourned by N.M.B. on June 21, 2019, because she was not available. [ 70 ] K.D.B.’s May 6, 2019 notice of motion (Document 17) was never rescheduled. June 21, 2019 hearing [ 71 ] On June 4, 2019, K.D.B. sent N.M.B. an email in which he states: I will not be pushed around by you.

You have no legal right to do anything you are doing with the kids. You are so extremely abusive to me. Even more so now after marriage. Do you hear the way you talk to me. No this is how it is. You have to do this and this is the way it’s going to be. You are not the sole guardian of our children and do not hold power over me. I will not settle for less than a weekly

schedule for parenting. Dealing with you every week at “your prescribed time” is not going to happen. If you will not even try to “agree on parenting time” as is set out in our court order then I will set a

schedule myself and show up on those times. If you withhold them from me at those times I will call the police and have it noted in a file that will grow to be very large if you can’t decide to share. So let me know if [you] would like to proceed in having a civil conversation about a

schedule that is the same every week. I need to plan my life and have the want nor necessary to talk to you every week. Let me know. [ 72 ] On June 5, 2019, Mr. Greene sent K.D.B. a letter stating: I have been instructed repeatedly by N.M.B that she is perfectly prepared to come to “agreements” with you over the parenting time for the kids. She has simply imposed conditions that apparently you’re not prepared to accept. That is why those conditions are going to have to be dealt with by the court. It will not help matters if you simply “show up on the times that you’re attempting to impose”, upon N.M.B.

If you do show up at any time that N.M.B has not agreed to, my advice to her is to call the police. You don’t have an agreement with N.M.B on the times of parenting time and the court has not give[n] you any orders to enforce yet. My advice to N.M.B of course is that if the court makes a decision, she is going to abide by that order. Until that time, I do require you to get back to me to confirm that you won’t be proceeding as set out in your email of June 4 th .

If I don’t get that confirmation, there is no choice about the way that I will have to proceed, I will have to set down N.M.B’s own application, not only for child maintenance, but also for a “conduct order” against you restricting your right to contact N.M.B except by means of a court order, whenever you obtain that.

[ 73 ] In an affidavit filed June 18, 2019, N.M.B. recounts an incident which occurred at R.B.’s ball tournament on Saturday, June 15, 2019. This is evidence N.M.B. repeated at trial. She believed K.D.B. was high. N.M.B. states, “He couldn’t sit or stand still, big dramatic gestures while spending most of the time on his phone, constant fidgeting, slurring his words when he did go and talk to R.B. in the dugout in the middle of the game, totally distracting all the players.” [ 74 ] K.D.B. had plans with the children for June 16, 2019, which was Father’s Day.

At 3:52 pm on June 15, 2019, N.M.B. sent K.D.B. an email in which she states: Change of plans for tomorrow. You can come be with the kids at my parents and we can plan a picnic and activities here. My parents will be away most of the day. [ 75 ] K.D.B. responded to that email at 3:55 pm on June 15, 2019: No. That’s not the plan. I don’t agree with that plan I would like to take them fishing and have a picnic as R.B. had planned. Why am I to stay at your parents? [ 76 ] N.M.B. responded in an email sent at 4:07 pm on June 15, 2019. She states: Well K.D.B, I am not going to beat around the bush here.

Plain and simple you were high today. I knew when you phoned and your actions while at the ball game today clearly showed that. You couldn’t sit still if your life depended on it. You were slurring your words when you were talking with R.B. in the dug out, you were constantly on your phone and not focused at all. I had people on R.B.’s team ask me what was wrong with you, people who don’t know your history. There were 2 [year olds] at the game that moved less than you did. Please don’t try and say I’m making shit up either. So, no you will not take the kids unsupervised tomorrow.

You need to be clean 48 hours before seeing the kids and you weren’t today and it won’t be 48 hours tomorrow. Enough is enough. Our kids do not need to be around this BS. If you would like to see the kids unsupervised tomorrow go do a piss test. That’s where I’m at. [ 77 ] K.D.B. sent N.M.B. an email on June 15, 2019 at 5:12 pm in which he says he was having a mental health breakdown and was on two different kinds of anxiety medication. He states: You know what’s wrong with me I’m having a mental health break down. I’m on 2 different kinds of anxiety medication.

I can’t sit still because I am so Fucking angry, and depressed, and am so on the edge. You have pushed and pushed and pushed. Your actions, the way you have been treating me have pushed me so far I can’t take it anymore. I can’t do this anymore. You have completely broken my soul and my spirit. I cannot fight anymore. I am curled up in a ball on the floor right now bawling. Uncontrollably. I love my children more than anything but enough is enough. You win. You broke me. You won control. You write whatever agreement you want. The fate of our children and if they have a father or not is In your hands.

I want my kids 50% of the time like I always have and I am not doing it supervised at your parents place. It will be in my own home where I can truly be their parent. Not a few hours here and there as you see fit, where I am expected to entertain them. I don’t . . . is not a safe place for me and I will never agree to only seeing them at your parents house. You do what you need to do just know the next step you take will shape the life of our children and I will not hold back on letting them know the truth. I hope you do something good with this control and power and dictatorship.

YOU have completely and utterly destroyed my existence. If I go any father down this road with you m. Kids will lose their father because I will be an empty shell of the man I was. I can only hope that I am not too far gone. I will not be attending anymore court dates or hearings. You will control what come of the final order. I will be registering this email with the court registry. Also would like to say I am so extremely disappointed in you family and the way they have dealt with this. And M.T.S. also gets a special shoutout for being my best friend and doing nothing but turn his back on me.

I needed you man and you were never there. My best friend never did anything. Just faded away not even noticing me falling to pieces, eventually broken and not able to get up. You were never there. This is 100% True and serious. I will not be taking any of this back. K.D.B.

[ 78 ] The following day, Ms. N.W. sent N.M.B. a text message stating: I have never in life met such a piece of work as you. Your assumptions of K.D.B WILL and ARE ruining your children. He was not high! He is suffering from severe anxiety issues due to your disgusting and vile behaviour. You’re not even worth this text. Your first mistake was attacking me. Your second was attacking K.D.B. And your last mistake was attacking my six year old children you vile, cruel, inhuman waste of skin. You will pay for this. The truth always prevails.

You’re evil and God will reprimand you. [ 79 ] On June 18, 2019, N.M.B. filed a notice of motion for a protection order (Document 22) and various conduct orders together with an affidavit sworn June 17, 2019 (Document 23), attaching email and text communications with K.D.B. and N.W. Counsel for N.M.B. served K.D.B. a copy of this documentation by email the day it was filed.

I granted N.M.B. short notice to hear her application. [ 80 ] In her June 18, 2019 notice of motion N.M.B. sought: a. a protection order prohibiting K.D.B. from contacting the children, N.M.B., or her parents or attending at their residence [omitted for publication]; alternatively, b. for a conduct order prohibiting K.D.B. from attending N.M.B.’s residence of the applicant who is living at the home of J.Z. and M.Z. at [omitted for publication], B.C. without specific written agreement from N.M.B. which K.D.B. receives in advance of his attendance at that residence; c.

Directing any police officer having knowledge of the conduct order to remove K.D.B. from the residence at [omitted for publication], immediately; d. to make the conduct order whether or not K.D.B. appears at the hearing of the application for the order; and e. the order reviewed in family court on June 27, 2019. [ 81 ] In her affidavit N.M.B. stated (at para. 3) that she regularly arranged for the children to be with K.D.B. during the day as long as they were returned to her “so the children don’t see any of the effects of drug use and they don’t have to be in his care when he has been doing drugs.” She also acknowledges that K.D.B. had not “followed through on his threat as issued on June 4 th .” Nevertheless, she sought an order so if K.D.B. did show up at her parent’s house, where she and the children were staying, the police could have him removed. [ 82 ] This matter came before me on June 21, 2019, N.M.B. was present on her own behalf and K.D.B. did not appear, although I was satisfied he was aware of the proceeding.

I refused N.M.B.’s application for a protection order because: a. there was no evidence of K.D.B. having a history of family violence.

Although there were allegations K.D.B. had a history of drug use, there is no suggestion it was accompanied by family violence; and b. there was no evidence of repetitive or escalating violence other than the parties’ mutual frustrations at having the parenting issues unresolved. [ 83 ] I expressed the view K.D.B.’s email of June 15, 2019, depicted a father frustrated and anxiety-ridden who had succumbed to despair at the prospect of having meaningful parenting time with his children.

In his affidavit materials, it was actually K.D.B. who complained of being bullied by N.M.B. as to his ability to parent the children. He accuses N.M.B. of being controlling and dictatorial. He said she arbitrarily withheld the children from him; dictating who he can be with when the children are in his care; demanding his parenting time be supervised by her parents without a court order. [ 84 ] At this time (and since) N.M.B. was convinced from her past experience K.D.B. was using drugs when he was prohibited from having parenting time with the children while intoxicated by drugs.

N.M.B.’s conviction in this regard was reinforced by K.D.B.’s refusal to obtain a hair follicle test to demonstrate he was drug free and has been so for an extended period. [ 85 ] By this point, I accepted Ms. and K.D.B. were entrenched in high conflict family law litigation. N.M.B. accused K.D.B. of substances abuse and mental illness (depression). He accused her of emotional abuse and bullying. [ 86 ] On June 21, 2019, having little context in which to evaluate N.W.’s June 16, 2019, text message, I considered it unhelpful to K.D.B.’s attempts to secure further parenting time with his children.

I did not find N.W.’s text message dangerous but I thought the messages should stop. After hearing all the evidence at trial, I now have a better understanding of the dynamics in play. [ 87 ] Also on June 21, 2019, N.M.B. asked the August 7, 2019 hearing be adjourned because she was not available. I understood from N.M.B. that it was K.D.B.’s May 6, 2019 notice of motion which had been scheduled for hearing on August 7, 2019. [ 88 ] At the end of the hearing on June 21, 2019, I made the following orders in K.D.B.’s absence: a.

K.D.B. and N.M.B. will communicate with each other only by email and only about their children, R.B. and Q.B.;

b. N.M.B. and K.D.B. will encourage their respective families and partners to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the Children concerning family issues or litigation; c. K.D.B. will encourage his partner, N.W., to refrain from communicating directly or indirectly with N.M.B.; d. K.D.B. will not attend any place he knows to be N.M.B.’s residence without her express written permission to do so and must immediately leave upon her request and not return without her further written permission.

Specifically, without limiting the foregoing, K.D.B. will not attend at [omitted for publication], B.C., without N.M.B.’s written consent obtained in advance or by Court order; e. K.D.B. and N.M.B. will transition the children for their respective parenting times at such dates and times and in such a manner as they may from time to time agree in writing; f. The hearing of K.D.B.’s notice of motion dated May 6, 2019, scheduled for August 7, 2019, is cancelled; g.

N.M.B. and K.D.B. will contact the Judicial Case Manager at 1:30 p.m., June 25, 2019, to reschedule a five hour hearing of K.D.B.’s May 6, 2019 notice of motion; h. N.M.B. has leave to renew her June 18, 2019 Application for a Protection Order without having to file additional materials upon reasonable notice to K.D.B. or such other time as this Court may order; and i.

Either party may seek to vary or terminate this order upon reasonable notice to the other or such other time as this Court may order. [ 89 ] On July 17, 2019 the Judicial Case Manager scheduled a one day trial of the originating application to proceed on November 18, 2019. Despite my June 21, 2019 order, K.D.B.’s May 6, 2019 notice of motion was not rescheduled. July 11, 2019 hearing and its aftermath [ 90 ] On June 27, 2019, N.M.B. filed a notice of motion seeking interim child support together with an affidavit in support of that motion (Document 25). This application came before me on July 11, 2019.

Both parties were present and self-represented; however, K.D.B. did benefit from the assistance of duty counsel. K.D.B. again raised the issue of his lack of parenting time. I refused to adjudicate that issue at the time because the only notice of motion before me was N.M.B.’s June 27, 2019 motion for child support. [ 91 ] On July 11, 2019, I made the following orders: Pursuant to the Federal Child Support Guidelines K.D.B. is a resident of British Columbia with an annual income of $58,150; a.

K.D.B. will pay to N.M.B. the sum of $902 per month (“Child Support”) for the support of R.B., born [omitted for publication] (“R.B.”) and Q.B., born [omitted for publication], (“Q.B.”) commencing in July 2019, and continuing each and every month thereafter so long R.B. and Q.B. are eligible for support under the Family Law Act or by further Court order; b. K.D.B. will pay the Child Support to N.M.B. biweekly in two equal payments of $451 each on the 1 st and 15 th day of each and every month; c.

N.M.B.’s application for retroactive child support is adjourned to the Judicial Case Manager at 1:30 p.m. on July 16, 2019, to

schedule a three hour hearing; and d. N.M.B.’s Application to Obtain an Order filed January 24, 2019, and K.D.B.’s Reply and Counterclaim filed February 15, 2019, is adjourned to the Judicial Case Manager at 1:30 p.m. on July 16, 2019, to

schedule a one day trial. [ 92 ] On July 17, 2019, the Judicial Case Manager scheduled a one day trial for November 18, 2019 of N.M.B.’s Application to Obtain an Order filed January 24, 2019, and K.D.B.’s Reply and Counterclaim filed February 15, 2019. K.D.B.’s health issues [ 93 ] On August 3, 2019, N.M.B. sent K.D.B. an email (Exhibit 5) in which she states: [K.D.B.], 1) There can be no more discussions with our children about parenting time and having them ask me to make it a rule that they see you twice a week.

The children are not to be used as an “intermediaries” delivering “requirements” on visits. 2) I have heard that you are now using or have used heroin. Heroin is usually laced with fentanyl and/or carfentanil which are extremely lethal substances. I have huge safety concerns with this regarding our children and their possible exposure to these substances. I would like an answer as to whether or not you are using heroin or any drugs for the court. 3) I have been told you are now suffering from seizures and have lost your licence because of them.

I would like an explanation to consider whether or not there are safety concerns regarding the children with this. Are they from drug use? Opioid withdraws symptoms include seizures. Or are there other medical reasons for them? Please refrain from speaking to the kids about this or if you do please reassure them you won’t die. They have been very worried about that since you told them on Wednesday. Glen has been cc’d as well. [ 94 ] K.D.B. responded to N.M.B.’s August 3, 2019 email as follows:

The entirety of this email is you telling how to parent and talking about things you have heard about me. For the record R.B. is the one who initiated the conversation about seeing me more and wanted to talk to you about it. I will reply to that no further I do however ask that you reply to my request for scheduled parenting time. [ 95 ] K.D.B. says he has not consumed any controlled substances since June 2019. N.M.B. has not observed K.D.B. to behave in a manner which caused her to believe he was impaired by drugs since the June 15, 2019 incident.

Nevertheless, N.M.B. told K.D.B.’s mother that he was “possibly doing heroin.” [ 96 ] N.M.B. testified she believes K.D.B. is using less drugs now than when she allowed him unsupervised parenting time with the children in the spring of 2018. [ 97 ] On August 6, 2019, Dr. M.Q., K.D.B.’s family physician, reported K.D.B. was suffering from a seizure disorder. Dr. M.Q. imposed the following restrictions on K.D.B. for work: (

a) driving a motor vehicle (but can operate a lawn motor, chain saw or ATV); (

b) working on ladder heights where he might be prone to fall; (

c) solo work in water (only with direct interaction with a partner, no more than 25 meters apart, shallow water); and (

d) no operating heavy machinery. (See Exhibit 3) [ 98 ] On August 18, 2019, Dr. M.Q. provided a medical letter (Exhibit 2) to K.D.B. in which he states: This is to confirm that K.D.B. has a new diagnosis of a seizure disorder. He is adherent to all treatment protocols. Unfortunately some of the treatment takes some time to build up, and during this phase symptoms are unpredictable. Therefore I understand he has to miss some work last minute which is not unexpected. He is now on a stable medication dose and has had no further seizures, which is quite promising for long term management.

We expect ongoing stability, but the restrictions I previously sent must remain in place until he is seen and cleared by a neurologist. [ 99 ] K.D.B. has an EEG ( electroencephalogram ) with Dr. Alhalabi, a neurologist in Prince George on December 10, 2019. (See Exhibit 4) October 1, 2019 hearing and its aftermath [ 100 ] On September 20, 2019, K.D.B. filed a further notice of motion to settle the terms of Judge Dossa’s February 1, 2019 order.

K.D.B. sought court-ordered unsupervised parenting time with R.B. and Q.B. [ 101 ] K.D.B.’s September 20, 2019 notice of motion came before Judge Brecknell on October 1, 2019. K.D.B. appeared on his own behalf and Mr. Greene appeared for N.M.B. N.M.B. was not present. At that time, K.D.B. explained to the Court he and N.M.B. were unable to agree on parenting time, and wanted to vary Judge Dossa’s order to provide for court specified parenting time.

K.D.B. presented the Court with a Cumulative Laboratory Report for the period between August 19, 2019, to October 1, 2019, for urine drug screening test showing he tested negative for controlled drugs. [ 102 ] Mr. Greene opposed K.D.B.’s application on the basis K.D.B.’s May 6, 2019 notice of motion was scheduled for hearing on November 18, 2019. Judge Brecknell adjourned K.D.B.’s application to the November 18, 2019 hearing date. During the court appearance Judge Brecknell suggested K.D.B. provide Mr.

Greene with a copy of his urine screening tests and particulars of the cost of the hair follicle tests and the difficulties he had financing this test. [ 103 ] On October 7, 2019, K.D.B. delivered to N.M.B.’s legal counsel a package which included: (

a) confirmation of the cost of a hair follicle test; (

b) his personal budget outlining why he had not been able to supply a hair follicle test to date; (

c) his 2019 payroll information; (

d) laboratory reports showing regular, clean urine drug tests taken at his doctor’s office; (

e) his commitment to continue taking regular urine drug screening tests until he was financially able to supply a hair follicle drug test; (

f) a timesheet supporting his work hours and availability to take the urine drug tests during the busy field season at work; (

g) emails from N.M.B. agreeing to a parenting

schedule which she subsequently revoked; (

h) his emails to N.M.B. seeking an agreement on parenting time, which she consistently denied; (

i) an email from N.M.B. accusing K.D.B. of using heroin based on some unsubstantiated rumour; (

j) Dr. M.Q.’s medical notes outlining K.D.B.’s medical limitations and diagnosis of a seizure disorder; (

k) emails of bookings for further medical testing for epileptic brain waves and a visit with a neurologist on December 10, , 2019, in Prince George; and (

l) his request for moving forward on parenting time. [ 104 ] On October 10, 2019, and again on October 16, 2019, Mr. Greene responded to K.D.B. He reconfirmed N.M.B.’s position in his October 16, 2019 correspondence: The existing order is that the children live with N.M.B and spend time with K.D.B. as “agreed from time to time.” N.M.B has put terms on her agreement to K.D.B. (supervised access because of his drug problem) and K.D.B. has refused to provide supervisors.” [ 105 ] M.T.S. is the Senior Project Manager of [omitted for publication] Ltd. and a long-term family friend of N.M.B. and K.D.B.

He filed an affidavit in these proceedings and testified at trial. M.T.S. knows R.B. and Q.B. since birth and cares very deeply for them. R.B. and Q.B. are friends to M.T.S.’s eight year old son, C.S. M.T.S. also has a younger son, B.S., who is two-and-one-half. M.T.S. thinks highly of K.D.B. as a friend, co-worker, and parent. [ 106 ] M.T.S. acted as a supervisor while K.D.B. exercise parenting time two days or more days per week from June to October, 2019.

N.M.B. told him of her concerns with K.D.B.’s drug use and the April 6, 2019 and June 15, 2019 incidents, she believed were drug induced. [ 107 ] M.T.S. says he and (his children) spent much together with K.D.B., R.B. and Q.B., and there were no problems. In fact, during

this three to four month period, M.T.S. left his children unsupervised in K.D.B.’s care. There was never a time when K.D.B. was late; there wasn’t a time when K.D.B. was anything but a good father. M.T.S. never thought K.D.B.’s parenting time needed to be supervised, and believes N.M.B. was aware of his opinion in that regard. [ 108 ] M.T.S. maintains he wanted to remain neutral between N.M.B. and K.D.B.; however, by mid-October 2019, he was convinced more than ever there was no need for K.D.B. to be supervised while exercising parenting time.

M.T.S. attempted to negotiate a resolution of the parenting issues with N.M.B. N.M.B. said she trusted that M.T.S. would not put R.B. and Q.B. in an unsafe situation and that he would not try and manipulate her to leverage K.D.B.’s parenting time at the expense of R.B. and Q.B.’s safety. Exhibit 6 is an exchange of text messages between M.T.S. and N.M.B. on October 14, 2019, in which he pleaded with her to agree to K.D.B. having unsupervised parenting time with R.B. and Q.B. The messages are reproduced below: M.T.S. N.M.B. Any idea about visits this week? Haven’t talked to K.D.B. about it. I’ll send you an email.

This last week has been hard for me because I have watched K.D.B. do some pretty selfless and hardworking things. He has tried hard to bite his tongue, take the high road, and shy away from arguments in [hopes] that will smooth things over. He has been an incredible father for many months now. Always there whenever he can be and truly fathering the kids. He wants more time with the kids. He wants scheduled time with the kids. And he wants unsupervised time with the kids.

I have seen first hand how responsible and positive he has been with those kids in the past few months, and I am having a lot of trouble with the fact that he hasn’t gotten any sort of

schedule or movement from you. I guess that’s the email really. I hope that you can reconsider your most recent response to K.D.B.’ request for proper parenting time. I believe he has earned Some great positive changes for sure but a couple of months of this doesn’t mean much in the addiction world. Things are good with this arrangement for the kids and it will stay this way until K.D.B. produces the drug test he needs to do. It’s about safety and there’s no trust whatsoever. He’s still lying to everyone about it and to the judge.

So while I understand where you’re coming from the kids are what matters and not what K.D.B. thinks he deserves. The kids are settled and are happy right now. I can’t put them at risk anymore and unsupervised visits are still a risk. If you can’t do visits anymore I also understand that and that will be up to K.D.B. to find alternative arrangements. So if he does a hair follicle test that would change your opinion? Not necessarily change my opinion but would give us some idea of what we were dealing with and how to proceed. I’ve always told him that we can figure something out once the test is done.

If he’s been clean we go to the right and if he’s not we go to the left. If that makes sense. I have said this to him a million times. He won’t do it though. He won’t do it because he doesn’t trust you. He believes he will get a $1000 clean test and you won’t give him anything anyways. Haha fucking bullshit So. If he goes and gets a $1000 clean hair follicle test, you will give him a

schedule with unsupervised parenting time? Test does not cost that much by $500. And yes but it won’t be what he wants. Kids can’t be around N.W. Again I have told him all of this and the trust thing is not my problem his choices not mine It’s between $500 - $700 plus travel costs and missed work. He isn’t asking for them to be around N.W., he is just asking for a firm

schedule without supervision. So you’d give him that if he has a clean Hair follicle test? I’ve already talked to him about all of this. He knows my answers

He says you won’t and I think I could convince him to if I know you have said clearly that he will get an unsupervised parenting

schedule if he takes and passes a hair follicle test Oh well his problem not mine. I’m done with his bullshit and lies and manipulation. He’s still addict even if he’s not using at the moment. And how about he should be willing to do anything to be in his kids life no matter what the cost. If he was clean he would’ve done it a long time ago. I don’t need you to try and convince him of anything. Not your job. Would you or would you not give him an unsupervised parenting

schedule if he passes a hair follicle test? I am asking, I want to know the answer. I have given you my answer already. Yes or no. You have not answered my question [doesn’t trust you. If he goes and gets a $1000 clean hair follicle test, and you won’t give him anything anyways] Haha fucking bullshit [So. If he goes and gets a $1000 clean hair follicle test, you will give him a

schedule with unsupervised parenting time?] Test does not cost that much by $500. And yes but it wont be what he wants. Kids can’t be around N.W. Again I have told him all of this and the trust thing is not my problem his choices not mine Right. Won’t be what he wants could mean anything though. Won’t be what he wants but would be an unsupervised firm parenting

schedule M.T.S. I’m done talking. Appreciate your help but I don’t need to have this conversation with you any more. It is three letters N.M.B. And I believe that you can’t say the word because you actually won’t give him a schedule. And as a friend and someone who has done a tremendous amount for you and for him and for K.D.B., that really upsets me. So, to me. Either you can say “yes I’ll give him an unsupervised parenting schedule” or you’re answer is actually “No, I can’t commit to that” If it is the last answer, I am quite disappointed. And K.D.B. has earned shit.

He’s trying yes but this isn’t about him ad what he thinks he deserves. Let’s have him be clean for a year and ditch the other addict he’s living with then we can talk about those words. Then we can talk the kids being safe with him unsupervised. Be fucking disappointed it doesn’t bother me what other people think about my choices these days. You can’t understand my choices and my life and that’s totally fair so you can spout how you’re disappointed with me all you want. I don’t need to be manipulated by anyone else but thanks. Wow. Classy. Have fun telling the kids why they can’t see their father.

I am done for now. M.T.S. N.M.B. K.D.B.’s continuing negotiations for unsupervised parenting time [ 109 ] On October 17, 2019, K.D.B. sent to N.M.B. an email, as Mr. Greene had asked him to negotiate with N.M.B. directly. In that email, K.D.B. again asked her to agree on a parenting time schedule. He stated (correctly) there was no court order restricting his parenting time from overnights or that it be supervised. [ 110 ] On October 19, 2019, K.D.B. sent to N.M.B. an email advising her his grandfather was visiting until October 23, 2019, and asked for a

schedule when the children could spend time with him. N.M.B. responded to this request on October 21, 2019, stating she would only agree to supervised visits at this time, and her father would be willing to supervise the children’s visits with their great grandfather at the A & W after 7:30 that evening. K.D.B. responded, “a short visit at a fast food restaurant after bedtime on a school night is not acceptable. It is also very rude to impose a supervised visit on a 79-year-old man who wants to visit his great grandchildren.” K.D.B. went on to tell N.M.B. he and his grandfather would like to pick up the children the following day, October 22, 2019, and take

them on an evening hunt. It might be the last time the children would get to see their great grandfather given his poor health. N.M.B. did not respond to K.D.B.’s request, and his grandfather left without seeing R.B. and Q.B. [ 111 ] In his October 21, 2019 email K.D.B. advised N.M.B. that M.T.S. was no longer willing to act as a supervisor for his parenting time, primarily because he did not agree that K.D.B.’s parenting time ought to be supervised. On October 23, 2019, K.D.B. reiterated his request for parenting time schedule.

He states: I have provided you and your lawyer with multiple clean urine drug tests for over 2 months and will continue to do so. I will also provide you and the court with a clean hair follicle drug test when I am financially able. Will you then please send me a

schedule that you will agree to? What else do you need from me? [ 112 ] On October 24, 2019, N.M.B. responded: I only agree to supervised visits. I will not compromise on the safety of our children. [ 113 ] M.T.S. testified that from his observations N.M.B. is a great mother; K.D.B. is a great father; and their kids are great kids. He can say good things and bad things about both parents; but none of the “bads” get anywhere close to the “goods.” [ 114 ] N.M.B. told M.T.S. of her concerns about K.D.B. living with N.W. because she may enable K.D.B. to continue rather than overcome his drug problem.

Although M.T.S. did not necessarily agree with N.M.B.’s perception of N.W., he did share some of her concerns, which were not specific to drugs. He acknowledges his concerns about N.W. were based on rumour. [ 115 ] N.M.B. goes on to suggest two other persons she might consider acceptable supervisors if M.T.S. was unwilling to continue. K.D.B. queried in a responding email what it was about unsupervised visits she believed compromised the children’s safety. N.M.B. did not respond. [ 116 ] On October 28, 2019, K.D.B. sent N.M.B. another email asking to take the children out on Halloween.

N.M.B. agreed provided this visit was supervised and the supervisor contacted her in advance. [ 117 ] On October 28, 2019, K.D.B. filed an Affidavit (Document 32), setting out his attempts to negotiate a parenting time

schedule with N.M.B. and her legal counsel from October 7 to 28, 2019. He exhibited photographs of his new residence with N.W. and the 13 urine drug screening tests between August 19, 2019, and October 21, 2019, indicating he tested negative for most controlled substances. [ 118 ] On November 1, 2019, M.T.S. filed an affidavit in these proceedings in which he states: K.D.B. is a kind and generous person, always [there] to help friends and family in times of need.

K.D.B. demonstrates a strong knowledge of safety through his career (key to development and leadership of the safety system for [omitted for publication] – a large workforce company), through his leadership (responsible directly for the safety of crews of up to 30 young workers for many years consecutively in a dangerous and vulnerable environment), and through his lifestyle (always cognizant of his surroundings, aware of potential hazards and willing to learn). I would trust nobody more with my own two children, 7 and 2 years old, than K.D.B.

K.D.B. loves his children more than anything, and his children love him. K.D.B. has spent the last 9 years doing everything he can for his two children. Building them beds, slides, play places. Teaching them to ride bicycles, do flips on the trampoline, swim fish, hike, etc. He has taught them manners. He sings them Oh Canada for bed time. K.D.B. is highly involved in the children’s every day life and has been since their birth. It has been claimed to me by N.M.B, in a discussion about whether or not she would allow K.D.B. to have an unsupervised

schedule if he were to provide a clean hair follicle test (Something she has repeatedly demanded to me as a condition of his having the children unsupervised) that “K.D.B. hasn’t earned shit. He’s trying yes but this isn’t about him and what he thinks he deserves. Let’s have him be clean for a year and ditch the other addict he’s living with then we can talk about those words. Then we can talk (about) the kids being safe with him unsupervised.” I have been close with K.D.B. for many years.

I am not certain of his drug use since early 2018, however, I am very confident saying that any drug use he has had since early 2018 did not affect his ability to very capably and safely parent his children. I am also very confident saying that he has not been consuming drugs since July 2019 when he and I and the children began hanging out 2 times per week. K.D.B. has personally shown me urine drug samples taken twice per week, has clearly demonstrated a healthy and non-addictive lifestyle and continues to show that he is a strong character, safety oriented, quality caregiver to his children.

K.D.B. tries every week multiple times to get a parenting

schedule so he can maintain a meaningful relationship with two children he loves so much and who love him so much in return. [ 119 ] On November 3, 2019, K.D.B. sent an email to N.M.B. seeking her agreement to take the children to his father’s place in Courtenay for a Christmas family holiday from December 18 to December 23, 2019. K.D.B.’s father was paying for the flights. This visit would include K.D.B.’s sister and her family and afford R.B. and Q.B. an opportunity to spend time with their paternal extended family.

N.M.B. did not respond to K.D.B.’s email, then or when he resent it on November 8, 2019. [ 120 ] N.M.B. testified at trial that she has arranged for R.B. and Q.B. to attend the Nutcracker in Prince George on December 19 and 20, 2019, with their grandparents and cousins. K.D.B. agreed it would be wonderful for the children to see the Nutcracker and offered to fly to Prince George on December 20, 2019, pick up the children after the performance and continue on with them to Courtenay.

He would return the children to [omitted for publication] on the morning of December 24, 2019, so they could spend Christmas with N.M.B. and her parents. N.M.B. initially said she would not agree to anything until after the trial. She then agreed it may work, provided she tell K.D.B.’s father and sister her concerns about K.D.B.’s drug use. K.D.B. does not agree to N.M.B. speaking to his family because she has already caused a lot of damage to his familial relationship. [ 121 ] On November 4, 2019, K.D.B. filed an affidavit (Document 37) attaching urine drug screen tests from October 17, 2019 to

October 31, 2019, showing he continued to test negative for controlled substances. [ 122 ] On November 5, 2019, N.M.B. and K.D.B. appeared before Judge Struyk for the hearing of K.D.B.’s October 28, 2019 notice of motion. N.M.B. sought an adjournment because her legal counsel was unavailable. Judge Struyk refused her request. During this hearing, Judge Struyk specifically asked N.M.B. if she had observed any behaviours since mid-June 2019, to indicate K.D.B. was impaired or affected by drugs. N.M.B. admitted she had not.

When Judge Struyk asked N.M.B. when unsupervised parenting time should begin, N.M.B. replied, “after rehab, because he hasn’t gotten proper help.” Judge Struyk indicated to N.M.B. the evidence did not support such a prerequisite and the supervised parenting regime was completely disruptive of the children’s pre-existing relationship with their father. [ 123 ] Despite Judge Struyk’s comments, N.M.B. opposed K.D.B. having unsupervised parenting time, even for a few hours in a public space. Judge Struyk imposed it over her objections.

He ordered K.D.B. have unsupervised parenting prior to the November 18, 2019 trial date, as follows: K.D.B. shall have unsupervised parenting time R.B. and Q.B. on: a. Saturday, November 9, 2019 and Saturday, November 16, 2019 from 9:00 a.m. to 12:00 pm. The pick up location for the children shall be at the Museum - Information Centre parking lot on Saturdays; b. Wednesdays, November 6, 2019 and Wednesday, November 13, 2019 from 3:00 p.m. to 6:00 p.m. with the pick up being at the children’s school; c.

K.D.B. shall provide by way of email to N.M.B. his general intentions with respect to where the children will be, and where they can be picked up at the conclusion of the visits; d. the parenting time scheduled in this order shall all be exercised in public places and shall otherwise comply with the order made February 1, 2019; and e. Condition 6 of the February 1, 2019 order is not to be treated as a precondition. [ 124 ] On November 9, 2019, K.D.B. emailed N.M.B. advising her that N., their mutual friend and her husband, were coming to visit him from 100 Mile House.

They would arrive that evening and stay until November 12, 2019. He asked N.M.B. if he could have the children for two hours sometime between November 10 to 12, 2019, to facilitate a visit. N.M.B. did not respond to his request. Instead, she arranged with N. directly to meet her and the children at the pool on November 11, 2019, at 2 p.m. [ 125 ] On November 12, 2019, K.D.B. sent to N.M.B. an email asking to spend an hour or two after school with the children on his birthday, which was [omitted for publication], 2019.

N.M.B. did not respond to his request. [ 126 ] On November 12, 2019, K.D.B. filed an affidavit attaching correspondence from K.M., Manager of [omitted for publication], commending K.D.B. for his involvement with that organization (Documents and 39). [ 127 ] Also on November 12, 2019, K.D.B. filed an Affidavit in which he set out what he sought at trial, namely: (

a) to terminate Judge Dossa’s February 1, 2019 order; (

b) shared guardianship of the children; (

c) shared parenting arrangement where N.M.B. and K.D.B. would have equal parenting time with the children; (

d) a transition scheduled to equal parenting time; (

e) an order permitting him to have parenting time with the children before Christmas with his family in Courtenay, BC; and (

f) correspondence from K.D.B. to N.M.B. requesting her to consent to his Christmas parenting time with the children. [ 128 ] On November 15, 2019, K.D.B. filed an affidavit to which he attached: (

a) Exhibit “A” consisting of emails and correspondence he sent to N.M.B. requesting parenting time with the children. He says he received no response to these requests; and (

b) Exhibit “B”, a cumulative laboratory report of urine drug screens confirming K.D.B. tested negative for drugs on November 4, 8, and 12, 2019. [ 129 ] The parties’ respective applications and outstanding motions came before me for trial in [omitted for publication] Provincial Court on November 18, 19, 20, and 22, 2019. I heard oral evidence from N.M.B., K.D.B., and M.T.S. I also received into evidence the written materials referenced above and the following exhibits: Exhibit 1: Letter from K.D.B. to N.M.B. written in April 2018; Exhibit 2, Medical letter from Dr.

M.Q. dated August 19, 2019, confirming K.D.B.’s diagnosis of a seizure disorder; Exhibit 3: Medical letter from Dr. M.Q. dated August 6, 2019, setting out a number restrictions as a result of medical concerns with his seizures; Exhibit 4: A letter from Dr. M. Salem Alhalabi, neurologist, scheduling an EEG appointment for K.D.B. in the Prince George Hospital on Tuesday, December 10, 2019; Exhibit 5: An email from N.M.B. to K.D.B. and cc: to Mr.

Greene dated August 3, 2019; Exhibit 6: A thread of text messages exchanged between M.T.S. and N.M.B. on October 14, 2019; and Exhibit 7: K.D.B.’s further urine drug screening tests from November 14 to 19, 2019. [ 130 ] After hearing closing submissions from K.D.B. on November 22, 2019, I invited any reply from Mr. Greene. I made the following orders with reasons to follow: a. Judge Dossa’s February 1, 2019 order as amended by Judge Mengering on February 22 2019, is terminated in its entirety;

b. N.M.B. and K.D.B. are joint guardians of R.B. and Q.B. pursuant to s. 39(1) of the Family Law Act; c. N.M.B. and K.D.B. will share equally all parental responsibilities for R.B. and Q.B. pursuant to s. 40(2) of the Family Law Act; d. K.D.B. will have parenting time with R.B. and Q.B. on Saturday, November 23, 2019, from 10 a.m. to 4 pm. K.D.B. will pickup and drop of the children at the Museum - Information Centre parking lot; and e.

K.D.B. will have parenting time with R.B. and Q.B. on Wednesday, November 27, 2019, from after school until 7:00 pm.K.D.B. will pick up the children from their school and return them to N.M.B. at the Museum - Information Centre parking lot. [131] I reserved my decision on the other issues. These are my reasons for judgment. Legislative Framework [132] The overarching consideration in determining issues of guardianship, parenting responsibilities, and parenting time is the bestinterest of the child. The relevant statutory provisions are set out in s. 37 of the Family Law Act (“FLA”) which states.

Best interests of child 37

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

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

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, parentingtime 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 thechild 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 carefor 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, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

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

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

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out insubsection (2), and only to the extent that it affects that factor. [133] In analyzing the child’s best interests, the Court should consider all of the factors under s. 37 of the FLA but such factors arenon-exhaustive: Pozzobon v. Pozzobon, 2013 BCSC 1226 at para. 30. Issue #1: Who should be the children’s guardian? [134] Sections 51 and 39 of the FLA are the relevant statutory provisions governing guardianship. I have reproduced those sectionsbelow for ease of reference. Orders respecting guardianship 51 (1)On application, a court may (

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act,terminate a person's guardianship of a child. [135]

Section 39 of the FLA states: Parents are generally guardians

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that aparent is not the child's guardian. [136] Madam Justice Newbury described the FLA guardianship provisions in A.A.A.M. v. British Columbia (Children and FamilyDevelopment), 2015 BCCA 220 , as follows at paras. 8-9 and 11 [Citations omitted]: [8] The FLA introduces a new provincial regime in respect of what were formerly known as custody, guardianship and access. The Actdoes away with th

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