L.P. v. A.E., 2021 BCPC 281

Citation: L.P. v. A.E. 2021 BCPC 281 Date: 20211123 File No: 192616 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.P. APPLICANT AND: A.E. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Appearing in person: L. P. Counsel for the Respondent: A. Ligget Place of Hearing: [omitted for publication] , B.C. Dates of Hearing: Nov. 7 & 8, 2019; Jul. 28, 30, Sep 8-11, 22, 24, 25, 30, Oct. 5, Nov. 6, Dec. 21-23, 2020; Feb. 9-12, 23- 26, Mar. 9- 12, Apr. 13 , May 4-6, 25-28, Jun. 8-11, 22-25, 30, Jul. 22, Sep. 20-23, 2021 Date of Judgment: November 23, 2021 INTRODUCTION

[ 1 ] E.E. was born [omitted for publication]. His father, L.P., started these proceedings one week prior to E.E.’s birth. E.E. has always resided with his mother A.E. E.E. and his parents have never lived together. Since July 17, 2019, E.E. has generally had time with his father one or two days per week. This time has always been supervised. [ 2 ] L.P. has been bound by a protection order since August 5 2021 that strictly limits his contact with A.E.

L.P. is also prevented from attending at, entering, or being found within the residence, place of employment or school of A.E. [ 3 ] This is an application by L.P. for guardianship, parenting time including compensatory time, parental responsibilities, conduct orders, an order for counselling and mediation, an order that his name be added to E.E.’s birth certificate and an order adding [omitted for publication] to E.E.’s surname. [ 4 ] Prior to those issues being determined, L.P. seeks a mistrial and an order that this Court recuse itself. [ 5 ] A.E. opposes L.P.’s claims and seeks an order that she be declared E.E.’s only guardian.

She also seeks an order preventing E.E. from having time with his father and allocation of all parental responsibilities. She also requests a variation of the child support order, a protection order, conduct orders and a finding that L.P. is a vexatious litigant. THE LITIGATION HISTORY [ 6 ] On February 14, 2019 L.P. filed an application to obtain an order for guardianship, parenting time or contact. On February 21, 2019 L.P. filed a Notice of Motion seeking amongst other things paternity testing. There were then nine Court appearances between March 7, 2019 and June 20, 2019.

The trial of this matter commenced November 7, 2019 and concluded September 23, 2021. The hearing of the parties’ applications took 51 days. [ 7 ] In these proceedings, L.P. has filed three applications to obtain an order, 19 notices of motion, 18 affidavits, and seven applications under the New Family Law Rules (hereinafter referred to as “L.P. Written Filings”). In addition L.P. has filed two notices of constitutional question, two petitions for judicial review and just prior to the Court resuming operations in July 2020, an application for an urgent hearing.

That means from the commencement of these proceedings to final submissions, a period of just over 31 months, L.P. has filed 34 court applications. [ 8 ] During this time, A.E. has filed a counterclaim, two applications to obtain an order, two notices of motion, five affidavits, and one application for a protection order. E.E.’S PARENTS [ 9 ] L.P. was born in Vancouver and is a citizen of both Canada and the United States. L.P. lived in [omitted for publication], BC until age four and then moved with his family to California.

L.P. grew up near San Francisco and attended the University of California in San Diego where he obtained a Bachelor of Arts degree. L.P. attended law school in Australia and obtained his law degree from the University of New South Wales. [ 10 ] In May, 2018 L.P. was visiting [omitted for publication]. He met A.E. through a dating application. On June 17, 2018 A.E. told L.P. that she was pregnant. L.P. described the conversation as “a happy conversation”. As a result, L.P. decided to move to [omitted for publication] in July 2018.

By mid-August, 2018 A.E. expressed concerns regarding their interactions and in September 2018, A.E. told L.P. that she no longer wanted contact with him. [ 11 ] Prior to leaving for California for three weeks in November, 2018, L.P. got a job at [omitted for publication] in [omitted for publication]. He worked there from the end of November, 2018 to January, 2019. Following that L.P. did some work in construction and also worked at a local liquor store and a local flooring store. From July, 2019, to September, 2019 L.P. worked at a marina.

Later in the fall of 2019, L.P. started work at a hardware store where he worked until the beginning of the pandemic. In April, 2020 L.P. moved to Vancouver. He has not worked since March 2020. [ 12 ] A.E. is a licensed practical nurse who moved to [omitted for publication] in 2017. Prior to meeting L.P., A.E. worked 3 p.m. to 11 p.m. on a rotating

schedule of four days on and four days off. A.E. explained that prior to meeting L.P. she worked full time and had “a happy life”. She says now she works part-time, comes to Court, has taken three stress leaves in the last year and has no savings. She testified that it has been four years since she met L.P. and it has been “four years of being hammered”. [ 13 ] A.E. emphasized that she and L.P. had no relationship before she got pregnant.

A.E. described that she lives in fear of L.P. and she is concerned about E.E.’s psychological health when E.E. is with his father despite the fact that E.E.’s time with his father has always been supervised. POSITIONS OF THE PARTIES [ 14 ] L.P. submits that he has regularly cared for E.E. and that he should be declared a guardian pursuant to s. 39(3)(

c) of the Family Law Act. In the alternative, L.P. submits that it is in E.E.’s best interests that he be appointed guardian pursuant s. 51 of the Family Law Act . With respect to parenting time, L.P. seeks unsupervised time with E.E. five days a week, for two hours each day. L.P. also seeks compensatory parenting time for the parenting time he says A.E. wrongly denied him. L.P. says that parenting responsibilities should be shared equally in accordance with the Master Joyce model.

Further, L.P. submits that his details should be added to E.E.’s birth certificate and that [omitted for publication] should be added to E.E.’s surname. Finally, L.P. submits that communications between the parties should be strictly limited and there should be specific terms in the Conduct Order that encourage E.E.’s parents to speak to each other and about each other in a positive and respectful manner. [ 15 ] A.E. opposes all of L.P. claims. She says that L.P. has not regularly cared for E.E. nor is it in E.E.’s best interests for L.P. to be appointed a guardian.

She submits that it would be best for E.E. to have no contact with his father. A.E. also submits that the risk of harm to both her and E.E. is significant and accordingly she seeks a Protection Order and Conduct Orders. A.E. says that she has been

exercising all of the parental responsibilities and she seeks an order allocating all parental responsibilities to her. A.E. says that L.P. is intentionally under-employed and that he should be imputed an income in excess of $100,000.00. Finally, A.E. says that considering the number of Court appearances the parties have made, the repetitive and vexatious court applications that L.P. has filed and made orally and L.P.’s statements that he intends to continue the litigation, A.E. seeks a finding that L.P. is a vexatious litigant.

THE MISTRIAL AND RECUSAL APPLICATIONS [ 16 ] On December 21, 2020 the Court heard L.P.’s first recusal and mistrial applications. Reasons for Judgment dismissing both applications were pronounced February 12, 2021. It is my judgment that L.P. has failed to demonstrate, by cogent evidence, the serious grounds required to rebut the strong presumption of impartiality since the hearing of the application on December 21, 2020. It is my judgment that L.P.’s application for recusal is based on his feelings rather than fact. [ 17 ] L.P. submits that there should be a mistrial “on any grounds”.

It is my judgment that nothing has occurred since December 21, 2020 to warrant a mistrial. [ 18 ] It is the duty of a judge to hear the cases that comes before him or her. A party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge should not hear a case, it tends to bring the administration of justice into disrepute. See De Cotiis v.

De Cotiis , 2004 BCSC 117 at paragraph 10 . [ 19 ] The applications for a mistrial and recusal are dismissed. CREDIBILITY AND RELIABILITY: THE APPLICABLE LEGAL PRINCIPLES [ 20 ] Both parties raised issues with the credibility of the other. Therefore I must consider not only the reliability and the credibility of their testimony but also the credibility and reliability of each witness the parties called in support of their position. Reliability and credibility are related but distinct concepts. Credibility is an assessment of the trustworthiness of a witness’ testimony; reliability considers its accuracy.

This involves the witness’ ability to observe, recall and recount the events in issue. If a witness’ evidence on a point is not credible, it follows it is unreliable.

A reliable witness can make honest mistakes. [ 21 ] Factors to consider in assessing a witness’ credibility include the firmness of their memory, the ability to resist the influence of interest to modify their recollection, whether the witness’ evidence harmonizes within independent evidence that is accepted, whether the witness changes their testimony between direct and cross examination, whether the witness’ testimony seems unreasonable, impossible or unlikely, whether a witness has motive to lie and, with caution, their demeanour. [ 22 ] The credibility of a witness must be assessed for its “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable.” [ 23 ] There is no requirement that a trier of fact believe or disbelieve a witness’ testimony in its entirety.

On the contrary, a trier of fact may believe none, part or all of the witness’ evidence and may attach different weight to different parts of a witness’ evidence. See Mancinelli v. Mancinelli , 2021 BCSC 94 at paragraphs 26 to 29 .

CREDIBILITY AND RELIABILITY ANALYSIS [ 24 ] I have cautioned myself that the ability to resist the influence of interest to modify recollection is a significant challenge to the credibility of all of the witnesses in this case and particularly for L.P., A.E. and her father V.E. who are the principle witnesses in this case. [ 25 ] With respect to the testimony of L.P. in addition to cautioning myself regarding his ability to resist the influence of interest to modify his recollection, on February 26, 2021 L.P. admitted during cross examination that when he testified in direct examination that he was entitled to compensatory parenting time because he was working, that was in fact not true.

This significantly impacts L.P.’s credibility because he was under solemn affirmation to tell the truth during his direct examination and he failed to do so. Further, L.P. admitted that he had manipulated the facts respecting his claim for compensatory time to achieve his objective. That is of course concerning. [ 26 ] With respect to the testimony of A.E., A.E. said that document 1.20 in Exhibit 24 suggested that L.P.’s aunt was scared to be alone with him. However, during cross examination, it became apparent that was not in fact the message that L.P.’s aunt was attempting to convey.

This is an example of A.E.’s inability to resist the influence of interest to modify her recollection because her recollection of the email was incorrect. [ 27 ] With respect to the testimony of V.E., A.E. testified that “I recognize my dad is biased because of his love of E.E. and I am his daughter”. I have cautioned myself accordingly. [ 28 ] On June 23, 2021 V.E. said that at the end of E.E.’s time with his father earlier that month, E.E. needed a diaper change. V.E. testified that L.P. told V.E. to take E.E. home and change him at home rather than changing his diaper right there and then.

V.E. has been recording E.E.’s time with his father. The audio recording was played during cross examination and there was no suggestion by L.P. that the diaper should be changed later. In fact, L.P. offered to participate in the diaper change. This exemplifies V.E.’s inability to resist the influence of interest to modify recollection.

This impacts V.E.’s credibility because his testimony under cross examination differed from his direct examination. [ 29 ] With respect to the testimony of the three principle witnesses, I accept some of their testimony but not all of their testimony, as shall be described in these reasons. A REVIEW OF THE WITNESS TESTIMONY

[ 30 ] It should be noted that a trial judge is not required to review all of the evidence in the Judge’s Reasons for Judgment. See E.L. v. M.L. , 2021 BCSC 1012 at paragraph 41 . [ 31 ] Moreover, in preparing reasons in a family law case, a trial judge is expected to consider each of the legislative factors in light of the evidence adduced at trial; however, this is not to say that he or she is obligated to discuss every piece of evidence in detail or at all when explaining his or her reasons. This would indeed be an unreasonable requirement at the end of a very lengthy trial.

As a result, trial judges might sometimes appear to stress one factor over another and in fact it may be said that this is inevitable in family law cases which are heavily dependent on the particular factual circumstances at issue. See Van de Perre v. Edwards , 2001 SCC 60 at paragraph 10 . [ 32 ] Due to the length of the testimony of the principle witnesses, I will not provide a

summary of their testimony rather I will continue to refer to and comment on portions of their testimony. [ 33 ] A brief

summary of the testimony of the remaining witnesses:

a) R.P. [ 34 ] R.P. is E.E.’s paternal grandfather. He testified that his son does not have a mental illness but there are issues that he believes his son would benefit from counselling for especially as it pertains to employment. R.P. also testified that he believes that E.E. would be safe in his son’s care unsupervised. R.P. did comment that his son may have some behaviours that are obsessive.

b) O.P. [ 35 ] O.P. is L.P.’s brother. He testified that he would have no safety concerns if E.E. was in his brother’s care unsupervised. O.P. also testified that his brother is not obsessive.

c) K.K. [ 36 ] K.K. is married to O.P. She testified that she has no concerns about E.E.’s father being violent. She also testified that she has no concerns regarding E.E.’s father’s parenting abilities. Finally she testified E.E.’s father is not obsessive.

d) M.K. [ 37 ] M.K. knows both the [omitted for publication] family and the [omitted for publication] family. She attended Strong Start on one occasion when E.E. had time with his father. She described L.P. as being lovely at Strong Start and said that he would make a wonderful father someday. She further testified that if she supervised E.E.’s time with his father she would do everything in her ability to ensure that E.E. was safe. M.K. explained she would have no problem telling L.P. what she thought and she believes L.P. would respond to her direction appropriately. She noted that L.P. needs more practice to become a better father.

e) K.D. [ 38 ] K.D. testified that she is a friend of L.P. She described him as being a good guy and she believes that he would be a caring and nurturing father. She added that L.P. is gentle and kind.

f) C.P. [ 39 ] C.P. is a friend of L.P. C.P. testified that in his opinion L.P. is not obsessive.

g) S.R. [ 40 ] S.R. testified that she met L.P. in the summer of 2020. She said that she feels safe with L.P.

h) B.S. [ 41 ] B.S. is a friend of L.P. He testified that he has no concerns about L.P.’s parenting.

i) C.H. [ 42 ] C.H. is friend of L.P. He testified that he has never heard L.P. said anything violent towards women. In C.H.’s opinion, L.P. is a safe and decent person.

j) M.R. [ 43 ] M.R. testified that she rented a room in her house to L.P. The tenancy ended with a complaint to the Residential Tenancy Branch in which L.P. received a monetary award. She described L.P. as relentless in the dispute and said that he sent her numerous texts and emails.

k) S.R. [ 44 ] S.R. worked with L.P. at [omitted for publication] in [omitted for publication] between November, 2018 and January, 2019. She testified that she had concerns about L.P.’s assessment of risk, questions about L.P.’s proficiency and his ability to follow directions. She testified that she would not re-hire L.P. if he applied for work again at [omitted for publication]. [ 45 ] With respect to the testimony of L.P.’s father, brother, sister-in-law, and friends, K.D. and B.S., their opinion that E.E. would be safe in his dad’s care was simply that statement. They did not provide a basis for their opinion nor did they testify to an awareness of

what has occurred between L.P. and A.E. Consequently, I give their opinions little weight. [46] M.K.’s opinions, in my judgment, were cautionary. She noted that L.P. needs “more practice” at parenting and that L.P. “has it inhim to a wonderful father someday”. M.K’s opinions were based on her experiences with L.P. and what she has learned about L.P.However, M.K. did not provide details regarding her experiences with L.P. Accordingly, I give her testimony limited weight.

THE BEST INTERESTS OF THE CHILD [47] Section 37(1) of the Family Law Act provides that the only consideration to be taken into account in making an order for the careof a child is the child’s best interests. Under s. 37(2) of the Family Law Act to determine the child’s best interests, the Court must takeinto account all of the child’s needs and circumstances including the ten factors listed in that subsection. The factors listed in s. 37(2) arenon-exhaustive.

A determination of the best interests of a child is to be based on a consideration of the facts of the case and each of thefactors listed in s. 37(2). [48] Section 37(3) of the Family Law Act provides that an order is not in the best interests of a child unless it protects to the greatestextent possible, the child’s physical, psychological and emotional safety, security and well-being. [49] In Young v.

Young at paragraphs 71 to 72 Justice L'Heureux-Dubé explained the consideration of the factors that enter in the bestinterests of the child: A determination of the best interests of the child encompasses a myriad of considerations, as child custody and access decisions havebeen described as "ones of human relations in their most intense and complex form.”… Courts are required to predict the happening offuture events rather than to assess the legal import of past acts and judge the effect of various relationships on the best interests of thechild, all the while weighing innumerable variables without the benefit of a simple formula.

In making a determination as to the best interests of the child, courts must attempt to balance such considerations as the age, physical andemotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. [50] Justice L'Heureux-Dubé continued in paragraphs 80 to 82: In assessing all the relevant considerations, courts must be careful that the ideals of parental sharing and equality do not overcome thelived reality of custody and access arrangements and that the child's needs and concerns are accommodated and not obscured by abstractclaims of parental rights.

This is not to say that the parent's interests may not coincide with the child's interests or that a court may nevervalidly take a parent's interests into consideration. However, to further the best interests of the child, a recognition of the closerelationship between the needs of the child and the needs of the remaining family unit of which he or she is a

part is essential. As AbellaJ.A. held in M. (B.P.) v. M. (B.L.D.E.), (1992), (ON CA), 97 D.L.R. (4th) 437, for the majority, at p. 459: [The best interests of the child] by no means excludes the parental perspective. The needs of children and their parents are obviouslyinextricable, particularly between children and the parent on whom they depend on for their day-to-day care, where only one parent hasthis primary responsibility.

The structure of an environment that fits the child's interests would undoubtedly be reinforced if theeconomic and emotional needs, especially of custodial parents, were factored in, given the symbiosis of their sense of well-being. In the final analysis, when considering the best interests of the child, it may be a virtue rather than a sin for the judge to be pragmatic andtake into consideration both the strengths and shortcomings of the parties and the limits of human nature. To do so is only to recognizethat, in some circumstances, the perfect may be the enemy of the good.

Courts must always be mindful that not only the benefit but alsothe real cost and burden of all custody and access arrangements ultimately falls on the children themselves. … access issues often present the most intractable problems in all family law. On occasion, fairness and enforceability are impossible toachieve, and the most for which one can hope is the least detrimental alternative for the child. THE

SECTION 37 FACTORS A. The Child’s Health and Emotional Well-Being [51] E.E. is a happy child. However, there is a concern that his speech is delayed. At this point it is impossible to know what harm, ifany, the conflict between E.E.’s parents has caused E.E. E.E.’s parents have been in Court since he was born. There were three Courtappearances in the first 36 days of E.E.’s life. The stress of the Court proceedings has not only impacted E.E.’s parents but also hismaternal grandparents. That means that every adult in E.E.’s life has been under considerable stress, the entirety of E.E.’s life.

Thiscannot be good for E.E.’s health and emotional well-being. B. The Child’s Views Unless It Would Be Inappropriate to Consider Them [52] E.E. is too young to have his views considered. C. The Nature and Strength of The Relationship Between The Child and the Significant Persons In The Child’s Life [53] A.E. has cared for E.E. since birth. V.E. testified and I accept that E.E. has been in the maternal grandparents’ home virtuallyevery day since he was born and that they regularly care for E.E. E.E.’s strongest relationships are with his mother and his maternalgrandparents. E.E. also has a bond with his father.

E.E. has seen his father regularly since July, 2019. E.E.’s paternal grandparents live inCalifornia. E.E.’s paternal grandfather has seen E.E. on the two occasions that he has been in Canada. D. The History of The Child’s Care [54] A.E. and her parents have been E.E.’s care givers. Whether L.P. has regularly cared for E.E. will be addressed later in thesereasons.

E. The Child’s Need for Stability Given the Child’s Age and Stage of Development [ 55 ] E.E. is young and stability is crucial for him. The conflict between E.E.’s parents which started in August, 2018 has been relentless. The conflict and Court proceedings risk destabilizing E.E.’s primary care giver. For E.E. to have stability, it is important that his primary care giver can also have stability. F.

The Ability of Each Person Who is a Guardian or Seeks Guardianship of a Child or Who Has or Seeks Parental Responsibilities, Parenting Time or Contact with The Child to Exercise His or Her Responsibilities. [ 56 ] The concern raised by L.P. regarding A.E.’s ability to exercise parental responsibilities centres on her decisions regarding E.E.’s relationship with his father. For example, A.E. did not allow L.P. to go for a walk with E.E. in his stroller. A.E. prevented L.P. taking pictures and videos of E.E. A.E. has limited E.E.’s time with his father to three locations.

I agree with L.P. that those are valid concerns. Despite those concerns, I am satisfied on the totality of the evidence that A.E. has, otherwise, appropriately exercised her parental responsibilities. [ 57 ] With respect to L.P., the Court is concerned about his ability to exercise his parental responsibilities. L.P. testified that he has taken courses about caring for a child. The evidence before the Court is that L.P. has not demonstrated those skills. For example, although E.E. is nearly [omitted for publication] years old, L.P. does not know how to change E.E.’s diaper.

M.K. said that L.P. needs more practice at parenting. L.P. testified that he does not have experience with toddlers aged [omitted for publication] years old. The evidence supports that testimony. [ 58 ] Further, L.P. says that he wants to be equal so he wants to be a guardian. He went on to explain that not having been declared a guardian changes how he interacts with E.E. He said he would feel physically better if he did not have to worry about the guardianship issue. He testified that if he had more time with E.E., his mental health would be better.

What L.P. is describing is a need of the parent and not the child. That is to say, the child’s presence determines the wellness of the parent. This is an incredible weight to put on the child. It is not a leadership role by the parent. What is required is that the parent gets the support they need from others and then brings to the child a solid force that can meet the child’s needs. [ 59 ] There are other concerns regarding L.P.’s ability to exercise his responsibilities. L.P. testified that he is transitory, he does not focus and he is not committed.

He acknowledged in cross examination that he needs to develop a routine of responsibility and that he has not had one. L.P. who is 40 years old has either resided with his parents or in shared living accommodations. He has not, for example, resided on his own in a one bedroom apartment. [ 60 ] Further L.P.’s supervisor from [omitted for publication], S.R. testified that L.P. was unable to perform his responsibilities at work. [ 61 ] On January 14, 2021 L.P. received his certificate of completion of the Parenting without Conflict course.

That day he filed a Notice of Motion seeking an order that A.E. “do an RCMP background check for BC and the Yukon”. L.P. explained he filed the Notice of Motion to reassure himself and since he was required to do one by s. 51 of the Family Law Act he felt A.E. should as well. This suggests that L.P. did not get the benefit of that program. He was attempting to create conflict. G.

The Impact of Any Family Violence On A Child’s Safety, Security Or Well-Being, Whether The Family Violence Is Directed Toward The Child Or Another Family Member [ 62 ] L.P. submits that the following are acts of family violence committed by A.E: 1. the allegation of non-consensual sexual activity, 2. her refusal and subsequent restrictions on his taking pictures and videos of E.E., 3. the denial of time with E.E., 4. the suggestion that L.P. is not E.E.’s father. [ 63 ] A.E. submits that L.P. has committed the following acts of family violence: 1. the hundreds of emails and the content of the emails that he has sent to her, 2. the volume of legal proceedings that L.P. has instituted, 3. the breach of conduct orders. [ 64 ] For the purposes of this analysis, the chronology of the parties’ interactions shall be reviewed. [ 65 ] The parties met in May of 2018.

Sexual activity occurred soon after they met. By August, 2018 A.E. expressed concerns about their interactions. Between August, 2018 and January, 2019 L.P. sent hundreds of emails to A.E. He was relentless in his many and diverse demands. The emails L.P. sent were harassing. L.P. testified he was told by police in October, 2018 and January, 2019 not to contact A.E. He ignored their advice and continued to send numerous emails to A.E. [ 66 ] In January 2019, A.E. expressed her concerns about an aspect of the parties’ sexual activity. A.E. explained that their sexual activity progressed too quickly.

A.E. testified that she did agree to sexual intercourse. She said there was no discussion about birth control and L.P. did not seek her consent to ejaculate inside her prior to ejaculating. She testified that L.P. did not have consent to ejaculate inside her. L.P. testified that he had informed consent from A.E. before engaging in sexual intercourse with her. In Exhibit 23 at 2.2 L.P. on August 10, 2018 acknowledged that he did not seek permission from A.E. to ejaculate inside her.

Considering the email exchanges in Exhibit 23, 2.2, I accept A.E.’s testimony that L.P. did not seek her consent prior to ejaculating inside of her. Moreover, in

L.P.’s affidavit filed March 8, 2019 at paragraph 22, he deposed “The first time I did not have explicit permission to ejaculate in her.” [ 67 ] Also in January, 2019, A.E. suggested that L.P. was not E.E.’s father. This resulted in L.P. applying for and subsequently receiving an order for paternity testing. L.P. chose not to proceed with paternity testing because he claimed he was concerned A.E. would “fake the test.” By April 2019, A.E. confirmed L.P. was E.E.’s father.

During her direct examination A.E. testified L.P. is E.E.’s father. [ 68 ] During the course of the trial an issue arose about L.P. taking pictures and videos of E.E. during his time with E.E. On November 6, 2020 the Court ordered that L.P. was permitted to take pictures of E.E. The only restriction on L.P.’s ability to take pictures was that he was not to post any pictures of E.E. on the Internet. A.E. did not comply with the order. [ 69 ]

Section 38 of the Family Law Act requires the Court to consider a number of factors, when determining the impact of family violence on a child’s safety, security and well-being and whether the family violence is directed towards the child or another family member. [ 70 ] With respect to the allegation that a portion of the sexual activity was non-consensual, it was appropriate for A.E. to raise this issue.

It is relevant in these proceedings for the negative emotional impact it has had on A.E. and is a factor in considering whether the Court should make an order that requires E.E.’s parents to co-operate. [ 71 ] With respect to L.P.’s concern regarding denials of time with E.E., the issue is not as simple as A.E. denying time as L.P. suggests. L.P. turned down a number of opportunities to see E.E. for the very first time. He did not see E.E. for the first time until July, 2019. He explained that he refused because he was being stubborn.

There were many times when the parties simply could not agree on the location of E.E.’s time with his father. During the initial months of pandemic A.E. did not allow E.E. to see his father. While L.P. submitted he was denied time, A.E. submitted that L.P. was refusing time.

This is not a situation of a complete denial of parenting time. [ 72 ] In my judgment only A.E.’s suggestion that L.P. was not E.E.’s father is potentially family violence which requires a consideration of the factors listed in s. 38 of the Family Law Act . [ 73 ] Regarding A.E. concerns, the hundreds of emails, the alleged breach of conduct orders and the volume of legal proceedings are potentially family violence and should also be subject to the s. 38 analysis. [ 74 ] A.E.’s suggestion on January 2019 that L.P. was not E.E.’s father is serious emotional abuse.

In the context of the chronology A.E. said this after receiving numerous harassing emails from L.P. over a period of a number of months. A.E. did consent to paternity testing and by April, 2019 A.E. confirmed L.P. is E.E.’s father. This is not evidence of a pattern of coercive and controlling behaviour directed at L.P. This was not directed to E.E., nor was he exposed to it or harmed by it. [ 75 ] The hundreds of emails that L.P. sent to A.E. have caused A.E. emotional harm and constitute family violence.

As well, the number of Court applications and affidavits that he filed and the numerous breaches of the conduct orders have caused A.E. emotional harm. None of the emails, court applications or conduct breaches were directed at E.E. However, the stress that this causes A.E. exposes E.E. to family violence which is more likely than not going to harm E.E.’s physical, psychological and emotional safety, security and well-being. H.

Whether The Actions Of A Person Responsible For Family Violence Indicate That The Person May Be Impaired In His/Her Ability To Care For The Child And Meet The Child’s Needs [ 76 ] On the totality of the evidence I am satisfied that A.E.’s comments respecting E.E.’s parentage do not impair her ability to care for or meet E.E.’s needs. With respect to L.P., his acts of family violence result from his inability to put E.E.’s interests before his own. As a result, it is my judgment that L.P. acts of family violence indicate that he may be impaired in his ability to care for E.E. and meet E.E.’s needs. I.

The Appropriateness Of Arrangement That Would Require The Child’s Guardians To Cooperate On Issues Affecting The Child Including Whether Requiring Cooperation Would Increase Any Risk To The Safety, Security And Well-Being Of The Child Or Other Family Members [ 77 ] On the totality of the evidence it would not be appropriate to require E.E.’s guardians to cooperate on issues affecting him. Requiring cooperation would risk the safety, security and well-being of E.E. and his mother. The conflict between E.E.’s parents is extreme.

L.P. has been relentless in pursuing what he believes is appropriate without regard to the impact that his actions have upon E.E.’s primary care giver. J. Any Civil or Criminal Proceeding Relevant to the Child’s Safety, Security and Well-being. [ 78 ] L.P. has filed a notice of constitutional question in both Supreme Court and in these proceedings. In addition L.P. has an outstanding notice of motion seeking to have a person approved as a supervisor for his time with E.E. These proceedings do not negatively impact on E.E.’s safety, security or well-being.

GUARDIANSHIP [ 79 ] L.P. says that he regularly cares for E.E. and accordingly he should be declared a guardian pursuant to s. 39(3)(

c) of the Family Law Act . Alternatively, he submits that it is in E.E.’s best interests that he be appointed a guardian pursuant to s. 51 of the Family Law Act . L.P. agrees that A.E. is a guardian. [ 80 ] A.E. submits that L.P. has not cared for E.E. during his time with E.E. nor is it in E.E.’s best interests for L.P. to be a guardian. She submits that L.P. will use his guardianship status to challenge her decisions. A.E. further submits that L.P. is not capable of exercising the duties of a guardian.

[ 81 ] In Doyle v. Handley , 2018 BCSC 293 at paragraphs 36 to 39 , Mr. Justice Armstrong stated: [36] The Court of Appeal decision in A.A.A.M. has addressed the impact of the FLA on disputes concerning guardianship and parenting. The court clarified the phrase “regularly care for” a child in s.39 as follows: [63] I doubt that a visit once every calendar year could be intended to qualify as ‘regular’ for purposes of s. 39(3)(c), even though it could be said to have taken place at regular intervals.

It seems to me that the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child's ongoing needs and a record of ‘usually’ or ‘normally’ doing so in fact. Certainly, it connotes something more than simply ‘visiting’ the child, even at regular intervals. [Emphasis added.] [37] In A.A.A.M., the court also addressed the distinction between parents applying to be guardians under s. 51 and those claiming to be guardians under s. 39: [13]

Section 50 clarifies that a person cannot become a child’s guardian by agreement unless he or she is the child’s parent or as provided under Division 3 of

Part 4 of the FLA , the Adoption Act , or the Child, Family and Community Service Act . Section 51(1) (

a) provides that on application, a court may appoint “a person” as a child’s guardian. The applicant must satisfy the court that such an order is in the best interests of the child.

Thus a person applying under s. 51 to be appointed guardian of a child must satisfy the “best interests” criterion, while a parent who is a guardian under s. 39 is not required to do so. [38] The core question in this proceeding concerning the claimant’s status as “guardian” will depend on whether the court concludes that the claimant’s “willingness to provide for the child’s ongoing needs” and has a record of “usually” or “normally” doing so which in fact has been more than simply visiting the child at regular intervals. [ 82 ] The same core question arises in this case. [ 83 ] L.P. submits that during E.E.’s time with him, he has read to E.E., played music for him, protected him from hazards, helped him learn to walk, played with him, attempted to change his diaper once, fed him lunch once and brought snacks.

He also testified that he has offered to supply items and has a baby bag. [ 84 ] L.P. further submits that A.E. has restricted his time with E.E. and what he can do with E.E. so as to try to defeat his guardianship claim. In support of his position for declaring him a guardian, L.P. relies on F.S. v. C.O. , 2015 BCPC 416 . [ 85 ] V.E. has supervised almost all of E.E.’s time with his father. V.E. said that L.P. does not do the things with E.E. that L.P. testified to. Moreover, he described L.P.’s interaction with E.E. “like a ten year old playing with a younger sibling”.

V.E. further said that he has had to intervene to ensure E.E.’s safety because L.P. was not doing so. [ 86 ] Given these two different descriptions of E.E.’s time with his father, the Court must attempt to resolve the conflict in the testimony. I have cautioned myself that there are concerns regarding both L.P.’s and V.E.’s credibility and reliability. [ 87 ] There is no issue that L.P. has attempted to change E.E.’s diaper only once.

During that attempt, he asked V.E. whether E.E. should be face down or face up while his diaper was being changed. [ 88 ] L.P. testified E.E. “is like a good friend”, “I don’t know a lot about E.E.” and “E.E. likes to do what he likes to do… I’m not going to try and sit him down and say we’re sitting down and going to read or count numbers.” [ 89 ] V.E. testified that rather than directing E.E. not to throw sand when he was playing in the sand box, L.P. and E.E. threw sand at each other.

As well while at Strong Start, V.E. testified L.P. allowed E.E. to enter an out of bounds area, and a Strong Start employee had to ask L.P. to remove E.E. from the area. Additionally, V.E. testified he had to take a bottle of hand sanitizer away from E.E. because L.P. had not. [ 90 ] Significantly, L.P. testified “I’d like to read with E.E. but we are always in play mode”. V.E. described that “E.E. leads and L.P. follows. L.P. is like a playmate.” [ 91 ] L.P.’s testimony that I just noted plus his testimony that he will not tell E.E. what to do sways the balance.

While L.P. and V.E. disagree about what has occurred when E.E. has had time with his father, their characterization of the time is similar. If L.P. was regularly caring for E.E. he would know how to change E.E.’s diaper, he would “know E.E.” and they would not always be in play mode. Consequently, I reject L.P.’s testimony on this issue and I accept V.E.’s testimony on this issue. I specifically accept V.E.’s description that I just referred to in the previous paragraph. [ 92 ] L.P. asserts that A.E.’s restrictions have prevented him from regularly caring for E.E. I disagree.

L.P. could have changed E.E.’s diaper on the few times it needed changing. He could have read to E.E. instead of always being in play mode. L.P. could have redirected E.E. when that was required. All that was required, was for L.P. to exercise ordinary care: that is, a degree of care which may reasonably be expected from a person in that party’s situation. L.P. has not done that. The restrictions did not prevent L.P. from reaching the relatively low threshold of ordinary care that is required by s. 39(3)(

c) of the Family Law Act . [ 93 ] Consequently, I decline to declare L.P. a guardian pursuant to s. 39(3)(

c) of the Family Law Act . It will therefore be necessary to consider L.P.’s application to be appointed a guardian pursuant to s. 51 of the Family Law Act which requires a best interest assessment. [ 94 ] A guardian bears a legal responsibility for the child. That status forms a basis for, in addition to obligations, a guardian’s entitlement to parenting responsibilities and parenting time. The status as a guardian protects or promotes a meaningful or significant relationship between parent and child. Sole guardianship can deprive the child of the guidance of the non-guardian parent.

[ 95 ] If there are concerns regarding a guardian’s ability to exercise their parental responsibilities, the parental responsibilities can be allocated or re-allocated to the more capable parent so that the child retains the benefit of having the parent remain a significant part of the child’s life. [ 96 ] I am satisfied on the totality of the evidence that L.P. wishes to play a significant role in E.E.’s life. He has consistently had time with E.E. L.P. wants to have a relationship with E.E. However, the question has to be asked at what cost.

The conflict between E.E.’s parents is extreme and L.P. has been relentless in this dispute, just as he was in his dispute with M.R., his former landlady. L.P. does not recognize that his actions and his acts of family violence have the ability to destabilize E.E.’s primary care giver. At this point, L.P.’s actions have significantly and negatively impacted A.E. I accept her testimony on this point. Also concerning, is L.P.’s position that if he had more time with E.E., his mental health would be better. L.P. suggests unless he has more time with E.E. he cannot study or work.

This is simply not a leadership role by the parent. It is not indicative of a parent who could be responsible for a child. [ 97 ] I also recognize that guardianship has a symbolic status: a guardian is seen as playing a “parental” role in a child’s life even if that parent does not exercise parental responsibilities or when the circumstances indicate that it would not be in the child’s best interests for that parent to exercise parental responsibilities.

L.P. has stressed the importance of the status, however, prior to appointing a parent as a guardian, the Court must be satisfied the appointment is in the child’s best interests. [ 98 ] The risk that arises, if L.P. is appointed a guardian, is that he will put his interests before E.E.’s interests. Also, he may destabilize E.E.’s primary parent at a time when L.P. acknowledges he cannot take on the primary parent role.

Further, it is more likely than not, that L.P. will relentlessly pursue litigation. [ 99 ] L.P. has provided cases and journal articles that emphasize the important role a father can play in a child’s life. Many of these are predicated, at some point in time, on a positive relationship between the child’s parents and/or a pre-existing positive relationship between father and child. [ 100 ] In this case E.E.’s parents are strangers and months of conflict have turned into years of conflict.

As well, there is no prior positive relationship between E.E. and his father. [ 101 ] For many months, L.P. refused to see E.E. unless his conditions were met. At that point, L.P. had never met E.E. and insisted that he would only see E.E. on his terms. [ 102 ] This is not to say that the needs and perspectives of L.P. are not to be considered. The needs of a child and the needs of a parent are interconnected. [ 103 ] That said, the focus is on the needs of a child and the best interests of the child is the only consideration.

The needs of a parent can and likely will be secondary to the needs of the child. [ 104 ] When I weigh the s. 37 factors and despite L.P.’s willingness and desire to have a meaningful role in E.E.’s care and up-bringing, the acts of family violence, the instability he has caused and is likely to continue to cause, the fact that E.E.’s presence will determine L.P.’s well-being and L.P.’s unwillingness to sacrifice his own needs for those of his child, I have concluded it is not in E.E.’s best interests that L.P. be appointed a guardian of E.E.

L.P.’s application to be appointed a guardian pursuant to s. 51 of the Family Law Act is dismissed. PARENTAL RESPONSIBILITIES [ 105 ] Only a guardian may have parental responsibilities and parenting time with a child. Accordingly, all parental responsibilities as outlined in s. 41of the Family Law Act are allocated to A.E. CONTACT [ 106 ] In making an order for contact with a child, the Court must consider only the best interests of the child. The party seeking contact bears the onus of establishing contact is in the best interests of the child.

The best interests of the child test should be “read in harmony” with s.41 parental responsibilities and with a “degree of deference” to a guardian’s wishes so long as they are in the best interests of the child. See L.D.R. v. J.C.L. 2020 BCSC 1267 at paragraph 108 . [ 107 ] A.E. opposes any contact between E.E. and his father. L.P. seeks time with E.E. five days per week for two hours at a time. [ 108 ] L.P. has had regular contact with E.E. E.E. has fun with his father. He has a right to know his father. (Article 7 United Nations Convention on the Rights of the Child).

While I acknowledge A.E.’s concerns, contact still is in E.E.’s best interest. The issue then becomes whether the contact time should continue to be supervised. [ 109 ] Whether supervised parenting time (or in this case contact time) is appropriate is fact specific to each case. See M. D.F. v.

D.O.T.C. , 2020 BCSC 522 at paragraph 68 . [ 110 ] It is possible through a supervision order to do the following: a. protect children from risk of harm, b. continue or promote the parent child relationship, c. direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting, d. create a bridge between no relationship and a normal parenting relationship, and e. avoid or reduce the conflict between parents and lessen the impact on children.

See V.S.J. v.

L.J.G., (ON SC) at paragraph 137. [111] Factors commonly considered by the Court in determining whether to order supervised parenting or contact time are thefollowing: 1. long term harassment and harmful behaviour towards the custodial parent causing that parent and the child stress and or fear, 2. history of violence; unpredictable uncontrollable behaviour; alcohol and drug abuse which has been witnessed by the child orpresents a risk to the child’s safety and well-being, 3. extreme parental alienation which has resulted in changes of custody and at times no access orders to the former custodial parent, 4. on-going severe denigration of the other parent, 5. lack of relationship or attachment between the non-custodial parent and child, 6. neglect or abuse to a child on the access visit, 7. older children’s wishes and preferences to terminate parenting time.

See M.D.F. v. D.O.T.C. at paragraph 66. [112] In this case there has been long term harassment of A.E. by L.P. There has been unpredictable and uncontrollable behaviour byL.P. as evidenced by his breaches of the conduct orders and the imposition of a protection order. On the totality of the evidence, I am notsatisfied L.P. has demonstrated the level of parenting skills required for unsupervised time.

Accordingly, E.E.’s time with his father shallbe supervised. [113] Having determined that supervision should continue this limits the amount of time and frequency of time because, at present, onlyV.E. is supervising the time and there are limits on his availability. Further, considering how committed L.P. is to his views, a supervisormust be able to stand up to L.P. [114] Accordingly, E.E. shall have time with his father one day per week on Thursdays. The time will increase to 75 minutes to matchthe length of the Strong Start program.

For greater clarity, A.E. shall determine where E.E.’s time with his father shall occur. [115] E.E.’s time with his father may be supervised by a professional supervisor paid by L.P. and approved by the court or such otherperson approved by the Court. A hearing to determine whether M.K. will be permitted to act as a supervisor is scheduled for next month. CHILD SUPPORT [116] Pursuant to the Interim Consent Order pronounced by the Honourable Judge Ritchie April 29, 2019 L.P. is paying to A.E. thesum of $277 per month for the support of E.E. based on an imputed income of $30,800.

L.P. has complied with the order. [117] A.E. seeks to impute income to L.P. in the amount of $136,322 based on L.P.’s stated intention of becoming a lawyer andpracticing law in British Columbia. A.E. noted that the occupational income statistic for lawyers in British Columbia provided byStatistics Canada is $136,322. A.E. submits that L.P. has deliberately chosen not to be qualified to practise law in British Columbia. [118] L.P. submits that child support should remain at its current level because he is not working and is in receipt of employmentinsurance benefits. [119] Child support is the right of the child.

The Family Law Act imposes a duty on each parent to provide child support. See s.147 ofthe Family Law Act. This fundamental obligation takes priority over a parent’s own interests and choices. See Duffy v. Duffy 2009 NLCA48 at para 35 [120] On December 22, 2020 L.P. testified that he could have got a part time job but it was his choice not to work. Later in histestimony L.P. said that he has not looked for work. Contrary to that, L.P. told the Court that he is seeking work as an advocate and if hewas successful in obtaining an advocacy position he would work full time and see E.E. on weekends.

L.P. also said he needs the securitythat E.E. knows him before he can work. [121] L.P. told the Court that he has always been supported by his family or has relied on student loans. [122] The practise of law is a regulated profession and there are requirements that must be met before one can practise law. L.P. saysthat he has been studying and taking the qualification exams but that he recently did not pass an exam.

As a result, I am not satisfied thatit would be appropriate to impute income at the level requested by A.E. [123] A.E. testified that she had conducted job searches for possible employment opportunities for L.P. She said that L.P. could respondto the job posting for a legal administrative assistant that pays $25 an hour. She also testified that L.P. could respond to the job posting atthe John Howard Society or to the posting by UPS for a package care specialist. Those jobs pay in the $25 per hour range.

From the timethat L.P. has spent on [omitted for publication], he ought to have been aware that there were job opportunities on [omitted forpublication] that also pay $25 per hour. [124] In determining whether a parent is intentionally unemployed, the Court must determine whether the party has taken reasonablesteps to obtain employment considering their age, health, education, skill and work history. See D.L. v.

J.L. 2017 BCSC at paragraph 18. [125] The test for imputing income for intentional unemployment is one of reasonableness considering person’s capacity to earn incomein light of their age, education, health, work history, and work availability. See D.L. v. J.L. at paragraph 20

[ 126 ] L.P. has simply chosen not to work. He has not taken reasonable steps to find work. He has limited his job searches to advocacy positions. [ 127 ] L.P. is well educated but has a limited work history. His father says he would benefit from career counselling. The onus is on A.E. to show an evidentiary basis for the imputation of income. See D.L. v. J.L . at paragraph 19.

Considering L.P.’s education and work history and the employment opportunities that are currently available, I accept A.E.’s testimony that if L.P. had applied for positions that paid approximately $25 per hour he would more likely than not have been successful in getting such employment. That would provide an annual income of approximately $52,000.00 per year. [ 128 ] However, as described earlier in these reasons and consistent with L.P.’s own description regarding his level of responsibility, the only job that L.P. has worked at, for any length of time was at [omitted for publication].

Therefore, it is my judgement that a reasonable imputation of income is $42,200.00. Based on that income, the amount of child support payable is $397 per month. [ 129 ] A.E. submits that L.P. has been intentionally under employed since E.E. was born and accordingly child support should be retroactive to March 1, 2019. In my judgment, L.P. has made an effort to try to practice law in British Columbia but has not been successful so far. [ 130 ] Moreover, between March 1, 2019 and March 1, 2020, L.P. was working at the jobs available to him that were consistent with his skills and abilities.

Therefore, I decline to make a retroactive order commencing March 1, 2019. [ 131 ] In mid-March 2020 pandemic restrictions began and life was uncertain.

As a result I decline to make an award retroactive to April 1, 2020. [ 132 ] Considering the number of times the parties attended Court in 2021, I do not think L.P. could have started work until August, 2021. [ 133 ] Accordingly, there will be an order that L.P. shall pay to A.E. based on an imputed income of $42,000.00 the sum of $397.00 per month for the support of E.E. commencing August 1, 2021 and continuing until further order of the Court. [ 134 ] A.E. seeks reimbursement for the portion of the insurance costs she has paid for the time E.E. has had with his father at the activity room at the church.

The church required the parties to have insurance as a condition for using the space. L.P. has paid one half of the cost. Further, L.P. objects to this location and would prefer that this location not be used. [ 135 ] The insurance costs should be shared equally by the parties and I decline A.E.’s application for reimbursement. ADDING L.P.’S NAME TO E.E.’S BIRTH CERTIFICATE/CHANGING E.E.’S NAME [ 136 ] L.P. seeks an order that his name and details be added to E.E.’s birth certificate and an order adding [omitted for publication] to E.E.’s surname. In support, L.P. relies on Landa-McAuliffe v.

Boland, 2012 BCSC 1354 . L.P. further submits this Court has jurisdiction under the Vital Statistics Act R.S.B.C. 1996, c. 479 to make the orders he seeks. A.E. opposes these applications. She submits that the legislation does not permit this Court to change E.E.’s name. She further submits that it is not in E.E.’s best interests to have L.P.’s name and details added to E.E.’s birth certificate. [ 137 ] In Landa-McAuliffe v. Boland , the Court relied on its parens patriae jurisdiction to assume jurisdiction in the naming of the children. This Court does not have parens patriae power.

As well, this Court does not have jurisdiction under the Name Act R.S.B.C. 1996, c.328 to consider L.P.’s application. [ 138 ] I do agree with L.P. that the Provincial Court has jurisdiction in certain circumstances to make an order that the registration of a child’s name be changed. Pursuant to s. 4.1 of the Vital Statistics Act a court may in an order declaring a child’s parentage make an order that the registration of a child’s name be changed. [ 139 ] Under s. 31(1)(

b) of the Family Law Act , the Provincial Court has jurisdiction to make an order declaring whether a person is a child’s parent if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction. [ 140 ] A.E. has testified that L.P. is E.E.’s biological father. On March 7, 2019 this Court made an order for paternity testing. L.P. chose not to comply with that order. On April 29, 2019 the Court made an interim order.

There appeared to be no issue that L.P. was E.E.’s father and accordingly it was not necessary for the Court to make a declaration of parentage. [ 141 ] During the course of the trial, L.P. has said on more than one occasion that he retains a residual doubt as to whether he is E.E.’s biological father. It is my judgment that L.P.’s residual concern does not equal “any uncertainty” as described in s. 31 of the Family Law Act . It defies belief to suggest that A.E. would participate in proceedings as lengthy as these if E.E.’s biological father was not L.P.

L.P.’s belief that he may not be E.E.’s biological father or the residual doubt that he has is simply not reasonable. [ 142 ] Since it is not necessary to determine parentage for any of the matters that are in dispute in this case, this Court does not have the jurisdiction to proceed with L.P.’s application. Accordingly, his application to change E.E.’s name is dismissed. [ 143 ] With respect to L.P.’s application that his particulars be included in the E.E.’s registration of birth, pursuant to s. 3 (

b) of the Vital Statistics Act , the Registrar General must amend the registration of birth on an application and payment of the prescribed fee if the application is accompanied by a Court order declaring the child’s paternity or parentage. [ 144 ] Again L.P. chose not to comply with the order for paternity testing. It is not necessary for this Court to make an order declaring L.P. E.E.’s father for the purposes of determining the issues in this case. Accordingly, the Court lacks the jurisdiction to make the order requested by L.P. Consequently, L.P.’s application to include L.P.’s particulars in E.E.’s registration of birth is hereby dismissed.

COMPENSATORY CONTACT TIME [145] L.P. submits that he has been wrongfully denied a total of 115 hours of contact time: 38 hours of contact time pursuant to thefamily case conference order of April, 2019, 62 hours pursuant to the November 2019 order, and 15 hours pursuant to the November,2020 order. [146] At the case conference in April 2019, the parties agreed to an order respecting interim time between E.E. and L.P. Up to thispoint, L.P. had never met E.E. The day after the order was made L.P. told A.E. that he wanted to withdraw from the order and that hehad only agreed to it under duress.

The order provided that L.P. would have time with E.E. to include one two-hour visit per weeksupervised by the Strong Start program or supervised by another adult agreed to between the parties at a location agreed to by the parties.At the time of the agreement, neither party realized that Strong Start would not supervise the parenting time. A.E. then offered supervisedtime between E.E. and L.P. at an alternate location. L.P. refused the contact time; he testified that he was being stubborn. L.P. was notdenied contact time. The parties simply could not agree on how the contact time would be exercised.

Accordingly, it is my judgment thatL.P. has not established that he was wrongfully denied contact time between April 29, 2019 and November 7, 2019. [147] On November 8, 2019, the previous order was cancelled and L.P.’s time with E.E. was set at one hour per week at Strong Startand two hours that same week at the activity room in the Anglican Church. [148] Between November 11, 2019 and March 15, 2020, L.P. alleges he was wrongfully denied 11 hours of contact time. Time wasmissed for various reasons. [149] The November 8, 2019 order provided that make up time would occur if A.E. cancelled or if L.P. was working.

Of the 11 hoursclaimed by L.P. only three hours are in this category. Accordingly, three hours should be compensated. For the purposes of determiningthis issue I accept the table provided by A.E. in Exhibit 24, page marked 18. Where there are conflicts between A.E.’s chart and L.P.’schart I prefer the evidence of A.E. because L.P. testified more than one of his entries contained misleading information. [150] Between March 16, 2020 and May 17, 2020, L.P. was denied 25 hours of time due to the pandemic. The case law is clear thattime should have been permitted.

Accordingly, 25 hours is wrongfully denied time. [151] Between May 18, 2020 and November 6, 2020 L.P. says he was wrongfully denied 32 hours. L.P. did not have time with E.E.because Strong Start was closed which amounts to 20 hours. Pursuant to the Court order, that time did not have to be made up. Also, L.P.refused a two hour time with E.E.

As a result only 10 hours is time that could be compensated. [152] The order of November 6, 2020 specified that commencing November 18, 2020, L.P.’s time with E.E. would be at Strong Starton Wednesdays for one hour and Fridays at the Anglican Church for two hours. [153] Since November 18, 2020, E.E. has had time with his father for the most

part in accordance with the Court order. Some time wasmissed because the parties were in Court. Of the 15 hours L.P. suggests were wrongfully denied, five were due to the fact E.E. was sickand one hour was missed because neither Strong Start nor the church were available. Those six hours should have been made up. Thehours that were missed due to the parties being in Court were not wrongfully denied. [154] Having determined that there has been a denial of contact time of 44 hours, the issue becomes what consequence or remedy, ifany, is appropriate.

The Court has the discretion not to impose a remedy even if a denial is found to be wrongful. See K.R. v. J.W., 2016BCSC 225 at paragraph 23. For the reasons previously provided I have determined that it is in E.E.’s best interests to havecontact with his father one time per week. For those same reasons I decline the request for compensatory contact time. The supervisionlimitations do not permit additional time. [155] However, A.E. denied E.E. time with his father at the beginning of the pandemic and denied other time, such as when L.P. servedher with Supreme Court documents. This was E.E.’s time with his father.

A.E. should not have taken this time away. These amount towrongful denials of parenting time and the Court will consider a monetary consequence for A.E.’s failure to comply with the Courtorders. THE APPLICATION FOR A PROTECTION ORDER [156] A Court may make an order against a family member for the protection of a family member if the Court determines: a. family violence is likely to occur, and, b. the other family member is an at-risk family member.

See s. 183(2) of the Family Law Act [157] A.E. seeks a protection order alleging that the hundreds of emails that she has received from L.P., the number of courtapplications that he has commenced and the threats of litigation constitute family violence because it is emotional abuse. A.E. submitsthat L.P.’s actions are intimidating, harassing, coercive and threatening. L.P. opposes the imposition of a protection order. He submitsthat he has not committed acts of family violence.

L.P. acknowledges that his persistence can be seen as aggressive. [158] A.E. testified that she created a list of examples which she described as intimidation, coercion, threats and legal abuse by L.P.That is document 5.15 in Exhibit 24 and describes the time period between September 15, 2018 and November 25, 2020. It illustrateswhat has occurred since A.E. told L.P. that she did not want to have a long term relationship with him.

What followed and is contained inExhibits 23 and 24 are hundreds of pages of emails that were sent by L.P. to A.E. that are harassing. [159] In addition to L.P.’s Written Filings, he has also filed two judicial review applications and a complaint to the B.C. Human RightsTribunal.

[ 160 ] It should be noted that L.P. has also filed a notice of constitutional question in both Supreme and Provincial Court. Those will not be included in this analysis because they seek to challenge the validity of legislation which an individual has a right to do. [ 161 ] The emails, court documents and the statements made by L.P. regarding the possibility of litigation need to be viewed as a continuum. Even prior to E.E.’s birth L.P. began sending emails to A.E. that were harassing. He then commenced court proceedings and filed affidavits and continued with the emails.

While in Court, L.P. often raised the prospect of future litigation. L.P. has been relentless in pursuing litigation. He is oblivious to the impact this is having on E.E.’s primary care giver. While there is no question that some of the court documents and affidavits that L.P. has filed are appropriate, many however, are repetitive. The affidavits were used as an additional way for L.P. to repeat the demands he was making in the emails. To be clear, an individual is entitled to aggressively pursue litigation. That is not what has occurred here. L.P. has been relentless in his demands.

When L.P. did not get what he wanted, he made statements about appeals and judicial reviews. I accept that the contents of document 5.15 are accurate. I also accept that L.P.’s relentless pursuit of his goals has negatively impacted A.E. emotionally. [ 162 ] L.P. submits that he was doing what is in E.E.’s best interests and what is necessary for him to obtain the orders he seeks. However, that is not an accurate description of what has occurred. For example, L.P. took judicial review of the Court’s decision on the first appearance to make no orders and adjourn the matters for hearing.

The hearing was set for July 23 to 25, 2019. On July 19, 2019 L.P. agreed to adjourn the hearing to November 7 and 8, 2019. On July 28, 2019 L.P. notified A.E. that he was proceeding with the judicial review application. The judicial review proceeded August 26, 2019 and the parties were directed to re-attend in Provincial Court. That litigation was totally unnecessary.

The hearing in Provincial Court could have commenced in July, 2019. [ 163 ] The combination of the unnecessary applications, the repetitive emails and the repetitive comments in Court about further litigation, in my judgment, constitute emotional abuse. [ 164 ] With respect to A.E.’s allegation of conduct order breaches, A.E. prepared a list containing what she alleges are conduct breaches between April, 2019 and October 1, 2020. This is contained in Exhibit 24, document 5.12. While not all of those may be conduct breaches, many are.

It is not necessary to determine the exact number of conduct breaches because L.P. admits that he did not follow the conduct orders restricting contact. Further, he admitted he violated the November 8, 2019 conduct orders within a week. Also, L.P. admitted he violated the July 22, 2021 conduct order restricting contact shortly after it was imposed. [ 165 ] Pursuant to s. 228(2) of the Family Law Act , if a party fails to comply with an order made under s. 225 (restricting communications) the court must consider whether it would be appropriate to make a protection order. THE

SECTION 184 RISK FACTORS A. Any History of Family Violence by The Family Member Against Whom The Order Is To Be Made [ 166 ] L.P.’s campaign of sending harassing emails to A.E. began in August of 2018. As the Court has already stated in these reasons, I find that those emails amount to family violence. B. Whether Any Family Violence Is Repetitive Or Escalating [ 167 ] On August 5, 2021 A.E. applied without notice for a protection order, alleging that L.P. breached the July 22, 2021 conduct order. Her application was granted. L.P.’s subsequent application to set aside the protection order was dismissed.

While I agree with L.P. that he has sent fewer emails in 2021 than he did in 2019 or 2020, he has continued to make numerous court applications, many of which this Court finds unnecessary. He also threatened to appeal this decision, notwithstanding the fact that he had yet to see these reasons. C.

Whether Any Psychological or Emotional Abuse Constitutes Or Is Evidence Of A Pattern Of Coercive And Controlling Behaviour Directed At The At Risk Family Member [ 168 ] While L.P. submits that he is simply pursuing the legal options available to him in order to achieve the orders he seeks, what is really happening is that L.P. is continuing his relentless behaviour with the hope of coercing A.E. into agreeing to what he wants. D.

The Current Status of The Relationship Between the Family Member Against Whom the Order Is To Be Made And the At Risk Family Member Including Any Recent Separation or Intention to Separate [ 169 ] It must be remembered that the parties are actually strangers. They interacted over a number of weeks between May, 2018 and August, 2018. E.

Any Circumstance of the Family Member Against Whom The Order is to be Made That May Increase The Risk of Family Violence By That Family Member Including Substance Abuse, Employment or Financial Problems, Mental Health Problems Associated With A Risk Of Violence, Access to Weapons or A History Of Violence [ 170 ] L.P. does not have a history of violence. There is no expert opinion evidence before the Court regarding L.P.’s mental health and there is no evidence before the Court that L.P. has any substance abuse issues.

L.P. testified that he rarely drinks alcohol and does not use drugs and I accept that testimony. [ 171 ] L.P. has suggested that he has seen a counsellor monthly for approximately two years. He did not provide a letter from the counsellor confirming attendance. If L.P. has attended counselling, he does not seem to have benefitted from it. [ 172 ] L.P. has also submitted that he is less angry today than he was in 2019. Nonetheless, L.P. remains angry. [ 173 ] Finally, L.P. has student loan debt in excess of $300,000 US dollars. F. The At-Risk Family Members Perception Of Risks To His Or Her Own Safety And Security

[ 174 ] A.E. says she is extremely fearful of L.P. She believes he suffers from a mental disorder. She believes that he is capable of inflicting grievous bodily harm. I accept that A.E. is fearful of L.P. G. Any Circumstance That May Increase the At-Risk Family Member’s Vulnerability, Including Pregnancy, Age, Family Circumstances, Health or Economic Dependence [ 175 ] L.P. says that if he had more time with E.E. his mental health would be better. L.P. testified that he feels E.E. needs [omitted for publication] as his last name to really feel connected to the [omitted for publication] family.

L.P. said that if his surname is not included in E.E.’s name he will feel like a “second class parent”. L.P. says that he wants to feel equal so he wants to be a guardian. L.P. explained that not having the “guardianship label” would change how he would interact with E.E. L.P. suggested he would feel physically better if he did not have to worry about the guardianship issue. L.P. testified that labels impact how he would spend his time with E.E. L.P. cautioned the Court that his time with E.E. would be different if it is determined that his time is “contact time” because of the impact on his psyche.

That is concerning because the Court does not know how he would act and what would be different. ANALYSIS [ 176 ] Family violence is not limited to physical violence. Rather, the term is broadly defined and includes emotional and psychological abuse which is the primary consideration in this case. The emails L.P. sent to A.E. prior to E.E.’s birth were harassing. L.P. commenced this litigation prior to E.E.’s birth. In the conduct of this litigation, L.P. has proceeded with numerous applications, written and oral. When he did not get the order he sought, he attempted to reargue the applications.

He has repeatedly talked about judicial review and has filed two petitions for judicial review. He has made it clear he intends to appeal the ruling of this Court. He has persisted with his demands for mediation despite A.E. stating she does not want to participate in mediation. When L.P. obtained the order for paternity testing he chose not to follow through with the testing. When he agreed to an order at the family case conference he sought to withdraw from it.

He acknowledged that he has not complied with the orders restricting his contact with A.E. [ 177 ] It is my judgment that L.P.s actions viewed cumulatively constitute emotional abuse. When I consider L.P. conduct and the s.184 risk factors I find that family violence is likely to occur and A.E. and E.E. are at risk family members. [ 178 ] Since August 5, 2021, L.P. has been bound by a protection order for matters that arose in July 2021. There are no other orders that need to be included in that order. Consequently, it is not necessary for this Court to make a protection order.

There will, however, be a conduct order. MISUSE OF COURT PROCESS [ 179 ] A.E. seeks an order that L.P. pay to her the sum of $5,000 which she says she would use for counselling for her and E.E. [ 180 ]

Section 221 of the Family Law Act was discussed by Mr. Justice Punnett in Williams v. Williams , 2015 BCSC 928 at paragraph 150 : [150] I am of the opinion, as was noted in Dawson, that the test under s. 221 is “less stringent” than that for a vexatious litigant under s. 18 of the Supreme Court Act . The language used broadens the factors considered under s. 18 as it recognizes that family litigation has unique characteristics and that litigation may have wider and more significant effects that should be considered if the goal of resolution of family conflict is to be achieved.

In the context of family litigation s. 221 recognizes the need for the courts to have access to the less stringent remedy provided for given the negative financial and social costs that family litigation may cause. That impact affects the parties and their children both financially and emotionally and where the behaviour of one or both parties meets the threshold in s. 221 such orders may be made. [ 181 ] L.P. has been relentless in the conduct of this litigation. He has said repeatedly that he does not want this trial to conclude.

L.P.’s notice of motion seeking that A.E. submit a criminal record check was a trivial and unnecessary application. [ 182 ] On August 26, 2021 L.P. filed an application about enforcement returnable September 2, 2021. On that date, the parties attended and L.P. withdrew his application. On September 7, 2021 L.P. refiled the application and it was heard September 9, 2021. [ 183 ] L.P. is required by the terms of the protection order to use a process server to serve A.E. with court documents if her counsel will not accept service. L.P. did not check with A.E.’s counsel to see if he would accept service.

He simply sent the application about enforcement to A.E.’s counsel by email. L.P. at first explained that he thought the February, 2019 order that authorized the service of certain documents by email applied. I do not think that that was a truthful statement. L.P. then explained that he cannot afford to hire a process server. I think that is a truthful statement. [ 184 ] L.P.’s conduct amounted to a breach of the protection order. He also made a false statement to the Court.

He was clearly conducting a proceeding in a manner that frustrates and is a misuse of the Court process. [ 185 ] On September 3, 2021 L.P. sought permission to file a case management order seeking that the parties attend for counselling and mediation and an order adjourning the trial. He was not granted leave. On November 6, 2020 the Court denied L.P.’s application regarding counselling and said that the issue of counselling could not be determined until the conclusion of the trial. L.P. also raised the issue of the parties attending for counselling in May and June, 2021. Those applications were denied.

These repeated applications constitute a misuse of the court process. [ 186 ] Later in September, 2021 L.P. filed an application for a case management order seeking to vary the no contact terms of the protection order to allow the parties to attend for counselling if A.E. agreed. A.E. has repeatedly stated she will not attend counselling with L.P.

L.P. is acting in a matter that frustrates and misuses the Court process. [ 187 ] Despite the Court’s repeated rulings that the issue of guardianship would be determined at the conclusion of the trial L.P. has filed notices of motion and made oral applications seeking guardianship. Again, this is a misuse of the Court system.

[ 188 ] Subsequent to the interim ruling of the Court on November 6, 2020 L.P. filed a notice of motion on December 11, 2020 seeking leave to file a notice of motion that would state “I wish to present an argument that the interim hearing was conducted on the wrong grounds: That it should not have been to vary the November, 2019 order but instead de novo fresh without reference to it.” L.P. was simply attempting to re-argue the case because he was dissatisfied with the result.

Again this is a misuse of the Court process and an attempt by L.P. to frustrate the Court process by seeking to re-argue matters that were already decided. [ 189 ] Just as L.P. was relentless in his emails with A.E. when he was not getting what he wanted, he was relentless with his court applications, both written and oral, when he was not getting the orders he wanted. This has had a negative impact on A.E. emotionally.

It also has caused her to miss work in order to attend Court. [ 190 ] L.P. has also told the Court on more than one occasion that he acknowledges that he has filed too many notices of motion. [ 191 ] The misuse of the Court process and the frustration of the Court process are illustrative of an individual who does not appreciate the negative impact, the stress and loss of income that results from these actions.

It is an example of L.P. putting his interests before E.E.’s, because of the impact it has on E.E.’s primary care giver. [ 192 ] Once the Court rules that certain applications will not be determined until the conclusion of the trial that ends the matter. There is simply no basis for continuing to pursue the matter. It is my judgment that L.P.’s conduct warrants the imposition of terms and conditions respecting the granting of leave to make further applications or to continue a proceeding. [ 193 ] I do not feel that his conduct warrants a monetary award and I decline to make one.

These actions support the imposition of the protection order that has already been granted by the Court. However, the provisions of s. 221 of the Family Law Act shall be considered for all applications currently before this Court, subsequent leave applications and the conduct of any applications that L.P. is permitted to proceed with.

CONDUCT ORDERS [ 194 ] L.P. submits that the Court should impose conduct orders that include conditions that both parents encourage E.E. to have a good relationship with the other parent, that E.E.’s parents make a concerted effort to maintain respectful and polite communication between each other in the best interests of the child, and that they encourage their respective family members to refrain from any negative comments about the other parent or their extended family or any discussions in front of the child concerning

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