D.N.B v. C.J.P., 2022 BCPC 279

Citation: D.N.B v. C.J.P. 2022 BCPC 279 Date: 20221212 File No: F-18735 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.N.B. APPLICANT AND: C.J.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing on their own behalf: D.N.B. Counsel for the Respondent: S. Bose Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 7 and November 25, 2022 Date of Judgment: December 12, 2022

Introduction [ 1 ] This is a high conflict case involving the parents of three children. [ 2 ] Over the course of the litigation, Ms. B. obtained three without-notice protection orders. The first two orders were set aside. I am now dealing with Mr. P.’s application to set aside the latest without-notice protection order, made August 15, 2022 by Judge Smith. In addition, Mr. P. applies for an order that Ms. B. is prohibited from bringing any further applications for a protection order without providing five business days’ notice to counsel for C.J.P.

Background [ 3 ] The parties are the parents of three children. [ 4 ] On August 1, 2019, Ms. B. filed an Application to Obtain an Order to seek orders regarding guardianship, child support, spousal support and a protection order. Mr. P. filed a Reply and Counterclaim raising additional issues of parenting time and parental responsibilities. [ 5 ] A trial is set for May 1-5, 2023, along with a pre-trial conference on March 16, 2023. [ 6 ] On August 6, 2019, Ms. B. obtained a without-notice protection order against Mr. P.

The order of Judge Dorey prevented the parties from having any contact or communication except in the listed circumstances. Judge Dorey ordered Mr.

P. not to attend certain locations, and that he have supervised parenting time with exchanges at a McDonald’s Restaurant. [ 7 ] On September 10, 2019, Judge Jamieson varied the August 6, 2019 protection order to allow communication by email for family purposes and to amend the supervised parenting time terms. [ 8 ] On October 22, 2019, Judge Brown varied the supervised parenting time terms of the August 6, 2019 protection order. [ 9 ] On December 16, 2019, Judge Brown further varied the August 6, 2019 protection order to allow Mr. P. to attend a Christmas concert and added a named person who could supervise Mr.

P.’s parenting time. [ 10 ] On July 2, 2020, Judge Dorey cancelled all previous protection orders. [ 11 ] On November 5, 2021, Judge Jamieson made a new without-notice protection order limiting contact or communication between the parties, and preventing Mr. P. from going anywhere that Ms. B. or the children happened to be except when a supervisor or lawyer was present. [ 12 ] On November 26, 2021, Judge McQuillan made a supervised parenting time order. This was not a protection order. [ 13 ] On December 10, 2021, Judge McQuillan made an order terminating all previous protection orders.

This included the November 5, 2021 order of Judge Jamieson. Judge McQuillan held that a conduct order would better serve the parties. He also allowed Mr. P. interim unsupervised parenting time. I will discuss Judge McQuillan’s findings in greater detail later in my decision. [ 14 ] On April 5, 2022, Judge McQuillan made an order that both parties were guardians of the children, set a parenting time schedule, ordered the exchange of information and set hearing dates. [ 15 ] On June 23, 2022, the parties agreed to a summer parenting time

schedule that was set out in an order I made. [ 16 ] On August 15, 2022, Ms. B. applied to this Court for a without-notice protection order. This matter came before Judge Smith who made a protection order that the parties exchange the children at a McDonald’s Restaurant, that Mr. P. not go within 100 meters of Ms. B. except in certain situations, and that Mr. P. not go within 100 meters of Ms. B.’s home. Either party was given leave to file an Application About Enforcement to enforce the protection order on two days’ notice. [ 17 ] On August 26, 2022, Mr. P. applied to set aside the protection order.

He says that such terms are better as a part of a mutual conduct order and denies there was family violence as a basis for a protection order. [ 18 ] This matter came before me on October 7, 2022. The application did not finish and further hearing time was set for November 25, 2022. [ 19 ] At the October 7, 2022 appearance, counsel for Mr. P. requested an order that Ms. B. be prohibited from bringing any further without notice applications for a protection order. I denied that request as no application had been filed to seek this order. [ 20 ] On October 27, 2022, Mr.

P. filed an Application for Case Management Order returnable November 25, 2022, to seek an order as follows: Pursuant to s. 221(1) (

b) of the Family Law Act , D.N.B. is prohibited from bringing any further applications for a protection order without providing 5 business days notice to counsel for C.J.P. Correction of Orders [ 21 ] The June 23, 2022 order referred in paragraph 1(

b) to an order made by Judge McQuillan on December 15, 2021. The correct date of that order is December 10, 2021. That requires correction and I order as follows: Paragraph 1(

b) of the June 23, 2022 order of Judge W. Lee is amended to state that the order of Judge McQuillan was made on

December 10, 2021. [ 22 ] I have listened to the Digital Audio Recording (DARS) of the court hearing held on April 5, 2022, before Judge McQuillan. The Court

Summary Sheet is missing a term. It should have included a term that Mr. P. will have interim parenting time on alternate Wednesdays from 3:00 p.m. to 8:00 p.m. A specific start date was not mentioned but it was to be on the week after the Thursday to Monday parenting time. Based on this, the alternating Wednesday parenting time should have started on April 13, 2022. The additional term of this order should read: Mr. P. will have interim parenting time on alternate Wednesdays from 3:00 p.m. to 8:00 p.m. starting April 13, 2022. [ 23 ] Ms.

B. no longer has legal counsel and so I will dispense with the requirement for legal counsel to sign the April 5, 2022 order. The Hearing before Judge Smith [ 24 ] I have the benefit of the transcript of the August 15, 2022 court appearance before Judge Smith. [ 25 ] The application came about as a result of an incident on August 10, 2022. This was a date when Mr. P. was entitled to parenting time under my order of June 23, 2022. Instead, Ms. B. wished to take the children to a company picnic. Ms.

B. said she gave the children the choice to attend the picnic, knowing that she would be breaking the terms of a court order. There was an exchange of letters between legal counsel, and Mr. P. agreed to allow the children to attend the picnic so long as they were returned to him by 6:00 p.m. Mr. P. said the children were returned sometime just before 7:00 p.m. In her evidence before Judge Smith, Ms. B. said the children were returned shortly after 6:00 p.m. A heated exchange between the parties then occurred in the presence of the children. Ms. B. took a video of part of the exchange on her phone. Mr.

P. said he did not know he was being filmed. Mr. P. said Ms. B. was trying to cause Mr. P. to react to her and felt he was being set up. He admits to spitting at the vehicle. [ 26 ] Judge Smith held that based only on Ms. B.’s evidence, the incident did not justify a protection order. Judge Smith stated: …I’m denying the application for a protection order at this point.

I’m not satisfied by the evidence that these family members are at risk of being harmed, and that is so long as the parties can stay away from each other, not be in proximity of each other. [ 27 ] Judge Smith went on to make orders to limit the contact between the parties. Specifically, he ordered that all transfers of the children occur at a McDonald’s Restaurant in [omitted for publication], B.C. and that neither party attend within 100 metres of the other party’s home. [ 28 ] There was some confusion when the order terms were set out.

At one point, Judge Smith stated: …Now, what’s going to happen is you’re going to get -- you’re going to get a protection order issued against you and he’s going to get a protection order issued against him… [ 29 ] Later in the hearing, Judge Smith said: …these family members, D.N.B. and the children, are at risk of being harmed, psychologically at the very least if - - if C.J.P. is in proximity of D.N.B., essentially. [ 30 ] I summarize the terms of Judge Smith’s order as follows:

a) All transfers of the children are to occur at the McDonald’s Restaurant in [omitted for publication], B.C.

b) Mr. P. is not to attend within 100 meters of Ms. B. except in the case of an emergency, at the Children’s daycare and the McDonald’s Restaurant during the transfer of the children.

c) Mr. P. is not to attend within 100 metres of Ms. B.’s home.

d) Either party has leave to apply to enforce this order by filing an Application About Enforcement after giving two days’ notice. Discussion [ 31 ] At the commencement of this hearing, I asked Ms. B. whether the terms of Judge Smith’s order would be better set out in a conduct order. Ms. B. said that Mr. P. has not complied with previous conduct orders and that a protection order was necessary. [ 32 ] Judge Smith held that there was no basis for a protection order given Ms. B.’s description of the incident.

Judge Smith went on to say that the parties needed to stay away from each other and made a protection order to attempt to achieve that purpose, which order would be enforced under the Family Law Act, S.B.C. 2011, c. 25 (the “ Act ”). [ 33 ] Judge Smith’s order is problematic because Family Law Act s. 188 states that a protection order cannot be enforced by way of an order under the Family Law Act or the Offence Act, R.S.B.C. 1996, c. 338 . The only means of enforcement is under s. 127 of the Criminal Code , R.S.C. 1985, c. C-46 , which makes it an offence to disobey a court order.

As such, the order term referring to filing an Application About Enforcement is contrary to the Family Law Act . [ 34 ] For there to be an order limiting contact between the parties which is enforceable under the Family Law Act , it must be in the form of a conduct order under s. 222 of the Act . [ 35 ] Judge Smith’s order also said all exchanges of the children were to occur at the McDonald’s Restaurant located at [omitted for publication], B.C. Despite this clear term, Ms. B. testified that she thought an exchange at any McDonald’s Restaurant would comply with the order.

She also was of the view that her partner N.S. could bring the children to any McDonald’s Restaurant for an exchange

because the order did not bind him. [ 36 ] Ms. B.’s requests to have exchanges occur at other locations were rightfully refused by Mr. P. because to do so, even if by agreement, would open Mr. P. to Criminal Code charges for contravening a court order. A protection order is a unique form of order that does not permit the parties to simply agree to its variation. [ 37 ] Ms. B. was also of the view that at the appropriate age, the children were free to opt-out of court-ordered parenting time. As I informed her, this is not the case. Neither the parties nor the children have the option to ignore a court order.

If a change in an order is sought, then a further court order is required. [ 38 ] Ms. B. wishes some level of flexibility in a court order that would permit the parties to agree to variations, such as changing the place where children are exchanged. Setting out such terms in a protection order does not allow this to occur given the risk of Criminal Code sanctions. A properly worded conduct order would allow for flexibility. [ 39 ] I am satisfied that a conduct order is necessary to reduce the conflict between the parties.

Both parties have acted in ways aimed at antagonizing the other, and in a manner that ignores the best interests of the children. [ 40 ] I have concluded that Judge Smith’s order must be set aside and replaced with a conduct order made under s. 222 of the Family Law Act that minimizes the amount of contact and communication between the parties, and permits the flexibility to vary the order by agreement. [ 41 ] I will order that the exchanges of the children occur at the [omitted for publication] McDonald’s Restaurant, or such other place as agreed to between the parties, pursuant to s. 45 of the Act .

This will allow the parties the flexibility sought by Ms. B. to change the location of the exchanges by agreement rather than by court order. [ 42 ] I have concerns that both parties have posted negative social media comments about each other or their partners. Ms. B. said that Mr. P. posted a negative review about her partner’s business. In the hearing before Judge McQuillan on December 10, 2021, Judge McQuillan referred to a negative post made on Facebook by Ms. B. about Mr. P. These communications serve no purpose other than to antagonize and hurt the other party.

Pursuant to s. 222 of the Family Law Act , I will order that they cease. [ 43 ] I turn to Mr. P.’s second application, for an order preventing Ms. B. from filing any further without-notice applications. [ 44 ] The current process in place is for a judge to review any without-notice applications and to decide if the matter should be heard in such a way.

A judge who is faced with a without-notice application retains the discretion to require service of the application on the other party. [ 45 ] The presiding judge at a without-notice hearing must put great faith in the evidence presented, even if that evidence is under oath. A failure to provide full, honest and appropriate evidence in support of the application is a basis to set aside a without-notice order: see P.S. v. G.J ., 2020 BCPC 149 , at para. 26 . [ 46 ] On December 10, 2021, Mr. P. applied to set aside the without-notice protection order obtained by Ms. B. before Judge Jamieson on November 5, 2021.

I listened to the DARS recording of the reasons for judgment of Judge McQuillan given at the hearing. Judge McQuillan found the following:

a) There was non-disclosure by Ms. B. For instance, Ms. B. said the father spanked the children but Judge McQuillan found that both parents spanked the children.

b) The communications of both parties were vulgar and rude.

c) Ms. B. alleged financial abuse by Mr. P. but she did not mention he was paying child support.

d) There were significant gaps in the evidence presented by Ms. B. at the November 5, 2021 hearing although Judge McQuillan did not fault Ms. B. as she was not represented by a lawyer.

e) There was no basis for a protection order. Judge McQuillan concluded that the parties were better served with a conduct order and he imposed one. [ 47 ] There were also issues with the evidence Ms. B. provided Judge Smith at the August 15, 2022 hearing, but what is notable is that Judge Smith found the evidence was not a sufficient basis for a protection order. [ 48 ] There have been three without-notice protection orders made in the past, and all three have been or will be set aside. Despite this, I am not prepared to bar Ms.

B. from making any further requests for a without-notice order should circumstances warrant such. However, there still needs to be safeguards in place to protect against any abuse of process. Therefore, I will seize myself of any pre-trial matters. All further applications, including without-notice applications, will be before me. This will ensure there is continuity in the handling of this file, and knowledge of the background.

If I am not available, then another judge will deal with the matter. [ 49 ] I am not seized of the trial in this proceeding currently set to start May 1, 2023. [ 50 ] There have been various conduct orders made in the past. I will incorporate those terms into a single order. [ 51 ] Judge McQuillan’s order of December 10, 2021, included a term that was intended to prevent the children’s involvement in court matters. By Ms. B.’s admission, she has not done so under the guise of leaving the choice to the children.

This is not in the children’s best interests and they should not be used as tools in the dispute with Mr. P. Judge McQuillan’s orders aimed at the protection of the children will be included in my order.

[ 52 ] If a child has independently developed their views and wishes to express them to the court, there are means to do so such as the appointment of a children’s lawyer. A child’s views carry less weight though if they are influenced or dictated by one parent. Orders [ 53 ] There will be two orders. One will terminate the protection order. The second order will be a conduct order. [ 54 ] My first order, which I direct the Registry to prepare, is as follows: Pursuant to s. 187(1) (

d) of the Family Law Act , the protection order made by Judge Smith on August 15, 2022, is terminated. [ 55 ] The second order is as follows: Paragraph 1(

b) of the June 23, 2022 order of Judge W. Lee is amended to state that the order of Judge McQuillan was made on December 10, 2021. The April 5, 2022 order of Judge McQuillan is revised to include the term as follows:

a) Mr. P. will have interim parenting time on alternate Wednesdays from 3:00 p.m. to 8:00 p.m. starting April 13, 2022.

b) The requirement for counsel for Ms. B. to sign the form of the April 5, 2022 order is dispensed with. The requirement for counsel for Ms. B. to sign the draft of the April 5, 2022 order is dispensed with. All transfers of the children, A.P.1, born [omitted for publication], A.P.2, born [omitted for publication], and A.P.3, born [omitted for publication], (named collectively “the Children”) must occur at the McDonald’s Restaurant located at [omitted for publication], B.C., or at such other place as agreed to by the parties in writing. Neither party shall attend within 100 metres of the other except:

a) In the event of an emergency,

b) At the Children’s daycare,

c) At the place for the exchange of the children, or

d) At such other place as agreed to in writing by the parties before the contact. Neither party shall attend within 100 metres of the other’s place of residence, except:

a) In the event of an emergency,

b) As agreed to in writing by the parties before the contact. Except in the event of an emergency or as otherwise agreed to by the parties in writing:

a) The parties shall communicate only by text or email about parental responsibilities and parenting time arrangements for the Children.

b) The parties may text or email each other only between the hours of 7:00 a.m. and 9:00 p.m.

c) If a reply by text or email is required, each party must reply by text or email to the other within 5 hours of receiving the other’s text or email. The exception is that if a text or email is sent any time after 4:00 p.m., then the reply text may be sent anytime up to 9:00 p.m. that same day, or between 8:00 a.m. and 10:00 a.m. the following day. The parties may have communication through legal counsel or during court proceedings, mediations or settlement discussions, or during such other times as agreed to by the parties. All communications between the parties will be respectful and courteous.

Neither party will post any comments, reviews or discussions about the other party, or their partner, including any business or activity involving that party or partner, on Facebook, Google and any other form of social media. The parties shall:

a) Put the best interests of the Children before their own interests;

b) Encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent and that parent’s partner in a positive and respectful manner; and

c) Make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the C hildren. The parties shall not:

a) Question the Children about the other parent or time spent with the other parent beyond simple conversational questions;

b) Discuss with the Children any inappropriate adult, court or legal matters; or

c) Blame, criticize or disparage the other parent to the C hildren. Neither party will permit the Children to be in the presence of any person who speaks:

a) Negatively about the other party, member of the other party’s family or member of the other party’s household;

b) About the parties’ litigation; or

c) About adult concerns of the parties. All text and email communications between the parties are immediately reviewable by a Judge. If a conduct order is violated, a Judge may impose financial penalties or imprisonment if applied for. All pre-trial applications including applications for without-notice orders are to be heard by Judge Wilson Lee. If Judge Wilson Lee is not available, then the pre-trial application may be heard by another judge. [ 56 ] I direct Ms. Bose to draft and file the second order. There is no requirement for Ms. B. to sign the order. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia