D.N.L. v. C.N.S., 2013 BCSC 809

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.N.L. v. C.N.S., 2013 BCSC 809 Date: 20130508 Docket: 08-4769 Registry: Victoria Between: D.N.L. Claimant And C.N.S. Respondent Before: The Honourable Mr. Justice Pearlman Reasons for Judgment Counsel for the Claimant: N.J.W. Reid Counsel for the Respondent: R.C. Doell Place and Date of Hearing: Victoria, B.C. November 5, 2012 & April 17 and 19, 2013 Place and Date of Judgment: Victoria, B.C.

May 8, 2013 INTRODUCTION [ 1 ] This is a second review of parenting time for E.M.H.L.-S., born February 28, 2002, the 11-year-old daughter and sole child of the marriage of the claimant mother, D.N.L., and the respondent father, C.N.S. [ 2 ] C.N.S. has also applied for orders fixing the amount of child support payable by him to D.N.L. for E.M.H.L.-S. pursuant to the Federal Child Support Guidelines , and determining the parties’ respective proportionate shares of s. 7 extraordinary expenses for the child.

That application is the subject of separate Reasons for Judgment to be issued shortly. [ 3 ] The claimant and the respondent were married on September 2, 2001, separated on May 25, 2002, and were divorced on February 1, 2010. [ 4 ] The claimant, who has the primary care of E.M.H.L.-S., is a police officer who job shares and works a reduced shift in order to care for her daughter.

The respondent is a businessman employed as the manager of Madison Paving Ltd., an asphalt and paving company owned by his family. [ 5 ] On November 14, 2001, this court made an order providing the respondent with twice weekly daytime access to E.M.H.L.-S., later increasing to include one overnight visit every second Friday. That order provided for a review, which was held on February 24, 2012. Following that review, by order of March 6, 2012, the court adjusted the respondent’s parenting time to include overnight access every second Thursday night, and five consecutive nights for the 2012 summer holidays.

Due to the fragile state of the relationship between the respondent and E.M.H.L.-S., my order of March 6, 2012 provided for a further review, to be held in November 2012, to determine what adjustments, if any, to the access

schedule might be necessary, and in E.M.H.L.-S’s best interests. [ 6 ] The parties have filed extensive affidavit materials, and have made submissions through counsel. In addition, after hearing the parties on April 17, 2013, I conducted a second judicial interview of E.M.H.L.-S. on April 19, 2013. [ 7 ] On this review, the Court must determine what order for parenting time is in the best interests of E.M.H.L.-S. BACKGROUND

[ 8 ] My Reasons for Judgment issued on November 14, 2011 and indexed as D.N.L. v. C.N.S. , 2011 BCSC 1535 set out the full factual background of this dispute, and should be read with these Reasons. [ 9 ] The events preceding the applications first brought by the claimant and the respondent in July 2011 for a judicial determination of parenting time are summarized in my Reasons for Judgment issued following the first review hearing and indexed as D.N.L. v.

C.N.S. , 2012 BCSC 331 , at paras. 8 through 14: [8] Before the Court made its interim order of August 26 and the order of November 14, 2011, the respondent’s access to E.M.H.L.- S. was inconsistent and intermittent. Between February 2009 and December 2010, the claimant and the respondent made protracted but unfortunately unsuccessful efforts to resolve their differences through the appointment of a parenting coordinator with powers to mediate and arbitrate. A child psychologist, Ms.

Charlotte Sutker provided counselling to E.M.H.L.-S., and made recommendations to the parties respecting C.N.S.’s parenting time with E.M.H.L.-S. [9] One of Ms. Sutker’s opinions, which I accept, is that E.M.H.L.-S. is a young child who needs consistency and time in order to develop an enduring relationship with her father. Her parents have been separated for most of her life. E.M.H.L.-S. has witnessed at first hand the acrimony and conflict that animates relations between her mother and father.

She has a close bond with her mother and primary caregiver, while her relationship with her father is fragile. [10] The objective of the parenting coordination process was to put in place an access

schedule that would maximize the respondent’s time with his daughter, and include regular overnight access. At various times during that process, C.N.S. involved E.M.H.L.-S. in his efforts to increase access, raised the prospect of withdrawing her from the school where she is thriving, and engaged in occasional outbursts of temper, all of which distressed his daughter, undermined her trust in him, and set back the process. [11] On June 29, 2010, a significant set-back occurred after the claimant dropped off E.M.H.L.-S. at the Tillicum Mall for one of the respondent’s specified access visits.

E.M.H.L.-S. refused to stay with the respondent, who took E.M.H.L.-S. by the hand and attempted to compel her to go with him to his vehicle in the mall parking lot. When E.M.H.L.-S. resisted by calling for her mother and attempting to kick her father, he spanked her once on her bottom. The claimant observed all of this, became agitated and called the police. The police attended, interviewed the parties and other witnesses to the incident, but laid no charges. The Ministry of Children and Family Development was notified.

To his credit, C.N.S. acknowledged to the Ministry that he had spanked E.M.H.L.-S. while he was angry with her, expressed his remorse and sought and received anger management counselling. The Ministry concluded that E.M.H.L.-S. was not in need of protection and that although the spanking was “inappropriate” it did not amount to physical abuse.

This incident distressed E.M.H.L.-S. and reinforced her reluctance to spend time with her father. [12] Throughout the parenting coordination process, the coordinator issued orders from time which increased or decreased the respondent’s access to his daughter, and either included or excluded overnight visits as C.N.S.’s relationship with E.M.H.L.-S. improved or deteriorated. [13] The events leading to the termination of the parenting coordination process in June 2011 are described in my Reasons for Judgment of November 14, 2011. Briefly, C.N.S. was deeply disappointed when Ms.

Sutker recommended that he not take E.M.H.L.-S. to Mexico for the March 2011 spring break. Ms. Sutker also recommended that E.M.H.L.-S., who was then 9 years old, should decide whether she would sleep over on access visits with her father. C.N.S. responded by terminating Ms. Sutker’s engagement as E.M.H.L.- S.’s voice in the parenting coordination process.

Shortly thereafter the parties met with the parenting coordinator, agreed that there was no benefit in further mediation, and ended the process. [14] D.N.L. and C.N.S. each applied to the Court for orders specifying the respondent’s access to E.M.H.L.-S. [ 10 ] The factors this Court took into account in making the order of March 6, 2012 are set out in the review Reasons for Judgment at paras. 42 - 46: [42] E.M.H.L.-S. is a young child who needs time and consistency if she is to develop and maintain a strong emotional bond with her father. [43] Her strongest ties of love and affection are with her mother.

She has expressed her love for her father but is often anxious and mistrustful in his company. The respondent loves his daughter, has the financial means to care for her, and is capable of exercising access responsibly when he applies himself to meet his daughter’s needs. However recent events, including his ill-conceived demand that D.N.L. communicate directly with him, and his campaign for a 10 day vacation abroad with E.M.H.L.-S. lead me to conclude that the respondent has not yet learned that he must subordinate his own interests and his conflict with the complainant to the interests of his child.

Again, building a strong relationship with E.M.H.L.-S. will be a gradual process. [44] The respondent does have help available to him. J.L. and D.V.W. have both assisted the complainant and the respondent with transitions and are prepared to continue to do so.... [45] Despite her continuing conflict with the respondent, D.N.L. has done her best to facilitate access under the current order. [46] Taking into account all of these factors, and the principle that the child should have as much contact with each parent as is consistent with her best interests, I have concluded that any change to the current access

schedule should be modest, incremental, and subject to further review. E.M.H.L.-S. is a child who does not cope well with sudden changes in her parenting arrangements. I intend to defer any change to the present

schedule until the summer vacation so as not to disrupt the child’s routines for the balance of this school year. Beginning in July the respondent will have overnight access every second Thursday in the weeks alternate to those when he has overnight access on Fridays.

I have selected a weeknight for the additional overnight access because it is important to the development of the respondent’s relationship with E.M.H.L.-S. that he demonstrate that he is not only able to provide opportunities for her to have fun on the weekends but can also deal with the more mundane aspects of parenting, including helping his daughter with her homework, and delivering her on time to early morning swim practices and to school.

[ 11 ] The review order included the following terms: 1. The current access

schedule will remain in effect until July 6th, 2012. 2. Commencing Friday, July 6 , 2012, and continuing every second week thereafter, in addition to his daily access on Tuesdays, the Respondent will have overnight access to E.M.H.L.-S. During the school term, the Respondent will pick up E.M.H.L.-S. after school on Fridays and return her on Saturdays at 6:00 p.m. During school holidays, the Respondent will pick up the child at 3:00 p.m. and return her on Saturdays at 6:00 p.m. 3. In alternate weeks, the Respondent will have daily access on Tuesdays, and overnight access on Thursdays.

During the school term, pick up will be on Thursdays after school and drop off on Friday mornings at school. During school holidays, pickups will be at 3:00 p.m. on Thursday and drop offs will be at 10:00 a.m. on Fridays. The Thursday overnight access replaces the Respondent's day time access on Sundays. ... 5. E.M.H.L.-S. will spend Mother's Day with the Claimant. On Father's Day, the Respondent will have access from 11:00 a.m. to 7:00 p.m. 6. For the 2012 summer holidays, the Respondent will have E.M.H.L.-S. for five consecutive nights in either July or August.

The Respondent will notify the Claimant of his choice of holiday time by no later than April 15 th , 2012. 7. The Respondent will spend his 2012 summer holiday access with E.M.H.L.-S. in the Province of British Columbia. E.M.H.L.-S. will have daily telephone access to the Claimant once each day during the Respondent's summer holiday access between the hours of 6:00 p.m. and 8:00 p.m. 8.

The Claimant will have two weeks of uninterrupted summer holiday time with E.M.H.L.-S. during which the Respondent's access will be suspended The Claimant may take her summer holiday time either in one two-week block, or in two blocks of one week each. 9. Paragraph 7 of the Order of November 14th, 2011, is amended by substituting "Wednesday" for "Thursday". 10. Paragraph 9 of the Order of November 14th, 2011, is amended by adding the following provision: The Respondent will refrain from consuming alcohol before attending any of E.M.H.L.-S.'s extracurricular activities. 11.

All other provisions of this Court's Order of November 14th, 2011, relating to access, including the conditions set out in paragraph 12 of the Order remain in effect. [ 12 ] My rationale for restricting the respondent’s vacation time to five consecutive nights for the summer of 2012 is explained at para. 55 of the review Reasons for Judgment: [55] I recognize that the summer holiday access time is asymmetrical and may be perceived by C.N.S. as favouring D.N.L. The Court’s paramount concern is for the best interests of the child. During the parenting coordination process, Ms.

Sutker repeatedly advised that small steps and a stable routine are essential if E.M.H.L.-S. is to develop a strong relationship with her father. The child has spent relatively little time in the care of her father and has only recently resumed overnight access. A summer vacation of five consecutive nights will be a significant adjustment for both E.M.H.L.-S. and C.N.S.

I have restricted the respondent’s 2012 summer holiday time with E.M.H.L.-S. to British Columbia and have provided for daily telephone access for the child with her mother during that time not because I am concerned that C.N.S. may remove the child from the Province, but rather to provide the child with some reassurance that she will have regular contact with her mother during her first extended stay with her father. I expect the claimant to encourage the child to make the most of her vacation time with her father.

POSITIONS OF THE PARTIES The Respondent’s Position [ 13 ] The respondent submits that since the Court reviewed and adjusted his parenting time, E.M.H.L.-S. has generally enjoyed and has benefitted from the time she has spent with her father and his family. C.N.S. maintains that any resistance that the child has expressed to spending time with him is attributable to her sensitivity to the claimant’s opposition to E.M.H.L.-S. having greater parenting time with her father and the child’s desire to respond to her mother’s concerns. The respondent says the time has come to put in place a stable

schedule that will increase his parenting time and thereby foster the development of a long term, stable relationship between father and child. C.N.S. requests the following schedule: (

a) Weekly access of (

i) Week 1 - pick up Tuesday afternoon at school and drop off Wednesday morning at school and pick up Friday afternoon at school and drop off Monday morning at school; and (ii) Week 2 - pick up Thursday afternoon at school and drop off Friday morning at school. (

b) Should the respondent’s weekly access fall on a professional development day or either holiday, his access be increased to include that day, with drop off at school the following morning. (

c) Holiday access to include:

(i) 10 days Christmas vacation; (ii) one half of school Spring break vacation; (iii) up to two consecutive weeks of summer vacation during the months of either July or August. (

d) To facilitate vacations, the respondent seeks an order requiring the claimant to provide the child’s valid passport and a travel authorization for C.N.S. to travel outside the country with the child during his holiday parenting time. (

e) If the respondent is unavailable to care for the child during scheduled parenting time, he may delegate her care to his sister or his mother. (

f) The respondent requests that restrictions on his consumption of alcohol before or during parenting time of E.M.H.L.-S. be removed. The Claimant’s Position [ 14 ] The claimant says that despite E.M.H.L.-S.’s strongly asserted preference not to spend parenting time, particularly overnight, with her father, she has ensured that the child comply with the current

schedule for parenting time with her father. D.N.L. says that E.M.H.L.-S.’s overnight visits with her father cause her emotional distress and anxiety. When she becomes distraught during visits with her father, the respondent refuses to bring her home.

According to the claimant, the respondent continues to make demeaning comments about her to E.M.H.L.-S., talks to the child about changing schools, involves her in this litigation, and has frequently failed to exercise the Thursday overnight access added by this Court’s order of March 6, 2012. [ 15 ] The claimant submits that the Court should reduce or eliminate the respondent’s overnight parenting time. [ 16 ] I turn now to consider what adjustments, if any to C.N.S.’s parenting time are in the best interests of E.M.H.L.-S. PARENTING TIME: APPLICABLE LEGAL PRINCIPLES [ 17 ]

Section 16 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) confers jurisdiction on the court to make orders respecting access to a child of the marriage. [ 18 ] On this review, the following provisions of s. 16 of the Divorce Act are relevant:

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. ...

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [ 19 ] Similarly, s. 37(1) of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”), requires that the court making an order respecting parenting arrangements must consider the best interests of the child only. [ 20 ] Section 37(2) of the FLA sets out factors which the court must consider by making an order relating to parenting arrangements for a child:

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

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 21 ] An order is not in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being: FLA , s. 37(3). The conduct of a parent is only relevant “if it substantially affects the factors set out in s. 37(2) , and that only to the extent that it affects that factor”: FLA , s. 37(4).

PARENTING TIME: THE EVIDENCE, FINDINGS OF FACT AND APPLICATION OF LEGAL PRINCIPLES The Child’s Parenting Time with the Respondent since the Order of March 6, 2012 [ 22 ] The evidence of the claimant and the respondent concerning E.M.H.L.-S.’s parenting time with C.N.S. since March 6, 2012 is a study in contrasts. [ 23 ] The claimant says E.M.H.L.-S. has reported to her that she discovered her father keeps a "court" file in which he collects photographs he has taken of her for use in court. According to D.N.L., the child has also said that her father has told her about her former child psychologist, Dr.

Charlotte Sutker, having to appear before a disciplinary board in Vancouver, and that in these proceedings “the Judge said Charlotte Sutker made mistakes”. The claimant says these are examples of the respondent inappropriately involving the child in this litigation. [ 24 ] The respondent denies the existence of the "court" folder, and denies that he has made the statements alleged concerning Dr.

Sutker, or has otherwise involved E.M.H.L.-S. in these proceedings. [ 25 ] The claimant has deposed that on March 13, 2012 E.M.H.L.-S. returned from an overnight visit with her father complaining that the respondent had told her that she was chubby, and had a belly. D.N.L. says the child was upset by the respondent's remarks, and has expressed anxiety about whether she is overweight, and whether she should be dieting.

The respondent says that he pointed out to E.M.H.L.-S. that she and he both had little bellies, and that she was not disturbed by his comment. [ 26 ] According to the claimant, E.M.H.L.-S. continues to complain that her father speaks to her about changing her school, contrary to this court's order of November 14, 2011 which prohibited the respondent from discussing a change of school with the child. E.M.H.L.-S. attends Pacific Christian School, a private school. She enjoys her school, is an A student, and has made close friends there.

D.N.L. says that as a result of the respondent’s negative attitude toward her school, the child does not want to show her father her report cards. The claimant says that E.M.H.L.-S. has told her that C.N.S. has said that he can no longer afford to pay her school fees, and that she will either have to go to public school, or attend St. Michael's University School, if his family will help with the tuition. On another occasion, the respondent is alleged to have pointed out to his daughter that children who were attending St.

Michael's were already on vacation before her school term had ended, in order to suggest to her that one of the advantages of attending St. Michael's would be longer vacations. [ 27 ] In a carefully worded response to this allegation, the respondent, at para. 79 of his affidavit number 11 has deposed "I have never spoken to [E.] about a change of schools for this upcoming year.

I have told [E.] she is going to Pacific Christian School for 2012- 13.” [ 28 ] The claimant also says that E.M.H.L.-S. has complained about her father telling her he is going to reduce child support so that her mother will have to borrow money from her parents or return to work on a full-time basis. According to D.N.L., the child has also been disturbed by her father making derogatory comments about her religion; falsely telling her that the claimant has undergone therapy for the last six years; and suggesting that her mother bears the responsibility for her parents’ failure to communicate effectively.

The respondent denies these allegations, says he has encouraged E.M.H.L.-S. to respect all religions, and that he has not demeaned the claimant when the child has been in his care. [ 29 ] According to the claimant, E.M.H.L.-S. has complained of occasions since March 6, 2012 when her father has consumed alcohol while she was in his care, contrary to this court's earlier orders. In addition, the claimant and her partner, A.T.F. have both deposed that on October 25, 2012 when the respondent attended one of E.M.H.L.-S.’s basketball games, he smelled strongly of alcohol, and appeared to be intoxicated.

The respondent denies that he has consumed alcohol on any occasion when he has had E.M.H.L.-S. in his care, or before attending any of her extracurricular events. [ 30 ] The claimant says that E.M.H.L.-S. continues to express a strong wish not to have overnight parenting time with her father, that she is anxious before overnight visits, and that her anxiety is elevated by her father's negative comments about her school, her religion, her mother and her maternal family. When the child is on overnight visits with her father she repeatedly telephones or texts her mother, seeking reassurance.

According to D.N.L., there have been times, including August 24, 2012 and September 7, 2012, when the child has become distraught while in her father's care, has asked the respondent to take her home, and he has refused to do so. The claimant says that E.M.H.L.-S. has reverted to the ritualistic behaviors she displayed at times during the parenting coordination process, where she requires reassurance from her mother that she will not die in her sleep during the night. The claimant has also deposed that E.M.H.L.-S. has occasionally expressed suicidal thoughts.

In her affidavit number seven, the complainant described an incident on the evening of June 10, 2012 when E.M.H.L.-S. was in tears and distressed about her weight, whether she was "a loser", or was lovable. According to D.N.L., the child suggested that she might want to die, and said that she was like this when her dad started "saying these things" to her. The claimant was able to settle E.M.H.L.-S., and says that she later consulted with her family physician, who advised her to monitor the situation, but made no referral to a psychiatrist.

The claimant has not adduced any medical evidence from her family doctor concerning this matter.

[ 31 ] The claimant does acknowledge that there are occasions when E.M.H.L.-S. enjoys her time with her father. For example, the child enjoyed much of her summer holiday in Kelowna, which she and the respondent spent in the company of close family friends. However, the claimant says that respondent’s behaviour with the child is inconsistent, that he is insensitive to her needs, and is often hurtful when he demeans her mother, or suggests that the child has been "brainwashed" by the claimant.

D.N.L. says the respondent’s negative comments about the child's school, her religion and her weight cause her to doubt herself, undermine her self-confidence, increase her level of anxiety, and lead her to resist parenting time with her father. [ 32 ] The respondent gives an entirely different account of his parenting time with E.M.H.L.-S. He deposes that the child is happy during the time she spends with him, and they enjoy various recreational activities, including overnight ski trips, meals out together, and watching movies at his home.

C.N.S. says that they usually exchange hugs and kisses when they part, and that E.M.H.L.-S. frequently tells him that she loves him. According to the respondent, E.M.H.L.-S. is rarely upset in his company.

He was unaware before reading the claimant's affidavits that the child was expressing a fear of dying in her sleep, and says that E.M.H.L.-S. enjoys her overnights with him, and usually tells him that she has slept well. [ 33 ] C.N.S. has deposed that he has no anger management or substance abuse problems, and says that the increased parenting time he now proposes will benefit E.M.H.L.-S. by providing the structure for a consistent and stable relationship between father and daughter.

Findings of Fact concerning the Respondent’s Parenting Time since March 6, 2012 [ 34 ] The affidavits filed on behalf of the claimant and the respondent have not been tested by cross-examination. It is therefore not possible to resolve all of the conflicts in the evidence. I also bear in mind that much of what the claimant and the respondent have each deposed is based on the hearsay evidence of E.M.H.L.-S., an 11-year-old child caught in the midst of the ongoing conflict between her parents, and that this evidence may not be entirely reliable.

E.M.H.L.-S. has always been in the primary care of the claimant and is acutely aware of the conflict and animosity between her mother and father. She has lived with that conflict for the whole of her life. In these circumstances, where her closest emotional bond is with her mother, she tends to take her mother’s side.

Recognizing this dynamic, I am nonetheless able to resolve some of the conflicts in the evidence. [ 35 ] Whether or not the respondent keeps a "court" file of photographs of the child for use in this litigation, he has, during the course of these proceedings, adduced dozens of photographs in evidence depicting E.M.H.L.-S. engaged in a variety of activities, often with friends or cousins, at his home, on ski trips, or on other recreational outings. These images capture moments in time when the child is smiling, and are tendered to persuade the court that she enjoys her time with her father.

E.M.H.L.-S. is a sensitive and intelligent child who perceives that her father uses his camera not to record family events for their own sake, but rather to build his case for increased parenting time. She sees her father using her in order to gain an advantage in his conflict with the complainant for increased parenting time. [ 36 ] I find on the balance of probabilities that the respondent made the statements to E.M.H.L.-S. concerning Dr. Sutker that the claimant attributes to him. C.N.S. resented Dr.

Sutker’s recommendation during the parenting coordination process that the child decide when she wished to have overnight visits with her father. C.N.S. subsequently terminated Dr. Sutker’s appointment as the child's psychologist, although the claimant wished to continue her services. It is improbable that the child had any source other than her father for the information concerning Dr. Sutker’s alleged appearance before a board of her professional regulatory body.

By communicating this information to the child, the respondent unnecessarily involved her in this litigation. [ 37 ] I also find that the respondent has told the child that the claimant is receiving therapy, and that he has done so knowing that information to be untrue, to suggest to E.M.H.L.-S. that her mother bears the responsibility for her parents’ inability to communicate with each other. The claimant has denied that she has received psychological or psychiatric counselling. There is no evidence that she has done so at any time material to this review.

It is improbable that anyone other than the respondent would have suggested to the child and her mother was or is "in therapy". Further, there is a history of the respondent suggesting to the child that her mother is at fault for her parents’ failure to get along with each other. The parenting coordinator, Ms.

Patricia Lane, in her Decision No. 13 issued September 10, 2010 took the respondent to task for telling the child that it was her mother's fault that the claimant and the respondent could not be friends. [ 38 ] The claimant has deposed that C.N.S. has made adverse comments about E.M.H.L.-S.’s Christian faith. For example, she says that when the child returned from an overnight visit with her father in May 2012, she was upset, and said that her father told her that the Bible was fictional, and was only written to attract followers.

The respondent acknowledges that he has discussed religion with E.M.H.L.-S., but says he has told her that all religions are deserving of equal respect. Without the benefit of cross examination, I am unable to determine whether the respondent made the exact statements reported by the child. However, I am satisfied that the respondent’s various inquiries and suggestions to the child throughout this litigation about her attending a school other than Pacific Christian School, and his discussions with her about religion have left E.M.H.L.-S. with the strong impression that the respondent disapproves of her religion.

I find this is one source of the child's sense of continuing distrust of her father. [ 39 ] The respondent acknowledges that he made a comment to E.M.H.L.-S. about her having a belly. While I am not persuaded that by doing so C.N.S. intended to upset or hurt the child, his comment revealed a degree of insensitivity to his daughter's feelings. [ 40 ] I accept the claimant's evidence that she often receives multiple telephone calls and text messages from E.M.H.L.-S. when the child is on overnight visits with her father.

The child has expressed anxiety about overnight parenting time with the respondent throughout much of the parenting coordination process and during the course of these proceedings. I have no doubt that when she is with her father, she contacts her mother for emotional support and assurance. I also find that there have been occasions, including the overnight stays of August 24, 2012 and September 7, 2012, when the child has become emotionally distraught, has requested her father to return her to the claimant, and he has refused to do so. E.M.H.L.-S. is a child who is sensitive and strong-willed.

On occasion, she quarrels with her father. He responds in kind, does not always keep his temper in check, and sometimes yells at her. It is on these occasions that the respondent makes demeaning comments about the claimant, or suggests to E.M.H.L.-S. that her mother has encouraged her to resist spending parenting time with him. That in turn causes further distress to E.M.H.L.-S., elevates her distrust for her father, and escalates the conflict between the parents when the child communicates her distress to her mother.

[41] I find that despite E.M.H.L.-S.’s continuing resistance to overnight time with her father, the claimant has insisted that the childaccompany her father for the scheduled parenting time required by the order of March 6, 2012, and has thereby facilitated therespondent’s parenting time. [42] E. M.H.L.-S. does benefit from and enjoy some of her parenting time with her father.

Meals out, playing board games, watchingmovies with her dad, overnight ski trips and summer vacation time that she and her father share with close family friends, including herown best friend, are often successful. [43] The respondent has not made full use of his additional overnight parenting time on every second Thursday, which commencedon July 6, 2012, pursuant to the order of March 6, 2012. For example, during August and September 2012 the respondent did not havethe child in his home overnight on any Thursday.

Instead, C.N.S. arranged for E.M.H.L.- S. to spend one Thursday night at his sister’shome, and two Thursday nights at his mother’s home. He was not able to have the child overnight on the fourth Thursday. The object ofadding the Thursday overnights was to enable the respondent to demonstrate that he is capable of caring for the child on weeknights,particularly during the school year, by attending to the mundane aspects of parenting, such as maintaining an evening routine, andassisting the child with her homework.

Despite the extensive volume of material filed on this hearing, there is a paucity of evidence fromthe respondent about his care of the child on school nights. [44] I turn now to the matter of alcohol. The claimant and her friend A.T.F. have both sworn that when the respondent attended thechild's basketball game on October 25, 2012, he appeared to be intoxicated, and that they believe he may have been drinking during thegame. The affidavits of the claimant and A.F.T. addressing this point were filed on October 31, 2012, shortly before the hearing.

Therespondent did not have an opportunity to file a responsive affidavit. C.N.S. denies that he has consumed alcohol either when he hasE.M.H.L.-S. in his care, or before or while attending her activities.

Where the respondent did not have the chance to respond to theallegation that he was intoxicated while attending his daughter’s basketball game, or to test the evidence of the claimant and A.T.F. bycross-examination, it would be unfair to the respondent to make any finding of fact on this point. [45] The claimant also alleges, and the respondent denies, that he has consumed alcohol during his parenting time with E.M.H.L.-S. A friend of the respondent, Ms. M.S. has sworn an affidavit relating to one of the two occasions when C.N.S. is alleged to haveconsumed alcohol while caring for the child since March 6, 2012.

She has deposed that she recalls a restaurant lunch in Kelowna lastsummer while her family, C.N.S. and E.M.H.L.-S. were on vacation together. Ms. M.S. has sworn that she and her husband each had adrink, but the respondent consumed no alcohol.

On the evidence adduced on this application, the claimant has not established, on thebalance of probabilities, that the respondent, since March 6, 2012, has breached this Court’s order of November 14, 2011 by consumingalcohol while he has had E.M.H.L.-S. in his care. [46] The respondent now seeks the elimination of the restrictions on his consumption of alcohol imposed by the orders of November14, 2011 and March 6, 2012.

At para. 38 of my Reasons for Judgment of March 6, 2012, I explained that the order of November 14,2011 prohibits the respondent from consuming alcohol six hours before or during the times E.M.H.L.-S. is in his care. The Courtimposed that condition after finding that the respondent consumed alcohol at a level that had led a qualified counsellor, Mr.

Drinkwater,to recommend that he reduce both the frequency and the amount of his consumption, and that the restriction of his consumption ofalcohol would promote E.M.H.L.-S.’s safety while reducing both her anxiety and a significant source of conflict with the claimant. E.M.H.L.-S is a child who is sensitive to, and apprehensive about the consumption of alcohol by adults, including her father. [47] I have considered but do not give significant weight to Mr. Drinkwater’s recent advice that C.N.S. is now very likely able todemonstrate low risk drinking behaviour when E.M.H.L.-S. is in his care.

That opinion is based on the respondent’s self-assessment ofhis alcohol consumption and information received by Mr. Drinkwater from friends and relations of C.N.S. whose identities are notdisclosed. [48] In my view, it remains in E.M.H.L.-S.’s interest that the respondent continues to refrain from the consumption of alcohol bothwhen he has the child in his care and before attending her extracurricular activities. This restriction benefits the child’s safety andemotional security.

Accordingly, there will be no variation of the existing restrictions on the respondent’s consumption of alcoholbefore and during his parenting time with E.M.H.L.-S. or his attendance at her activities. What parenting time with the respondent is in the child’s best interest? [49] E.M.H.L.-S. is a highly intelligent, physically healthy child. She continues to flourish academically at her school. Sheparticipates in a variety of extracurricular activities, including swimming with a swim club five times a week and playing basketball. Ihave previously referred to Dr.

Sutker’s opinion, with which I agree, that it is critical to E.M.H.L.-S.’s emotional and psychological well-being that she develop a healthy and stable relationship with her father. At this stage, her relationship with her father remains tenuous. This child, who needs stability, continues to experience distress as a result of her father’s inconsistent and at times insensitive behaviourtoward her.

While I have no doubt that C.N.S. loves his daughter and often treats her with kindness, when he makes demeaning remarksabout the claimant, suggests the child has been manipulated by her mother, or suggests that the child either should or will have to changeschools, he undermines his own relationship with the child and elevates her distrust toward him. [50] E.M.H.L.-S. is now 11 years old. She will soon reach an age where, as a practical matter, any arrangement for parenting timewill have to conform with her wishes if it is to succeed: Alexander v.

Alexander (1988), (BC CA), 15 R.F.L. (3d) 363(B.C.C.A.); O’Connell v. McIndoe (1998), (BC CA), 56 B.C.L.R. (3d) 292 (B.C.C.A.). When the child is in herteens, she will make her own decisions about how much time she wishes to spend with her father. The time remaining for the respondentto build a healthy relationship with his daughter is limited. [51] At age 11, E.M.H.L.-S.’s views, while not determinative, are deserving of considerable weight. The child is capable ofexpressing her own views, and has done so. On April 19, 2013, I interviewed the child in court, with only the child and a court clerkpresent.

I explained to her that what she said to me would be recorded, that the recording would be sealed, but that I would provide hermother and father and their lawyers with a

summary of what she told me, which I did following the interview. [52] E.M.H.L.-S. continues to express a strong preference not to spend overnight parenting time with her father. She expressed

confusion about her relationship with her father, saying that he is nice to her sometimes, but on other occasions, yells at her. She says that when she becomes distressed and asks her father to take her home, he becomes even angrier, and refuses to do so. [ 53 ] E.M.H.L.-S. also said that she was always going to have a “deep down love for my dad because he is my dad”.

She brought up, on her own, the subject of her occasional suicidal thoughts, but said that she would never harm herself because she has her mother. [ 54 ] As I have already observed, this child has always been in the primary care of the claimant and has a particularly strong emotional bond with her mother. In addition, E.M.H.L.-S. enjoys very positive relationships with her maternal grandparents. Despite all of the time and effort devoted by the parties, the parenting coordinator and Dr.

Sutker through the parenting coordinating process, this Court’s orders for access, and the consistent effort of the claimant to facilitate C.N.S.’s parenting time with the child, the relationship between the respondent and the child remains fragile. [ 55 ] E.M.H.L.-S. does enjoy the company of cousins on her father’s side of the family but has not developed a close relationship with her maternal grandmother. [ 56 ] E.M.H.L.-S. continues to need stability and consistency in all aspects of her life.

The claimant provides her with constant emotional support and reassurance and a stable routine throughout the school week. The child says that when she is with her father on weeknights, her time is unstructured and she has to decide when she will go to bed. [ 57 ] I must also consider whether there has been conduct on the part of C.N.S. constituting “family violence” within the meaning of ss. 1 and 38 of the FLA , and if so, its impact on the child’s safety, security or well-being. C.N.S. has not spanked E.M.H.L.-S. since the unfortunate incident at the Tillicum Mall of June 29, 2010.

That matter was investigated by the Ministry of Children and Family Development. The Ministry concluded that although the spanking was “inappropriate” it did not amount to physical abuse. There is no suggestion that the respondent has physically abused the child since then. [ 58 ] Under s. 1 of the FLA , “family violence” also includes “psychological or emotional abuse of a family member, including ... intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property”.

I have found that when angry, the respondent has made ill-considered comments to the child that her mother is in therapy, or is manipulating her, or is responsible for the failure of her parents to communicate with each other.

I find that while the respondent does not intend to subject the child to psychological abuse, his derogatory outbursts and demeaning comments concerning the claimant disturb the child, elevate her level of anxiety, diminish her trust in her father, and set back his efforts to build a relationship with her, and thereby cause her emotional harm. [ 59 ] I have also found that the respondent loves his daughter.

He has the financial means to care for her during parenting time, and has previously demonstrated that he is capable of exercising parenting time responsibly when he applies himself to meeting his daughter’s needs. However, C.N.S. has still not learned that it will take time and patience on his part to establish an enduring relationship with E.M.H.L.-S.

The respondent does not yet appreciate that involving his daughter in his conflict with the claimant is not only contrary to the child’s best interests but also subverts his own interests by enhancing the child’s mistrust of him and increasing her resistance to spend time in his company. [ 60 ] Under the maximum contact principle, the court’s order should provide that the child have as much parenting time with each parent as is consistent with her best interests.

However, the court’s order will not serve the best interests of the child unless it protects, to the greatest extent possible, her emotional safety, security and well-being. [ 61 ] The respondent’s proposal would increase his overnight parenting time to a total of five nights in each two-week cycle and would also substantially increase his parenting time during vacations. In my view, C.N.S.’s proposal for a substantial increase in his parenting time is unfortunately as unrealistic now as it was on the last review.

Implementation of the respondent’s proposal would exacerbate the child’s anxiety about spending time with her father, would only increase her resistance to doing so and would thereby cause further damage to her relationship with her father. I find that that respondent’s proposal is contrary to the child’s best interest. [ 62 ] I also find that it is not in E.M.H.L.-S.’s best interests to continue the present overnight parenting time arrangements.

In making that finding, I have taken into account the child’s views, and the findings of fact I have made concerning the respondent’s role in elevating E.M.H.L.-S.’s level of anxiety by involving her in his conflict with the claimant. I have also taken into account this child’s need for the security of consistent care and a stable routine throughout the school week, which the claimant is more capable than the respondent of providing to her.

Accordingly, the respondent’s overnight parenting time on every second Thursday will be eliminated. [ 63 ] Despite her conflict with her father, E.M.H.L.-S. continues to recognize that “deep down” she loves the respondent. It is in E.M.H.L.-S.’s best interest that she develops a stable relationship with her father. In order to do so, she should continue to have some regular contact with the respondent, including some overnight parenting time on weekends. Accordingly, the respondent’s overnight parenting time on every second Friday will continue.

It is essential that the respondent understand that it will take time and patience to build an enduring relationship with the child, and that he must subordinate his own interests to the needs of his daughter. [ 64 ] E.M.H.L.-S. has benefitted from summer vacation time spent with her father, particularly when that vacation time is shared with the family of Ms. M.S., whose daughter C. is a close friend of the child.

The summer vacation parenting time introduced last summer will continue, and will be extended from five to seven consecutive nights. [ 65 ] Throughout the parenting coordination process E.M.H.L.-S. had the support of a child psychologist. In my view, further psychological counselling would likely assist the child in developing a more positive relationship with her father and in coping with her anxiety.

I would strongly recommend that the parties select an experienced child psychologist to provide counselling to the child, and that they each be prepared to participate in the counselling sessions if and when the counsellor determines they should do so. Conclusion [ 66 ] The respondent’s Thursday overnight parenting time with E.M.H.L.-S. will cease immediately.

[ 67 ] Commencing Friday, May 10, 2013, and continuing every second Friday thereafter, in addition to his daily access on Tuesdays, the respondent will have overnight access to E.M.H.L.-S. During the school term, the respondent will pick up the child after school and return her on Saturdays at 6:00 p.m.

During school holidays, the respondent will pick up the child at 3:00 p.m. and return her on Saturdays at 6:00 p.m. [ 68 ] In alternate weeks, in addition to the Tuesday daily parenting time, the respondent will have parenting time on Sundays from 11:00 a.m. to 7:00 p.m. [ 69 ] E.M.H.L.-S. will spend Mother’s Day with the claimant.

On Father’s Day, the respondent will have parenting time with the child from 11:00 a.m. to 7:00 p.m. [ 70 ] The respondent will have telephone access to E.M.H.L.-S. once between the hours of 6:00 p.m. and 8:00 p.m. each Monday and Wednesday. [ 71 ] Commencing with the 2013 summer holidays, the respondent will have E.M.H.L.-S. for seven consecutive nights in either July or August. The respondent will notify the claimant of his choice of summer holiday time for 2013 by no later than May 30, 2013.

Each year thereafter, the respondent will notify the claimant of his choice of holiday time by no later than April 30. [ 72 ] For 2013, the respondent will spend his summer holiday parenting time with E.M.H.L.-S. in the Province of British Columbia. E.M.H.L.-S. will have daily telephone access to the claimant once each day during the respondent’s summer holiday parenting time between the hours of 6:00 p.m. and 8:00 p.m. [ 73 ] The claimant will have two weeks of uninterrupted summer holiday time with E.M.H.L.-S. each summer, during which the respondent’s parenting time will be suspended.

The claimant may take her summer holiday time either in one two-week block, or in two blocks of one week each. [ 74 ] On December 21, the father’s birthday, the respondent will have daily parenting time with E.M.H.L.-S., picking her up at 10:00 a.m. and returning her at 8:00 p.m. [ 75 ] On Christmas Eve, the respondent will have parenting time from 10:00 a.m. to 6:00 p.m. [ 76 ] On Boxing Day, the respondent will have parenting time from 12 noon until 8:00 p.m. [ 77 ] Arrangements for transitions, including pick-ups and drop offs, will continue as provided in this Court’s order of November 14, 2011. [ 78 ] Except as amended by this order, all other provisions of this Court’s orders of November 14, 2011 and March 6, 2012 relating to parenting time, including the conditions set out in paragraph 10 of this Court’s order of March 6, 2012 and paragraph 12 of the order of November 14, 2011 remain in effect. “PEARLMAN J.”