J. W. v. S. T. Date:, 2012 BCPC 172

Citation: J. W. v. S. T. Date: 20120529 2012 BCPC 0172 File No: 09-1810 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: J. W. APPLICANT AND: S. T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN

Counsel for the Applicant: C. Linde Counsel for the Respondent: J. Wilson Place of Hearing: Sechelt & North Vancouver , B.C. Date of Hearing: February 21, March 20, 2012 Date of Judgment: May 29, 2012 [ 1 ] The parties are the parents of OLT, born [DOB]. They have been separated since October 2009. Both currently live on the Sunshine Coast, in Roberts Creek. [ 2 ] Mr. W, the applicant, seeks to set aside an order made by Judge Merrick on January 26, 2011 granting Ms. T sole custody and guardianship of O. He seeks joint custody and guardianship; a defined parenting schedule; limitations on Ms.

T’s ability to travel with O; and limitations on the people to whom Ms. T is permitted to expose O. Ms. T opposes any change to the order and seeks a final order requiring that Mr. W’s time with O be limited to every second weekend and that it be supervised. [ 3 ] The primary issue is whether Mr. W has established that the order should be set aside. The onus is on him as the applicant to show firstly a change in circumstances since the order was made, and secondly that the amendment he seeks is in O’s best interests. [ 4 ] The parties have been in court over a dozen times since January 2011.

At the outset of the hearing before me, and again on the second hearing date, I advised counsel that I wished them to fully canvass the issues and the court history between the parties. I was hopeful of being able to provide something of a long-term or perhaps a final order. Counsel obliged, and for the most part, I believe the parties were able to fully voice their concerns about each other, and about O’s well-being. [ 5 ] I am somewhat dismayed however in that I perceived that each of the parties was at times less than forthright with the court.

Perhaps their objectivity was at times overridden by concern for the well-being of their son. I would hope that the order I make will assist them to avoid the court process for a time. I also hope that if they feel it necessary to enlist the assistance of the justice system on future occasions, they will each take seriously their obligation to be completely forthright, or they may find that another court will decline to assist them. Factual Background and Court Orders [ 6 ] The parties met in the spring of 2007 and lived together off and on for two years. After O was born, Ms. T worked part time and Mr.

W spent some evenings and weekends with O while she was at work. [ 7 ] The parties differ on how much time each of them spent with O during this time. Mr. W says he “rarely worked” and spent evenings and weekends with O, five to seven days a week including up to 11 hours each on Saturdays and Sundays. Ms. T says she was unable to rely on him for consistent or reliable childcare. She had to engage a babysitter, BR. [ 8 ] After they separated Mr. W agreed to enter into a consent order granting Ms. T sole custody, as he had decided to live at the 12 Tribes Religious Commune in Nelson.

He had been at the commune for a large part of the year prior to that. As it turned out, however, he returned after 3 weeks. At that time, Ms. T agreed to joint custody; however, she now says she felt somewhat coerced into it. [ 9 ] Thereafter they remained joint custodians but Ms. T says Mr. W did not commit to seeing O regularly or on particular days. Mr. W saw O to take him to his play group, out to the playground, or to visit friends. Mr. W himself declined overnight access at that point, as he felt it important that O stay overnight with his mother. Ms. T did however entrust O to Mr.

W for some overnight visits and in some cases, camping trips, during the time before the parties sought court intervention. [ 10 ] In November 2010 Mr. W’s brother, RS, stayed with Ms. T for a few days. Based on his observations of the home and Ms. T’s behaviour with O, and as well some things he was told by Mr. W and others, Mr. S made a complaint to the Ministry of Child and Family Development. [ 11 ] Mr. S denies that Mr. W asked him to make the complaint. He testified that his concerns were that Ms.

T did not adequately supervise O within the residence; that she let him run outside in the cold with no clothes on; that O was underweight; and that Ms. T’s brother was a safety risk. Mr. S also spoke of a time when Ms. T told him she was “horny” and took O with her to her boyfriend, MW’s house for half an hour or so. He believed that she had left O in the car while she saw her boyfriend. Ms. T acknowledges she may have gone to Mr.

MW’s house on that occasion but denies she left O in the car. [ 12 ] The Ministry investigated the complaints and concluded in due course that there were no child protection concerns, or that if there were, they would be adequately addressed by Ms. T without court intervention. [ 13 ] One of the concerns raised by Mr. S, and shared by Mr. W, related to Ms. T’s brother, RSK, having access to O. Ms. T admits to some inappropriate sexual contact with this brother when the two were adolescents. She had confided this to Mr.

W early in their relationship, but considers his use of the information as the basis for a Ministry complaint to be contrivance and a breach of confidence. Mr. W says he became concerned about the information because Ms. T continued to maintain that her brother was not a risk to O. [ 14 ] A Ministry social worker, Jennifer Sedman, testified that she believed the allegation regarding the uncle had not been substantiated; but in any event, she would not have taken any further action if it had. She was satisfied that Ms. T was adequately

monitoring O’s contact with Mr. K. [ 15 ] Mr. W says that when Ms. T learned, from him, that there had been a complaint to the Ministry, she threatened him. Ms. T denies this. Mr. W made a police report about this in January 2011. There is no evidence that the police proceeded with a complaint. [ 16 ] Mr. W says that shortly after that conversation, Ms. T apologized to him and they talked about a shared parenting plan consisting of a four day, three day, three day, four day schedule. However, at the end of that conversation, he says, when he asked for assurances that O would not be exposed to Mr. K or to Ms.

T’s current boyfriend, Mr. MW, the discussion ended without agreement. [ 17 ] Ms. W’s evidence on this point and the sequence of events was confused. He says that Ms. T denied to him during the parenting plan conversation that her brother was a risk to O, and he then said it was after she said that, that he told her he had gone to the Ministry and she threatened him. That is inconsistent with his earlier evidence about the timing of the threat and the apology, and also with Mr. S’s evidence about who made the complaint. [ 18 ] Mr. W says he and Ms. T had sexual relations on January 10, 2011.

He says they had been having unprotected sexual intercourse since the separation and that Ms. T told him in November 2009 that she would entertain having another child with him as she wanted a baby girl. Mr. W further says that on January 16, 2011, he learned from a friend, BH, that Ms. T had told H Mr. W had a criminal record and a prior history of violence with women. Mr. W produced an extract showing that he has no convictions on his record, which he had obtained in order to prove to Mr. H that he had no record. [ 19 ] Mr. H in his testimony said that Ms.

T did tell him that, and as well that she admitted to him that she and Mr. W had recently been sexually intimate. Mr. H recalls Ms. T telling him, “I have my needs.” Mr. H had learned from his wife that Ms. T had denied to her that she had recently been intimate with Mr. W and Mr. H was quite agitated by what he viewed as Ms. T’s betrayal of his friend, Mr. W. Ms. T denies the conversation with Mr. H, and denies that she and Mr. W were sexually intimate after 2009. [ 20 ] None of the allegations made by Mr.

W and supported by the H’s testimony have particular relevance to the issues in this application; however Mr. W appears to consider them as important background to explain his decision to initiate court proceedings. He says that in light of what Mr. H told him and the threat on Ms. T’s part he became sufficiently concerned about Ms. T’s mental state that he decided to make an ex parte application for sole custody of O, and a restraining order. [ 21 ] Mr. W appeared before me on the ex parte application on January 21, 2011 in North Vancouver. He was living in North Vancouver at that time. During that hearing Mr.

W stated that the Ministry had advised him to apply for custody because of their concerns about O’s welfare if he remained with Ms. T. At my suggestion Mr. W arranged for the social worker, Ms. Sedman, to be available by telephone during the hearing. Ms. Sedman denied that the Ministry had any protection concerns regarding Ms. T or that she or anyone assigned to the file had advised Mr. W to apply for custody. [ 22 ] I declined to make an order for custody. I made an order imposing certain obligations and restrictions on Ms. T, to address numerous itemized concerns about O’s safety and well-being that Mr.

W had raised, including O’s contact with Mr. K and limitations on his exposure to Mr. MW. As is customary, Ms. T was given liberty to apply to vary or set aside the ex parte order, and Mr. W was told that she was entitled to have the matter addressed in court. [ 23 ] Ms. T was served with the ex parte order the next day or the day after that. She was very disturbed, she says, as there were many “lies” in the order. She noted that Mr. W applied on the same day the RCMP had come to her house, saying she had threatened him and that she had a loaded gun.

She was surprised and affronted by this suggestion, she says, as she does not even let O play with water guns. She says all of the allegations Mr. W made in court about safety issues and her behaviour with Mr. MW were untrue. She not only applied to set aside the order, but she also filed a complaint of perjury with the police. Apparently that matter is still under investigation. [ 24 ] Ms. T takes the position that Mr. W’s motivation in making the ex parte application was she had told him two weeks prior that she could not have his unstable behaviour or him in her life.

She was of the view that he had remained too involved in her life, and was too intrusive. The constant resultant drama and conflict was just too much for her. She denies that Mr. W told her he had reported her to the Ministry or that they talked about his concerns about her brother. She says she does not permit her brother to be alone with O. He lives in Vancouver. [ 25 ] On January 25, 2011, after Ms. T was served with the ex parte order, but before she applied to set it aside, Mr. W went and took O from his school. He says he did this because he was concerned about O’s welfare. He had first gone to Ms.

T’s babysitter, BR’s, and told her he was going to pick O up. He took O home. Ms. T called him and then texted him, but he did not respond. [ 26 ] Ms. T went to court the next day, January 26, 2011, seeking an ex parte order for custody of O, a police assistance clause, and a restraining order. She says that when she was unable to reach Mr.

W and he had not returned with O the prior evening, having just received his ex parte order, she became very scared that he was going to take O away from her. [ 27 ] Judge Merrick made an ex parte order for interim sole custody and guardianship with a police assistance clause and a restraining order against Mr. W. The police assisted in returning O to his mother. [ 28 ] Judge Merrick also adjourned the case to the next day, January 27, for both parties to appear. When Mr. W appeared on that occasion, he told Judge Merrick that I had advised him to go and get O from his school.

He agreed in this hearing that this had not been my direction, and he said that to Judge Merrick because he was “tired and flustered”. He said he was shocked that Ms. T had not notified him that she wanted O back, and that she had the police attend to pick him up. He also said that he and Ms. T had talked about him having O after school that day, the week before. However, that was before he went to court and obtained the ex parte order. [ 29 ] On January 27, the parties entered a consent order providing for Mr. W to have O from Tuesdays at 9 a.m. to Thursdays at 7 p.m.

Some of the terms of the prior orders were amended to conform with the consent order. Mr. W says he would have preferred weekend access, but accepted the midweek schedule. The consent order was to have continued in place until a February 16, 2011 hearing

date, but Ms. T’s father passed away on February 14 and the February 16 date was adjourned. [ 30 ] Ms. T says she had to make an application to alter the

schedule to attend her father’s funeral because Mr. W would not consent to it. Judge Merrick made an order that she could travel with O to Kamloops for a week but that Mr. W would have a week of make-up access after that. Apart from those provisions, Judge Merrick suspended Mr. W’s access. Ms. T told the Court she did not want him to have access to O at that time. She had told Mr. W on March 14 that she was grieving and needed to have O sleep with her, and did not want him to have overnights. She said she would think about daytime access and let him know. [ 31 ] During his make-up week, Mr. W did not permit Ms.

T to have any telephone contact with O, for 8 days, which upset her. [ 32 ] The parties appeared briefly before Judge Merrick on April 13, 2011, but the issue of access was adjourned until July 13, 2011. Ms. T says that in the interim, she and Mr. W agreed that his access would be Tuesdays and Thursdays during the day, but not overnight. She says she hoped at that time that it would again extend to overnight, and there were in fact two or three overnights during this time frame, but Mr. W again continually caused “too much drama and conflict”.

She says O would come back from his visits sick and exhausted, and that he told her Mr. W fed him only chocolate almonds and Smarties. Around this same time, Ms. T says, Mr. W also sued her and her family members, and Mr. MW, for defamation. He then dropped the actions, a few months later. [ 33 ] Mr. W says that over this period Ms. T did not permit him to see O for 91 days, until early June, when she called him in North Vancouver and asked him to come to the Coast because O wanted to see him.

He saw O again in July for two weekdays. [ 34 ] On the July 13, 2011 hearing date the parties entered a consent order before Judge Merrick, providing for two days of daytime access in alternating weeks, and additional access as agreed. The order was to be reviewed in six months or earlier on application to see if Mr. W’s living circumstances had become more stable and suitable for O. That order also provided for child support in the amount of $250 per month, to be reviewed following exchange of income tax information for the years 2008, 2009, and 2010. [ 35 ] Mr.

W filed an application to review, or increase, the access

schedule on August 15, 2011, indicating that he was maintaining a residence and steady work. He believed that the concern about overnight access that was addressed in the July 13 order was only his lack of a residence on the Sunshine Coast. [ 36 ] Mr. W then filed the application to change the January 26, 2011 order which is the subject of these proceedings on August 22, 2011. He believed based on the July 13 order that if he made material changes in his living situation he could apply to revisit the order for sole custody and guardianship. [ 37 ] Mr.

W was living with his step-grandfather in North Vancouver in July 2011. In his testimony he said moved back to the Sunshine Coast “when” he made the August 15 application, although he used the North Vancouver address in it, as well as in the financial statement he filed at that time. He stated in the application that he “anticipated” that his address would change in the near future. He believes he may have filled it out before he filed it. He had kept the North Vancouver address as his mailing address. [ 38 ] Mr.

W says as well that he moved to an address on Field Road (on the Sunshine Coast) on the afternoon of August 14, 2011. This was a one bedroom residence but Mr. W explained this by saying he was not having overnight access at that time. It appears however that this residence was the basis for his decision to apply to revisit the issue of overnight access addressed in the July 13 order. [ 39 ] Mr. W lived in the Field Road residence on and off until October 2011 but says he travelled during that time as well. He then rented another one bedroom residence in Roberts Creek. He says he did this because Ms.

T had suggested he might begin to have O overnight. His plan was to have O sleep with him in his bed and to get a place with a bedroom for O once he was granted overnight access. Up to this point, it would be fair to say that Mr. W had done nothing to address the concerns raised by Judge Merrick regarding a stable residence with space suitable for O, except obtaining accommodation on the Sunshine Coast. [ 40 ] The daytime access arrangement continued until the Thanksgiving weekend. Mr. W says that Ms. T agreed at that time to him having O overnight on every second weekend. Ms. T says that Mr.

W asked her for an overnight visit at Thanksgiving, to which she agreed, although Mr. W had been continuing with what she described as the “drama and conflict”. [ 41 ] Ms. T says that after one weekend visit, Mr. W put O on the phone to ask her if he could spend more time with Mr. W. She had already made some other plans for O, and told him that. She says Mr. W told her he was not going to return him, because he would listen only to O. She told him that was not okay, and he had to return him. [ 42 ] Ms. T says that Mr. W said he would only return O if she had her stepfather, RC, present when he did so.

When he arrived, she says, there was a screaming match between Mr. W and Mr. C, in O’s presence, about Mr. W not getting enough time with O. [ 43 ] Mr. W says this occurred but he denies he refused to return O or had a verbal altercation with Mr. C. He agrees they had words in O’s presence about him having more time with O. He did not agree that it would have been stressful for O to listen to that. [ 44 ] The parties exchanged emails in November that were filed in evidence. They reflect vacillation in Ms. T’s attitude to overnight access.

She allowed some overnights in early November, but by November 8 she pulled back to daytime access because she considered the overnights to be too disruptive and exhausting for O. She told Mr. W she was returning to the original

schedule of daytime access every other week, commencing November 19. [ 45 ] Mr. W did not see O after the 8 th until November 15, when he went unannounced to see O at his school. The teacher told him he should not be there without Ms. T’s consent, which was erroneous. She asked him to leave. Mr. W remained to watch O paint a picture. The teacher returned to advise him that the police had been called and he was breaking a court order. In fact there was no order restricting his contact with O. Mr. W agrees that O was crying when he had to leave, and that the experience would have been stressful for him. [ 46 ] Ms.

T had written an email to Mr. W the morning of November 15 suggesting they return to overnight access, but only one

overnight per access period, which she considered would be less disruptive. She revoked that suggestion after learning of Mr. W’s ill- considered and disruptive decision to attend at the school. She attended court on November 16, 2011 seeking an ex parte order suspending Mr. W’s access, and another restraining order, both of which were granted. [ 47 ] The parties appeared together in court on November 21. Mr. W filed the emails.

He perceived that Judge Merrick indicated that he would not have made his order of November 16 if he had seen the emails, but he acknowledges that Judge Merrick told him he had made a bad decision in going to the school. [ 48 ] At that time, Judge Merrick made an order for supervised access, leaving it to the parties to work out a

schedule and arrange for supervisors. Email contact was permitted between the parties for the purpose of arranging access. [ 49 ] Ms. T explained her decision to make the ex parte application on November 16 by saying that O and Mr. W had talked on telephone that morning, but Mr. W did not mention he intended to visit the school. When she learned of the school incident, she concluded that Mr. W had again placed O into a conflict situation and exhibited unpredictability. [ 50 ] Ms. T says that Mr. W refused supervised access with a paid supervisor after that, and none was arranged. Mr.

W says he never called the suggested supervisor to arrange access because Judge Merrick told him he needed an entered order first and that had not been done. The ex parte order requiring him not to have contact with O without a court order was still on the file. He did not call Ms. T’s counsel because he thought it would cause problems. While he denies that he refused to accept paid supervision, he acknowledged that he wrote an email November 25, 2011 stating that he did not agree to it. [ 51 ] The parties were back in court in December when Mr. W suggested a private supervisor, but Ms.

T says that was an individual who had been handing out pamphlets that said, “Save O” and “Little Dudes Need Their Parents” at O’s school. She did not agree to use him as a supervisor. Mr. W denies that he suggested that man, whom he identified as AAZ. He recommended DL, and another person. [ 52 ] Mr. W was aware that the individual was handing out pamphlets, but denies that he had any

part in preparing or handing them out. Judge Merrick told Mr. W that the pamphlets were inflaming the situation and Mr. W agreed that he would ask the individual to turn them all in to him. Before that, he was of the view that it was not a really good idea, but had not taken any steps to prevent it. [ 53 ] As of the February 2012 hearing date before me, Mr. W said he had had no access since November 6 at 8:45 a.m., 108 days, and had last seen O on November 15 at 11 a.m. He has not even spoken with him since.

He says he has made no requests for access, “with reason” which I was led to understand was because he did not have the finances to pay for a supervisor. [ 54 ] It was encouraging to hear that there had been four relatively successful supervised visits between the two hearing dates and that Mr. W rented a two bedroom suite after the first hearing date. His employment had also changed between hearing dates and he was able to confirm a stable income and offer to increase child support. [ 55 ] However, Ms. Wilson, counsel for Ms. T, filed an update to the Court with a copy to Mr. Linde, counsel for Mr.

W, on May 24, 2012. It reads as follows: I write to advise your Honour that Mr. W has exercised only four access visits since we were last before you on March 20, 2012 and to date has not asked for a visit for this week. The last visit was on April 29, 2012. By the end of this week Mr. W would have been entitled to ten visits (once per week). Ms. T advises me that she has not seen Mr. W in the community over the past few weeks and she likely would have if he had been here as the latest address he gave was down the street from her and when he is here she sees him frequently.

However, there has been no message from Mr. W indicating absence from his residence or any other reason for not exercising access to O. Ms. T further advises that child support was paid in the amount ordered for the month of April in the amount of $350.00 but the arrears was not paid and there has been no payment for May. Parties’ Positions [ 56 ] Mr. W expressed remaining concerns about Ms. T’s parenting practices, arising from incidents when he had observed her putting O in a cold room in winter, or pinning down his arms, to discipline him. Ms. T denies these incidents. Mr. W remains concerned about Ms.

T’s brother, and produced a photograph of him with O his brother had found. Apparently Ms. T’s brother had it as his Facebook profile, during the Ministry investigation, some time ago now. [ 57 ] Mr. W believes the best parenting arrangement for O would be co-parenting. He believes he and Ms. T share parenting ideas in respect of religion and schooling. He says he pays for half of O’s schooling voluntarily, and they have always agreed on the school in Roberts Creek. [ 58 ] Mr. W now lives back on the Coast, he says, close to Ms. T. He would like to have the

schedule Ms. T agreed upon when they separated, of four:three; three:four, then moving to a week on, week off when O is ready, maybe when he is 6 or 7. [ 59 ] Mr. W believes Ms. T is a good mom. He has had some minor concerns about her parenting as per the January 21, 2011 order. Her behaviour in changing access is consistent with what he observed of her in the relationship. He believes she has been somewhat erratic in changing her mind about things, in particular regarding his involvement in O’s life.

[ 60 ] Ms. T says O now attends school an additional two days a week, and Mr. W has not contributed to that, because she has not told him about it or asked for a contribution. She notes that he is in arrears for child support. [ 61 ] Ms. T says that she has reconsidered her prior agreement to permit Mr. W unsupervised access to O. This is because in her view, he exposes O to conflict and this has escalated in the past year. She considers that he is unstable and brings unnecessary drama into O’s and her life. She agreed in cross-examination however that she told the Ministry that she and Mr.

W were the “ideal separated couple” in 2011. [ 62 ] Ms. T believes she has bent over backward to provide Mr. W with opportunities to see O, but he continues to cause issues, to the point where she does not believe O is safe with him any more. She believes that every time she tries to give Mr. W more time with O than the existing order there has been conflict, with Mr. W complaining about not getting enough time and repeatedly engaging in confrontations in O’s presence. She provides as examples of recent instability and drama the following anecdotes. [ 63 ] When Mr.

W found out she was dating in early 2010, she says, he broke into Ms. R’s place, where Ms. T was living. He yelled and screamed and she had to tell him to leave or she would call the police. He said he wanted her to call the police. She had O in her arms and Mr. W did not seem to be concerned about exhibiting appropriate behaviour in front of him. She said he literally broke the door down and she had never been so afraid. He wanted to take O, and she was very concerned that if he did he would not return him. It does not appear that the police were called or any charges resulted from this incident. [ 64 ] Ms.

T also says Mr. W threatened her boyfriend, MW, on August 21, 2011 and O was present for that. Mr. W walked past her to get to MW, and told him to stay away from O, yelling at him and humiliating him. She believes that O was mortified, as Mr. MW is like family to him. Mr. W says that he had a conversation with Mr. MW and that he did tell him to stay away from O, because he was his father, but O was not upset at all. Ms. T was not nearby enough to hear, he thought. He told MW he wanted him to stay away because of his history with the drug trade.

MW had told him he could not go to the US, and he knew people who had dealt with MW in Nelson. He agrees that O was present for part of this conversation and he could have handled it differently. Mr. W denies that he is concerned about Ms. T having a relationship with Mr. W, but agrees he may have raised issues about her being intimate with Mr. W in O’s presence. [ 65 ] Ms. T has filed four complaints about breaches of the order that Mr. W have no contact with her. On the first occasion, she says, Mr. W approached O while she was with him on the ferry, and started talking to him.

He waited nearby until they got on the elevator. She felt uncomfortable. Mr. W agrees he saw them on the ferry on August 17 th . He says he had contact with O but not with Ms. T, in compliance with the order. He found O standing in front of the stairwell, and Ms. T nearby. He said hello to O, gave him a kiss and a hug, and left after they said “I love you” to each other. [ 66 ] Another of the alleged breaches occurred when Ms. T was at the courthouse, and Mr. W ran after her with papers. She had O under her arm. He told her he was going to come to her house and serve her with papers.

She ran away from him to the RCMP office next to the Court. Mr. W says he was trying to serve Ms. T in response to a suggestion from Ms. T’s counsel. He denies following her to the RCMP office. He says he tries to avoid conflict with Ms. T in front of O. [ 67 ] The third alleged breach was a series of messages from Mr. W, starting with a voice message after he was charged with one of the earlier breaches, asking her to drop the charges and the restraining order so they could communicate and figure out access. After that, he sent a text telling her his sister M had a baby and that he wanted O to know.

He then sent two emails, one asking her how they will be able to communicate for the next 18 years, and the other asking her about possible access supervisors. Ms. T says these communications were not necessary for the purpose of arranging access, as required by the order. She has told Mr. W he may communicate directly with O. [ 68 ] Ms. T remains concerned that Mr. W does not have a stable residence. She learned that the place he was living in at the February hearing date was up for rent. She had no idea where he was living, until he addressed it in the March hearing.

She says he has never been employed for any length of time and has unpredictable fights with people he works with. [ 69 ] Ms. T admits she has never agreed to Mr. W having equal time with O. She feels his behaviour is unpredictable; he is unstable; she does not know enough about his home or his job. She does not feel that O’s best interests would be met by a shared parenting regime, and she feels he is better off with her as the primary caregiver. She is concerned about the behaviour that he models for O; arguing, fighting, embellishing stories.

She agreed that those behaviours were not contingent on how much time he spends with O, but feels it is important for O to have an emphasis on stability and lack of conflict. Evidence from Access Supervisors [ 70 ] CLH and DL acted together as volunteer supervisors for the parties between hearing dates. Ms. CLH is a friend of Ms. T and Mr. L is a friend of Mr. W. The visits were roughly four hours each, at Mr. L’s residence. [ 71 ] Ms. CLH said the visits went well during the visit. O was very happy to see his father. However, Mr. W was in tears when O had to leave, which was hard on O. Ms.

CLH felt she had to be a timekeeper, which she found stressful. She had to point out when it was time for O to go back. Mr. W suggested that he would take him back, but that would have meant contact with Ms. T. It took Mr. W 9 minutes to get O in the car, with Ms. CLH saying, “Ok, can we go now?” and O saying, “Can I go home to my mom please?” Ms. CLH felt Mr. W’s behaviour was not good role modeling for O. [ 72 ] During one visit there was a lot of TV watching, but others involved trampolines and walks on the beach. There were always other children around to play with O. Ms.

CLH thought a one on one visit would have been nice. Mr. W always served O chocolate covered almonds and bunny pasta for lunch. [ 73 ] Ms. CLH is not a parent but has worked as a youth correctional counselor. She felt that W was not willing to say no or correct

O. She had to intervene to prevent him from throwing balls at people’s faces when Mr. W did not. [ 74 ] Mr. L says he is a friend of both parents, from the community. He described himself a teacher and therapist, working from a larger scale of consciousness to seek a healing position in life. He has experienced more than one family “breakthrough,” by which I understood him to mean, separation. [ 75 ] He described the visits as wonderfully congenial and harmonious, beautiful to watch. Mr. W was being “very present” and “a loving man” with O and Mr. L’s own children, of whom L has joint custody with their mother.

Evidence from Other Witnesses [ 76 ] As I have mentioned, Mr. W’s neighbours and good friends, Mr. and Mrs. H, came to court to testify. In addition to what I have already outlined, they testified that they saw Mr. W with O far more often than with Ms. T and that he was far more interactive with him, during the two years before the parties separated. I suspect this was a function of the fact that the H’s were friend of Mr. W, and not as much of Ms. T, so they were more likely to have seen Mr. W and O on occasions when Ms. T was at work or elsewhere.

In any event their evidence was not entirely helpful as to the current situation, nor entirely objective. [ 77 ] As well, Mr. S, Mr. W ’ s brother, whose evidence about the living situation in Ms. T ’ s residence I summarized earlier, testified that he has never seen his brother get into a fight. He can have a fiery personality but never causes fear. When he talks about the situation with Ms. T he tries to keep it amicable. [ 78 ] AW, a friend of Ms. T’s, testified about her interaction with O. She essentially refuted most of the concerns that Mr. W had expressed in his January 2011 application.

She also talked about her observations of Mr. W interacting with O. She thought he was a little inattentive and distractible, but later acknowledged she had not seen them together for two years. [ 79 ] AJDG is the landlord of the property where Ms. T lives. She testified to various interactions with O and both parents of no particular moment. She also addressed the issue of the pond in the backyard that had caused Mr. W concern when he applied for the ex parte order in January 2011. She described it as a cement structure, never used as a pond since she had owned the property. She said that Ms.

T brought to her attention that there was a concern about it from the court proceedings, and she discovered that there was some water, maybe 6 inches, in it after Mr. W filed his application. The drain had become plugged, so she had it cleared and emptied. It has been empty since then. [ 80 ] Ms. AJDG also confirmed that the property is visible from the driveway; one of Mr. W’s other concerns raised in his ex parte application. Child Support [ 81 ] Mr. W disclosed an income of $38,476 at the March hearing date and agreed to pay increased child support of $350. Submissions [ 82 ] On behalf of Mr. W, Mr.

Linde made insightful and interesting submissions. He firstly submitted, fairly, that O deserves better from both his parents. It is fortunate that they had been able to safeguard his best interests for some years before resorting to the courts. They do not have a philosophical disagreement regarding what is in O’s best interests. [ 83 ] Mr. Linde suggests that Ms. T is a “glass half empty” person and Mr. W the opposite. Ms. T may predict defeat and lack faith, and that may in itself create conflict. Mr.

W has a unique personality, a mind that remembers things precisely, and intense curiosity; all strengths from which O could benefit. [ 84 ] Mr. Linde submits that Ms. T may have a tendency to blame Mr. W for things she actually controls. While she denies anger or malice, he submits that is inconsistent with her behaviour in many respects. He also submits that she changes her position regarding whether O can be with his father. As an example he points to the November 2011 emails. [ 85 ] These swings, he submits, are affected by external events that many people might not see as so consequential.

If the things she sees as concerns are the worst of it, he submits, she should count her blessings, or O’s, as these are no worse than things that happen in an intact family. Routine or inconsequential events may be magnified by a propensity to see things in black or white. One parent may seek an ex parte order, where another may leave well enough alone; for instance, Ms. T’s response to Mr. W’s visit to O’s school. [ 86 ] Mr. Linde urged the Court consider how best to assist the parties to move forward.

It is not possible to tell what O’s perception is of his mother’s view of his father; a critical factor in terms of their future relationship. Children are perceptive, he submits, and O cannot be unaware that his mother thinks he is unsafe with his dad; that there is something wrong with him. He must notice that he has been off and on in terms of time with his father. [ 87 ] It is best, Mr. Linde says, for a child to have normalcy, a routine

schedule with both parents, reaping the benefits from time with each. It cannot be left to the mother, who suggests that it is necessary to “wait and see” how things go. He submits that Ms. T will never be satisfied with Mr. W’s behaviour.

[ 88 ] In reference to the factors under section 24(1) of the Family Relations Act , Mr. Linde submits that the parties are arguing about paragraph (e), each that the other does not have the capacity to parent. However, he says, all examples of conflictual behaviour on Mr. W’s part are entirely related to the fact that there is litigation going on, producing orders, and there are violations of those orders to which Ms. T initiates a response. Mr. Linde emphasizes section 24(3) which admonishes the Court not to take conduct into account if it is not relevant to factors under 24(1) or (2). [ 89 ] Mr.

Linde suggests that a shared parenting model may not remove the problems and that one of parallel parenting may be necessary. The details may be best left to a future review or case conference. [ 90 ] In his written submissions, Mr. Linde challenged Ms. T’s assertion that she has been very accommodating of Mr. W, and says there is little evidence of incidents that support an assertion of problems with how Mr. W has been exercising his access with O. He says Mr. W has made changes in his residence and employment situation that justify a change in the parenting scheme. [ 91 ] On behalf of Ms. T, Ms.

Wilson in her able submissions argued that the parties have tried joint custody several times. It was the original arrangement, and Ms. T agreed to reinstate it at one point. She has been extremely accommodating, before the parties resorted to the courts. Since then, as well, she has been very forgiving and often goes beyond what is ordered; however, conflicts continually arise. [ 92 ] Ms. Wilson submits that Ms. T finally had to say no to the way Mr. W is exercising his access. Many times when O is present, he places himself first. This may not be a problem that can be rectified, she submits. She suggests Mr.

W has anger management issues; that this past year saw an escalation of problems, and each arose in a different scenario. Tailoring a parenting scheme to lessen the potential for conflict may not be realistic. [ 93 ] Ms. T wants the stress and conflict to end for O’s sake and sees supervision as the only alternative at present. Mr. W uses threats of not returning O when he doesn’t get his way, and on one occasion he did take him and police had to intervene. She says he has shown bad judgement about a lot of things relating to O. She says it is not a matter of him admitting mistakes and agreeing to address them.

He denies that his behaviour has caused any concern in relation to its effect on O. [ 94 ] Ms. Wilson submits that Mr. W may benefit from parenting courses, so he may see the effect of his explosive, excitable behaviour on his son. Ms. T has agreed to work with him toward an enhanced relationship with O. She does not take the position, as she could have, that O is her child and Mr. W only gets access. However, she feels she has erred on the side of being too generous to Mr. W, at the expense of O’s stability, and needs to pull back. [ 95 ] Ms. T prefers to see the present regime continue.

She would look toward withdrawing supervision in a measured way after a couple of months, after all has settled down, and then increasing Mr. W’s time with O, down the road. She has no intention of depriving Mr. W of a relationship with O. She acknowledges their bond; however points out that she has taken primary responsibility for providing for O for his entire life. [ 96 ] Ms. Wilson submits that Mr. W has been in and out of O’s life. Ms. T is the stable parent who has provided a home for O. Mr.

W has not demonstrated an ability or willingness to take on any degree of responsibility as a custodial parent; he has not been truthful with the Court about his housing or his work, he has given 4 different addresses. He started a new job just before or after one of the court appearances, and before that had a job that did not provide any income in cash. [ 97 ] In her written submissions, Ms. Wilson emphasized that Mr. W’s actions taken together, including his initial ex parte application and continual pushing of Ms.

T’s, the school’s and the Court’s boundaries show him to lack judgement and either the motivation or the control to place O’s interests above his own emotional concerns of the moment. She submits nothing has happened since the restraining order was made to show that Mr. W has moved beyond the behaviour that gave rise to it, taking O from his school without notice and failing to return him to his mother. Ms. Wilson highlighted many of the incidents related above as indicative of Mr. W’s problems dealing with the end of the relationship with Ms. T.

She submits that he is motivated by retaliation and still plagued with instability. Analysis [ 98 ] It is difficult to disagree with the assessment of Mr. Linde that O deserves better from both parents. I am concerned that there is animus on the part of Ms. T which motivates her to go too readily to the police with allegations such as perjury and child abduction. I suspect she is creating conflict herself by overreacting to behaviour on Mr.

W’s part that is a predictable reaction to her own behaviour, and that she should in some cases have anticipated, given how well she knows him. [ 99 ] I also do wonder whether much of what Ms. T has complained about to the court has been calculated to affect the outcome of these proceedings. I have already commented about the fact that I do not accept she has been completely forthright with the Court in her evidence. In particular I was concerned about the exchange relating to the pond; however little turns on it. [ 100 ] I must also observe that of all the people involved in this proceeding Ms.

T is the one that knows Mr. W best. She has elected to parent a child with him and it will be incumbent on her for the better part of two more decades to find a way of reacting to Mr. W that is more in the best interests of her child than, for instance, refusing to deal with him in person, restricting his access in retaliation for behaviour or incidents that do not logically dictate a different type of access, or over-readily involving the courts or police in what are for the most part minor transgressions. Vindictiveness has no role in parenting. [ 101 ] I nonetheless attribute to Mr.

W the responsibility for this protracted litigation. Whatever his motives for coming to court on the first occasion, I cannot accept with hindsight that they had anything to do with O’s welfare or best interests. None of his concerns, minor as they were at the time, have proven to have any substance. Mr. W as well has been prone to overreact and too readily involve the

courts. His first approach should have been to raise any minor concerns there may have been directly with Ms. T, with whom he had been successfully co-parenting until late 2010. [ 102 ] The only reason he was entertained by the court on the first application was that he represented Ms. T as a mother who was marginally fit and involved in an active Ministry investigation. He knew full well that was far from the truth. As for the Ministry involvement, I attribute responsibility for that as well directly to Mr. W.

I suspect when it appeared his complaints to the Ministry were not going to be taken seriously, he resorted to the courts. He should instead have paid heed to the Ministry’s view of the matter. As for what his motivation in going to the Ministry in the first place, or having his brother-in-law do so, could possibly have been, I cannot fathom. Most certainly again, it had nothing to do with O’s best interests. If his intention was to deprive Ms.

T of custody and assume it himself, it clearly backfired. [ 103 ] Throughout their experience before the court, the parties in this matter, despite what I view to be admirable restraint on the part of both counsel, have behaved as if they are engaged in a hotly contested custody battle. Each wishes to cast the other in the most unfavourable light possible. But to what possible end? If they are both unfit, O should have been removed by the Ministry. If either is as unsafe or inattentive to O as the other would have the court believe, the Ministry, which did conduct an investigation, would surely have intervened.

To the contrary, the Ministry personnel apparently concluded that each was a fit parent. I agree. [ 104 ] The fact of the matter is this is not a custody battle. It is not an “all or nothing” proposition. O is not going to live exclusively with one or the other of the parents for the rest of his life. No purpose can be served by either parent casting aspersions against the other. They should be working cooperatively to ensure that each of them has the best support from the other in parenting O in the best way possible. There is nothing to fight about. They are both good and loving parents.

They have a lovely and loving little boy. But if they continue to expose him to conflict, confrontation and protracted court proceedings, he will become a troubled little boy. Hopefully, it is not too late. [ 105 ] It remains to consider what parenting regime will best serve O, going forward. Having heard the evidence, I am concerned that Mr. W at present lacks the necessary maturity and skill set to co-parent O on an equal footing with Ms. T. He is not consistent or predictable enough in his involvement in O’s life to be a half-time parent, at this time. I am concerned about what I hear in Ms.

Wilson’s follow up report. [ 106 ] In my view, Mr. W needs to take an intensive parenting course, and to obtain some skills to assist him in disciplining O; providing him with proper nutrition; saving him from exposure to conflict; and understanding the need for stability and predictability. I cannot tell from the file whether he has taken Parenting After Separation, but that would be a good start. O is of an age where he will come to know that “this Saturday,” or whatever day is specified in the schedule, is his day with Dad. Those kinds of promises need to be kept.

By the same token, drop in visits at school by an “access parent” are disconcerting to a child. It singles them out. No one else’s father arrives unexpectedly and has to be asked to leave by the teacher. No one else ’s father has friends that place posters at the school or wear political t-shirts with the child’s face on them. Mr. W needs to have better skills in conflict avoidance and better insight into the ways in which his behaviours affect his child. [ 107 ] From the observations of the supervisors, it appears that Mr.

W excels in the aspect of providing O with entertainment and a positive support group of fathers with similar aged children. It is entirely evident that they have a strong bond which should be encouraged to flourish. I am confident that if Mr. W does some personal work on his parenting skills, he can strive toward a co-parenting model in the not too distant future. [ 108 ] Ms. T will have to be patient. Even more so than she believes she has been, to date. She will have to be careful not to provoke conflict and provide Mr.

W opportunities to learn how to control his reactions in front of O. [ 109 ] One of the primary causes of conflict in this situation, in my view, has been the inability of the parents to communicate directly about parenting O. O cannot be the conduit. To continue in that role would be extremely damaging to him. [ 110 ] Given the way in which the evidence has unfolded, in my view there never was a justification for a restraining order against either parent. There is no suggestion that either intended or caused the other physical harm. There is nothing to support a claim of harassment.

They have a child together and they must talk about him and how to parent him. And they must not talk to him or in his presence in any way that is likely to harm him or cause him distress. This is elementary parenting. ORDER [ 111 ] My order will be as follows: 1. All prior orders of the court in this matter are cancelled. 2. The parties will have joint custody and guardianship of the child OLT, born January 1, 2008. 3.

Joint guardianship shall mean that the surviving parent shall have custody of O in the event of the death of the other; that each parent shall have the obligation to inform the other of important information pertaining to O; that each parent shall have the obligation to consult with the other, in advance, and to reasonably agree regarding any important decisions pertaining to O, including but not limited to decisions about schooling, medical or dental treatment, significant travel, and extraordinary expenses; that each parent shall have the right to discuss information pertaining to O with any third party caregivers including teachers, medical professionals or child care providers; and that in the event of an inability to agree on an important decision or issue pertaining to O, the parties will engage a mediator or see a family justice counsellor, failing which either parent may, with appropriate restraint, apply to court. 4.

O’s primary residence shall be with ST.

5. JW, having a disclosed income of $38,476, shall pay to ST child support in the amount of $350 per month commencing April 1, 2012. 6.

Provided that JW maintains a residence on the Sunshine Coast with a separate bedroom or suitable space for O to sleep in his own bed, JW shall have unsupervised parenting time with O including overnight visits (at JW’s option) on alternate weeks commencing June 15, 2012, starting with a maximum of one overnight per parenting period for the first four consecutive alternate weeks, and moving to two overnights per parenting period on the fifth weekend, but only if four consecutive overnights have occurred. 7.

If JW does not maintain a suitable residence on the Sunshine Coast, he shall have daytime parenting time with O on two scheduled days every two weeks for four consecutive alternate weeks, moving to more days per week or alternate week as agreed between the parties, but only if Mr. W exercises his parenting time consistently as specified below. 8.

The parties may adjust the dates or the days of the week for JW’s parenting time as they see fit or as necessary to accommodate their schedules (which may by consent be inserted into this order); provided that JW’s parenting time shall be scheduled on fixed days of the week, and he shall have O on overnights no less and no more than every other week until he has consistently exercised his parenting time for four consecutive months. 9. If JW exercises his parenting time consistently with two overnights per visit for a period of four consecutive months, and provides to Ms.

T or her counsel written proof of having attended a parenting course consisting of no fewer than 6 sessions through the Sunshine Coast Community Services Society or equivalent facility, JW’s parenting time shall be increased to three overnights every other week for four weeks, then three overnights every week for another four weeks, and then to an alternating

schedule of three overnights one week and four the next. 10. Any failure by JW to exercise his parenting time for two consecutive parenting periods without reasonable explanation or prior agreement with Ms. T shall result in the

schedule reverting back to the

schedule that was in place immediately prior to the failure; for greater certainty, one less day or overnight per period, as the case may be; and that prior

schedule shall be in place again for four consecutive parenting periods before moving ahead to the next step in the schedule. 11. JW’s parenting time shall at all times be contingent on his ensuring that O receives appropriate medical and dietary care while with him, and ensuring timely arrival for appointments, school, and pick-ups and returns to Ms. T. 12.

Neither parent shall involve O in conversations, activities or experiences that are not age appropriate; expose him to or permit him to witness conflict or arguments with the other parent; use him as a conduit for communication; speak ill of the other parent to him or in his presence; or leave him inappropriately unsupervised, during their parenting time or exchanges with the other parent. [ 112 ] Mr. Linde will be responsible for finalizing the terms and drafting the order. If directions are required in working out the

schedule I have endeavoured to set out, I recommend that the parties meet with a family justice counsellor or a mediator, as I will not be available to assist them. [ 113 ] I wish the parties and their counsel all the best. The Honourable Carol Baird Ellan Provincial Court Judge