T.M.J. and R.F.A. v. T.A. and C.B.J., 2021 BCPC 342

Citation: T.M.J. and R.F.A. v. T.A. and C.B.J. 2021 BCPC 342 Date: 20211209 File No: 1138951 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.M.J. and R.F.A. APPLICANTS AND: T.A. and C.B.J. RESPONDENTS RULING ON INTERIM APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant T.M.J.: A. Oliver Dunbar, by telecommunication Counsel for the Applicant R.F.A.: I. Hill, by telecommunication Counsel for the Respondent T.A.: W.

Van Delft, by telecommunication Appearing on his own behalf: C.B.J., by telecommunication Place of Hearing: Prince George , B.C. Date of Hearing: November 23, 2021 Date of Judgment: December 9, 2021

Introduction [ 1 ] I.J. is the eleven and one-half year old son of T.A. and C.B.J. His early years have been marked by his parents’ substance misuse, residential instability, marital discord and family violence. At various times in his life, I.J.’s family life totally disintegrated as his caregivers, community, residence, schools and friends abruptly changed. Because of her addiction issues, T.A. has had very little involvement in I.J.’s life since early 2015 when the Ministry of Family and Child Services removed her children from her care.

For the next three years, I.J. was under the care of his father C.B.J. and his paternal great aunt T.M.J. and her husband N.T. On July 19, 2018, this Court ordered R.F.A. have all the parenting time with I.J. R.F.A. is I.J.’s maternal second cousin who he considers an aunt. R.F.A. resides in Prince George, BC, with her own children, her partner and his children, and T.A.’s two youngest daughters who are I.J.’s half- sisters.

I.J. has other half-siblings through his mother and father who do not reside with any of the parties to this litigation. [ 2 ] I have set out the history of these proceedings at length in my Ruling on Application and Reasons for Judgment filed September 29, 2020 (CEIS 94), which I have incorporated by reference to this decision. Suffice it to say, this is an unusual case wherein the court granted guardianship and all parenting time of I.J. to R.F.A., who at the time was an estranged maternal relative with whom I.J. had very little contact in the preceding years.

On July 21, 2018, I.J. was forcibly removed from his home in Kelowna and relocated to Prince George to live with R.F.A. For the next year, at R.F.A.’s insistence, I.J.’s contact with his former caregivers was reduced to highly restrictive supervised visits at the [omitted for publication] Child & Family Services Society offices in Prince George. [ 3 ] On September 29, 2020, after four days of trial (September 14, 15, 16 and 17, 2020), I granted T.M.J.’s interim application that I.J. be returned to her care pending the completion of the trial.

I appointed T.M.J. interim guardianship, having primary parenting responsibilities for and parenting time with I.J. I further ordered that C.B.J., T.A. and R.F.A. have reasonable parenting time with I.J. as the guardians may from time to time agree. My Reasons for Judgment and interim orders were filed with the court and distributed to the parties on September 29, 2020.

On that day I also ordered an updated s. 211 Views of the Child Report, which due to inadvertence or oversight, was not requisitioned until April 13, 2021. [ 4 ] Over the next year, C.B.J. has had significant parenting time with I.J. in Kelowna, where they both reside. T.A. last saw I.J. for a fleeting moment in Prince George in September 2020. She has shown little interest in maintaining a relationship with her son and I.J. has given up expecting one.

Despite a court order providing her with general and specified parenting time, R.F.A. has had only one in-person visit with I.J. since September 29, 2020. [ 5 ] The last day of trial in 2020 was September 17, 2020. The trial continued on April 12, 13, 19 and 20, and October 24, 25 and November 23, 2021. [ 6 ] On April 20, 2021, R.F.A., T.M.J. and C.B.J. presented the court with an interim “without prejudice” consent order defining R.F.A.’s parenting time with I.J. up until the Spring of 2022 (CEIS 111).

I declined T.M.J.’s request to make R.F.A.’s parenting time subject to I.J.’s wishes because of the mounting animus between T.M.J. and R.F.A. Unfortunately, this mitigating strategy appears to have inflamed rather than quelled the conflict between the two caregivers and spawned further litigation. [ 7 ] T.M.J. says I.J. does not want extended visits with R.F.A. and refuses to go to Prince George for that purpose. Neither T.M.J. nor C.B.J. is prepared to force I.J. to visit R.F.A. against I.J.’s will. R.F.A. maintains that it is not I.J. who is resisting these in-person visits, but T.M.J.

Issue [ 8 ] The salient issue before the court on this interim application is whether the court should enforce the April 20, 2021 Order with respect to R.F.A.’s parenting time with I.J. over the 2021 winter school break. Background and procedural history [ 9 ] The evidence before the court on September 29, 2020, when I released my ruling on T.M.J.’s interim application, is fully particularized in my decision. Since then, there have been the following developments: a.

On November 4, 2020, R.F.A. filed a Notice of Motion (CEIS 95) seeking an interim order that R.F.A. have parenting time with I.J. as follows: i. 3:00 p.m. on November 20, 2020, until 1:00 p.m. on November 23, 2020; ii.

Christmas holiday from December 18, 2020, until December 27, 2020; iii. 3:00 p.m. on January 28, 2021, until 1:00 p.m. on January 31, 2021; iv. 3:00 p.m. on February 12, 2021, until 1:00 p.m. on February 15, 2021; v. 3:00 p.m. on March 27, 2021, until 1:00 p.m. on April 5, 2021; and vi. 3:00 p.m. on April 22, 2021, until 1:00 p.m. on April 25, 2021; I.J. will be exchanged at the [omitted for publication], Prince George, BC; R.F.A. will have phone calls with I.J. on Sundays, Mondays and Wednesdays at 6:00 p.m.; b.

T.M.J. completed her examination-in-chief, cross-examination and re-examination on April 12, 13, 19, and 20, 2021;

c. T.M.J. tendered Exhibits 12 to 31, in the 2021 trial proceedings; d. On April 20, 2021, T.M.J., R.F.A. and C.B.J. consented to an interim “without prejudice” order with respect to R.F.A.’s parenting time with I.J. (CEIS 110); e. On April 20, 2021, I also ordered the temporary guardianship order made September 29, 2020, appointing T.M.J. as interim guardian of I.J., extended to the date my final Reasons for Judgment are rendered, or September 30, 2022, whichever is sooner. I further ordered the Judicial Case Manager

schedule an additional nine days of trial in blocks of three days each with a Pre-Trial Conference with respect to: i. T.M.J.’s Application Respecting Existing Orders filed November 29, 2018 (CEIS 60); ii. T.M.J.’s Application to Obtain an Order filed November 29, 2018 (CEIS 61); iii. C.B.J.’s Reply with Counterclaim filed January 31, 2019 (CEIS 69); and iv. R.F.A.’s Reply with Counterclaim filed January 31, 2019 (CEIS 71); and f. On August 16, 2021, R.F.A. filed an Application about Enforcement (CEIS 101) of the April 20, 2021 Order.

She seeks monetary penalties against T.M.J. and make up parenting time with I.J. as a result of T.M.J.’s non-compliance with the April 20, 2021 Order; g. On August 25, 2021, R.F.A. filed an affidavit (CEIS 104) in support of her August 16, 2021 Application; h. On September 1, 2021, Counsel for T.M.J. filed an affidavit of her legal assistant in response to R.F.A.’s August 16, 2021 Application (CEIS 105); i. On October 8, 2021, Family Justice Counsellor (“FJC”) Jill Adamson, filed with the court her s. 211 Views of the Child Report dated October 5, 2021 (CEIS 108).

This was an update to the s. 211 Views of the Child Report filed by Family Justice Counsellor Erica McCuaig on October 1, 2019; j. On October 20, 2021, T.M.J. filed an Application for a Case Management Order seeking to appoint legal counsel from the Child and Youth Legal Centre to provide I.J. with independent legal services for the purpose of advocating I.J.’s express views and interests (CEIS 109); k. On October 21, 2021, T.M.J.’s application came before me. At that time I made a final order, by consent, appointing legal counsel for I.J.

I also ordered transcripts of the trial proceedings which postdated my September 29, 2020 Order to assist I.J.’s appointed counsel; l. On October 21, 2021, I ordered R.F.A.’s August 16, 2021 Application (CEIS 101) be heard concurrent with the trial as it continues; m. The trial proceeded on October 25 and 26, 2021. On those days I heard C.B.J.’s examination-in-chief and cross-examination; n. On November 18, 2021, R.F.A. filed an Application for a Case Management Order adjourning the November 23, 2021 trial date.

I granted the application, which was unopposed, and scheduled a hearing via MS Teams on the issue of R.F.A.’s parenting time with I.J. over the 2021 school winter break; o. On November 19, 2021, the Child and Youth Legal Centre sent the court registry a letter acknowledging receipt of my October 21, 2021 Order appointing legal counsel for I.J., [omitted for publication] 2010. The Child and Youth Legal Centre advised the court it had received the order on November 18, 2021, and had yet to complete its intake process and meet with I.J.; p.

On November 23, 2021, I heard T.M.J.’s application to vary the terms of the April 20, 2021 Order. All parties and their counsel attended before the court by MS Teams, including T.M.J., represented by Ms. Oliver Dunbar, C.B.J., who was self-represented, and R.F.A. who was represented by Mr. I. Hill. At the hearing, I agreed to conduct a judicial interview with I.J. as he was still unrepresented by legal counsel; q. Also on November 23, 2021, I referred the following matters to the Judicial Case Manager to

schedule a Family Settlement Conference, seven further days of trial with pre-trial conferences no less than 21 days prior to the commencement of the continuation of the trial. Those documents scheduled for the FSC and the trial are: i. R.F.A.’s Application to Obtain an Order filed April 20, 2016 (CEIS 5); ii. C.B.J.’s Reply and Counterclaim filed November 29, 2016, to R.F.A.’s Application to Obtain an Order filed April 20, 2016 (CEIS 14); iii. C.B.J.’s Reply with Counterclaim filed July 25, 2018 (CEIS 51); iv. C.B.J.’s Notice of Motion filed July 25, 2018 (CEIS 52); v.

T.M.J.’s affidavit filed July 26, 2018 (CEIS 54); vi. T.M.J.’s Application Respecting Existing Orders filed November 29, 2018 (CEIS 60); vii. T.M.J.’s Application to Obtain an Order filed November 29, 2018 (CEIS 61); viii.C.B.J.’s Reply with Counterclaim filed January 31, 2019 (CEIS 69); and

ix. R.F.A.’s Reply with Counterclaim filed January 31, 2019 (CEIS 71); and x. R.F.A.’s Application about Enforcement filed August 16, 2021 (CEIS 101). April 20, 2021 Order (CEIS 111) [ 10 ] On April 20, 2021, after the conclusion of T.M.J.’s evidence, counsel for the parties presented the court with an interim “without prejudice consent order” setting out R.F.A.’s parenting time with I.J. until the spring of 2022, by which time the trial ought to be concluded.

The Order provides that R.F.A. will have parenting time with I.J. on the following schedule, unless otherwise agreed in writing by R.F.A. and T.M.J.: Summer 2021 a. A summer visit beginning Sunday, July 4, 2021, and ending Saturday, July 17, 2021; b. A summer visit beginning Sunday, August 1, 2021, and ending Saturday, August 14, 2021; Christmas 2021 c. A Christmas visit beginning Sunday, December 19, 2021, and ending Sunday, December 26, 2021; Spring break 2022 d. A Spring break visit beginning Saturday, March 19, 2022 and ending Saturday, March 26, 2022; Weekends e.

R.F.A. will have such other parenting time on weekends that coincide with non-instructional days for School District No. 23 (Central Okanagan) or Statutory Holidays as agreed in writing by R.F.A. and T.M.J.; Exchange location f. The parties will use their best efforts to exchange I.J. at 2:00 p.m. at [omitted for publication] in 100 Mile House, BC, or at such other location as agreed in writing by R.F.A. and T.M.J. (the “exchange location”); g. The parties will provide reasonable notice if they can or cannot facilitate travel to the exchange location; Telephone calls h.

R.F.A. will have private telephone calls with I.J. as agreed in writing between R.F.A. and T.M.J. while I.J. is in T.M.J.’s care; i. T.M.J. will have private telephone calls with I.J. as agreed in writing between T.M.J. and R.F.A. while I.J. is in R.F.A.’s care; In writing j. The references to “in writing” in this order will include text message and e-mail; and Without prejudice k.

The terms of this Order respecting parenting time between R.F.A. and I.J. are on an “interim without prejudice basis.” Subject to I.J.’s consent [ 11 ] T.M.J. asked that the order for R.F.A.’s parenting time be made subject to I.J.’s consent. At the time, I declined to impose such a condition. I was satisfied that nothing I had heard up to that point indicated I.J. did not want to spend any time with R.F.A.

At the time, I had before me the Views of the Child Report prepared by Family Justice Counsellor Erica McCuaig, submitted October 1, 2020 (CEIS 88), which stated: Once he is living with Aunty T.M.J., [I.J.] would like to stay in contact with R.F.A. and his sisters through FaceTime. I.J. says it is “pretty good” living with R.F.A. but he misses his Aunty T.M.J. too much. If he was living with Aunty T.M.J. he would miss Aunty R.F.A. “a little bit.” [ 12 ] Although I.J. did say he wanted contact with R.F.A. and his sisters remotely, I did not interpret this as a rejection of any in-person parenting time.

I was concerned that if I.J. had to expressly consent to each visit with R.F.A., it might place him in a “taffy pull” between two antagonistic caregivers. I indicated on the record that if the April 20, 2021 Order was made “without prejudice”, the parties could return to court if any problems should arise. Of particular concern for me was that Kelowna and Prince George are approximately 672 kilometres apart and that none of T.M.J., R.F.A., or C.B.J. is a licenced driver. Typically, if I.J. needed to be transitioned between Prince George and Kelowna, it was N.T. or S.G. who provided the transportation.

I was also mindful of T.M.J.’s evidence that N.T. works 12- to-14 hours per day. N.T.’s family physician, Dr. Cassidy, provided a medical letter confirming N.T. suffers from lower chronic back pain, secondary to degenerative disc disease. Dr. Cassidy advised the court that N.T.’s condition is “aggravated by prolonged sitting and driving, and as such, should be avoided”: Exhibit 31. T.M.J. testified that despite his infirmities, N.T. was prepared to drive to 100 Mile House to assist with transitioning I.J. between households. 100 Mile House is roughly halfway between Kelowna and Prince George. The problems

[ 13 ] The matter is back before me because problems did arise with the April 20, 2021 Order, including: a. R.F.A. was finding it difficult to arrange transportation to 100 Mile House (the exchange location) to pick up I.J.; b. Travelling between the Okanagan and 100 Mile House was difficult and dangerous in the summer of 2021 due to a number of wildfires and road closures; c. T.M.J. says I.J. has refused and continues to refuse to visit with R.F.A. as set out in the April 20, 2021 Order; d.

T.M.J. and C.B.J. firmly believe that I.J. ought to have a choice in whether he visits R.F.A. in Prince George, and they refuse to try and coerce or force him to do so if he chooses not to go; and e. Specifically, I.J. does not want to spend the first half of the school winter holidays, including Christmas Eve and Christmas Day, in Prince George with R.F.A. [ 14 ] It was T.M.J.’s non-compliance with the April 20, 2021Order that gave rise to R.F.A.’s August 16, 2021 Application about Enforcement (CEIS 101). This application, together with the supporting and responding affidavits (CEIS 104,105), indicate: a.

On June 30, 2021, R.F.A. received a text from T.M.J. saying she was not going to transport I.J. to 100 Mile House for the July 4, 2021 visit, because the fires in the province were too dangerous and she did not want I.J. making the journey; b. On July 2, 2021, Ms. Oliver Dunbar sent Mr. Hill a letter advising him that the road trip between Kelowna and 100 Mile House (via Cache Creek), was too hazardous to venture because of smoke and wildfires raging in that part of the province. Ms. Oliver Dunbar advised Mr. Hill that R.F.A.’s visit with I.J. would have to be postponed; c.

On July 30, 2021, two days before R.F.A.’s August 1, 2021 visit with I.J., T.M.J. sent R.F.A. a text saying she would not facilitate R.F.A.’s upcoming visit. T.M.J. claimed the fires were still an issue and besides, I.J. did not want to visit with R.F.A. T.M.J. could not and would not force him to do so. In this text message T.M.J. referenced letters from I.J.’s paediatrician. and counsellor; d. On July 30, 2021, Ms. Oliver Dunbar sent a letter to Mr.

Hill, confirming that the hazardous travel conditions within BC’s interior persisted and referenced the BC travel advisory for Highway 97 in effect between Clinton and 100 Mile House. She goes on to state that I.J. had unequivocally stated he does not want to visit R.F.A. and became sad and withdrawn when faced with the prospect. Ms. Oliver Dunbar enclosed a copy of a letter from Dr. Kim Burrows, I.J.’s pediatrician, and Lori Kronyk, a Registered Professional Counsellor with [omitted for publication] First Nations, who is I.J.’s counsellor; e. On August 13, 2021, Mr. Hill wrote to Ms.

Oliver Dunbar, indicating the fires in the interior had subsided and the highways were open as of August 7, 2021. Mr. Hill acknowledged I.J.’s concern about being “stuck in Prince George”, but R.F.A. assured I.J. he will not miss any school, she “just wants to see him.” Mr. Hill proposed that I.J. visit with R.F.A. between August 15, 2021 to September 4, 2021; f. In an exchange of text messages on August 13, 2021, R.F.A. proposes I.J. fly to Prince George. T.M.J. said I.J. does not have the requisite identification papers and she did not have the money for the flight; g.

T.M.J. refused to facilitate R.F.A.’s parenting time with I.J. contrary to I.J.’s wishes. She said: I.J. has been through a lot of trauma since living with his mother [and] when he lived here with us he felt safe until you ripped him out of our home the only home he felt safe in so this is not good [for] I.J. h. R.F.A. contends I.J. told her directly over the phone he wants to go to Prince George to see her and his siblings. T.M.J. says she was sitting beside I.J. during that telephone conversation and she did not hear I.J. say he wanted to see them; and i.

R.F.A. asserts T.M.J. is asserting undue influence over I.J. and I.J. says things to T.M.J. to please her. In her text messages she told T.M.J.: I know I.J. misses us. Can’t keep him away from his family and siblings. [ 15 ] To date, the only parenting time R.F.A. has had with I.J. since my September 29, 2020 Order was a four-day visit over the September 2021 Labour Day weekend. Even this attenuated visit was leveraged by R.F.A.’s August 16, 2021 Application for Enforcement (CEIS 101). [ 16 ] In her Application for a Case Management Order, R.F.A. seeks the following relief: a.

Pursuant to s. 61 of the Family Law Act , an order that T.M.J. pay to R.F.A. $5,000 for breaching the order pronounced on April 20, 2021; b. In the alternative, pursuant to s. 61 of the Family Law Act , R.F.A. will have make up parenting time with I.J. on weekends that coincide with non-instructional days for School District 23 (Central Okanagan) or statutory holidays with the exchange to occur in Prince George at [omitted for publication]; and c. Failure to bring I.J. to Prince George will result in a $1,000 fine being levied against T.M.J. and payable to R.F.A.

Should the court enforce the April 20, 2021 Interim Consent Order with respect to R.F.A.’s parenting time over the 2021 winter school break? Positions of the parties

[17] R.F.A. takes the position that pursuant to the April 20, 2021 Order, she is entitled to parenting time with I.J. in her home inPrince George from Sunday December 19, 2021, to Sunday December 26, 2021. R.F.A. expects I.J. to be transported to 100 Mile Houseto be picked up at 2:00 p.m. on December 19, 2021.

As neither T.M.J. nor C.B.J. is licenced to drive, then one or both of them will haveto find someone else to transport I.J., most likely N.T. [18] Alternatively, R.F.A. argues that she and T.M.J. share the cost for I.J. to travel as an unaccompanied minor on a direct returnflight via Central Mountain Air between Kelowna and Prince George.

R.F.A. anticipates the cost for the round trip will be $1,100, andargues the only identification I.J. requires is a birth certificate. [19] R.F.A. is of the view that I.J. is still too young to be permitted to “make a decision which will have long-lasting and damagingimpact on his relationship with his siblings.” R.F.A. also believes that if I.J. is resisting visits with her, it is a result of T.M.J. pressuringhim to do so. [20] T.M.J. and C.B.J. say that I.J. is refusing to travel to Prince George to spend Christmas with R.F.A. and they cannot and will notforce him to do so.

T.M.J. said that if I.J. is prepared to visit with R.F.A. in Prince George for a few days of the winter holidays, T.M.J.and N.T. would drive him to Prince George on December 19, 2021, and pick I.J. up and return him to Kelowna on December 23, 2021. [21] T.M.J. says I.J. refuses to fly and in any event, he has not yet been vaccinated and has no government identification papers. OnSeptember 29, 2020, I ordered R.F.A. to deliver to T.M.J. any of I.J.’s identity papers in her possession forthwith. She did not do so whentransitioning I.J. into T.M.J.’s care.

R.F.A. says she sent I.J.’s identification papers (birth certificate, health care card, and Certificate ofIndian Status) to T.M.J. by regular post. T.M.J. says she never received these documents in her mailbox and has been unable to replaceI.J.’s status card because someone other than I.J. has been using it. [22] R.F.A. wants I.J. to spend Christmas Eve and Christmas Day with her family as agreed, thus rejecting T.M.J.’s offer to have the[omitted for publication] drive I.J. to Prince George on December 19, 2021, and pick him up on December 23, 2021.

Nature of the order [23] The April 20, 2021 Order is an interim order and thus is governed by s. 216 of the Family Law Act, which states: Court may make interim orders 216

(1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief appliedfor.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order inaccordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that atleast one of the following circumstances exists: (

a) a change in circumstances has occurred since the interim order was made; (

b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection (3); (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that thearrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [24] The April 21, 2020 Order is also a without prejudice consent order. In Regina Musheyev v. Ronen Gilkarov, 2016 ONSC 4120, at para. 19 the Ontario Superior Court held the court cannot draw an adverse inference against a party for having agreed tosomething on a without prejudice basis. Arguably, requiring a party to persuade a court that there has been a material change incircumstances before a motion to vary will even be considered is such an adverse inference.

In Kirichenko v. Kirichenko, 2021 ONSC2833 , Justice Charney states: [27] . . . A “temporary, without prejudice” agreement would be difficult to achieve if one or the other party thought that they werecreating a new status quo requiring a material change in circumstances before it could be varied. . . . [25] In D.P.G. v. V.M.G., 2015 BCSC 1038 , Justice Rogers states at para. 37: [37] In my view, the proper

interpretation to put on the phrase “without prejudice” in the December 2014 consent order is that its terms,and the parties’ agreement to them, are not to be taken as the parties’ once and forever commitment to them. The terms of the order are

not to be used as either a sword or a shield in later litigation on the same issues. As one of my colleagues has helpfully put it: a withoutprejudice JCC order is no more than a Band-Aid provision. The parties are free to argue for a different result on a different day withoutbeing hampered by earlier agreements made extemporaneously and for purposes of expediency. Cited in L.K.U. v. J.N.U., 2021 BCSC 1635 , at para. 73; Sandhu v.

Bhullar, 2016 BCSC 59, at para. 59; Monteith v Monteith,2019 BCSC 239 , at para. 43. [26] In L.K.U., Justice Armstrong states: [74] In my view, every decision made by this Court concerning the care and parenting of children depends on a determination of whatparenting regime will serve the best interests of the children. Parties frequently enter into consent orders with specific riders that anagreed-upon parenting scheme is made “without prejudice”. These orders are devices to enable the parties to move forward to achieveoptimum parenting schedules without conceding the faults or shortcomings of either parent.

Thus, it is important to respect the parties’agreement that these were “without prejudice” resolutions of parenting issues prior to trial because it gives the parties greater flexibilityto assess their respective positions without the necessity of a contentious hearing. Negotiated agreements containing “without prejudice”language operate in the same manner and should not require a change in circumstances as a prerequisite to considering an application forinterim parenting. [27] The April 20, 2021 Order involved no adjudication as to what parenting arrangement would be in I.J.’s best interests.

The partiesagreed the order was a temporary one that would be “without prejudice” to either party’s position. I agree that by requiring a party toestablish a material change of circumstances would be contrary to that agreement. [28] In any event, a party seeking to vary an interim order under s. 216 is not required to establish a “material change” ofcircumstances, but only a “change in circumstances.” I find that I can reconsider the April 20, 2021 Order without any party having toshow a change of circumstances.

Having said that, a change in circumstances has occurred since my April 20, 2021 Order (s. 216(4)(a)).When I made the April 20, 2021 Order, I said there was nothing before me to suggest I.J. did not want to spend parenting time withR.F.A. I now have credible information that suggests otherwise. Moreover, there is also evidence of a substantial nature that was notavailable at the time I made the April 20, 2021 Order (s. 216 (4)(b)), namely: (

a) Jill Adamson’s October 5, 2021, s. 211 Views of theChild Report; (

b) Dr. Kim Burrow’s medical letter of July 1, 2021; (

c) Counsellor Lori Kronyk’s letter of July 30, 2021; and (d)information I.J. provided to the court directly in his November 23, 2021 judicial interview. Best interests of the child [29] The issue before the court is one of parenting arrangements. Section 37(1) of the Family Law Act mandates that the best interestsof the child is to be the only consideration in determining guardianship, parenting arrangements, or contact with a child.

This is aninterim application mid-trial, and, as Justice Armstrong states in L.K.U., “every decision made by this Court concerning the care andparenting of children depends on a determination of what parenting regime will serve the best interests of the children.” [30] Although I have more information now than I did when I made my September 29, 2020 Order, I still have not heard all theevidence of T.M.J. and C.B.J. and very little from R.F.A. Consequently, I cannot conduct a fulsome consideration of I.J.’s best interestswithin the limited context of this interim application: B.K. v.

J.B., 2015 BCSC 148, at para. 27. [31] Section 37(2) of the FLA contemplates factors to be taken into account in determining the best interests of the child, including: (

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; and, (

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

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

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

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

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being. [32] Section 37(3) states that an order is not in the best interests of the child “unless it protects, to the greatest extent possible, thechild’s physical, psychological and emotional safety, security and well-being”. (

a) I.J.’s health and emotional well-being [33] I.J. has had a troubled childhood, plagued by family discord, residential instability, substance abuse and family violence. InKelowna, I.J. is under the care of his paediatrician, Dr. Kim Burrows, who confirmed Dr. Wilson’s diagnosis that I.J. suffers from

Attention Deficit Hyperactivity Disorder (“ADHD”), and prescribed Concerta to increase I.J.’s attention span and control his problematicbehaviour. [34] I.J. receives emotional and psychological support from his counsellor, Lori Kronyk. I.J. first began counselling sessions withLori Kronyk in 2016. Since his return to Kelowna at the end of September 2020, I.J. has met with Lori Kronyk once per week.

I.J. alsoreceives emotional, social, academic, behavioural and cultural support from Tyna Smith, his Indigenous advocate at the [omitted forpublication] [omitted for publication] School. [35] I.J. is receiving treatment for his ongoing dental problems from his paediatric dentist and orthodontist. Recently, his orthodontistfitted I.J. for braces.

I gather from April 22, 2021 to June 27, 2021, I.J. also receiving tutoring from Linda Noakes of [omitted forpublication] Tutor. [36] The evidence to date indicates that T.M.J. is vigilant, perhaps “hyper-vigilant”, in attending to I.J.’s physical, psychological andemotional health. I am troubled, however, about the impact of this litigation on I.J.’s well-being. T.M.J. has provided the court withcorrespondence from Dr. Burrows dated July 1, 2021, and Lori Kronyk, dated July 30, 2021. Neither Dr. Burrows nor Lori Kronyk hasappeared before this Court, although I understand that is the intent.

They have yet to be qualified to provide opinion evidence in theirfields of expertise. Needless-to -say, they have not been cross-examined on their opinions. [37]

Section 202 of the Family Law Act permits the court to receive hearsay evidence of a child it deems reliable.

Section 202 states: Court may decide how child's evidence is received 202 In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following: (

a) admit hearsay evidence it considers reliable of a child who is absent; (

b) give any other direction that it considers appropriate concerning the receipt of a child's evidence. [38] In T.A.O. v D.J.M, 2021 BCSC 1690 , Justice Shergill, discusses the purpose of s. 202. She states: [23] The FLA does not preclude a child from testifying in court, nor does it require a child to testify.

Section 202 simply grants this courtthe discretion to receive hearsay evidence regarding statements made by children, so long as the evidence is deemed reliable. Thisprovision is designed to protect a child from the potential psychological harm which may result from testifying in a family lawproceeding involving one or both of the child’s parents. This is an important and laudable goal, and in my view, the participation ofchildren in family disputes should be discouraged rather than encouraged.

However, where there are serious concerns about credibility,and the child is old enough, mature enough, and willing to testify, it may be preferable in some cases to receive the child’s testimonydirectly rather than relying on hearsay statements. [39] In her July 1, 2021 letter, Dr. Burrows states: I have been providing pediatric care to 11 year old I.J. who is First Nations, has ADHD and who has a history of trauma. He is doing well at the current time under the care of his aunt T.M.J.

However he reported to me during a phone conversation on June30th that he does not want to go on an upcoming scheduled visit to extended family member's (R.F.A.’

s) home. He indicated that he does not feel safe in the household. He does not want to be "bugged all day and night by the other children" whoreportedly stay up until 5 in the morning. He sustained a dog bite in the past when he lived there and is afraid that he will be exposed tothis dog again and not protected. His caregiver T.M.J. has noted that he has become quiet, less playful and sad appearing in the last couple of weeks linked to thisupcoming visit.

In my care of children, particularly children who have experienced trauma it is important that they are allowed to make choices forthemselves and have some agency over the circumstances and events in their life when deemed appropriate. I.J. is a competent minor and cognitively capable of doing this. He is communicating his wishes not to go on this visit and this should beconsidered and respected. [40] Lori Kronyk, I.J.’s counsellor, states: I am Lori Kronyk, Clinical Care Supervisor at [omitted for publication] First Nation, I.J. has been attending counselling with me sinceSeptember 2020.

I.J. has experienced a lot of traumatic change over the past few years and any sudden change to his routine causessignificant distress for I.J. Recently, I.J. has expressed a lot of fear and trepidation regarding going to visit "R.F.A." in the summer time. When queried, I.J.indicated he has fears regarding a dog that resides at the residence and has bitten him in the past, requiring a trip to the hospital.

Whenqueried regarding ways to resolve and address his fears, I.J. further indicated he did not want to leave his Aunty T.M.J.’s and that hehasn't had any contact with R.F.A. or his sisters since before Christmas 2020. I.J. expressed that even if the dog wasn't there at the house,he does not feel safe at R.F.A.’s. He says his siblings have no rules, stay up all hours of the night, unsupervised and treat him poorly. When asked about his planned trip to R.F.A.’s and how he feels, I.J. expressed fear about travelling. He is generally worried about thecurrent fires and also the possible outbreak of new fires.

He expressed worry about the smoke and getting stuck on the highway in thesmoke. I.J. further fears that “something might go wrong and I'll have to stay there and not come back.” When asked to clarify, I.J.indicated he does not want to be away from his Aunty T.M.J. because "she cares about me and R.F.A. doesn't. She doesn't even talk tome on the phone.”

I reminded I.J. of confidentiality and asked if he was aware Aunty had asked me to write a letter about this. I.J. nodded, indicating heknew about the letter. I then asked him if there was anything specific he wanted me to say in the letter or anything he didn't want me tosay. I.J. indicated he wants "everyone to know that I do not want to go to R.F.A.’s or ever live there again. I want to live with my AuntyT.M.J. and that's all." Further to this, I.J. stated "l just won't get in the car and no one can make me." In my professional opinion, it is in I.J.'s best interest to have finalization of his guardianship.

This looming court case has causedsignificant distress, attachment issues, and trauma to I.J. and he does not feel safe to explore and further develop relationships with hissisters and R.F.A. at this time. He is currently in survival mode. Perhaps in due time, as he is afforded a chance to heal, process andunderstand how to cope with his adverse life events he will develop the capacity to build those relationships and explore what they meanto him. At this stage of his development and in his current state of anxiety, however, it is not in his best interest to have any significantchanges happen in daily routine.

I fear this will set I.J. back on his healing journey and lead to detrimental changes in his behaviour. [41] In her affidavit, R.F.A. responds to the issues Dr. Burrows and Lori Kronyk raise in their letter. R.F.A. states at paras 17 to 21, inpart: [17] . . . Additionally, she included letters from a Dr. Burrows, and Lori Kronyk. Those letters state that I.J. doesn't want to come to seehis siblings because of the trauma he experienced when he came to live with me in July 2018, and that he won't come to visit until thetrial is over and he knows where he will be residing permanently.

The letters state that he doesn't want to come because he doesn't wantto be bugged by his siblings who stay up to 5 a.m. Also he is scared of a dog that bit him in 2020. [18] Firstly, none of the Children I care for stay up to 5 a.m. They all have appropriate bedtimes according to their ages. [19] And those kids that bug him are his sisters. Sisters that very much want to see him again. [20] The dog that bit I.J. was a random dog in the street. I have moved homes and do not live in that area anymore where the dog was. [21] And with respect to the "trauma", I have no intention of breaching the court order.

I will absolutely return I.J. to T.M.J. at the endof my parenting time. If I.J. comes up here for a visit, he will learn that there is nothing to be concerned about. We would have fun fortwo weeks, and then he would go back. If he never comes, then he will never know and remain scared, if he is in fact scared. [42] R.F.A. believes that T.M.J. is manipulating I.J. to voice his dissent with respect to visiting her in Prince George. She says thatwhen she speaks to I.J., he is always excited to talk to her and his siblings.

She states in her August 25, 2021 affidavit, “He always tellsme he wants to come for a visit and see his family again.” R.F.A. goes on to state: [24] On August 4, 2021, I had a phone call with I.J. and I had the phone on speaker call so all of I.J.’s siblings could talk with I.J. aswell. We all told him that we miss him and he said the same back to us. I told him that we were trying to arrange a visit but it was hardfor it to be organized because of the fires.

I.J. then said he wants to come visit us. [43] In July 2018, the court allowed R.F.A.’s application to remove I.J. from his home in Kelowna with police assistance and relocatehim to Prince George. Overnight, I.J. was forced to change caregivers, communities, homes, schools, friends, counsellors, supportpersons. I accept this could be traumatizing to I.J., particularly so in light of his troubled past. I do not know if forcing I.J. to haveextended visits with R.F.A. in her home will alleviate or exacerbate his distress. Dr.

Burrows and Lori Kronyk say I.J. ought to havesome agency over his circumstances and the events in his life. There is nothing in their correspondence to suggest that they suspect I.J.’sviews are not his own and that he is simply parroting something T.M.J. has said or wants him to say. [44] Given his age, if I.J. is refusing to “get in the car” to go to Prince George to visit with R.F.A., I am not sure how T.M.J. issupposed to “make him” without resorting to

an act of family violence. (

b) the child’s views, unless it would be inappropriate to consider them [45] Section 37(2)(

b) requires the court to consider the child's views unless it would be inappropriate to do so. A child’s views areconsidered inappropriate where the child is very young or suffers from serious cognitive impairment. Neither of those concerns is presentin this case. In G.A.G.R. v. T.D.W., 2013 BCSC 586 , Justice Butler noted the concept of giving effect to the views of a child,where appropriate, is consistent with

Article 12 of the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3states:

Article 12 1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in allmatters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedingsaffecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules ofnational law. [46] Canada signed the Convention on May 28, 1990.

Although it has never been implemented, it was ratified on December 13, 1991. [47] In A.M.V. v. J.R.M., 2020 BCPC 35, I stated at paras. 153 and 154 : [153] Although the courts are encouraged to take account of the views of children, this does not mean that the children’s views aredeterminative or even presumptively so. A child’s view is not synonymous with a child’s best interest. Still, the child’s view provide“context in which to understand better the whole of the evidence that must be weighed”: M.H. v P.S.W, 2018 BCSC 1318 ,referencing Rupertus v. Rupertus, 2012 BCCA 426 at para. 13.

[154] The question as to whether a child has reached an age and degree of maturity where it is appropriate to take his or her views onparenting time into account must be determined on all the evidence, with particular attention to the nature, strength and reasons for thechild’s views. It goes without saying, a court should consider whether a child’s views have been unduly influenced by someone else. [48] In J.D.L. v. K.L.L., 2021 BCPC 191 , Judge Patterson considered whether an 11-year-old ought to be allowed to choosewhere she lived and who she spent her time with.

He relied on Silva v da Silva, 2018 BCSC 788, a decision of Justice Flemingconcerning whether an eleven-year and seven-month-old boy should have his views heard by the court on an application by a parent torelocate with the child outside of Canada. Justice Fleming noted (at para. 59), “the views of children as young as nine have prevailed, andthat concerns about what underlies his stated reasons are properly considered in determining what weight those views should be given.” [49] I.J. is of an age he is presumed to have the capacity to express his views on who he wishes to visit, when and where.

I.J. hasexpressed his views on parenting arrangements to: (

a) R.F.A.; (

b) T.M.J. (

c) C.B.J.; (

d) Family Justice Counsellor Erica McCuaig, (e)Family Justice Counsellor Jill Adamson; (

e) Paediatrician, Dr. Kim Burrows; (

f) Clinical Counsellor, Lori Kronyk; and (

g) the court. [50] In FJC Erica McCuaig’s October 21, 2019 “Views of the Child Report”, I.J. made it clear that he wanted to live with T.M.J.,spend more time with his father, and stay in contact with R.F.A. and his sisters through FaceTime. In his interview with FJC JillAbramson as documented in her October 5, 2021 s. 211 report, I.J.’s preferences as to parenting arrangements have become moredefinitive.

FJC Adamson writes: I.J. feels very close to his dad, and with a big smile noted “I like spending as much time with him as possible because he’s my dad.” Hisdad works during the week so I.J. goes over to his apartment on the weekends, and they walk to stores and play video games or watchmovies together. I.J.’s dad shares his apartment with a roommate who is nice. I.J. likes sleeping there when he can and appreciates howhis dad always cares for him.

I.J. recalled what it was like when he went to live with his dad in [Village 1] when he was six years old,saying “I remember how nice it was to live in a small town, there were trails and wildlife and I didn’t have to smell smoke all the time.” I.J. had a fun summer when he first went to stay with T.M.J. and N.T. in Kelowna and now that his dad lives there he does not want toleave. T.M.J. and N.T. are very good to him and their friends drive them places; they go bowling, to the swimming pool or to the lake.They watch television together and T.M.J. cooks for them.

I.J. appreciates how T.M.J. makes him feel safe and cared for. She buys himwhat he needs and makes sure he spends time with the right people who are not doing bad things. He recalls feeling very happy to comeback to start school in Kelowna. There is always a lot going on in their community including football games and “native stuff.” I.J. has not spent any regular time with his mother since he was five years old. He last saw her about a week before T.A. came to pickhim up to return to Kelowna last fall.

His mother does not have a house or any money, so she came to R.F.A.’s house for “just a minute tosee me and then she was gone.” I.J. noted firmly he does not want to see his mother right now. I.J. did not want to drive up to Prince George this summer because he was worried about all the fires closing roads and he was afraid hewould get “trapped” in Prince George again. When he went to R.F.A.’s house for Labour Day weekend, it felt very good to see hissiblings, but he felt like every time he sees his sisters, they get less time to talk to him.

R.F.A. has moved into a new complex and theywent to a park or his aunt’s house in the same complex. It is still in an unsafe part of town and I.J. described the home as very messy. I.J.“has no idea why R.F.A. wants me to live with her; the kids pretend to get hurt from me and when I flick my fingers at them they say Iscratched them.” R.F.A. usually stayed in her room and the children just hung out together.

When asked if he would like his family or the judge to know his wishes, I.J. replied, “I want to live with my dad or Aunt T.M.J.,everywhere else feels very unsafe and I do not want to leave here.” I.J. stated it was good to see his siblings when he went to Prince George, but he wants to remain living in Kelowna. [51] Because the Child and Youth Legal Centre had yet to assign I.J. legal counsel, I conducted an in camera judicial interview withI.J. on November 23, 2021, with the consent of I.J. and the parties. I conducted this interview over MS Teams.

I.J. was in a private officeat [omitted for publication] with his Indigenous Advocate Tyna Smith. I explained to I.J. that he had many people in his life who lovedhim and wanted to spend time with him during the winter school break. I told him my job was to help his caregivers figure out how thismight be accomplished. Given the school break was 17 days, I assured I.J. it may be possible for him to spend some time with all of hisloved ones, should he choose to do so. I.J. told me he has spent every Christmas since he was six with others and he wants to spend thiswinter break with his father.

He does not want to go to Prince George to visit with R.F.A. for any part of the winter holiday. He definitelyhas no interest in travelling to Prince George on an airplane by himself. I.J. acknowledges that if he remains in Kelowna for the schoolbreak, he would also spend a fair bit of time with his Aunt T.M.J. [52] I.J. told me he did not want to go to Prince George to visit with R.F.A. unless he asked to do so. He denies having done so andsays those who say otherwise are lying. I.J. cited a number of ways in which R.F.A.’s household is deficient.

I note that in her August25, 2021 affidavit, R.F.A. disputes the veracity of I.J.’s complaints. I accept I.J. likely embellishes R.F.A.’s shortcomings in order todefend his decision to remain in Kelowna. [53] A child’s view does not have to accord with an adult perspective in order to be sincere. Still, it is worrisome when a childdemonizes a caregiver out of some grotesque distortion of reality. This is not what is happening in I.J.’s case.

I acknowledge there are avariety of reasons why a child refuses to visit another caregiver, including estrangement, alienation, separation anxiety, and fear for anemotionally vulnerable caregiver, or a simple preference for one caregiver over the other. [54] I find it entirely plausible that I.J. may not want to visit with R.F.A. in Prince George out of loyalty to T.M.J. Equally plausible isthat I.J. genuinely fears that if he goes to Prince George to visit with R.F.A., he will get “trapped” there as he had in the past.

Alsopossible is that I.J.’s decision as to who, when and where he wants to visit is the product of competing complex emotions. Hopefully,I.J.’s mental healthcare professionals can help him work through these issues. What I can say is I.J. is steadfast that he does not want tovisit R.F.A. in Prince George, even if all his complaints about her household are addressed to his satisfaction. To be clear, I do notbelieve I.J. is opposed to having visits with R.F.A., but rather, he is opposed to having visits with her in her home in Prince George.

(

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

d) the history of the child’s care [ 55 ] At various times in his life I.J. has suffered a number of abrupt changes in his homes and caregivers: a. I.J. lived with his mother and father in [Village 1] for the first five months of his life until his parents separated; b. I.J. then lived with his mother and her new partner (E.N.) and their children (A.G.A. and C.M.N.) in Prince George, until 2015. During this period I.J. rarely saw his father. C.B.J. said he felt pushed out of I.J.’s life by T.A.’s family.

I.J.’s home with his mother suddenly evaporated when MCFD removed A.G.A. and C.M.N. from T.A.’s care and left I.J. permanently with his father, C.B.J. At this time, I.J. was four-years-old, A.G.A. was three and C.M.N., about a year and one-half. c. I.J. went for a visit with C.B.J. over the spring break of 2015 and never returned to his mother’s care. I.J. spent the next 15 months living with his father and his new partner, S.F., and their new baby, K, in [Village 1]. During this period, I.J. rarely saw his mother or his maternal half-siblings; d.

In the summer of 2016, and for the next two years, I.J. lived with his paternal great aunt and uncle (T.M.J. and N.T.) in Kelowna. During this period, I.J. had infrequent communication with his mother and maternal relatives, but saw his father and his paternal relatives regularly; e. From July 19, 2018 until September 29, 2020, I.J. lived full time with R.F.A. in Prince George in various residences. R.F.A.’s household was fairly crowded compared to I.J.’s home in Kelowna. Instead of being the only child, I.J. was one of six children, two of whom were his younger half-sisters he had not seen in years.

In his interview with FJC Erica McCuaig, I.J. described R.F.A.’s home as a house with four bedrooms and 12 residents. From July 2018 to August 2019, R.F.A. refused to allow I.J. to spend any time with T.M.J., other than brief supervised visits at the [omitted for publication] Child & Family Services Society in Prince George; and f. From September 29, 2020 until present, I.J. has been living with T.M.J. and N.T. in Kelowna, BC. As C.B.J. also lives in Kelowna, I.J. has parenting time with his father most weekends.

In the past year or so I.J. has only returned to Prince George to visit with R.F.A. on one occasion, and that was over the 2021 Labour Day long weekend. [ 56 ] There were six times in his life that I.J.’s family life disintegrated, forcing upon him abrupt changes in caregivers, residences and communities. As he got older, these events also involved I.J. having to change schools, supportive professionals and friends. [ 57 ] C.B.J. testified that I.J. was in very poor shape when he came to live with him in [Village 1] in 2015 after MCFD had apprehended T.A.’s other children.

C.B.J. says I.J. was withdrawn and emotionally unstable. He was terrified and cried if someone tried to hug him. I.J. had limited vocabulary and could not speak as a five-year-old should. C.B.J. was concerned that I.J. had been exposed to gang violence. C.B.J. believes I.J. has thrived in his Aunt T.M.J.’s care and he should stay put.

Still, C.B.J. is supportive of I.J. visiting with his maternal relatives provided it is I.J.’s choice to do so. [ 58 ] In para. 6 of her August 25, 2021, affidavit, R.F.A., states: [6] For years, I did not know where I.J. was residing and in 2016 I heard that I.J. went into foster care. That is when I started the process trying to locate I.J. and bring him home with his siblings. [ 59 ] I.J. was not in foster care; he was living in Kelowna with his aunt T.M.J. and her husband N.T.

I gather R.F.A.’s inability to discover I.J.’s whereabouts was due to the fact she is connected with I.J.’s maternal family but not his paternal family. Although she had been an active presence in I.J.’s life prior to MCFD involvement in 2015, R.F.A. had no extant relationship with I.J. when the court granted her guardianship on July 20, 2017, and minimal involvement when the court granted her primary residence on July 18, 2018. There was virtually no discussion in those two proceedings as to why relocating I.J. to live with R.F.A. was in I.J.’s best interest.

The primary focus was on giving effect to R.F.A.’s conviction that I.J. should live with two of his half-sisters who were in her care. [ 60 ] R.F.A. has not yet testified in the trial proper. She provided some oral evidence on September 27, 2020, in the hearing of T.M.J.’s interim application to have I.J. returned to her care pending the completion of the trial. R.F.A. has filed a number of affidavits in these proceedings.

R.F.A.’s views resonate in the October 5, 2021 s. 211 report: she is pleased I.J. has a close relationship with his father, but believes it is in I.J.’s best interests to remain with his siblings. By “siblings”, she means A.G.A. and C.M.N., the daughters of T.A. and E.N., who are in her care. In her affidavit, R.F.A. states at para. 34: [34] I am fighting not only for I.J., but also for his sisters so that they can have a relationship with him. I.J. has been separated from his family and I strongly believe that an 11-year-old child should not be able to make a decision to never see his siblings again.

I understand that an 11-year-old boy probably doesn’t like spending time with his younger sisters, but sibling relationships are the most important that a person has. You stick with your siblings your entire life.

When you get older, your parents will pass away, and your friends will come and go, but your siblings stay with you until the end of your life. [35] By permitting I.J. to stay away from me and his family is going to have some long lasting and irreversible damage to some of the most important relationships in his life. [36] If I.J. does not come and the breach is permitted to occur, then there is no way I can sit by and let I.J. stay in Kelowna.

This type of decision is not in I.J.’s best interest and if he is going to stay away, the most important relationships that he will have in his life will be lost. [ 61 ] I.J. has many people in his life who love and care for him. His “family”, however, is not solely as R.F.A. defines it. I.J. is also bonded with his paternal extended family. In particular, I.J. is very closely bonded with his Aunt T.M.J. and his father C.B.J. I.J.’s mother, T.A., has invested so little time with I.J., it seems he has given up having a relationship with her.

R.F.A. wants I.J. to forge a strong bond with his Prince George siblings, which is laudable. Nevertheless, I am not persuaded sibling relationships ought to trump all

other familial relationships.

Section 37 of the Family Law Act does not define a child’s best interest as primarily concerned with reinforcing sibling relationships. R.F.A.’s views as expressed in her August 25, 2021 affidavit do not appear to be ones shared by I.J.’s paediatrician and counsellor who say I.J. ought to have a measure of self-determination in these matters. In M.W.B. v. A.R.B., 2013 BCSC 885 , Justice N.

Brown held (at para. 254) the factors set out in s. 37(2) of the Family Law Act must be considered separately, but in the end the evidence must be considered as a whole. [ 62 ] I do not accept as a matter of principle, I.J. fostering a relationship with two of his siblings is more important to his “physical, psychological and emotional safety, security and well-being” than fostering an enduring relationship with his father. Parenting time is the right of the child. In Michel v.

Graydon , 2020 SCC 24 , at para. 77 , the Supreme Court of Canada reminded the trial courts that children are not property, but individuals who are full rights bearers. Section 40(4) of the Family Law Act holds that, “in the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child”. [ 63 ] With respect to the issue before me, I.J. is pretty clear he wants parenting time with his father over the upcoming winter holiday more so than visits with his siblings in Prince George.

As indicated previously, I do not get the sense I.J. opposes spending time with his younger sisters; he just does not want to visit them on R.F.A.’s terms. Specifically, he does not want to be held captive in R.F.A.’s household in Prince George. Moreover, I.J. does not want to have to discuss with R.F.A. his decision not to visit with her in Prince George. He says that if he wants to have a visit with R.F.A., he will let his Aunt T.M.J. know and she will arrange it. (

e) the child’s need for stability, given the child’s age and stage of development [ 64 ] The current status is that I.J. now lives with T.M.J. and N.T. in Kelowna and spends every other weekend with his father C.B.J. who resides nearby. Given I.J.’s home life entirely disintegrated at various times in the past, I find I.J.’s need for a nurturing, stable and engaging environment is paramount. [ 65 ] I.J. told Dr. Burrows and Counsellor Kronyk he does not feel safe in R.F.A.’s household.

In her October 5, 2021 Views of the Child Report, FJC Adamson stated: When asked if he would like his family or the judge to know about his wishes, I.J. replied, “I want to live with my dad or Aunt T.M.J., everywhere else feels very unsafe and I do not want to leave here.” [ 66 ] I am unsure whether I.J.’s apprehension is a result of specific incidents which occurred while living with R.F.A., or if he fears she will not allow him to return to his home in Kelowna at the end of the visit. [ 67 ] I am aware that R.F.A. has moved several times, but always within the City of Prince George.

I gather the members of R.F.A.’s household have expanded and contracted at various times, but have always included at least R.F.A., N.A, A.G.A., C.A, L.G., AL. N. The evidence suggests that sometimes A.G. lives with R.F.A. and sometimes he does not. I get the impression – which is a far cry from being certain – that I.J.’s unease is not attributable to a specific incident or person at R.F.A.’s household, but rather to having been uprooted from his home with T.M.J. in Kelowna and transplanted into R.F.A.’s home in Prince George.

Whatever the reason, it appears I.J. regards visiting R.F.A. in Prince George with a fair degree of trepidation. (

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 [ 68 ] By way of my interim order of September 29, 2020, I invested T.M.J. with all parenting responsibilities for I.J., subject to a duty to keep (

a) I.J.’s other guardians advised of any matters of a significant nature affecting I.J.; and (

b) discuss with other guardians any significant decisions that have to be made concerning I.J. I would not have made this order if I was not satisfied that T.M.J. was capable of exercising full parental responsibilities. As I indicated in my September 29, 2020 decision, although I have less information about R.F.A., I assume she is capable of exercising her responsibilities. [ 69 ] I gather R.F.A. and T.M.J. are both persons of modest means. T.M.J. is a casual worker in the housekeeping and laundry department of [omitted for publication] (a seniors’ home) in Kelowna.

I do not know where R.F.A. works or even if she does work. N.T. has worked for over 25 years for his brother’s logging company, [omitted for publication]. I do not know where S.G. works or his source of income. I do note one of the reasons C.B.J. believes I.J. is well-placed with the T.M.J. and N.T. is because they are financially stable. As he is the only child in their household, T.M.J. and N.T. can offer I.J. opportunities. He also considers important the fact that I.J. does not live in the Prince George “hood”, which C.B.J. considers a crucible of crime.

For the purposes of this application, however, I assume T.M.J., C.B.J. and R.F.A. all have a safe and nurturing place for I.J. to visit over the winter break. (

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 [ 70 ] I am not aware of I.J. being exposed to family violence in his home in the past few years. (

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 [ 71 ] The circumstances surrounding I.J.’s removal from T.M.J.’s care in July 2018 make it difficult for T.M.J. and R.F.A. to compromise in I.J.’s best interests. I wonder if the détente between these two guardians will survive these proceedings. C.B.J. aptly describes T.M.J. as a caregiver who loves I.J. very much and is “fiercely protective” of him.

T.M.J. seems to regard R.F.A. as a menacing presence who needs be kept at bay. On the other hand, R.F.A.’s dogged determination to have I.J. live with her despite his preferences or circumstances is disconcerting. I have no doubt that R.F.A. loves I.J. dearly; however, it is puzzling that I.J. said to FJC Adamson he has

no idea why R.F.A. wants him to live with her. [ 72 ] There are also a number of practical reasons which make co-parenting I.J. difficult: a. Neither R.F.A. nor T.M.J. is I.J.’s biological parent; b. R.F.A. has allied herself with T.A. and T.M.J. has allied herself with C.B.J. So although there are essentially two competing perspectives, I.J. must cope with multi-party conflict for his parenting time; c. R.F.A. and T.M.J. reside an eight-hour drive apart and none of the guardians has a driver’s licence; and d.

R.F.A. and T.M.J. appear to have very different parenting styles. [ 73 ] There is some suggestion that I.J. only agreed to a four-day visit with R.F.A. in September 2021 because she had filed her August 16, 2021 application to enforce an order. The question this raises is whether this visit ultimately resulted from T.M.J. relenting because she did not want to have to pay R.F.A. money as a penalty for non-compliance, or I.J. relenting because he did not want his Aunt T.M.J. to be penalized because of his obstinacy. (

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being [ 74 ] I am not aware of any civil or criminal proceedings relevant to I.J.’s safety, security or well-being. Conclusion [ 75 ] I conclude the court should not enforce the April 20, 2021 Interim Consent Order with respect to R.F.A.’s parenting time over the 2021 winter school break. As a “full rights bearer”, I.J. is entitled to be heard in this judicial proceeding and have his views and preferences “given due weight”.

I am satisfied that I.J. does not want to travel to Prince George for extended visits with R.F.A. and her household during the winter school break. I am satisfied that I.J. should not be forced to visit with R.F.A. against his will, or be intimidated by threats of penal consequences to his primary caregiver if he chooses not to visit R.F.A. [ 76 ] In sum, I am allowing T.M.J.’s application to vary the April 20, 2021 Interim Consent Order by deleting Term 1(3) which provides R.F.A. will have a Christmas visit with I.J. beginning Sunday, December 19, 2021, and ending Sunday, December 26, 2021.

It will be replaced with the following term: R.F.A. will have a Christmas visit with I.J. during the 2021 winter school break at such dates and times and at such place as the parties and I.J. may agree. [ 77 ] I will ask Counsel for T.M.J. to draft the order in respect to this ruling. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia