G.G. v. J.C., 2020 BCPC 32

Citation: G.G. v. J.C. 2020 BCPC 32 Date: 20200211 File No: 114414 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.G. APPLICANT AND: J.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. HEINRICHS

Counsel for the Applicant: M. Cheema Appearing on their own behalf: J. C. Place of Hearing: Kelowna , B.C. Dates of Hearing: January 6, 7, 2020 Date of Judgment: February 11, 2020 [ 1 ] B.C. is currently [omitted for publication] years of age. Her parents, G.G. and J.C. lived together in Calgary, where B.C. was born.

After her parents separated, the parties obtained a final order by consent in May 2016 in the Provincial Court of Alberta, which was recognized as an order in the Provincial Court of BC on April 11, 2017. [ 2 ] At that time, B.C. lived with her mother, G.G., and saw her father on alternating weekends.

Before moving to Kelowna, J.C. commuted from Calgary to see B.C. every second weekend in Kelowna and occasionally took her to Calgary. [ 3 ] On April 11, 2017, this Court required J.C. to exercise his parenting time only in Kelowna, pending further hearing – which order changed that part of the final order on an interim basis. [ 4 ] On April 24, 2018, a year later, the parties consented to expand the parenting time to include Wednesdays and alternate weekends, with specific arrangements for exchange of B.C. [ 5 ] J.C. provided a self-employment income statement for 2017 indicating an income of $49,000, but reported that he was earning $40.00 per hour at the time of the court order, which at full time hours would equal an annual income of $83,000.

On an interim basis, J.C. was ordered to pay $560 per month for child support pending further court order.

He is currently in arrears, not having paid support for the most part of a year. [ 6 ] Almost a year later, on April 18, 2019, the parties attended a Family Case Conference and agreed that J.C.’s Reply with Counterclaim filed April 10, 2018 would be dismissed, and the Order they reached by consent on April 24, 2018 would continue in effect. [ 7 ] Things worsened by July 2019, as the Court ordered on July 9, 2019 that communication between the parties would be by email only, not text, and on the recommendation of the Court they would try to use a “Talking Parents” App; that neither would remove B.C. from the Okanagan Valley without the written consent of the other, except for trips to Vancouver; a report would be prepared under s. 211 of the Family Law Act and daytime parenting time for J.C. was specified for Wednesdays and Saturdays. [ 8 ] Shortly after, on July 18, 2019 a further interim order was made prohibiting certain people from being present during B.C.’s time with her father, and it specified that G.G. or her father, would provide the pick up and drop off for B.C.

Neither party was to have communication with the other during that time. On August 20, 2019, the Court made a further interim order requiring that the pick up and drop off for B.C. would occur at Starbucks, and each party was to comply with the interim order. [ 9 ] In anticipation of a review of child support, the Court made a further order on September 23, 2019 that J.C. file and serve his Financial Statement in Form 4 with all required attachments by October 31, 2019. This has not yet been done.

The parties agreed on September 23, 2019 to reduce the interim child support from $560 to $376 per month on an interim, without prejudice basis. The Court re-ordered a report under

section 211of the Family Law Act , and J.C. was to be personally present for all pick ups or drop offs of B.C. for his parenting time. [ 10 ] Although a request for a report under s. 211 of the Family Law Act was made through the Family Justice office, no report was prepared for the hearing before me. [ 11 ] The application before me was filed by G.G. on March 22, 2017, seeking to vary the final order made in Alberta and recognized here in BC on April 11, 2017. She amended her application in July 2019 and again on September 23, 2019. Her claim is for:

a) acknowledgement that she is the sole guardian of B.C., effectively changing the final order where both parties were determined to be guardians;

b) sole parenting responsibilities including providing the primary residence for B.C.; and

c) a restraining order against J.C. [ 12 ] Although J.C.’s Reply and Counterclaim filed April 10, 2018 was dismissed on April 18, 2019, he has filed a new Reply on January 6, 2020 opposing G.G.’s claim for guardianship, parenting responsibilities, primary residence and a protection order. J.C. claims guardianship and 50/50 parenting time and responsibilities. This raises some legal issues about an application that was dismissed, albeit by consent, rather than an application that was withdrawn.

If an application is dismissed, it is considered to have no merit. [ 13 ] Neither party has made a formal application for a review of child support. On June 11, 2019, Judge Wyatt directed that G.G. would have to file a new application for

section 7 expenses and other orders, as it was not part of her current application. [ 14 ] The parties have consented to an interim variation of child support, with J.C. yet to produce a complete Financial Statement in Form 4, as per the court order of September 27, 2019. I will remind the parties that none of the interim orders is binding on the judge who hears the child support issue at trial. [ 15 ] There are a number of the other pending notices of motion and applications filed, which I will deal with at the end of my decision. [ 16 ] These are the questions to be resolved:

1. Should both parents continue as guardians of B.C.? 2. How are the parenting responsibilities for B.C. to be allocated between the parents? 3. Is it in B.C.’s best interests to have a primary residence with her mother or to share her residency between her parents?

a) A subset of 3, what kind of parenting time will B.C. have with her parents? 4. Is a protection order warranted against J.C.? 5. Outstanding applications. 1. Should both parents continue as guardians of B.C.? [ 17 ] The Order of May 17, 2016 in the Provincial Court of Alberta acknowledges that both parents are guardians of B.C.

That order was recognized in BC on April 11, 2017. [ 18 ] In British Columbia, the Family Law Act states at section 39(1) “while a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian.” G.G. and J.C. lived together when B.C. was born and they are the B.C.’s parents. The starting point, therefore, is that each parent is a guardian. [ 19 ] Section 39(2) allows the Court to make an order after separation that a parent is not the child’s guardian.

In this case, the Court already made an order that both parties are guardians of B.C. [ 20 ] Similar applications to remove a guardian have come before the Courts in the past. In the case D. v. D. , 2013 BCPC 135 , the court’s conclusion was that termination of guardianship is appropriate only in extreme situations. In M .A.G. v. P.L.M. 2014 BCSC 126 , the BC Supreme Court made clear that it is rarely in a child’s best interest to terminate guardianship.

The Court should first decide whether a reallocation of parental responsibilities can eliminate any potential risk to the child. [ 21 ] The basis of G.G.’s application is that she believes J.C. is a dangerous person, that he associates with dangerous people, and that he has put B.C. in an unsafe situation on more than one occasion.

She also submits that the interim orders of July 9, 2019 and August 20, 2019 no longer provided for overnight parenting time, which validates her position that he should not continue in his role as guardian if he is not even permitted overnight parenting time with B.C. [ 22 ] Much of G.G.’s evidence as to her assertion that J.C. is dangerous and associates with dangerous people was based on hearsay, and I cannot place weight on that evidence. G.G.’s own knowledge of J.C. being dangerous was that when they lived in Calgary, a man came and banged on the door of the house where they lived.

This was the final piece, she says, that caused her to separate from J.C., and to move back to Kelowna where she grew up, had family support and felt safe. [ 23 ] The examples she gave that caused her concern about J.C.’s ability to properly supervise B.C. were: 1. leaving her alone at a pool, unsupervised; 2. having a meal where a person with a criminal record attended; and 3. driving after having consumed alcohol and without a valid driver’s licence. [ 24 ] Jennifer Mitchell, a social worker with the Ministry of Children and Family Development (MCFD), testified that she investigated the concern about leaving B.C. in the pool unsupervised.

J.C.’s explanation was that he had arranged for a teenager and another adult to watch B.C. for a short period of time while he stepped away, but he did not communicate that to B.C. B.C. had reported to G.G. that she felt her father had left her alone. Ms. Mitchell confirmed that J.C. realized that he should have been clearer with B.C., so that she would not have felt left alone. [ 25 ] G.G. could not give any specific first-hand evidence of J.C. driving after having consumed alcohol.

G.G., gave oral testimony and adopted the evidence in her Affidavit filed August 8, 2019, that on August 31, 2019 (which I believe she meant to be July 31, 2019), she observed J.C. drive a vehicle into a parkade, then walk over to the Starbucks to pick up B.C. J.C. did not challenge G.G. in cross- examination. His own evidence was that he has not driven a vehicle while his licence was suspended. He admitted that his licence has been suspended by FMEP for arrears of child support to his first wife for their two children. He is working towards getting his licence back.

On this point I prefer the evidence of G.G. – she was able to identify where and when she observed J.C. driving. J.C. has not always been forthright with G.G., as I will review in more detail later in this decision. [ 26 ] While some of these examples are concerning, they can be addressed by terms of orders that would require compliance in order to ensure B.C.’s safety.

However, they do not warrant the removal of J.C. as a guardian of the child. [ 27 ] Further, based on G.G.’s evidence that she believed J.C. to be involved in the illegal drug world when they lived in Calgary, G.G. would have held the same views of J.C. when she entered into the Consent Order of 2016. She agreed that he would be acknowledged as guardian of B.C., despite her fear of his involvement in illegal activities. [ 28 ] G.G. relies on the weight of the interim order having excluded overnight parenting time for B.C. with her father. An interim order is not binding on the trial judge.

Often when an interim order is made, it is based on brief evidence, the other party may not have had an opportunity to fully defend themselves against the allegation, and sometimes an interim order is made as a safety precaution until a full trial can be heard. I have had the opportunity over two days of hearing evidence to determine whether or not B.C. should have overnights with her father, which I will address later in my decision. The interim order in and of itself does not convince me either way whether or not J.C. should remain a guardian or not.

[ 29 ] My conclusion on the matter of guardianship is that the parties will remain guardians of B.C., as set out in the Order of 2016, recognized by this court in 2017. I find that there has been no significant change of the circumstances since that order was made that warrants any change to guardianship. 2. How are the parenting responsibilities for B.C. to be allocated between the parents? [ 30 ] To determine parenting responsibilities, residence and parenting time, I must consider only what is in the best interest of the child. [ 31 ] The Family Law Act at s. 37(2) sets out the factors I am to consider:

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

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

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

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

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

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

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

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

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

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

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 32 ] Section 37 (3) stresses that an order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. [ 33 ] The final order made in Alberta on May 17, 2016 does not address parenting responsibilities. However, the order does include a term that the mother, G.G., and the child are permitted to relocate to Kelowna, British Columbia.

Based on the access arrangements in the order, it is clear that J.C. was not moving to Kelowna, British Columbia at the time. The order also stipulates that G.G. is the parent with default parenting time – that is, at all times other than when B.C. is with her father. [ 34 ] Historically then, G.G. has been the parent with the primary care of B.C.

B.C. has come to know her mother’s home as her home, and whether it is in the basement suite of G.G.’s parents’ home or eventually another residence, I accept that B.C. has been and is comfortable, safe and well adjusted in her mother’s care. [ 35 ] G.G. had some difficult with alcohol in 2017, but sought treatment and support and has been sober for 15 months at the date of trial. MCFD was involved briefly when G.G. was dealing with her alcohol issues.

B.C. was not removed from G.G.’s care and the Ministry is no longer involved. [ 36 ] G.G. currently lives in a basement suite of her parents’ home, each of whom confirmed that in their testimony, and relies on them for child care on occasion when her work or personal matters require her to be away in the evenings, or weekends. [ 37 ] G.G. described the daily and weekly

schedule she maintains for herself and B.C., a balance of life, special activities and playtime. B.C.’s bedtime is 8:30. G.G. has taken on an additional job to her full time work as a realtor, and on occasion the grandparents assist with child care. B.C. is comfortable both upstairs and down. For example, Mr. G. described how B.C. goes to bed in her room downstairs, even when G.G. is away and the grandparents are upstairs. There is no door preventing B.C. from moving upstairs and downstairs. G.G. has three sisters, all with children who are cousins to B.C., and all live in the Kelowna area.

They are a close extended family. [ 38 ] G.G. has shown the ability to care for B.C., to provide a stable home for B.C., and to nurture B.C.’s health and emotional well- being. J.C. confirmed in his testimony that he believes she is a good mother. [ 39 ] J.C. testified that he has a good relationship with B.C. -- she likes to spend time with her father, they bake cookies, play barbies, make crafts, go to the pools or beach, and do normal things for his parenting time. From the evidence, J.C. travelled to Kelowna every second weekend to exercise his parenting time with B.C.

Although G.G. testified that J.C. sometimes missed his parenting time with little notice, I find that overall J.C. has been fairly consistent in being a presence in B.C.’s life. As a result, B.C. knows her father and is comfortable spending time with him (although possibly not with others, which I will address later). As to J.C.’s ability to care for the child, I heard no evidence about him being unable to do the day-to-day things that a parent does: provide food, engage in activities, and the like. In that sense, there are no complaints about B.C. being in her father’s care.

[40] G.G. raised concerns about the supervision of B.C. at the pool, J.C. driving without a licence, and the people who may bepresent when B.C. is in her father’s care, some of whom she knows, some of who she does not. In addition, she has testified that B.C.makes comments about what her father tells her – for example, not to report things such as him driving without a licence, to her mother orB.C. will not be allowed to see her father again, or to watch her mother and report what she observes to her father, drawing B.C. into themiddle between her parents.

I will address each of these concerns. [41] I am satisfied with J.C.’s explanation about the pool incident, as both he and Ms. Mitchell the social worker described in theirtestimony. [42] Clearly, J.C. should not be driving a vehicle without a licence. I will address the impact of this later in my order. [43] As for the people who may be present during his parenting time with B.C., G.G. is concerned that some are dangerous and theothers, such as his current housemates, she does not know.

It is difficult to micromanage parenting time – at some point, there has to besome trust that a parent will not place the child in a dangerous environment.

Without further specific evidence that J.C. has put B.C. in adangerous situation, either with the people with whom he associates or lives, I cannot see a basis to limit who is also present when J.C.exercises parenting time. [44] There are already terms in the final order preventing him from leaving B.C. alone with V.B., his former spouse, or his two olderdaughters; he is not to allow B.C. to be present when anyone is consuming illegal drugs, and no drugs are to be in the possession of J.C.or in his residence when B.C. is in his care.

There is no evidence that he has not complied with those terms, which are intended forB.C.’s safety. To prevent B.C. feeling abandoned or in danger, a term of the order might be that J.C. shall not leave B.C. in the care ofany other person during his parenting time. [45] Section 37(2) sets out that I must also consider the child’s health and emotional well-being, and the impact of family violenceon the child’s safety, security or well being, and whether the family violence is directed toward the child or another family member. [46] As far back as Young v.

Young, (SCC), [1993] 4 S.C.R. 3, Supreme Court of Canada Madam JusticeL’Heureux-Dube addressed the impact of parental conflict on children. The court must do what it can to reduce the source of conflictbetween the parents, as that conflict has a long-term detrimental impact on the child. [47] Family violence has been defined in our Family Law Act, as follows: “family violence” includes (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use ofreasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including: (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence. [48] The courts in BC have looked at various situations where parents have exhibited conflict and have made findings about whatconstitutes family violence. [49] In several cases, the kind of verbal language used between the parents constituted family violence. In L.A.R. v. E.J.R., 2014BCSC 966, Mr. Justice Shultes comments at para 148 on distinguishing between the “all-too-familiar nastiness that spouses often inflecton each other during disintegrating relationship” from ongoing patterns of emotional abuse.

He found that when the father showed thechild a message in which he referred to the child’s mother as being “fucking twisted” this constituted family violence. At trial, the fathercontinued to feel justified in having shown the message to his child. Justice Shultes was concerned that the father would continue thatkind of behaviour. [50] In K.R. v. J.D., 2017 BCSC 182, Jenkins J. found that when the father called the mother “brain-dead”, “idiot” “disgusting” and a“fucking loser” in front of the child, this constituted family violence, and the father’s time with the child was restricted. [51] In N.M.A. v.

K.D.L., 2018 BCSC 1879, the father persisted in referring to the mother in derogatory terms, including calling her a“failure”, an “idiot”, a “moron, “pathetic” “sick nut job” and he signed his emails with the salutation “go fuck yourself.” The court madea protection order against the father. [52] In S.A.W. v. P.J.W., 2018 BCPC 376, the judge determined that the on-going insults from the father to the mother, calling her“fat”, “ugly”, and a “bitch”, sometimes in front of the children, met the threshold of being family violence.

The father in that case,acknowledged his bad behaviour, had already undertaken counselling to deal with it, and it stopped once the parties separated. The Courtfound that it was unlikely that the father would continue the violence.

[ 53 ] Involving children in litigation can amount to family violence, as per the decision in D. N.L. v. C.H.S . 2014 BCSC 1417 at paragraph 72 . The father made demeaning remarks about the mother, told that child that she had been “brainwashed” or manipulated by the mother, and suggested to the child that her mother was responsible for the conflict that divided the family. Parenting time for the father was denied in that case. [ 54 ] In some cases, the Court has held that communicating with third parties so as to embarrass or cause harm to the other parent amounts to family violence. In Fyfe v.

Fyfe , 2014 BCSC 1999 , Mr. Justice Hinkson found that the mother’s actions, such as sending endless emails to the children’s hockey coaches and other individuals in their hockey world, and being disorderly at the children’s games, amounted to family violence and granted a protection order against the mother from attending at hockey or communicating with the parties involved in hockey. [ 55 ] There is a growing body of cases in which the courts are finding that on-going parental conflict will result in restrictions, either regarding communication, contact, parenting time and sometimes guardianship. [ 56 ]

Section 38 of the Family Law Act sets out what I must consider about family violence:

a) the nature and seriousness of the family violence;

b) how recently the family violence occurred;

c) the frequency of the family violence;

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

e) whether the family violence was directed toward the child;

f) whether the child was exposed to family violence that was not directed toward the child;

g) the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence;

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; and any other relevant matter. [ 57 ] In the case before me, J.C. has behaved in ways that appear similar to that described in some of the cases I have reviewed. While J.C. presented as respectful and well-mannered on the witness stand, some of his communication with G.G. suggests another side.

From what I observed of G.G. in court, she is easily triggered by and reactive to J.C., which may make communication more challenging but does not excuse J.C.’s responses. [ 58 ] G.G. entered into evidence a number of texts from J.C. J.C. accepted that he had written and sent those texts to G.G.

I appreciate that I have not seen all of the text communication between the parties, but I am satisfied that I have seen enough to get a sampling of how they communicate with one another. [ 59 ] G.G. testified that on February 7, 2019 B.C. returned from her father and commented that her father said her mother (that is, G.G.) borrows money from him all the time and she wastes it on shopping and clothes so that they can never buy a house. The context is that G.G. is not only working one full time job, but has taken a second part time job and J.C. does not pay his child support.

I understand that G.G. does not borrow money from J.C., so what he told B.C. was untrue. G.G. texted J.C. as follows: “why the hell are u telling B.C. I borrow money from u for shopping and whatever I want? Grow up J.C., talk to her like she’s 6. Not your pawn or a little mind to poison. I don’t say shit about u. Keep your messed up thoughts to yourself.

If you are going to continue to mess with her head and cause problems for her and I because of it I won’t be letting her come stay with you.” [ 60 ] This is an aggressive text and could have been worded better, however, G.G. is clearly concerned about what J.C. is telling B.C.

She is giving him notice that if he continues to involve B.C. in discussions about finance between them, it may impact his parenting time with B.C. [ 61 ] In response J.C. writes: “Fuck off G.G. … Don’t ever fucking threaten keeping my girl from me … I’m not the one who constantly put her in danger and got a fucking dui or had my parents call social services on my parenting like you’ve had … Don’t think again or threaten keeping my daughter from me bitch. I told my friends just on the weekend how it’s about time for my selfish bitch Xgf to pull her yearly some kind of shit to keep my kid from me … Your so fucked.

You play with your own daughters head.” [ 62 ] Later in their text conversation he callings her a “fucking cunt”, a “slut”, and “bitch”, among other extremely derogatory language. He taunts her about her financial circumstances, and calls her a “fucking loser” and then writes: “Just wait till your parents die!!!

Or your dad dies here from fucking cancer I’ll make sure to give you fucking digs and bring up your dead parents on the fucking weekly you bitch.” I did not see the text from G.G. that precipitated this response. [ 63 ] On February 14, 2019 in a discussion (if I can call it that) about the pool incident, a text from J.C. to G.G. reads in part “So fuck you … your daughter will know of what you try to do and keep her from me for no other reason then to try and hurt me … fucking losers do shit like that.” [ 64 ] There are at least 20 further occasions where, in texts and some emails, J.C. calls G.G. “bitch”, “pissy”, “loser” or tells her to “go fuck yourself” to “fuck off” and “fuck you.”

[ 65 ] From the texts that have been presented, G.G. does not use similar language and at one point, asks J.C. to stop swearing at her. This is apparently not a reciprocal form of expression. [ 66 ] J.C.’s rude language is continuous, not isolated to a single poor response in a moment of anger. He did not testify as to taking any counselling to address how he writes or speaks to G.G. and I expect that J.C. will continue to speak or write to G.G. in this derogatory manner unless checked. Is this more than the usual uncivility that unfortunately occurs between parents after separation? I find that it is.

The parties had been separated for over three years when these texts were being sent. The language was continuous, demeaning, and certainly ineffective in addressing the parenting issues that were meant to be discussed between the parties: that is, soccer, supervision at the pool, engaging the child in inappropriate topics, and access arrangements. [ 67 ] Other than J.C. writing that he will tell B.C. about her mother, I do not find that B.C. has read the emails or knows how her father addresses her mother.

However, there is an indirect impact on B.C. as the language has had a negative impact on G.G. who is upset and stressed by the language. Because G.G. is transparent in expressing her emotion, I find that B.C. is also impacted by the language her father uses in his texts. [ 68 ] In addition to the evidence that J.C. told B.C. that her mother borrows money from him and uses it to go shopping, etc. there was further evidence that J.C. told B.C. that her mother is miserable. J.C. admitted this in his testimony, and explained that he said it because B.C. was asking him why she could not see him.

He has acknowledged that this was inappropriate. It is inappropriate because it draws B.C. into the conflict between her parents. [ 69 ] G.G. testified that on one occasion B.C. was watching her. The behaviour was odd and G.G. asked B.C. what she was doing. B.C. reported that her father had asked her to watch her mother and report back to him. Although this was not put to J.C. when he was cross-examined, J.C. did not challenge G.G. about it in her cross-examination. I accept that B.C. did tell her mother that she was watching her at the request of her father.

If B.C. feels that she needs to spy on one parent to report to the other, it puts her smack in the middle of the parents’ conflict. G.G. described the relief that B.C. showed when G.G. told her she no longer had to watch her mother. I did not get the sense when G.G. testified that she questions B.C. about what happens when B.C. is with her father, but rather that B.C. volunteers information to her mother.

For example, B.C. told her mother that her father has told her not to report things to her mother, but B.C. feels uncomfortable and checks with her mother if that is right. [ 70 ] It would be beneficial for B.C., for J.C. to repeat the Parenting After Separation course and take further courses or counselling in parenting or communication. [ 71 ] Some of the emails from J.C. to G.G. suggest interference with third parties to cause G.G. harm or embarrassment.

On July 20, 2019, J.C. writes: “heard you had a good story at your meeting today … I’m a normy ... not an alcoholic like you are … heard you need to do your 12 steps again as you blame others always and smoke weed in the last 9 months … I even have texts of you talking about it and how L. supplied drugs to you … Wonder how AA will take these letters I’ll send them.” [ 72 ] The underlying issue here is that J.C. is telling G.G. that he has received confidential information about her from her AA meeting, and he intends to forward what he considers incriminating information to AA to either discredit G.G. or cause her embarrassment.

G.G. has openly admitted her problems with alcohol.

I would expect J.C. to keep the confidentiality of what is said at AA and to support G.G.’s efforts to maintain sobriety, as that will only be beneficial for B.C – that her mother is healthy and well. [ 73 ] The language that J.C. uses towards G.G. does constitute verbal abuse, it is frequent and on going, it is intimidating, and as such I find that it meets the definition of family violence. [ 74 ] For two parents to share the parenting responsibilities of a child, there must be an ability to work together, to be cooperative, to be on the same page with respect to the child.

Instead, I see evidence that J.C.’s behaviour towards G.G. is undermining and unsupportive. While that may not amount to family violence, it presents as on-going conflict between the parties. Although he did not testify to this, he may have felt justified in his language and behaviour as he felt that his parenting time with B.C. was being threatened.

However, rather than engaging in a positive, constructive conversation about G.G.’s concerns and how they as parents might work towards improving their parenting, the language or discussion devolved into insults and a power struggle. [ 75 ] Effective co-parenting will not work when parents are engaged in a power struggle or hurling insults. [ 76 ] Based on the evidence of family violence and general conflict, I find that it will not be in B.C.’s best interest for her parents to share the responsibility for parenting her.

I find that G.G. will be the parent best suited to be the parent to make decisions for B.C., and will have the parenting responsibilities as set out in ss. 41 and 43 of the FLA . 3. Is it in B.C.’s best interests to have a primary residence with her mom, or a shared residence between her parents? [ 77 ] Included in the parenting responsibilities, is the responsibility of deciding where B.C. shall reside.

Given J.C.’s stated position at the end of the trial, that he was not seeking an order that B.C. live with him on a 50/50 basis, the primary residence for B.C. will be with her mother, G.G. [ 78 ] Even if J.C. had not changed his position, for similar reasons supporting my decision about the parenting responsibilities, I conclude on the evidence that it would not be a healthy situation for B.C. to have a shared residence between her parents. Shared residency is a challenging arrangement for a child and requires cooperation and good faith between the parents.

It is clear from the tension and stress between the parties, that it would not be a positive arrangement for B.C. While there appear to have been periods of time where the parties were able to cooperate and reach orders by consent, that degree of cooperation has evaporated at this point. [ 79 ] B.C.’s primary residence will be with G.G. 3(

a) What kind of parenting time will B.C. have with her father?

[ 80 ] Given that G.G. will be the parent who provides B.C.’s primary residence, the question becomes what kind of parenting time will B.C. have with J.C. [ 81 ] First, I must consider whether there has been a significant change since the Final Order was made in 2016 and recognized in BC in 2017.

If I find that there has been a significant change that warrants a change in J.C.’s parenting time, I must consider only what is in the best interests of B.C., with reference to the factors set out in s. 37 of the Family Law Act , in making a new order. [ 82 ] The final order of May 17, 2016 contemplated J.C. moving to Kelowna, BC, and set his parenting time on alternate weekends from Friday to Sunday; 2 weeks every summer, consecutive or otherwise, agreed between the parties no later than April 1st every year; and 1 week at Christmas, such week to be agreed upon by the parties no later than October 1 every year.

J.C. must keep G.G. advised of the address where he will exercise his parenting time and each will keep the other advised of their current address and contact information. [ 83 ] The fact that J.C. now lives in Kelowna is not a change since the order was made, since the order contemplated that possibility. [ 84 ] Over the years, the parties have made temporary, short-term arrangements to adjust the terms of J.C.’s parenting time, but overall the

schedule was approximately the same: Wednesdays after school and a period of time on alternate weekends. [ 85 ] The question is whether that

schedule remains in B.C.’s best interest and whether other terms are necessary to ensure B.C.’s physical, psychological and emotional safety, security and well-being. I find that the circumstances have changed in that the parties have lost the ability to cooperate and co-parent with each other; and that terms are necessary to ensure B.C.’s physical, psychological and emotional safety, security and well-being.

In imposing those terms, I must be satisfied that J.C. will comply with the terms of a court order. [ 86 ] To make that assessment, I look at how J.C. has complied with court orders and other relevant behaviour. [ 87 ] The final order made May 17, 2016 in Alberta and recognized on April 11, 2017 in BC, requires J.C. to keep G.G. informed of his address, and where he will exercise his parenting time with B.C. This formed the basis of some of the contention between the parties in the summer of 2019.

J.C. had texted G.G. to indicate that his landlord was days away from giving him notice, thereby informing G.G. that J.C. would be moving, but he did not provide her with the address for where he was living. His text suggests that she drop off B.C. at the address she believed was his former address, and texted G.G. to say that he can exercise his access wherever he likes from there. That is contrary to the order which requires him to both:

a) keep G.G. apprised of his residential address and

b) where he will exercise his parenting time. In Court, he testified that he moved on August 1st, but in his text or email to G.G. dated August 7th or 8th, he writes that he is still at the old address. He has not been transparent with G.G. [ 88 ] J.C. was to attend the PAS course and file a Certificate by May 24, 2018. He was late in complying with this order, completing the course in March 2019. [ 89 ] J.C. has not yet completed his Financial Statement in Form 4 as ordered by the Court on September 27, 2019. [ 90 ] J.C. has had his driver’s licence suspended. G.G. saw him driving.

The fact that he parked where he thought he would be out of sight, tells me that he was being surreptitious and is prepared to disregard the law. This would not be safe for B.C. [ 91 ] J.C. told G.G. that he would have a person from MCFD drive for him, when he picked up B.C. When G.G. approached the driver and asked for her business card, she was a realtor, not someone from MCFD.

J.C. was not forthright with G.G. [ 92 ] I have already reviewed J.C.’s name-calling and undermining of G.G. and examples of how he has drawn B.C. into the conflict. [ 93 ] J.C. has a dated criminal record for fraud. [ 94 ] These factors do not give me much confidence that J.C. will be compliant with a court order that relies on his honesty or self- reporting. This means that I must consider a

schedule and terms that will still allow B.C. to have contact with her father, but in a way that will be safe. I also must consider a way to reduce the sources of conflict between the parties. [ 95 ] The parents have shown that attempts to communicate, by text or email, and I expect in person, quickly turn into negative, non- effective back and forth accusations.

Using a neutral third party to organize the parenting time will eliminate that source of conflict. [ 96 ] G.G. and each of her parents testified that when J.C. drops B.C. off, he says something to her that changes her effect and it takes about 5 minutes to adjust to her normal self. It is common for children to require time to adjust between their parents’ care. I do not find that J.C. is saying anything inappropriate to B.C.

Using a neutral third party to pick up and drop off B.C. will allow each parent to say their goodbyes without the other parent present and can be a buffer time for B.C. between her parents. [ 97 ] Because J.C. does not have a driver’s licence and because J.C. cannot be trusted not to drive, G.G. has taken on the driving to facilitate the parenting time between B.C. and her father. This is in addition to working both a full time and part time job. Given that J.C. lives in Kelowna, he will be responsible for the cost for pick up and drop off.

Until he has his licence, he will be required to arrange for a neutral person who will provide proof of valid licence, or a taxi. The person who provides the transportation will be confirmed with the neutral third party who arranges and confirms his parenting time; alternatively, J.C. will provide a copy of the taxi receipt. [ 98 ] Although the parties have varied the final order somewhat and have obtained some interim orders with specific terms, those interim orders are not binding on me.

They were made to hold things in place until the parties could get to a trial, present the evidence in a full and complete way, for the trial judge – in this case me -- to make the final determination. [ 99 ] The

schedule for J.C.’s parenting time will be set, without variation other than for exceptional reasons. This will eliminate the need to vary the schedule. If G.G. needs to give notice that B.C. is ill and cannot attend, she will do so through the neutral third party. If

J.C. needs to give notice that he cannot exercise his parenting time, he will do so through the neutral third party. [ 100 ] Each parent will advise the other, through the neutral third party, of any significant matter pertaining to the child, e.g. allergic reaction, medical condition that either will impact the child while in her father’s care or that occurred while in the father’s care that mother should know about [ 101 ] When I have referred to a neutral third party to assist in arranging the parenting time, I had in mind that the parties would retain a parenting coordinator from the BC Roster (which is a list) of Parenting Coordinators.

However, there is a cost to hiring a parenting coordinator. I am prepared to give the parties an opportunity to work with someone who may not charge them. It will be up to J.C. to provide three names, occupations and contact information to G.G., so that she has an opportunity to discuss their role with them. If she does not agree with any of these people, she will provide three names, occupations and contact information to J.C. If the parties cannot agree on a person within the next two weeks, the matter will be brought back before me and I will chose from the six names.

Alternatively, I may consider appointing a Parenting Coordinator. If I appoint a Parenting Coordinator, the parties will share the cost of the parenting coordinator equally, however, G.G. will not pay her half portion unless J.C. has paid his child support to her. Essentially this means that before J.C. has parenting time, he will have to pay his portion of the cost for a parenting coordinator and child support. [ 102 ] In addition, each of the parties will repeat the Parenting After Separation Seminar and file the completed certificate with the Court Registry on or before March 31, 2020.

J.C. will engage in a course or counselling of at least 5 sessions pertaining to parenting while separated or communication skills and will file a completed certificate at the Registry within 6 months. [ 103 ] The neutral third party for communication may be the same person who picks up and drops off B.C. If it is a different person, J.C. will provide the name, occupation and contact number to G.G. If G.G. is not in agreement with this person, she will provide the name, occupation and contact number of the person she suggests to be the go-between for the physical exchange of B.C.

If the parties cannot agree to a person in the next 2 weeks, the matter will be brought before me and I will decide. [ 104 ] Once the neutral third party for communication is in place, and the neutral third party for transportation is in place, the parenting

schedule will be as follows: J.C. will have B.C. in his care: • Each Wednesday from after school until 7:30 p.m. on school days and from 4:30 p.m. to 8:00 p.m. on non-school days; • Alternate weekends from Friday after school (or Thursday if Friday is a statutory holiday or pro-D day) until 7:30 p.m. on Sundays (or Monday if Monday is a statutory holiday or pro-D day) • The second half of Christmas school break each year; • The second half of Spring break each year; • The last week of July and the last week of August each year. [ 105 ] This

schedule allows B.C. to spend overnights with J.C. [ 106 ] With respect to the holidays, the parties may arrange a different

schedule through the neutral third party for communication, but the agreement will be put in writing between the parties and filed in this Registry as a Consent Court Order. [ 107 ] J.C. shall not drive any vehicle in which B.C. is transported unless and until he has a valid driver’s licence and insurance.

That information will be conveyed to G.G. through the neutral third party for communication between the parties. [ 108 ] J.C. shall not leave B.C. in anyone else’s care during his parenting time. [ 109 ] I will also add the terms from the parties’ final order, so that this order is a complete order of all matters between them to date. These terms include: 1. J.C. not leaving B.C. in anyone else’s care; 2. J.C. not consuming illegal drugs or marijuana while exercising parenting time nor allowing anyone else to do so; 3.

J.C. ensuring that no illegal drugs or marijuana is kept in the residence or location where he exercises his parenting time; keeping G.G. advised of where the parenting time will occur and each to keep the other advised of their address and contact information; 4. J.C. not removing B.C. from the Okanagan Valley; 5. some additional conduct terms for each of them; and 6. the child support terms as they currently exist from all previous orders. 4.

Is a Protection Order warranted? [ 110 ] Although G.G. expressed her concern that J.C. might do something to harm her, I find no basis in the evidence to require a restraining order against J.C. The dismissal of G.G.’s application for a restraining order is not a bar to any future application. [ 111 ] I will make some conduct orders as part of the parenting time, as follows: [ 112 ] The parties may email with each other until they have finalized the neutral third party for communication and for transportation

of B.C. After that, they will not text or email or phone each other. [ 113 ] J.C. shall not attend at B.C.’s school or activities, without the prior written consent of G.G., arranged through the neutral third party. If pick up is at the school, G.G. will inform the school that J.C. will attend to pick up B.C. I do not want to create another area of conflict between the parties. [ 114 ] B.C. will not be required to contact J.C. while she is in her mother’s care. Again, this an effort to reduce the conflict between the parties.

In many cases, we encourage phone/FaceTime/Skype contact between the child and the non-residential parent, but not in a situation where it causes more conflict as it has in this case. This is not in B.C.’s best interests. 5. What are the remaining applications before the Court? 1. On January 6, 2020, J.C. filed a Counterclaim for child support for one child; 2. On July 5, 2019, G.G. filed a Notice of Motion seeking a police enforcement clause; 3. On June 20 2019, J.C. filed a Notice of Motion to enforce an interim order; 4. On July 22, 2019, J.C. filed a Notice of Motion to enforce an interim order; 5.

On July 22, 2019, G.G. filed a Notice of Motion to vary an interim order; 6. On September 19, 2019, G.G. filed a Notice of Motion regarding travel, passport, adding a name for B.C., and that J.C. cease and desist in his behaviour. [ 115 ] All of the claims in these motions are either included in this order or otherwise dismissed.

If there are any other notices of motion or applications filed, they are deemed dismissed, as if heard on their merits. [ 116 ] I shall remain seized of this matter for the next year, with a review to be scheduled before me for one hour in approximately August 2020. [ 117 ] The parties need a period of time to cool off and bring down the heightened emotions between them. They have both tried to use the Social Worker to bolster their case, both have been escalating the tension and disagreement leading up to the trial.

They both have been trying to use the interim orders against each other, threatening to bring evidence of contravention to the trial. The tension between them was obvious in the courtroom, tension not only between the parents, but also between the grandparents and J.C. The parents need to improve their communication skills and understanding of the long-term impact of their words and actions on B.C. [ 118 ] B.C. does need both parents in her life, but only in a way that is healthy and beneficial to her.

SUMMARY OF FINAL ORDER [ 119 ] Upon the Court being advised that the name and birth date of each child is as follows: B.C., born [omitted for publication] Guardianship 1. The Court is satisfied that the parties are the guardian(

s) of the child under s. 39(1) of the Family Law Act (FLA) . 2. G.G. will inform J.C. of the third parties involved in B.C.’s life, including but not limited to her school, doctor, dentist. Parenting Responsibilities 3. G.G. will have the parenting responsibilities under

section 41 and 43 of the FLA , and shall provide the primary residence for the child. 4. Specifically, G.G. will be permitted to apply for licences, passports, or other documents for B.C. without the written consent or signature of J.C., and G.G. is permitted to travel outside of Canada without the written consent or signature of J.C. Parenting Time 5. The parties shall complete the PAS and file the certificate of completion with this registry on or before March 31, 2020. 6.

J.C. shall complete a course or counselling, at least 5 sessions, in parenting or communications, and file the certificate of completion with this registry on or before July 31, 2020. 7. The parties shall arrange for a neutral third party to conduct the communication between them related to B.C., and the parties shall arrange for a neutral third party to provide the transportation for B.C., who may be the same person, as follows: a.

On or before February 18, 2020, J.C. will provide to G.G. the names, occupations and contact information for three people to fill the role of the third party to facilitate communication and the name, occupation and contact information for one person to fill the role of the neutral third party to facilitate transportation; it may be the same person; b. On or before February 22, G.G. will advise J.C. who, from the names provided, are agreeable in the roles; if none of the people suggested by J.C. are agreeable, G.G. will provide the names, occupation and contact information for three people to fill the role of the

third party to facilitate communication and the name, occupation and contact information for one person to fill the role of the third party to facilitate transportation; it may be the same person; c. If none of the people suggested by G.G. are agreeable to J.C., the parties shall appear back before me within 2 weeks (approximately February 25) and I will make the determination or appoint a Parenting Coordinator; d. If a Parenting Coordinator is appointed, the parties will share the cost of the parenting coordinator equally. However, G.G. will not pay her half portion unless J.C. has paid his child support to her.

Essentially this means that before J.C. has parenting time, he will have to pay his portion of the cost for a parenting coordinator and child support. 8. Once the neutral third parties are in place, J.C. will have parenting time with B.C. as follows: a. Each Wednesday from after school until 7:30 pm on school days and from 4:30 to 8:00 on non-school days; b. Alternate weekends from Friday after school (or Thursday if Friday is a statutory holiday or pro-D day) until 7:30 pm on Sundays (or Monday if Monday is a stat holiday or pro-D day); c. The second half of Christmas school break each year; d.

The second half of Spring break each year; e. The last week of July and the last week of August each year; f. With respect to the holidays, the parties may arrange a different

schedule through the neutral third party for communication, but the agreement will be put in writing between the parties and filed in this Registry as a Consent Court Order. 9. The neutral third party who provides transportation must provide a copy of their valid drivers’ licence and insurance to G.G., either directly or through the neutral third party for communication. 10. J.C. shall not drive any vehicle in which B.C. is transported unless and until he has a valid drivers licence and insurance, and he will convey that information to G.G. through the neutral third party for communication. 11.

J.C. shall not leave B.C. in any one else’s care during his parenting time, including V.B., H.C. or C.C., except he may leave B.C. with C.C. in the residence of J.C. or as otherwise agreed by the parties in writing in the future. 12. J.C. shall not consume illegal drugs, and shall further not consume marijuana (prescribed or otherwise) while exercising parenting time with the child, nor permit any other person to do so while the child is present. 13.

J.C. shall ensure that no illegal drugs or marijuana (prescribed or otherwise) is kept in the residence or at the location in which he exercises his parenting time with the child. 14. J.C. shall keep G.G. advised of the location and address in which he intends to exercise his access and both parties shall keep each other advised of their current address and contact information.

J.C. shall not remove B.C. from the Okanagan Valley, defined as Salmon Arm to Osoyoos, and Princeton to Grand Forks, except for travel to Vancouver, without the prior written consent from G.G., obtained through the neutral third party for communication. 15. The parties will (

a) put the best interests of B.C. before their own interests; (

b) encourage B.C. to have a good relationship with the other parent and speak to B.C. about the other parent and that parent’s partner in a positive and respectful manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of B.C. 16. The parties will not (

a) question B.C. about the other parent or time spent with the other parent beyond simple conversational questions; (

b) discuss with B.C. any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other parent to B.C. CHILD SUPPORT 17. As set out in the interim Order of September 23, 2019, without prejudice, and by consent, J.C. will pay to G.G. child support in the amount of $376 per month. The first payment to be made on or before September 27, 2019 and on the 15th of each moth thereafter, commencing October 15, 2019, until further order of the court or written agreement between the parties, filed in this Registry. 18.

As set out in the final order of May 17, 2016, recognized as a final order in the Provincial Court of British Columbia on April 11, 2017, commencing June 1, 2016 and continuing on the 1st day of each and every month thereafter, J.C. shall pay to G.G. 50% of

section 7 special or extraordinary expenses G.G. incurs on behalf of the child, and specifically shall pay 50% of daycare/preschool fees, which will be incurred at [omitted for publication] in the amount of $850, half of which is $425. 19. Each party shall provide the other party with a complete copy of his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis, on or before June 30 of each year, as long as there is a child of the marriage as defined by the Family Law Act . 20.

In the event that a party has not filed an income tax return for the previous year, he or she shall provide the other party with copies of his or her T4, T4A, and all other relevant tax slips and statements disclosing any and all sources of income, including self- employment income. 21. The amounts owing under this Order shall be paid to the Director of Family Maintenance Enforcement and shall be enforced by FMEP. Such enforcement shall continue until the party who registered gives FMEP a notice in writing withdrawing the registration.

22. This Order shall not be recalculated by the Child Support Recalculation Program. 23. All previous orders are either included in this Order or cancelled. The report ordered pursuant to s. 211 is cancelled. [ 120 ] Judge Heinrichs remains seized of this file for one year from today’s date. A one-hour review of parenting time will be set for August 2020. Any affidavits filed for the review will only be filed 30 days before the review date, not sooner. _________________________ The Honourable C. Heinrichs Provincial Court Judge