N.C.R. v. K.D.C. Date:, 2014 BCPC 9

Citation: N.C.R. v. K.D.C. Date: 20140123 2014 BCPC 0009 File No: 1242115 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: N.C.R. APPLICANT AND: K.D.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Applicant: R. Craig Counsel for the Respondent: W. Van Delft

Place of Hearing: Prince George , B.C. Date of Hearing: August 14, 15 and November 26, 2013 Date of Judgment: January 23, 2014 INTRODUCTION [ 1 ] N.C.R. (N.C.R.) and K.D.C. (K.D.C.) (jointly the Parties) are the parents of A.D.R., born March 29, 2012 (A.D.R.). N.C.R. and K.D.C. disagree on how they should parent A.D.R. and each seeks the direction of this Court concerning their parenting time and responsibilities. THE PARTIES AND OTHERS [ 2 ] N.C.R. is 28 years old and has been employed as a heavy duty mechanic for 12 years, the last two with REDACTED in Prince George.

He grew up in Vanderhoof where his parents and some other family members still reside. A brother and sister live in Prince George. [ 3 ] K.D.C. is 23 years old and is employed as an administrative assistant for a construction company in Vanderhoof. This work is either three or four days per week. In the recent past she also had part time employment on a dairy farm but that employment had ended just before the trial. She grew up and still resides in Vanderhoof where her family and close friends also reside. [ 4 ] A.D.R. is 22 months old.

She was born in Vanderhoof and has resided there her entire life first with both Parties and subsequently upon their separation primarily with K.D.C. [ 5 ] J.H. is 22 years old and is N.C.R.’s roommate in a town home N.C.R. rents in Prince George. He has resided there since September 2012. He is employed as a heavy duty mechanic in Prince George. [ 6 ] N.C.R.’ residence in Prince George in a three bedroom townhouse located on a busy street but in close proximity to parks and other recreational activities.

A.D.R. has her own bedroom in that residence. [ 7 ] R.R. and M.R. are A.D.R.’s grandparents, N.C.R.’s parents. They live in Vanderhoof where R.R. is a sawmill worker and M.R. is a homemaker. They have four children including N.C.R., a son aged 21, who lives in Vanderhoof, and a 31 year old son and a 33 year old daughter who live in Prince George. [ 8 ] D.T. is a close family friend of K.D.C.’s having known her since K.D.C. was in Grade 10. She and her husband have two daughters aged 19 and 21, both of whom are close friends of K.D.C.’s. [ 9 ] D.C. is A.D.R.'s grandfather and K.D.C.’s father.

He owns an automotive repair shop. He raised K.D.C. and her brother as a single parent. He regularly cares for A.D.R. on Mondays. RELATIONSHIP HISTORY [ 10 ] N.C.R. and K.D.C. met in 2009. Initially they were friends but then their relationship grew more intimate and they began dating. Within a week of their dating relationship K.D.C. became pregnant with A.D.R. N.C.R. and.

K.D.C. commenced a common-law relationship in January 2012 and that arrangement ended in July 2012 when K.D.C. moved from the joint residence with A.D.R [ 11 ] While the Parties were residing together, N.C.R. would leave for work at approximately 6:45 AM each weekday and return home at approximately 6:00 PM. While he was at home N.C.R. participated fully in A.D.R.’s care and upbringing.

During the day A.D.R. was cared for by K.D.C. who was on maternity leave. [ 12 ] At some point around the time the Parties ceased residing together they received some attention from the Ministry of Children and Family Development and received a visit from a social worker arising from a complaint about their care of A.D.R. The social worker had some meetings with the Parties and determined that A.D.R. was not in need of protection and the file would be closed. [ 13 ] During the discussions with the social worker each of the Parties expressed their views concerning A.D.R.’s care into the future.

N.C.R. stated that it was eventually agreed between him and K.D.C., with the social worker’s assistance, that A.D.R. would reside primarily with K.D.C. for one year and then each of the Parties would enjoy equal parenting time; a situation that did not come to pass. [ 14 ] K.D.C. stated that although there were discussions with the social worker and that there were some discussions about A.D.R.'s care into the future there were no agreements made between her and N.C.R. concerning her care or that they would eventually care for A.D.R. on an equal basis. [ 15 ] She also acknowledged that when the social worker met with them and suggested counselling she refused because she was of the view that N.C.R. needed to attend anger management counselling first before couples or parenting counselling would have a chance of success.

LITIGATION HISTORY [ 16 ] On December 6, 2012 N.C.R. filed An Application To Obtain An Order under the Family Relations Act in which he sought joint guardianship, joint custody, access and an Order that K.D.C. not remove A.D.R. further than 100 km radius of Vanderhoof without his consent or further court order. He specifically sought a care regime for A.D.R. that would have her residing with each of the parties on an alternating weekly basis.

[ 17 ] On December 14, 2012 K.D.C. filed a Reply in which she agreed with N.C.R.’s request for joint guardianship of A.D.R. and that they share alternating holidays. She disagreed with N.C.R.’s claim for joint custody and the geographic restriction he sought. [ 18 ] She claimed that she was A.D.R.’s primary caregiver since birth and that she was remaining on maternity leave until March 2013 and that she wished N.C.R. to continue to have time with A.D.R. every weekend and Wednesday evenings.

K.D.C. also sought support for A.D.R. from N.C.R. [ 19 ] On January 18, 2013 N.C.R. filed a Notice of Motion seeking interim access to A.D.R. and in support he filed an affidavit alleging that K.D.C. had denied him time with A.D.R. saying she would do so until the Court made an order in that regard. [ 20 ] On January 31, 2013 K.D.C. filed an additional Reply in which she agreed with N.C.R. having access so long as he returned A.D.R. at the end of such visits.

She also sought a Restraining Order noting that she had applied for a Peace Bond. [ 21 ] On January 31, 2013 the Parties entered into a without prejudice, interim Consent Order which provided that A.D.R. would be in the care of K.D.C. and that N.C.R. would have access to A.D.R. on every weekend and Wednesday evening.

The Order also provided for the payment of child support by N.C.R. to K.D.C. for A.D.R. in an amount of $517.00 per month based on estimated income of $56,000.00. [ 22 ] On March 25, 2013 N.C.R. filed a Reply in response to the Reply filed by K.D.C. on January 31, 2013 in which he disagreed with her requests concerning A.D.R.'s guardianship and custody and K.D.C.'s application for a Peace Bond. The Peace Bond was never obtained by K.D.C.. [ 23 ] On July 31, 2013 N.C.R. filed a Financial Statement. On August 14, 2013 and November 26, 2013 K.D.C. filed Financial Statements.

GENERAL EVIDENCE N.C.R. [ 24 ] N.C.R. stated that when he was single he worked hard, partied hard and hung out with his friends but that that lifestyle changed when K.D.C. became pregnant. [ 25 ] N.C.R. left his camp employment and took a position that permitted him to be home every evening to be with his family. He said he made that decision because he wanted to be an active father and parent. [ 26 ] N.C.R. described A.D.R. as healthy with normal development.

When he has his parenting time with A.D.R., N.C.R. said that he spends it caring for her, cooking meals, engaging her in activities and having downtime with her. [ 27 ] N.C.R. also stated that in his view both he and K.D.C. should have the same rules and procedures for caring for A.D.R. such as bedtime, chores, responsibility and religious practices. [ 28 ] N.C.R. acknowledged that on occasion the exchange of A.D.R. with K.D.C. has not gone well.

He attributed that to K.D.C. not supplying necessary items on some occasions and that arguments arose, often in front of A.D.R.. [ 29 ] N.C.R. stated that he has no interest in leaving his employment at REDACTED and returning to Vanderhoof because he likes his employment and he likes living in Prince George. [ 30 ] N.C.R.’s plan, if his proposal is ordered by the Court, is to rely on a licensed day care in Prince George with occasional assistance from his mother in Vanderhoof or his sister in Prince George to care for A.D.R. while he is at work.

He noted that the licensed day care has cared for A.D.R. in the past. K.D.C. [ 31 ] K.D.C. described A.D.R. as an active, healthy, happy child who likes to play, run around and get into things. She noted that A.D.R. particularly liked horses, going to the lake and playing in water. She described A.D.R. as assertive and not a very good "sharer".

She said that A.D.R. has a good relationship with all those she has regular contact with and in particular D.C. and her brother. [ 32 ] K.D.C. acknowledged that N.C.R. is a good father to A.D.R. but that she believes that he would not be capable of caring for her for seven days in a row because when he gets stressed he becomes angry and she is concerned that he would exhibit such anger towards A.D.R.. [ 33 ] K.D.C. stated that she has a new boyfriend who lives in Vanderhoof, has his own home and works for a local sawmill.

This gentleman has no children of his own and had not yet been introduced to A.D.R.. [ 34 ] K.D.C. acknowledged that when she went to Mexico in November 2012 for nine days N.C.R. cared for A.D.R.. She said that when she first inquired of N.C.R. about the trip he told her that he had a week off so she agreed that he could have A.D.R. in his care.

However, when she dropped A.D.R. off N.C.R. told her that he was going to be taking courses during that week and A.D.R. would be cared for by others. [ 35 ] K.D.C. also acknowledged N.C.R. had A.D.R. in his care between June 28 and July 7, 2013 and that everything went well. D.T.

[ 36 ] D.T. described herself as a family friend and K.D.C.'s "pseudo" mom. She stated that K.D.C. was a phenomenal mother and that A.D.R. was well fed and cared for while in her care. She also stated that K.D.C. was an incredibly hard worker. [ 37 ] D.T. cares for A.D.R. when K.D.C. is working on Wednesday's and Fridays. She described A.D.R. as an amazing, happy, busy and active child. J.H. [ 38 ] J.H. stated that N.C.R. was a good father who appropriately feeds, bathes and otherwise cares for A.D.R.

He noted that. [ 39 ] N.C.R. involves A.D.R. in activities and does not use any physical force or a raised voice to discipline her but rather uses a time out or a nap and then everything is fine. [ 40 ] J.H. stated that occasionally N.C.R. and K.D.C. get into arguments with their voices raised during the exchange of A.D.R. but he tries to stay out of it. R.R. [ 41 ] R.R. is A.D.R.'s grandfather and described her as a healthy, happy child.

He describes his son as an active and caring parent and that he has an appropriate home in Prince George properly set up for A.D.R.. [ 42 ] N.C.R. stated that he had never seen his son and K.D.C. argue or fight in his presence and he believed that they were respectful of each other. FAMILY VIOLENCE EVIDENCE General [ 43 ] D.T. described K.D.C. as being full of life, energetic, happy and outgoing prior to her meeting N.C.R.. Once K.D.C. and N.C.R. began their relationship she noted that K.D.C. became timid, withdrawn and submissive.

From D.T.'s perspective it appeared that K.D.C. had to seek N.C.R.’ permission for many everyday things and seemed frightened of N.C.R. and controlled by him. She noted this behaviour became particularly evident near the end of K.D.C.'s pregnancy and after A.D.R.'s birth. [ 44 ] D.T. acknowledged that she thought N.C.R. was a kind, sweet fellow when she first met him but when she saw his controlling nature over K.D.C. her views about him changed.

She denied that the interactions she observed between N.C.R. and K.D.C. were a couple having discussions; describing it as N.C.R. controlling K.D.C. [ 45 ] Since the Parties separated D.T. described K.D.C. as always trying to be reasonable and accommodating to N.C.R. but that he was usually pushy towards K.D.C. attempting to use his anger and aggressiveness to control her in their dealings with regard to A.D.R. and that sometimes K.D.C. just couldn't deal with him anymore. [ 46 ] D.T. also stated that even now that K.D.C. is once again full of life she sometimes gets very upset, cries and shakes when she has to deal with N.C.R. on the phone. [ 47 ] Although she has not seen N.C.R. care for A.D.R. since the separation D.T. expressed concerns for A.D.R.'s care given N.C.R. anger issues and the stress of caring for a very young, busy child for long periods of time when he has no real or recent experience in that regard. [ 48 ] D.T. also provided a recent example of N.C.R. controlling nature over K.D.C.

N.C.R. insisted (but eventually relented) that K.D.C. drive A.D.R. to Prince George even though D.T. was already going to Prince George on that day and was prepared to take A.D.R. with her. Once D.T. arrived in Prince George N.C.R. refused to come to her car to retrieve A.D.R. D.T. described it as a very awkward situation when it did not need to be so. [ 49 ] D.C. stated that he had a very poor opinion of N.C.R. in part because of his temper and in part because of his treatment of both himself and K.D.C.

D.C. stated that he stays away from N.C.R. because he's had enough of N.C.R.’ behaviour and his regular use of extremely derogatory language towards him. He also said that he has often, including recently, heard N.C.R. on the phone with K.D.C. calling her some extremely derogatory names. [ 50 ] D.C. said that in the past year he and N.C.R. had four serious confrontations, some of which involved the RCMP, and that N.C.R. does not respect him. [ 51 ] R.R. acknowledged that N.C.R. does have a temper but then added that everybody has a temper.

He also agreed that he may have told K.D.C. not to let N.C.R. know about some of the visits he and his wife were having with A.D.R. because at that time N.C.R. was angry with he and his wife. [ 52 ] K.D.C. related that while she was residing with N.C.R. he threatened to hit her on many occasions and that he did assault her on some occasions. She said that he also damaged items including a coffee table and her car.

She was not questioned about the details of those incidents. [ 53 ] She said that while they resided together N.C.R. did not like her to do things on her own and resented her involvement with her horses and rodeos. [ 54 ] Subsequent to their separation and in their dealings at the times they exchange A.D.R., K.D.C. related that N.C.R. often gets

angry and becomes very loud and threatens her, even when A.D.R. is present or close by, and that he often calls her extremely derogatory and vulgar names both when they are face-to-face and when he talks to her on the phone. [ 55 ] K.D.C. acknowledged that on some occasions when N.C.R. is acting badly she reciprocates but that she never attempts to antagonize or upset him for fear of how he will react.

She stated that it is clear to her that she and N.C.R. don't like each other very much. [ 56 ] K.D.C. also confirmed that on one occasion she was told by R.R. not to tell N.C.R. that A.D.R. was seeing her grandparents because they said that he would become angry with them. [ 57 ] K.D.C. admitted that there were two occasions when she instigated violence towards N.C.R. The first was before A.D.R. was born when she slapped N.C.R. during an argument.

The second was when she threw a container of baby wipes at N.C.R. when he was holding A.D.R.. [ 58 ] K.D.C. stated that she had not applied for a Restraining Order against N.C.R. before December 2012 because she was still in love with him and wanted him to change so that they could reconcile. [ 59 ] K.D.C. said she is fearful that N.C.R. may react towards A.D.R. like he treated her if he gets into a stressful situation while caring for A.D.R. and he becomes upset, frustrated or angry. [ 60 ] K.D.C. also stated that in the weeks immediately before this trial N.C.R. had been calling her repeatedly. [ 61 ] N.C.R. denied that he ever physically assaulted K.D.C. but he acknowledged that they often got into loud verbal arguments both prior to and after the separation.

He denied that such arguments occurred in front of A.D.R. He also stated that he believed he was be being treated unfairly by K.D.C. and that she demeaned his parenting of A.D.R. [ 62 ] He said that if he was treated fairly the animosity would come to an end and that he would work with K.D.C. to resolve issues. [ 63 ] N.C.R. also stated that D.C. never liked him and that D.C. regularly acted aggressively towards him often screaming and yelling at him and insulting him which resulted in arguments.

The Extra Foods Incident [ 64 ] In June 2012, around the time the Parties separated, there was a confrontation at a local grocery store between D.C. and N.C.R. R.R. was also present. [ 65 ] N.C.R. contended that D.C. chased him about the store and confronted him about the issues surrounding his separation from K.D.C. As a result of that confrontation N.C.R. said he filed a report with the Royal Canadian Mounted Police (the RCMP). [ 66 ] R.R. said that D.C. chased N.C.R. around the store shouting at him and that D.C. and N.C.R. exchanged loud words. At the time, N.C.R. had A.D.R. in his care.

R.R. said that D.C. told him that N.C.R. was “a lunatic” to which he replied "so are you". [ 67 ] D.C. said that he initially saw N.C.R. in the parking lot and that N.C.R. gave him "the finger" and told him to "fuck off". [ 68 ] He then went into the store and approached N.C.R. to talk to him about his temper being a big problem in his relationship with K.D.C. At that point N.C.R. told him "you are the reason for the breakup-I'll get you." [ 69 ] Shortly after that incident he met up with R.R. and had a short discussion in which R.R. told him that N.C.R. had a temper which he had all of his life.

The Burns Lake Trip [ 70 ] Soon after the separation in the summer of 2012 K.D.C. took A.D.R. and went to Burns Lake for an extended period of time. She did not advise N.C.R. of her intention to do so and stated that she had asked the social worker to advise N.C.R. once she had left town.

She said that a few days later N.C.R. called her aunt, who she was staying with, impersonating an RCMP member to ascertain her location and then "flipped out" when he found out where she was. [ 71 ] K.D.C. said that she went to Burns Lake to get some respite after the separation because of N.C.R. temper, aggressive behaviours and assaults on her and that she felt abused and threatened and that N.C.R. was trying to control her. [ 72 ] K.D.C. acknowledged that she had contemplated moving to Burns Lake with A.D.R. but within a couple of months returned to reside in Vanderhoof. [ 73 ] N.C.R. stated that K.D.C. left soon after the separation, without any notice to him, taking A.D.R. with her.

He had no contact with her for two months and was unable to see A.D.R. during that time. The Pub Incident [ 74 ] In August 2012 N.C.R. and K.D.C. met at a local pub for the purposes of discussing reconciliation. Both of them were consuming alcohol. The discussions did not go well and at one point there was a confrontation where N.C.R. grabbed K.D.C.'s keys and would not return them. [ 75 ] The RCMP were called and when they arrived N.C.R. refused to return K.D.C.'s keys or cooperate with the RCMP when they tried to address the situation, and in particular, calm N.C.R. down.

There was an altercation between N.C.R. and the RCMP members and he was arrested and charged with obstructing a peace officer. He subsequently pled guilty to that charge and received a Conditional

Discharge and a period of Probation for nine months. As a term of that Probation he was ordered to apologize to the four RCMP members involved in the incident. December 2012 and January 2013 Incidents [ 76 ] In late 2012 K.D.C. asked N.C.R. if she could take A.D.R. to Vancouver for one week. N.C.R. consented and that trip occurred. Subsequently N.C.R. said he asked to care for A.D.R. for one week and K.D.C. refused. At that point N.C.R. was to have his regular scheduled time with A.D.R. but he kept her for six days. [ 77 ] During that period of time K.D.C. contacted J.H.

She acknowledged that she was hysterical at the time and spoke harshly to J.H. in an attempt to try to get him to assist her in retrieving A.D.R. [ 78 ] K.D.C. stated that N.C.R. kept A.D.R. for seven days without asking her if he could do so and laughed at her when she asked him to return A.D.R.

She said she was afraid that N.C.R. would do it again so when A.D.R. was returned she refused any contact between A.D.R. and N.C.R. for three weeks until they had their initial court appearance and an interim Consent Order was made. [ 79 ] K.D.C. said that in January 2013 N.C.R. arrived at her residence uninvited and attempted to enter the home. He refused to leave saying that he wanted A.D.R.

The RCMP was called and once they attended N.C.R. was yelling at her about her refusal to allow him to see A.D.R. [ 80 ] N.C.R. stated that when he arrived at K.D.C.'s home she refused to allow him see A.D.R. and that once the RCMP had arrived he spoke to the members and was able to see A.D.R. briefly. He denied trying to force his way into K.D.C.'s residence.

The Wheelbarrow Incident [ 81 ] In 2013 there was a dispute concerning a wheelbarrow between N.C.R. and D.C. [ 82 ] N.C.R. described it as a dispute that occurred when he, D.C. and his father, R.R., were present and that the incident resulted in the RCMP being called. [ 83 ] D.C. described the incident as N.C.R. acting aggressively towards, and swearing loudly at, him which caused a third-party witness to call the RCMP. After the incident ended and he left the property, N.C.R. sent him a taunting text message.

The Cell Phone Incident [ 84 ] K.D.C. described an incident when she and N.C.R. had an argument over her use of her cell phone and her contacting of a particular friend who N.C.R. did not like. [ 85 ] She said that during the argument N.C.R. grabbed her cell phone, stomped on it and then threw it in the swamp. She denied that the incident occurred early in the morning or that she was drunk and had driven over to N.C.R.’ residence to confront him. N.C.R. was not asked about that incident.

THE LAW Family Law Act [ 86 ] There are several provisions of the Family Law Act (FLA ) have application in this case including:

Definitions 1

(1) In this Act: “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 of reasonable 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; Best interests of child

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(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. Assessing family violence 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

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; (

i) any other relevant matter. Parents are generally guardians 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…. Parenting arrangements 40

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (

a) one or more guardians only, or (

b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(

a) that parental responsibilities should be allocated equally among guardians; (

b) that parenting time should be shared equally among guardians; (

c) that decisions among guardians should be made separately or together. Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. Parenting time 42

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Exercise of parental responsibilities 43

(1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child.

(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in

section 41 (a), (c), (d), (

f) to (

j) or (l) [parental responsibilities] , the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so. Denial of parenting time or contact 61

(1) An application under this

section may be made only (

a) by a person entitled under an agreement or order to parenting time or contact with a child, and (

b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (

c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(

d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (

e) require that the transfer of the child from one party to another be supervised by another person named in the order; (

f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (

i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

g) require the guardian to pay (

i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000.

(3) If the court makes an order under subsection (2) (a), (

b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer. When denial is not wrongful 62

(1) For the purposes of

section 61 [denial of parenting time or contact] , a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child. Orders respecting child support 149

(1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by (

a) a child's parent or guardian,… Orders respecting protection 183

(1) An order under this

section (

a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and (

b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) A court may make an order against a family member for the protection of another family member if the court determines that (

a) family violence is likely to occur, and (

b) the other family member is an at-risk family member.

(3) An order under subsection (2) may include one or more of the following: (

a) a provision restraining the family member from (

i) directly or indirectly communicating with or contacting the at-risk family member or a specified person, (ii) attending at, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member, even if the family member owns the place, or has a right to possess the place, (iii) following the at-risk family member, or (iv) possessing a weapon or firearm; (

b) limits on the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or contact; (

c) directions to a police officer to (

i) remove the family member from the residence immediately or within a specified period of time, (ii) accompany the family member, the at-risk family member or a specified person to the residence as soon as practicable, or within a specified period of time, to supervise the removal of personal belongings, or (iii) seize from the family member any weapons or firearms and related documents; (

d) a provision requiring the family member to report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

e) any terms or conditions the court considers necessary to (

i) protect the safety and security of the at-risk family member, or (ii) implement the order.

(4) Unless the court provides otherwise, an order under this

section expires one year after the date it is made.

(5) If an order is made under this

section at the same time as another order is made under this Act, including an order made under Division 5 [Orders Respecting Conduct] of

Part 10, the orders must not be recorded in the same document. Whether to make P rotection Order 184

(1) In determining whether to make an Order under this Part, the court must consider at least the following risk factors: (

a) any history of family violence by the family member against whom the order is to be made; (

b) whether any family violence is repetitive or escalating; (

c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (

d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; (

e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; (

f) the at-risk family member's perception of risks to his or her own safety and security; (

g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account (

a) the history of, and potential for, family violence, (

b) the extent of any injuries or harm suffered, and (

c) the respective vulnerability of the applicants.

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist: (

a) an order for the protection of the at-risk family member has been made previously against the family member against whom an orderis to be made, whether or not the family member complied with the order; (

b) the family member against whom the order is to be made is temporarily absent from the residence; (

c) the at-risk family member is temporarily residing in an emergency shelter or other safe place; (

d) criminal charges have been or may be laid against the family member against whom the order is to be made; (

e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order isto be made after family violence has occurred; (

f) an order under

section 225 [orders restricting communications] has been made, respecting the at-risk family member, against thefamily member against whom the order is to be made. Purposes for which orders respecting conduct may be made 222 At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division forone or more of the following purposes: (

a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute; (

b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order; (

c) to prevent misuse of the court process; (

d) to facilitate arrangements pending final determination of a family law dispute. Orders respecting dispute resolution, counselling and programs 224

(1) A court may make an order to do one or both of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services orprograms.

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the feesrelating to the family dispute resolution, counselling, services or programs. Orders restricting communications 225 Unless it would be more appropriate to make an order under

Part 9 [Protection from Family Violence], a court may make an ordersetting restrictions or conditions respecting communications between parties, including respecting when or how communications may bemade. Case Law [87] Counsel for N.C.R. referred the Court to the following cases:

a) D. v. D. 2010 BCPC 135 , 2010 BCPC 0135

b) S.H. v. R.G. 2013 BCPC 114 , 2013 BCPC 0114

c) M.J.T. v. D.M.D. 2012 BCSC 863

d) P.(C.) v. C.(B.) 2013 BCPC 112 , 2013 BCPC 0112

e) K.(A.) v. K.(M.) 2013 BCPC 1275 [88] Counsel for K.D.C. did not rely on any case law. SUBMISSIONS N.C.R. Parenting Time [89] N.C.R. proposal for parenting time with A.D.R. can be summarized as follows:

a) the regular care

schedule would be a regime of each Party caring for A.D.R. for one week with the other Party having regular telephone contact and the possibility of a midweek evening visit;

b) the exchange of A.D.R. at the end of each week would occur in a public location due to the history of animosity between the Parties;

c) N.C.R. would be responsible for all of A.D.R.'s transportation except if K.D.C. wished to have a midweek visit with her during N.C.R. week which she would then have to travel herself;

d) each Party would be responsible for arranging the appropriate day care for A.D.R. resulting from their work schedule;

e) the Parties would equally share any statutory holidays on an alternating basis; and

f) that neither Party be permitted to remove A.D.R. from a distance greater than 200 km from Vanderhoof without the consent of the other or a court order. [ 90 ] In support of his proposal N.C.R. counsel’s submissions can be summarized as follows:

a) N.C.R. is, and K.D.C. also acknowledges that he is, a good father to A.D.R.. He is fully capable of meeting her care needs and treats her appropriately;

b) N.C.R.’ plan allows both Parties time to parent A.D.R. on a day-to-day basis including all the necessary responsibilities that attach to that and also permits both parties weekend time to pursue their own interests;

c) N.C.R. has demonstrated his dedication to A.D.R.'s interests by changing his lifestyle and work life in order to be available at home to care for her;

d) both Parties work

schedule require them to rely on others to care for A.D.R. during the week. K.D.C. relies on extended family and friends and N.C.R. has arranged for a day care and extended family to assist in that regard;

e) K.D.C. demeans N.C.R.’ role as a parent and wishes to deny him the opportunity to fully participate in A.D.R.'s upbringing; and

f) around the time of separation K.D.C. agreed with N.C.R. with the assistance of the social worker to a weekly care

schedule for A.D.R. after one year but she reneged on that arrangement. Family Violence [ 91 ] N.C.R.’s counsel submitted that the Court should reject any evidence that suggested that N.C.R. participated in family violence and should decline to make a Protection Order under

section 183 are 184 of the FLA. [ 92 ] Counsel further submitted that mere suggestions of what may have happened in the past or could occur in the future are not enough for the Court to conclude that family violence has or may occur, K.(A.) v. K.(M.). [ 93 ] Counsel also submitted that the Court could conclude that if there was family violence it was reciprocal and not perpetrated only by N.C.R. [ 94 ] If the Court determined that there was some family violence in the past, further occurrences could be alleviated by a Conduct Order requiring such things as counselling P.(C.) v.

C.(B.). [ 95 ] If the Court determined that a Conduct Order would be appropriate in this case an Order requiring the parties to take family or parental counselling and dispute resolution would be appropriate but that the Court should reject the idea of requiring N.C.R. to take anger management counselling as he has no issues in that regard. Parental Responsibilities [ 96 ] N.C.R.’s counsel made no specific submissions with regard to the allocation of parental responsibilities as provided for in

section 41 of the FLA. Child Support [ 97 ] N.C.R.’s counsel submitted that the matter of child support should be addressed after the Court's decision on the parenting time issue if the Court ruled in N.C.R. favour. In the event the Court ruled in K.D.C.'s favour or made an Order that did not result in N.C.R. having A.D.R. for 40% of the time his counsel acknowledged that he would be responsible for paying child support pursuant to the Child Support Guidelines (the Guidelines ) based on his annual income. K.D.C. Parenting Time [ 98 ] K.D.C.'s proposal for parenting time can be summarized as follows:

a) A.D.R.'s present

schedule of residing with her during the week and residing with N.C.R. on weekends be continued except that she

would have A.D.R. in her care one weekend per month;

b) N.C.R. would continue to have A.D.R. in his care on Wednesday evenings in Vanderhoof;

c) the exchange of A.D.R. would occur in a public location due to the history of animosity between the Parties;

d) the present exchange times would have to be adjusted to reflect K.D.C.'s work circumstances; and

e) the Parties would equally share any statutory holidays on an alternating basis. [ 99 ] In support of her proposal K.D.C.’s counsel’s submissions can be summarized as follows:

a) K.D.C. has been A.D.R.'s primary caregiver throughout her life;

b) N.C.R. wants A.D.R. to have two separate and distinct homes which is not in her best interests at this time in her life;

c) N.C.R. chose to move to Prince George thereby making it more difficult for there to be a parenting time

schedule in A.D.R.'s best interests;

d) N.C.R. has no real day care plan and certainly not one that is comparable to the present arrangement where A.D.R.'s cared for by either family or close family friends when she is with K.D.C.; and

e) most of A.D.R.'s extended family including her grandparents and other close friends reside in Vanderhoof. Family Violence [ 100 ] K.D.C.'s counsel urged the Court to find that this case does involve family violence, the majority of which N.C.R. is responsible for. In support of that proposition his submissions can be summarized as follows:

a) throughout their relationship N.C.R.’s behaviour towards K.D.C. was controlling, regularly verbally abusive and occasionally physically assaultive;

b) N.C.R.’s violent behavior was not due to alcohol or drug issues but rather was caused by his temper and anger and his inability to control the outbursts that resulted;

c) N.C.R.’s violent behavior worsened during K.D.C.'s pregnancy and has not diminished since their separation;

d) N.C.R. went so far as to impersonate a RCMP member in order to track down K.D.C. and continue to try to exert control over her;

e) N.C.R.’s need to control K.D.C. is the underlying reason for his application to care for A.D.R. on an alternating weekly basis;

f) N.C.R.’s violent behavior has resulted in several RCMP contacts and one resulted in him being criminally charged and convicted;

g) the relationship between N.C.R. and K.D.C. was tumultuous throughout. N.C.R. was the instigator of the vast majority of the violence but occasionally K.D.C. did respond inappropriately; and

h) based on the evidence of all the witnesses other than N.C.R. it is clear that he needs to work on getting his anger and emotions under control and treating K.D.C. more respectfully. Parental Responsibilities [ 101 ] K.D.C. counsel’s only submission concerning parental responsibilities was to request that A.D.R.'s family doctor remain Dr. Ebert in Vanderhoof. Child Support [ 102 ] K.D.C.'s counsel did not disagree with N.C.R. counsel’s proposal that the matter of child support be addressed subsequent to the parenting time decision in this matter if N.C.R. was successful in his application.

K.D.C.'s counsel also agreed that if N.C.R. is unsuccessful in his application or alternatively that his parenting time with A.D.R. does not equal the 40% threshold described in the Guidelines that he should pay child support in the appropriate amount as required by the Guidelines. DISCUSSION AND DECISION General Comments [ 103 ] N.C.R. was not confronted in cross-examination on many of the controversial topics in evidence pointing to actions and behaviours which could indicate his participation in family violence.

[104] The seminal case on the issue of confrontation is described as the Rule in Browne v. Dunn. It was recently reviewed by theOntario Court of Appeal in the case of R. v. Dexter 2013 ONCA 744 , [2013] O.J. No. 5686. In that decision the Court ofAppeal reiterated that the Rule is not merely procedural but a rule of trial fairness. When the rule is breached the effect that a courtshould give to that circumstance depends on the number of factors which may include:

a) the seriousness of the breach,

b) the context in which the breach occurred,

c) the stage in the proceedings when an objection to the breach was raised, and the response by counsel, if any, to the objection,

d) any request by counsel to reopen the case so that witnesses evidence has been impugned can offer an explanation,

e) the availability of the witness to be recalled. [105] Given the factors enunciated by the Ontario Court of Appeal it is still open to the Court to give consideration to the evidencepresented bearing in mind that lesser weight may need to be given controversial evidence where confrontation was not utilized even if noobjection or a request to recall a witness was pursued. [106] In many circumstances lack of confrontation would require the Court to give very little weight, if any, to such allegations.

However, in this case, the Court is able to draw some conclusions; adverse to N.C.R.; on the topic of family violence as it pertains toA.D.R.'s best interests by considering the following evidence:

a) the allegation by several witnesses that he has a bad temper was corroborated by his father's evidence in that regard,

b) the frequency of RCMP intervention in N.C.R.’s dealings with others and his interactions with the RCMP which resulted in a criminalconviction,

c) K.D.C. and her witnesses were confronted on the points of controversy concerning the allegations of his temper, controlling nature andaggressiveness by N.C.R.’s counsel,

d) with the exception of recalling R.R. to clarify his evidence concerning the Extra Foods incident there was no request by N.C.R. topresent rebuttal evidence. [107] In assessing the evidence of each witness the Court must assess both the credibility and reliability of their evidence. [108] In that regard the Courts have regularly used some or all of the following factors to assist in that assessment: (

a) internal consistency or inconsistency of the witness’s evidence; (

b) external consistency or inconsistency of the witness’s evidence in relation to the evidence of other witnesses; (

c) the inherent probability or reasonableness of the witness’s account; (

d) whether the witness has anything to gain or lose by giving particular evidence; (

e) the ease or difficulty of fabrication of the evidence; (

f) the unavoidable reconstructive processes of memory; (

g) the attitude or demeanour of the witness while giving evidence; (

h) the character background of the witness; and (

i) the reliability of the evidence based on the witness’ opportunity or ability to observe. [109] In utilizing those factors to assess the evidence of the various witnesses following conclusions can be drawn:

a) N.C.R. - N.C.R.'s evidence was internally inconsistent on such topics as whether or not he and K.D.C. argued loudly in front ofA.D.R.. it was also inconsistent with the other witnesses who commented on the issue of family violence. N.C.R. has much to lose ifthe Court concluded that he had participated in family violence. He tended to minimize events involving altercations between himselfand K.D.C. or her father. His demeanour while giving evidence suggested that if he got what he wanted by way of the Court's Orders allanimosity would disappear leaving it to speculation as to what he might do if he did not get his way.

b) K.D.C. - K.D.C. was open and forthright in her evidence acknowledging her own bad behaviour when it occurred and fairly describingthe events where she was victimized by N.C.R.. She appeared to have great difficulty maintaining her composure while recalling thoseevents and even though they were in the past she appeared fragile and traumatized when recalling them in her evidence.

c) D.C. - It was clear that D.C. maintains a high level of animosity towards N.C.R.. His involvement with N.C.R. may have exacerbated

the animosity between the Parties either because he has, in the past, taken it upon himself to confront N.C.R. and/or N.C.R. holds a grudge and acted aggressively towards D.C.. D.C.'s intention to maintain his distance from N.C.R. may go a long way to reduce the general tension between the Parties.

d) R.R. - R.R. gave his evidence clearly and generally without favour or bias as it pertains to his son or K.D.C.. It appeared it was difficult for him to acknowledge that N.C.R. has some anger management issues.

e) D.T. - D.T. gave her evidence in a fair and open fashion clearly describing the events she had seen in the interactions between N.C.R. and K.D.C. based on her ability to observe them regularly and her own life experiences.

f) J.H. - J.H. gave his evidence in a clear and straightforward manner. Best Interests Factors [ 110 ] Although Section 37 (1) of the FLA directs a trial Judge to consider only the best interests of the child it provides further direction in subsection (2) by setting out 10 considerations which, although not exclusive, provide assistance in determining the child's best interests.

Subsection (3) also provides direction concerning the best interests of the child to ensure that those interests are protected, to the greatest extent possible, with regard to the child's physical, psychological and emotional safety security and well-being. [ 111 ] A review of the factors set out in subsection( 2) as applied to this case leads to the following findings:

a) the child's health and emotional well-being - A.D.R. enjoys good health which will be assisted by maintaining her present family doctor. A.D.R.'s emotional well-being has not been assisted by her parents’ behaviours towards each other while in A.D.R.'s presence. That must cease immediately or the Court will be required to intervene further. In particular, N.C.R. has to cease his derogatory language towards K.D.C..

b) the child's views - A.D.R. is too young to express her views on this matter.

c) the nature and strength of the relationships between the child and significant persons in the child's life - A.D.R. has a loving relationship with a number of people. At her young age those relationships are strongly affected by the nature and duration of her contact with those people. By virtue of her past care that suggests that her strongest attachment is towards K.D.C. not necessarily because she is a superior parent but because she cares for A.D.R. the most. N.C.R.’s bond with A.D.R. is strong as well given his frequent time with her. However, A.D.R. also has important relationships with others who care for her regularly including D.C., D.T. and to a lesser extent R.R. and his wife.

d) the history of the child's care - A.D.R. was jointly cared for by N.C.R. and K.D.C. when they were together although that was a relatively brief period of time. From the summer of 2012 until now (approximately 3/4 of A.D.R.'s life) she has been in the primary care of K.D.C. and N.C.R. has had regular care of her every weekend, on Wednesday evenings and some extended care periods when K.D.C. has been absent.

e) the child's need for stability, given the child's age and stage of development - the tender years doctrine is now a discredited legal concept. Parents are, in general, considered to be equally capable of providing appropriate and nurturing care to a child. However, as described in section 40 (4) of the FLA no particular arrangement for parenting time or responsibilities is to be presumed in determining the best interests of the child.

A child is entitled to enjoy a loving relationship with both their parents, extended family members and others but the wishes, desires and proposals of the parents are not always in the best interests of that child at all stages of ages of that child's life. Children are not property to be shared in a fashion that best suits one parent or the other. They must be cared for in circumstances that enhance their stability and comfort and meet their best interests.

f) the ability of each person who is a guardian.. or who has or seeks parental responsibilities, parenting time with the child to exercise his or her responsibilities - each of the Parties have all the necessary skills and abilities to meet A.D.R.'s day-to-day needs for shelter food health and security. However, parental responsibilities go far beyond those skills and abilities. It also includes instilling in Allison concepts like civility and respect for others, particularly both of her parents.

The evidence in this case clearly indicates a high level of animosity between N.C.R. and K.D.C., which was displayed in front of A.D.R. on numerous occasions. The evidence also points to N.C.R. being a controlling and often vulgar individual who uses aggression and anger to attempt to intimidate K.D.C. and bend her to his will. In the face of that behaviour K.D.C. occasionally reciprocated with bad behaviour often without regard for A.D.R.'s presence.

g) the impact of any family violence on the child's safety, security or well-being whether the family violence is directed towards the child or another family member - there is no evidence that up to this point A.D.R.’s safety or security has been impacted by the family violence she has observed. Furthermore, A.D.R.'s young age makes it likely that she cannot comprehend the details and nuances of her parents animosity towards each other. She is also likely unable to understand that in most cases it is N.C.R. who instigates these unfortunate interactions when they occur.

On that basis, the Court is unable to conclude that the family violence to date has had any real substantial impact on A.D.R.'s best interests. However, if such behavior was to continue A.D.R. would soon come to comprehend more fully the anxiety that accompanies interactions between her parents and that would impact on her well-being.

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 - N.C.R. has acted in a fashion that, if it were to continue, could adversely impact his capacity to act in A.D.R.'s best interests in exercising his parenting responsibilities and parenting time. He must demonstrate to K.D.C. and to this Court that he can learn to deal with K.D.C. in a respectful and civilized fashion and instill that behavior in A.D.R. when he cares for her.

He requires the assistance of some professional anger management resources in order to learn a different approach to the necessary and ongoing relationship he and K.D.C. must continue as they care for A.D.R. into adult hood.

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child - the Parties are not yet to the point where the Court must intervene in all areas to direct how A.D.R. should be raised. N.C.R.’s view that if he were treated fairly animosity would come to an end must be expanded to include the Court' s expectation that the animosity must end and cooperation must ensue or the Court will be left with no option but to divide parenting responsibilities and parenting time in favour of the Party who maintains a responsible and civilized attitude towards the other Party and to A.D.R.'s care and her best interests.

j) any civil or criminal proceedings relevant to the child safety, security or well-being - there are no such issues in this case. Family Violence [ 112 ] A consideration by the Court of whether or not family violence has occurred in a family law dispute is now specifically required under the FLA . Family violence is defined in

section 1 of the FLA and if it has occurred it must be assessed under

section 38. [ 113 ] What is or is not family violence must be interpreted from a liberal and expensive view and can include many forms of behaviour. M.W.B. v. A.R.B. 2013 BCSC 885 . [ 114 ] In applying the evidence in this case to the definition set out in

section 1 the following can be concluded:

a) N.C.R. physically abused and/or attempted to physically abuse K.D.C. on some occasions,

b) N.C.R. psychologically or emotionally abused K.D.C. in the following ways; (

i) using intimidation and threats against K.D.C. and her property, (ii) unreasonably restricting K.D.C.'s personal autonomy, (iii) intentionally damaging K.D.C.'s property, (iv) directly or indirectly exposing A.D.R. to family violence. [ 115 ] In applying a similar analysis to K.D.C.’s behaviour her rare outbursts in response to N.C.R.’s treatment could be characterized as family violence but the nature, seriousness, recentness and frequency of such actions pale in comparison to N.C.R.’s behaviour. [ 116 ] Having come to those conclusions the Court must then assess the family violence in the context of A.D.R.'s best interests by considering the factors set out in

section 38. When that is done the following is apparent:

a) the nature and seriousness of the family violence - in this case N.C.R. behaviours were persistent and designed to bring K.D.C. under his control. However, the violence of the physical assaults cannot be ascertained as there was no evidence that they came to the attention of other family members or the authorities.

b) how recently the family violence occurred - there is no evidence of any physical assaults after those alleged in August 2012. The family violence in the form of derogatory comments and verbal aggressiveness by N.C.R. has continued up until the commencement of the trial.

c) the frequency of the family violence - given the evidence presented the Court cannot draw any specific conclusions about the frequency of N.C.R.'s actions except to conclude that it was more than enough to generally gain K.D.C.'s compliance.

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member - N.C.R.’s actions were intended to coerce and control K.D.C. and were directed at her.

e) whether the family violence is directed towards the child - there was no family violence directed towards A.D.R. by N.C.R..

f) whether the child is exposed to family violence that was not directed towards the child - A.D.R. was exposed to the family violence N.C.R. visited upon K.D.C., the verbal altercations between the Parties and the one occasion, when she was very young, when K.D.C. threw a container at N.C.R..

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence - it is impossible for the Court at this time to assess the harm, if any to A.D.R. based on past behaviours.

h) any steps the person responsible for the family violence is taken to prevent further family violence from occurring - N.C.R. has taken no steps to address his anger and control issues. In fact, through his counsel N.C.R. does not even acknowledge that there may be a concern worthy of addressing.

i) any other relevant matter - given A.D.R.'s young age there remains sufficient time for N.C.R. to address his anger and control issues and for the Parties to work on family dispute resolution so that A.D.R. will not continue to face harm from any ongoing family violence. Protection Order [ 117 ]

Section 183 of the FLA permits a Protection Order to be made on the Court's own initiative.

Section 184 sets out the minimum risk factors the Court must consider in deciding if a Protection Order is required. [ 118 ] A Protection Order may be made if the Court determines family violence is likely to occur and the other family member is at risk. In the circumstances of this case, and once N.C.R. has had an opportunity to consider this decision and the provisions of sections 183 and 184, the Court is confident any further behaviours in his part which could amount to family violence will no longer occur. As such, a Protection Order is not required at this time.

However, if such behaviour does persist N.C.R. can expect that K.D.C. will seek the Court's assistance. Conduct and Ancillary Orders [ 119 ] Although a Protection Order is not required at this time the Court must still consider a Conduct Order and other ancillary Orders as described in sections 222 through 225 of the FLA. [ 120 ] In this case it is necessary to assist N.C.R. with regard to his anger and his controlling and aggressive behaviours by requiring him to engage the services of a professional counsellor to address those issues.

He may be able to do so through an employee assistance program if one is offered by his employer. [ 121 ] Once that has commenced it would be in A.D.R.'s best interests to require N.C.R. and K.D.C. to attempt family dispute resolution by way of parenting counselling or mediation. [ 122 ] N.C.R. will be required to commence counselling to address his anger, control and aggressiveness issues.

Once he is making progress in that regard and his counsellor agrees it is appropriate, N.C.R. and K.D.C. will be required to attend family dispute resolution either with a private mediator or counsellor or through a Family Justice Counsellor as they may agree. [ 123 ] In addition, there will be an Order under

section 225 requiring N.C.R. and K.D.C. to communicate with each other only on topics pertaining to A.D.R.'s best interests and their parenting time and responsibilities to her. The provisions of the Order under

section 225 will continue until either the Parties agree in writing that such restrictions in their communication is no longer necessary or one year from the date of this Order whichever occurs first. Guardianship [ 124 ] The Parties agree and the Court recognizes that both N.C.R. and K.D.C. are guardians of A.D.R. Parenting Time [ 125 ] The proposals made by N.C.R. and K.D.C. concerning parenting time speak more to their animosity towards each other and perhaps their desire to outdo the other than it does to address A.D.R.'s best interests. [ 126 ] Applying the factors set out in section 37 (2) and in particular subparagraphs c), d), e),

f) and

g) N.C.R.’s proposal of an equal parenting time regime is simply not in A.D.R.'s best interests, in part because the Court is not confident that, at this time, he can properly exercise his parenting responsibilities and time until he has addressed the root causes of the family violence he has participated in and in part because it would result in A.D.R. being regularly cared for by people other than the family and friends she knows and is close to and who are prepared to assist. [ 127 ] By the same token K.D.C.'s proposal is not appropriate because it would further reduce N.C.R.’s parenting time with A.D.R. for the sole purpose of allowing K.D.C. weekend time with her.

Such weekend time would be beneficial for both K.D.C. and A.D.R. to enjoy together but would interfere with A.D.R.'s time with N.C.R. unless he was granted other opportunities to care for her. [ 128 ] Until N.C.R. has had an opportunity to address his anger and control issues and the Parties are given time to attend family

dispute resolution the

schedule of parenting time must include opportunities for both Parties to spend time with A.D.R. on weekends and weekdays with such a frequency that it will ensure that A.D.R. remains bonded with both her parents while at the same time enjoying time with others who love and want to care for her. [ 129 ] In addition, the Court is satisfied that it would be in A.D.R.’s best interests and would reduce possible opportunities for conflict between the Parties if the exchange of A.D.R. occurred in a public location. [ 130 ] Effective February 3, 2014 N.C.R.’s regular parenting time with A.D.R. will be as follows:

a) Week 1-Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM and Friday from 6:00 PM until Sunday at 7:30 PM (or Monday if it is a long weekend).

b) Week 2-Wednesday from as early as 9:00 AM until Sunday at 7:30 PM (or Monday if it is a long weekend).

c) Week 3- Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM and Friday from 6:00 PM until Sunday at 7:30 PM (or Monday if it is a long weekend).

d) Week 4 - Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM. [ 131 ] In Weeks 1, 3 and 4 N.C.R.’s Wednesday evening parenting time will commence and end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia. [ 132 ] In Weeks 1 and 3 N.C.R.’s parenting time will commence at the Tim Hortons located at 5808 Southridge Ave., Prince George, British Columbia and will end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia.

On those occasions K.D.C. will be responsible for delivering A.D.R. to Prince George and N.C.R. will be responsible for returning her to Vanderhoof. [ 133 ] In Week 2 if N.C.R. can arrange with his parents and they are available to care for A.D.R. for the day and transport her to Prince George, K.D.C. will deliver her to N.C.R.’s parents’ residence at 9:00 AM [ 134 ] If N.C.R.’s parents are unavailable his parenting time will commence at 6:00 PM at the Tim Hortons located at 5808 Southridge Ave., Prince George, British Columbia.

In either event his parenting time will end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia. [ 135 ] On the occasions when transportation of A.D.R. is required K.D.C. will be responsible for arranging delivery of her to Prince George and N.C.R. will be responsible for arranging delivery of her to Vanderhoof. [ 136 ] N.C.R.’s parenting time will also include one half of the following specific dates either by splitting the time with K.D.C. or alternating in each year which shall override the regular parenting time schedule:

a) the Easter long weekend from 9:00 AM on Good Friday until 7:30 PM on Easter Monday,

b) Christmas time from 9:00 AM on Christmas Eve until 7:30 PM on Boxing Day; and

c) A.D.R.'s Birthday from 9:00 AM until 7:30 PM. [ 137 ] In addition, N.C.R.’s parenting time will include the following specific dates which shall override the regular parenting time schedule:

a) Father's Day from 9:00 AM until 7:30 PM; and

b) N.C.R.'s birthday from 9:00 AM until 7:30 PM. [ 138 ] N.C.R. shall be entitled to up to one, 1 week period and one, 2 week period of additional parenting time each year to corresponding with his vacation time to spend with A.D.R. N.C.R. will be required to provide at least 90 days notice to K.D.C. of any vacation time he wishes to spend with A.D.R. This vacation time shall override the regular parenting time schedule. [ 139 ] K.D.C. shall be entitled to up to one, 1 week period and one, 2 week period of additional parenting time each year to corresponding with her vacation time to spend with A.D.R.

K.D.C. will be required to provide at least 90 days’ notice to N.C.R. of any vacation time she wishes to spend with A.D.R. This vacation time shall override the regular parenting time schedule. [ 140 ] On all the days when N.C.R. does not have parenting time with A.D.R. K.D.C. will have parenting time with her. [ 141 ] In the summer of 2012 K.D.C. and in December 2012 both N.C.R. and K.D.C., denied the other parenting time with A.D.R., albeit prior to any court orders being made.

By now their counsel will have made them aware the provisions of Sections 61 and 62 of the FLA which provides the Court with more opportunities to correct a Party’s behaviour if parenting time is wrongfully denied to the other. Parental Responsibilities

[ 142 ] There is no suggestion in the evidence or the submissions of counsel that either N.C.R. or K.D.C. is unable or incapable of meeting A.D.R.'s day-to-day needs. Aside from the disagreement between the Parties as to where A.D.R. should reside and on what

schedule she should be cared for there was no controversy expressed by the Parties or their witnesses over how they should exercise their parental responsibilities when they are caring for A.D.R. except for N.C.R. suggestion that they should each raise A.D.R. with exactly the same goals and expectations including her religious upbringing. That issue was later withdrawn by N.C.R. [ 143 ] In an effort to encourage the Parties to embark on a more cooperative parenting regime they will both continue to have decision- making responsibilities as set out in

section 41 of the FLA except as it pertains to A.D.R.'s regular medical and dental care which will be coordinated and directed by K.D.C. [ 144 ] If either the Parties attempt to impede or subvert the others exercising of parental responsibilities the Court will intervene and divide the parental responsibilities in a fashion that ensures A.D.R.'s best interests by reducing or suspending the offending Party's parenting responsibilities Child Support [ 145 ] Given the outcome concerning parenting time N.C.R. will be required to continue to pay child support to K.D.C. for A.D.R. in the amount required by the Guidelines based on his income.

If the Parties cannot resolve this issue by March 31, 2014 they will be required to reappear before the Court to address the matter. Any required support changes from the present amount based on the N.C.R.'s income will be retroactive to January 1, 2013 given that K.D.C.’s Reply was filed on December 14, 2012 and the only extant order is the interim, without prejudice, order granted January 31, 2013. Other Matters [ 146 ] N.C.R. has asked for an order restricting the geographic areas where each of the Parties can take A.D.R.

The only relevant evidence about the geographic issue was that of K.D.C. going to Burns Lake for a period of time immediately after the separation. [ 147 ] There was no other evidence presented or submissions made regarding a reason why the Court should impede either the Party's ability to travel with A.D.R. during their parenting time.

As such, N.C.R.'s application in that regard is dismissed. [ 148 ] However, if the Parties intend to be absent from their residence with A.D.R. for a period of greater than 72 hours they will be required to provide the other Party with an itinerary which must include at least the following:

a) the mode of transportation to be used during absence including, if applicable commercial transportation schedules;

b) the location(

s) where A.D.R. will be and for what period of time including the name and location of any overnight accommodations; and

c) the length of the absence including departure and return dates and times. ORDERS Guardianship [ 149 ] Court recognizes that both N.C.R. and K.D.C. are guardians of A.D.R. Parenting Time [ 150 ] Effective February 3, 2014 N.C.R. regular parenting time will be as follows:

a) Week 1-Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM and Friday from 6:00 PM until Sunday at 7:30 PM (or Monday if it is a long weekend);

b) Week 2-Wednesday from as early as 9:00 AM until Sunday at 7:30 PM (or Monday if it is a long weekend);

c) Week 3- Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM and Friday from 6:00 PM until Sunday at 7:30 PM (or Monday if it is a long weekend); and

d) Week 4 - Wednesday from when N.C.R. arrives in Vanderhoof until 7:30 PM. [ 151 ] In Weeks 1, 3 and 4 N.C.R.’s Wednesday evening parenting time will commence and end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia. [ 152 ] In Weeks 1 and 3 N.C.R.’s parenting time will commence at the Tim Hortons located at 5808 Southridge Ave., Prince George, British Columbia and will end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia.

On those occasions K.D.C. will be responsible for delivering A.D.R. to Prince George and N.C.R. will be responsible for returning her to Vanderhoof. [ 153 ] In Week 2 if N.C.R. can arrange with his parents and they are available to care for A.D.R. for the day and transport her to Prince George K.D.C. will deliver her to N.C.R.’s parents residence at 9:00 AM. [ 154 ] If N.C.R.’s parents are unavailable, his parenting time will commence at 6:00 PM at the Tim Hortons located at 5808

Southridge Ave., Prince George, British Columbia and will end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia.

In either event his parenting time will end at the Tim Hortons located at 180 First Street East, Vanderhoof, British Columbia. [ 155 ] On the occasions when transportation of A.D.R. is required K.D.C. will be responsible for arranging delivery of her to Prince George and N.C.R. will be responsible for arranging delivery of her to Vanderhoof. [ 156 ] N.C.R.’s parenting time will also include one half of the following specific dates either by splitting the time with K.D.C. or alternating in each year which shall override the regular parenting time schedule:

a) the Easter long weekend from 9:00 AM on Good Friday until 7:30 PM on Easter Monday;

b) Christmas time from 9:00 AM on Christmas Eve until 7:30 PM on Boxing Day; and

c) A.D.R.'s Birthday from 9:00 AM until 7:30 PM. [ 157 ] In addition, N.C.R.’s parenting time will include the following specific dates which shall override the regular parenting time schedule:

a) Father's Day from 9:00 AM until 7:30 PM,

b) N.C.R.'s birthday from 9:00 AM until 7:30 PM. [ 158 ] N.C.R. shall be entitled to up to one, 1 week period and one, 2 week period of additional parenting time each year to corresponding with his vacation time to spend with A.D.R. N.C.R. will be required to provide at least 90 days’ notice to K.D.C. of any vacation time he wishes to spend with A.D.R. This vacation time shall override the regular parenting time schedule. [ 159 ] K.D.C. shall be entitled to up to one, 1 week period and one, 2 week period of additional parenting time each year to corresponding with her vacation time to spend with A.D.R.

K.D.C. will be required to provide at least 90 days’ notice to N.C.R. of any vacation time she wishes to spend with A.D.R. This vacation time shall override the regular parenting time schedule. [ 160 ] On all the days when N.C.R. does not have parenting time with A.D.R. K.D.C. will have parenting time with her. Parental Responsibilities [ 161 ] N.C.R. and K.D.C. shall have decision-making responsibilities as set out in

section 41 of the FLA except as it pertains to A.D.R.'s regular medical and dental care which will be coordinated and directed by K.D.C. Child Support [ 162 ] N.C.R. will be required to continue to pay child support to K.D.C. for A.D.R. in the amount required by the Guidelines based on his income. If the Parties cannot resolve this issue by March 31, 2014 they will be required to reappear before the Court to address the matter. Any required support changes from the present amo

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