H.S.K.V. v. D.A. Date:, 2014 BCPC 271

Citation: H.S.K.V. v. D.A. Date: 20141128 2014 BCPC 0271 File No: 12955 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H. S. K. V. APPLICANT AND: D. A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: A. Kaderly (in part)

Appearing in person: H. S. K. V. Counsel for the Respondent: M. E. B. Wood Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 31, May 12, 13. June 4, June 11, July 4, July 18, September 9, 2014 Date of Judgment: November 28, 2014 Contents Paragraphs Introduction [ 1 ] to [8] Court History [9] to [22]

Summary of Evidence [23] to [86] Position of the Parties [87] to [93] Applicable Law: 1 Best Interests of the Child [94] to [95] 2 Parental Alienation [96] to [98] Analysis 1 The Child’s Health and Emotional Well-being [99] to [103] 2 Views of the Child [104] to [106 3 Relationships Between the Child and Significant Persons in Her Life [107] to [111] 4 The History of the Child’s Care [112] to [114] 5 The Child’s Need for Stability [115] to [116] 6 Parenting Abilities of the Parties [117] to [119] 7 Family Violence [120] to [121] Issues 1 Dividing Time Between the Parties [122] to [128] 2 Guardianship [129] to [132] 3 The Child’s Name [133] to [135] 4 The Ministry of Children and Families [136] to [138] 5 Child Support [139] to [142] Order [143] Introduction [1] At the commencement of this eight day trial, one of the two lawyers described the parties to this action as “high conflict.” The evidence heard over those eight days certainly supports this description.

The parties to this action are the parents of a child named T. E. V., who was born on (d.o.b.), 2009. Unfortunately, this child has the misfortune of being born to two parents who not only have an intense dislike of one another, but who have no hesitation when it comes to placing the child in the middle of the worst manifestations of their conflict.

Whether that conflict takes the form of shouting, swearing, physical fighting or other embarrassing conduct, these parties seem to lack the ability to restrain themselves from engaging in their conflict in front of this unfortunate child. [ 2 ] Each of the parties has entered into a new relationship and sometimes that can work to the benefit of a child of separated parents. In this case however the parties have found new partners who see their role as allies in the fight against the enemy. Each has played a

part in escalating the conflict, whether by waging war on Facebook, joining in angry incidents that take place at the exchange of the child, or making provocative or intimidating comments. [ 3 ] Each of the parties has come to court expecting victory, hoping for an order proclaiming their side in the right and the other in the wrong. Each has taken unrealistic positions. Each side will be disappointed. Nobody seems concerned enough about how the conflict is affecting the child, certainly not to the point where either has shown a willingness to back down or become conciliatory.

Each party will swear that this is not the case, but the actions of the parties speak louder than their words. [ 4 ] The difficulty is in arriving at an order which adequately protects this child from further distress. There are no impartial family members to provide a safe haven for the child. The Ministry of Children and Families was involved with this family, but this no longer seems to be the case. [ 5 ] One of the most contentious areas of conflict concerns the child’s name. The Applicant prefers the child’s first name and strenuously insists that the Respondent must do the same.

The Respondent thinks that the child’s first name is a terrible name, and prefers to call her by her middle name. This angers the Applicant. The Respondent knows that this angers the Applicant and is only too happy to push that button repeatedly. Both sides insist that the child prefers the name each uses. This conflict began at a time in the child’s developmental life when it likely mattered little to her what name she was called by. The extreme anxiety that the child is now experiencing is almost certainly the by-product of witnessing her parents’ behaviour surrounding the subject.

[ 6 ] There are a number of issues between the parties that stem from their mutual mistrust of and contempt for one another. There is a struggle to control and to resist control. Unfortunately, matters have progressed to the point where the parties have lost the ability to be objective, and while each side likely wants to see this child to be happy, neither is willing to do anything to accomplish that if it involves any act of humility or surrender on their part. Perhaps these reasons for judgement will serve as a reality check.

Perhaps they will not. [ 7 ] This trial drew significantly on the resources of this court. It took eight days, and for the first four of those, the Applicant was represented by counsel. That counsel filed a Notice of Withdrawal on June 2, 2014. In addition to the parties, a total of eight other witnesses were called: each of the parties’ new partners, the Respondent’s ex-wife, a social worker from the Maple Ridge office, the Respondent’s mother-in-law, a young man who witnessed an altercation between the Applicant and the Respondent’s wife, the Respondent’s sister, and an acquaintance of the Applicant.

Some of these persons would rather not have been drawn into the middle of this conflict, and some had little evidence concerning the child, but were called instead by one party to disparage the other. Following the conclusion of the evidence, the parties agreed to file written submissions, which were to be filed by September 16, with rebuttal arguments filed by September 23 rd . [ 8 ] Following is a

summary of the court history of this matter, a

summary of the evidence heard at trial and the applicable law, followed by the reasons for the order which is now being made in this matter. Court History [ 9 ] During the opening statements in this matter, each side tried to suggest that the other was the more litigious in this matter, inviting an examination of the history of the court proceedings. [ 10 ] The Applicant and Respondent met in 2006 and began living together in 2007. They separated in 2008, but still saw each other occasionally. The child was conceived on one of these occasions and was born on (d.o.b.), 2009.

The Applicant filed an application for custody of the child and for child maintenance on April 3, 2009. No reply was filed because on April 15, 2009 the Applicant filed a request to withdraw that application. On the same day a new Application was filed once again requesting custody of and maintenance for the child.

In that application, the Applicant wrote: “I am willing to share custody 60% for myself and T.E.V. lives with me for the majority, the father can have custody 40% ie: every other weekend or on special holidays or vacations and we can share the responsibilities of raising her and making decisions on her behalf and for the best of T.E.V. herself until she reaches the age of majority.” [ 11 ] On April 21, 2009, the Applicant once again filed a request that her second application be withdrawn. The same day she filed a new application asking for custody and guardianship of the child and for child maintenance.

With this application, the Applicant wrote: “When TE.V. is an age where she is not needing motherly day to day care as the infant she is now, D.A. may have unlimited access/part time custody (every other weekend as he himself suggested he wanted) and play an equal part of her life as her father.” [ 12 ] On May 26, 2009 the Applicant withdrew her application yet again, once again asking for custody and guardianship of the child and maintenance for the child. For the fourth time, the Applicant withdrew her application on October 7, 2009. She filed another application seeking the same relief as before.

That application was also withdrawn on February 23, 2010, when another application was filed by the Applicant. [ 13 ] The Application of February 23, 2010 asked for custody and guardianship of the child as well as child maintenance, but in addition, the Applicant was now asking that the Respondent’s access to the child be professionally supervised at the Respondent’s expense, and that he “provide [his] criminal record and undergo hair follicle tests.” She also requested a restraining order. The reasons she set out were as follows: “On March 3, 2010 he wanted to know where the child went to daycare.

When I responded that I didn’t want him interfering with her at daycare he replied “I will take her whenever and wherever I want.” Note: His father kidnapped him from Vancouver at 2 yrs. old and took him to Serbia for 19 years. I fear she will be in danger in many aspects, including this above reason… He said he would sell everything and move to Serbia.” [ 14 ] An affidavit of personal service was later filed on May 12, 2010, in which a bailiff swore that the Respondent had been personally served with documents on March 11, 2010.

The Respondent failed to file a Reply to the application of February 23 rd and the matter came on for hearing on June 15, 2010. On that date the Honourable Judge B. G. Hoy ordered that the Applicant was to have sole custody and guardianship of the child. The Respondent was ordered to have reasonable supervised access to the child on terms and conditions determined by the Applicant. The Respondent was ordered to pay monthly child support in the sum of $500 per month and one half of the child’s day care costs.

The Respondent was not present at this hearing. [ 15 ] On April 5, 2011, the Applicant applied for an order permitting her to serve the Respondent substitutionally with documents at his business address. That application was refused. On the same day, the Applicant applied ex parte (without notice) for an order increasing the amount of child maintenance. That application was also dismissed. [ 16 ] On November 2, 2011, the Respondent filed an application to vary the order of June 15, 2010. His application proposed joint custody and guardianship and a shared parenting arrangement.

He also asked for a Custody and Access Report pursuant to

section 15 of the Family Relations Act and for an adjustment of the child support obligations based on the result of his application. The Applicant filed a reply to this application on January 6, 2012 in which she was opposed to a Custody and Access Report being prepared. In what appears

to be contradictory positions the Applicant stated, on the one hand, that the order should not be varied because there had been no material change in circumstances since Judge Hoy’s order was made, and on the next page proposed her own changes to the order.

She sought an order preventing the Respondent from having overnight visits with the child and that supervised visits take place “in a public and child friendly venue at an equal distance between “the parties’ homes.” She wanted the access visits reduced to twice per week: a mid-week visit of no more than 90 minutes and one visit on the weekend of no more than two hours.

She also wanted a restraining order preventing the Respondent’s new wife from having contact with the child or from sending email on behalf of the Respondent. [ 17 ] A Family Case Conference was held on June 14, 2012 and the parties agreed that the Respondent would have access to the child each Sunday for an hour, and six persons were selected as acceptable supervisors for the visits. [ 18 ] One June 29, 2012 a hearing was held before the Honourable Judge D. R.

Gardner, who varied the order of June 15, 2010 by granting the Respondent unsupervised specified access to the child each Wednesday from 3:00 p.m. to 6:00 p.m. and every second weekend beginning on Friday at 4:00 p.m. and ending on Saturday at 6:00 p.m. for the visits before September 14 th , and ending on Sunday at 4:00 p.m. for the visits from and after September 14 th . The Applicant was permitted to be present for the exchange of the child. [ 19 ] A trial was scheduled to commence on January 8, 2013, but the trial was adjourned generally.

On February 19, 2013, the parties entered into a consent order before the Honourable Judge R. B. Caryer to vary the order of July 29, 2012 by changing the locations for the exchange of the child. The Respondent’s new partner was permitted to pick up the child if the Respondent was unavailable to do so, but if she was present at the same time as the Respondent, she was to remain in the vehicle. If the Respondent planned on travelling east of Hope, B.C. with the child, he had to provide the Applicant with notice of where he was going, where the child would be staying, and contact information.

The information was to be provided via text message. [ 20 ] The parties appeared in court again on March 19, 2013 and another Family Case Conference was set for June 21, 2013. At that conference no consent orders were reached, but the Honourable Judge W. G.

MacDonald ordered the parties to exchange financial statements no less than 30 days before this trial and the Respondent was also ordered not to cut the child’s hair while she was in his care. [ 21 ] On December 3, 2013 the Respondent brought an application to amend Judge Gardner’s order and asked for access to the child at specific times, for an order that the Applicant would not be present at exchanges for access visits. A hearing was held before the Honourable Judge W. G.

MacDonald on December 20, 2013, and he gave the Applicant permission to take the child on a family vacation to Mexico from December 30, 2013 to January 8, 2014. He also ordered that the Respondent would receive 51 hours of lost access time, with counsel to discuss how that would be scheduled. [ 22 ] The trial of this matter commenced on March 31, 2014. On that date an order was made for disclosure of the records of the Ministry of Children and Families pertaining to this child, pursuant to

section 212 of the Family Law Act. A second order was made during the course of the trial giving the Respondent some additional time with the child during the summer.

Summary of Evidence [ 23 ] The Applicant was born in 1971 and is 43 years of age. The Respondent was born in 1965 and is 49 years of age. The parties met sometime in 2006 (they disagree on what month it was). At the time the Respondent was coming out of a relationship with his previous wife, L.A. There were two children from that marriage. Those children were in elementary school at the time these parties met.

The Applicant testified that she bought a house and the two of them moved in together in 2007. [ 24 ] The Applicant testified that she witnessed some domestic violence between the Respondent and his previous wife. She claims that she witnessed the Respondent punch his former wife in the face and break her foot. She was concerned about this, but she testified that the Respondent promised her that he would attend counselling and this seemed to satisfy her.

She testified that she also kept in touch with the Respondent’s previous wife and developed a friendship with her. [ 25 ] According to the Applicant, she was concerned about the Respondent’s abuse of alcohol and illegal drugs. She says that, once again, he agreed to participate in counselling and asked her to arrange it for him. She says that she did so, but he would not attend, telling her “no woman is going to tell me what to do.” This added to the strain in their relationship. The Applicant described further instances of alcohol and drug abuse during the time she lived with the Respondent.

She says that he often drove drunk and used cocaine in the home. [ 26 ] The parties separated in 2008. Once again there is a disagreement when. He says it was in May, she says it was in April. The Respondent moved into his place of business. The two of them would get together for intimate encounters, but were unable to reconcile their relationship.

As the Respondent crudely describes it, “we were servicing each other.” He testified that he told the Applicant that it was not a good idea to have a child with someone she was not in a relationship with and believed that she was using birth control during their encounters. During one of these encounters the Applicant became pregnant with the child who is the subject of these proceedings. The child was born on (d.o.b.), 2009.

The Respondent was not present at the child’s birth, at the time he was on a vacation in Jamaica with his two older children during their spring break. [ 27 ] The Applicant testified that after the child was born, she called the Respondent and asked him to sign the child’s birth certificate. According to her evidence, he said “how do I know it’s mine?” [ 28 ] There is a difference of opinion as to how much contact the Respondent had in the child’s life initially. It is his evidence that he saw the child about six or seven times during the first year of her life.

The Applicant testified that the Respondent met the child on April 14, 2009 and that he saw her again in May and June. The Respondent testified that the Applicant wanted money and he gave her $500 per month without a court order. The Applicant claims that the Respondent was absent for the first three years of the child’s life. She does acknowledge that she was receiving money from the Respondent for the support of the child, but said that he would often make it humiliating for her to get her cheques. She testified that on one occasion, the Respondent wrote the words “for sex” in the memo line of the cheque.

On another occasion she lost the cheque and when she asked him for a replacement, he asked her a number of embarrassing questions about sex. On another occasion he asked her for a large loan.

[ 29 ] The Applicant named the child T.E.V. [The middle name] is the name of the Respondent’s grandmother. He did not like the name “[First Name]” and shared that opinion with the Applicant. As he puts it, “[First name] is not a name, it’s a word.” He believed that the child would get picked on and mocked for the name. He told the Applicant that he would call the child [middle name].

The Applicant has claimed several times that it is the child who dislikes being called [middle name], but right from the start, at a time when the child was too young to appreciate the significance of a name, the Applicant made it clear that she did not want the child to be called [middle name].

Although the Applicant insists that it is the child who dislikes the name, it is clear that she is the one who gets most upset when the Respondent calls the child [middle name]. [ 30 ] As set out previously, from April of 2009 to February of 2010, the Applicant filed six different applications in this court for various custody, access and child support orders. Five of these were withdrawn and the Respondent did not file a reply to any of them. The Applicant testified that in early 2010 there were a number of incidents which concerned her enough that she decided to proceed with her court application.

For example, on one occasion she alleges that he told her he would take the child whenever he pleased, stating “whatever I pay for, I own half of.” She testified that he had also told her that he himself had been kidnapped as a child and that he might take this child to Serbia if he wasn’t careful. She also testified that he told her that if she got an order for custody he would cut her head off. [ 31 ] When the order of June 15, 2010 was made, the Respondent was living at his workplace.

He testified that, although his two older children would visit him there, he did not think this was an appropriate place for a baby and did not push for child access. It was his evidence that the Applicant was pressuring him to reconcile with her and even told him in a text message that she wanted a second child with him. The Applicant’s recollection is that the Applicant told her that he simply had no interest in seeing this child. [ 32 ] In September of 2010 the Respondent met T.A., the woman who is now his wife.

He testified that when he told the Applicant that he was in a new relationship, she told him that he was not allowed to take the child for any access visits. For much of the following year, there is a wide divergence in the parties’ evidence. The Applicant asserts that the Respondent was not interested in seeing the child. She recapped a number of conversations which she says she had with the Respondent about money.

The Respondent maintains that the Applicant was obstructing his efforts to have a relationship with his child, in part because he had a new girlfriend. [ 33 ] Whichever of these two versions is closer to the truth, the Respondent obviously wanted to see his child bad enough that he hired a family lawyer to help him do so. It is clear that intense animosity existed between these parties during this time. Their text messages give some examples of this. On September 16, 2011 the parties had this text message exchange: Applicant (A): See you in court. She belongs with her mother who has been there from the start.

If her biological father wants to know her he will prove that he does have T.E.V.’s best interests at heart by cooperating with all court orders currently in place. Respondent (R): She has two momys now if she was abit yonger new momy coudaw brestfed her to theres enough milk for twins [middle name, misspelled] and dady A: Do not talk about my daughter in such a grotesque display of disrespect an immaturity Her name is [first name] NOT [middle name]. Please call her by her name [ 34 ] T.M. testified that she was the one who suggested that the Applicant get a court order for access.

She became very involved in the dispute between the parties. She testified that she reads all of the Respondent’s legal correspondence and will send messages for him by email and by text messaging because she is a better speller than he is. [ 35 ] On October 19, 2011 the Respondent emailed the Applicant and informed her that he would be taking legal steps to get access to the child and that it would be on his terms. A common theme in the parties email correspondence is that each will make demands, rather than try to negotiate or make concessions.

The Applicant responded on October 27, 2011 by stating that she was not prepared to allow any visits to occur. (Her email says that she would not allow any “supervised” visits, but it is reasonable to infer that if she was not prepared to allow those, then she would not allow unsupervised ones either.) [ 36 ] In between that exchange, the parties continued their uncivil discourse. In an exchange of text messages, it was clear that the Applicant had litigation on her mind. It was also clear that T.A., then the Respondent’s girlfriend, saw her role in all this as doing more than just type the Respondent’s messages.

In the following embarrassing exchange, the parties wrote: A: I have also save everything from the day I became pregnant o the picture of your pregnant girlfriend with your twins and all those messages. I also have many witnesses ready to testify on behalf of your dangerous sociopathic and psychotic behavior. R [actually T.A.]: Amazing the shitty lies you make up when you don’t get your cake and eat it too ive never seen anyome stoop so low tell me in the time you dated and lived with D.A. was he anything but a loving caring parent to his children? U know damn well he was.

So the man that according to u is abusive and sociopath is the same man u deliberately got pregnant from without his consent have continued trying to get back with texted saying you want to be a family ive saved all your pathetic messages any anyone can see the only thing your doing is. Trying to get even by slandering us your jealousy will stop at nothing. Go ahead and get an assessment of us it costs upward of 8 grand and will definitely work in our favour..D.A. does not need. To reduce his payments to get a house we have already bought a house together big enough for T.E.V. to have her own room.

And I am her step mom weather u accept it or not we have been living together for over a year. D.A. doesn’t know T.E.V. thanks to j but hes still her father your onlh interest is to get his money as mucn of it as u can and keep him ffom ever knowing his daughter unless hes with you. Well guess what its not a package deal and have a little self respect. Your days of using and trying to get even are over he will get his daughter and I will help him do whats right and fair anyway I can. Causd in no way do we want to see T.E.V. grow up to be the spiteful vindictive woman that her mother is.

If her best interests are your priority then stop being so selfish and encourage the relationship with her father. We love the pics at the petting zoo she looks so much like her dad in the one with tbe bunny”

[ 37 ] One might expect a new partner of the parent of a child who is involved in a custody dispute to remain out of the fray and leave matters between the child’s parents. Ideally, such a person will often try to be a peacemaker or at least try and make the environment more comfortable for the child by attempting to reduce the conflict. Instead, the Respondent’s new partner saw it as her role to become a combatant and to do what she could to irritate the Applicant.

In a subsequent text message exchange, she tells the Applicant “Im in D.A.’s life to stay and soon to be a big part of T.E.V.’s so get used to it sweetheart”. She gets the desired result from the Applicant. Initially the Applicant tells her to stop texting, but instead of taking the high road, the Applicant then responds “Over my dead body. U will play very little role in T.E.V.’s life. You are not fit to interact with her.” More immature remarks are traded back and forth in the subsequent exchange. [ 38 ] The Respondent continued his needling of the Applicant.

On October 23, 2011 he texted her pictures of furniture that he was picking out for the child’s bedroom. T.A. also used her Facebook page to send a series of immature and hateful messages. [ 39 ] On November 2, 2011, the Respondent filed an application to vary the order of June 15, 2010. His application proposed joint custody and guardianship and a shared parenting arrangement. He also asked for a Custody and Access Report pursuant to

section 15 of the Family Relations Act and for an adjustment of the child support obligations based on the result of his application. [ 40 ] On January 9, 2012 the Applicant sent a letter to the Respondent’s lawyer setting out what she called “the conditions I have determined” for the Respondent’s contact with the child. Included were the following: 1. The Applicant had to “co-supervise” all of the visits with a man named David G., who was the child’s Godfather. 2. The child had to be called by her first name. 3. The Respondent’s new girlfriend was “banned” from attending the visits. 4.

The Respondent could bring his older children but only beginning with the sixth visit. 5. If the Applicant considered that the Respondent was being abusive to her, the Applicant would end this visit and deny future visits until a court ordered a visitation schedule. 6. The visits would take place at McDonald’s play area in Mission. [ 41 ] The Respondent’s counsel responded by letter the following day, agreeing to the conditions until the next court appearance. On January 12, 2012, the Respondent emailed the Applicant and asked that their communications be in writing rather than by telephone.

This was a reasonable request, given the level of conflict that existed. The Respondent was concerned about false allegations being made against him. It was wise for both of them that a record of their communication should exist. The Applicant did not want to do this even though she had previously emailed the Respondent on January 6, 2012 telling him to “cease and desist” sending emails from his work address. On February 9, 2012 the Respondent’s lawyer emailed the Applicant’s lawyer explaining the rationale for written contact.

The Applicant’s lawyer at the time held on to the hope that the parties would someday learn to co-parent respectfully. [ 42 ] Throughout this matter, the parties have each looked for ways to “push each other’s buttons” and find ways to aggravate one another. After the Applicant demanded that the Respondent not send email from his work email address, the Respondent created a new Hotmail address and called himself “[misspelled middle name]sdaddy”. While no doubt intending to irritate the Applicant, he exposed his own ignorance by not knowing how to spell his child’s middle name correctly.

On March 15, 2012 he sent the Applicant an email from this address. He told the Applicant that his girlfriend, who he called “step mommy”, had dropped a birthday present for the child off at her day-care. There was no warning that this would be occurring [ 43 ] When T.A. went to the child’s day care, the staff of the facility correctly refused to let her see the child.

On March 16, 2012 the Applicant’s lawyer faxed a letter to the Respondent’s lawyer protesting the impropriety of the surprise visit to the day-care, as well as pointing out that the Respondent’s choice for his new email address was “unnecessarily provocative.” [ 44 ] The parties had made their first appearance in Family Court on March 13, 2012 and the matter was adjourned over to a Family Case Conference that took place on June 14, 2012. There they agreed that the Respondent would continue to see the child every Sunday from 11:45 a.m. to 12:45 p.m. but the Applicant would not agree to unsupervised visits.

A hearing was scheduled for June 29, 2012 on the issue of whether or not the visits would have to be supervised. At the hearing the Honourable Judge Gardner determined that supervised visits were not required and he ordered a series of unsupervised visits. [ 45 ] On one of the first of these visits, the Respondent threw the child a belated birthday party. The child’s cake read “Welcome Home [middle name]”. From the account of those present and from pictures which were taken of the event, the child didn’t seem to mind this, but this made the Applicant very angry.

She complained about the Respondent continuing to refer to the child by her middle name. There were no court orders in place preventing anyone from doing this, but it was a huge area of contention for the Applicant. She testified that there were a number of arguments that took place at the exchanges of the child. Apparently both of these parents felt justified in engaging in loud angry arguments in the presence of the child over the subject of the child’s name. It is something that neither side would budge an inch on.

The child had ample opportunity to learn that this was a subject that made her parents very angry and it placed her in a difficult position. [ 46 ] The Applicant emailed the Respondent on August 23, 2012, complaining about the Respondent calling the child by her middle name. The Applicant asserts that it is the child who does not like this, but from the evidence heard at trial, it is difficult to discern if the child dislikes it, or if the child is taking her cues from the Applicant. Clearly the use of the name angers the Applicant and has done so since the child was a baby.

It is unclear if the use of the name actually upsets the child, or if the child is afraid to use the name because she knows that if she does, he mother will become upset.

[ 47 ] Rather than being conciliatory, the Respondent and his new partner used the name issue as something to continue to goad the Applicant with. They bought the child a puppy and named it “[a name mocking the child’s first name]”, a further display of their immaturity and of their desire to escalate rather than reduce conflict. It was also mocking of the child about something that she had no control over. [ 48 ] The issue of the child’s name led to a major incident which occurred between the parties on Halloween night. The Respondent had the child out trick-or-treating.

An incident occurred at the exchange of the child. According to the Respondent, one of the children that the child was with said “goodbye [middle name]” and this made the Applicant very angry. According to the Respondent, the Applicant shouted at the child “her name is [first name]!” and she began to violently remove the child’s Halloween costume. The Applicant alleges that she was threatened and assaulted by the Respondent. The Respondent denies this. The Respondent blames the Applicant for injecting discord into what had been a happy night for the child.

Police were called and the Respondent was later arrested and charged with assault and threatening under the Criminal Code . He was placed on a recognizance with conditions which prohibited him from having direct contact with the Applicant, but not with the child. [ 49 ] The criminal trial of these charges was held in Provincial Court in Port Coquitlam on January 2, 2013. The Honourable Judge Buller-Bennett presided and gave oral reasons for judgement.

Judge Buller-Bennett said that she would have preferred to give written reasons, but gave judgement from the bench because the parties expressed some urgency in order that the family court trial could proceed. [ 50 ] Apparently, during the Halloween incident, the Applicant placed her iPhone inside of her brassiere and was secretly recording the exchange of the children. I have not had the benefit of hearing that recording, but according to Judge Buller-Bennett’s reasons for judgement, when the child was called [middle name], the Applicant became very upset.

On the recording, the child is heard to say “I don’t like you daddy” and the parties argued about the child’s name. At this point T. A. injected herself into the argument and told the Applicant “I am her stepmother, get over it.” She can then be heard to call the Applicant a “fucking bitch”. The Applicant responded in kind, but then said that this was improper language to use in front of the child.

As the child became more upset, the Applicant said “look what you’re doing to my daughter.” The Respondent is then heard to say to the Applicant “I’ll smack your head in.” [ 51 ] One would except that loving parents would do their best to shelter a young child from this kind of behaviour, but judging from their actions, these three adults love their conflict more than they love this child. They would rather get their way than back away from a fight in the presence of their child. That is what happened on this occasion. All three of them continued to yell at one another.

The Respondent extended his middle finger in the Applicant’s direction and he may or may not have pushed her as well. I say “may or may not” because he was convicted of assault and threatening at trial, but his assault conviction was overturned on appeal. [ 52 ] I am less concerned with whether or not an assault occurred than with how these three adults (chronologically speaking) behaved. The point is that none of these three showed the maturity to take the high road and shelter this child from their conflict. They love their fight most.

When faced with the choice of having a loud, profane and possibly violent fight in the presence of this child or not joining in and removing the child from the situation, they choose the former. [ 53 ] The Respondent was placed on probation and was required to complete Respectful Relationships counselling and Anger Management counselling. It is unclear whether he obtained any benefit from these courses. [ 54 ] The Applicant testified that after the Respondent was placed on an order of no contact, she arranged for other people to attend for the exchanges.

On February 19, 2013 the parties entered into a consent order in front of the Honourable Judge Caryer changing the location of the exchange of the child. But even though he was present in court when the order was changed, the Respondent, in a display of further immaturity, pretended that there had been no change in the order. In a text message exchange, the Respondent acted as if there had been no change in the order, when he obviously knew better. He texted “the judge did not change the order yet.

Until all matters are resolved.” When it was pointed out that he was incorrect and that he should bring the child the McDonald’s, he texted back “I have no order. Do you have it with you?” He insisted that the Applicant would have to pick the child up from his home. It was a very stupid display of arrogance on the Respondent’s part. The Applicant attended to the Respondent’s home to pick up the child, accompanied by an RCMP officer. T.

A. also testified about this incident, taking the same tact as the Respondent, saying “we thought we had to wait for the order.” [ 55 ] The Applicant emailed the Respondent on June 1, 2013. The purpose was to disagree with a proposal for some vacation access, but the Applicant’s tone in the email is one of lording her position in the litigation over the Respondent.

She begins by reminding the Respondent that “I am the sole custodian and full guardian of T.E.V.” and she then hurls an array of criticisms of the Respondent, while accusing him of “continued negativity.” The Applicant sent a similar email on July 9, 2013 as well. Unfortunately, Ms. Mayer responded with more negativity in a text message exchange of July 31, 2013. She told the Applicant “I have no issues telling the truth. The same certainly cannot be said of you. Your gig is up!! Big time”. [ 56 ] The parties had another Family Case Conference on June 21, 2013, but nothing was resolved. The Honourable Judge W. G.

MacDonald ordered the parties to make full financial disclosure and also ordered the Respondent not to cut the child’s hair. Apparently he had taken the child for a haircut during one of his access visits and this upset the Applicant. [ 57 ] Attempts to negotiate additional time with the child by the Respondent were made, without success. The Applicant refused to agree to any proposed changes outside of the order, and would usually view such requests as an opportunity to tell the Respondent and his partner what she viewed their faults to be. [ 58 ] In the meantime, T.

A. continued to use her Facebook page as a means of oblique criticisms of the Applicant, though why the Applicant bothered to read these posts is hard to understand. They contain a lot of nonsense about “father’s rights” but nothing about a father’s responsibilities or a child’s right to grow up in a safe and nurturing environment. The Respondent also expressed a similar sentiment when he said, in cross-examination, “I’m here to get some rights.

I am aware that I have zero rights.” Once again, this type of sentiment displays a selfishness in which the parent expects to be the center of attention rather than the child, and in which the responsibility to raise a healthy and well-adjusted child is overlooked and the child’s needs are set aside in favour of the parent’s wants.

[ 59 ] In July of 2013 an incident occurred at the child’s day-care and as a result, the day-care provider emailed counsel for the parties and advised that the day-care would no longer permit the exchange of the child to take place at the day-care. The proprietor, Ms. C., wrote “after careful consideration we have decided that it is best if we have nothing to do with the transfers. It causes too much stress on myself and the teachers. I will not change my mind on this matter.” In an email of July 31, 2013, she writes “I don’t want D.A. on [the day-care] property.

He causes myself and my teachers extreme stress.” In an email of August 7, 2013 to the Applicant’s counsel, Ms. C. reiterates these sentiments. Specifically, her concerns were that the Respondent attended with two large men and acted in an intimidating fashion towards her staff, and because he calls the child [middle name], when they wish her to be called by her first name. The Respondent does not understand what the concern was and believes that the incident was overblown. He testified that the two large men were his son and his nephew.

The point missed by all of this is that the day-care has no obligation to become involved in this conflict. They were doing so as a courtesy. Unfortunately, that courtesy was not reciprocated. [ 60 ] Another confrontational incident occurred in the presence of the child on September 25, 2013. What is sad for the child and embarrassing for the parties is that neither side expresses any regret that this incident took place in front of the child. Each is concerned with proving that the incident was the fault of the other side. At an access exchange taking place at a McDonald’s Restaurant, T.

A. and the Applicant had an angry confrontation. According to T. A., the Applicant walked up to her car and the two of them had a conversation as follows: App: Don’t ever write anything on my Facebook again! TA: I never did. App: Yes you did. TA: No I didn’t. App: You’re a liar. TA: I don’t want to talk to you. App: If you ever write anything on my Facebook again, I’ll - don’t you ever do that again! TA: I don’t want to talk to you again. [ 61 ] According to T. A., all of this took place in front of the child as she was undoing the child’s seat-belt.

She testified that the Applicant grabbed her car door as she was trying to close it, and the Applicant punched the driver’s door window very hard. The Applicant was holding the child as she did this. T.A. said that she responded by saying “get away from me, you’re nuts, you’re crazy.” She testified that the Applicant was standing in front of her car as she tried to drive away, and was screaming “you’re trying to run me over” as she punched the car window again. T.A. testified that she tried to drive away, but her car stalled. She decided to go inside the restaurant to call the police.

As she was walking inside, she says that the Applicant struck her and she pushed the Applicant back before going inside to call the police. [ 62 ] The Applicant has a different version of this event. She claims that T. A. struck her with her vehicle and “shoulder checked me”. She claims that she did not punch the window of T.A.’s car, she slapped it with an open hand. She also claims that it was T.A. who punched her first and “I shoved back.” [ 63 ] It turns out that there was an unbiased and honest witness to this incident.

Joseph S. was working at the McDonald’s drive through window and could see and hear the confrontation between the two women. He testified that he observed the Applicant approach T.A. and he saw the Applicant strike T.A.. He testified that she was struck below the right eye. He reported the incident to his boss and went back to work.

He recalls that police were called, but that he was never asked to give them a statement. [ 64 ] On December 9, 2013, Social Worker Allison Hurst of the Maple Ridge office of the Ministry of Children and Families wrote to the parties, outlining her conclusions after ongoing assessments by her Ministry. It was refreshing to have Ms. Hurst’s involvement because there was finally someone in the picture whose main concern was the welfare of this child, not which side was winning the parental war. Ms.

Hurst concluded that this child “has been found in need of ongoing protective services due to emotional harm.” No doubt each of the parties saw this as the fault of the other party, but Ms. Hurst correctly identified the source of the child’s problems as “her exposure to the intense, chronic conflict between her two parental homes.” The Ministry proposed a mediation process because of the intense level of conflict. [ 65 ] Ms.

Hurst testified that the Ministry has received three complaints concerning this child: (1) a complaint that the Respondent would not call the child by her first name; (2) a complaint about the child witnessing the Halloween 2012 assault; and (3) a report of emotional harm that the child was suffering. According to Ms. Hurst, her concern was not so much what name the child was called, but rather how the Applicant was handling the situation. The conflict was arising out of the Applicant’s insistence that the child be called by her first name. Ms.

Hurst made some suggestions about supports that the parties could make use of. [ 66 ] Ms. Hurst interviewed the child on two occasions. She describes the child as very active. It was her impression that, it was not so much that the child cared about which name she was called, but that it was a subject she simply did not want to discuss. It was also her impression that the child was comfortable in both homes. In the plan that she formulated, she wanted both parents to take counselling about how to keep their dispute out of their child’s life. [ 67 ] Ms. Hurst testified about reports about the child acting out.

Some of these reports come from impartial sources such as the day- care providers. The child has cut her own hair with scissors and also scratches herself. The child also has shown problems with bedwetting and soiling herself. Ms. Hurst testified “the level of conflict was very difficult for me as a social worker. I can’t imagine what

it will be like for that little girl as she gets older.” Ms. Hurst feels that the conflict between the parents has triggered these behaviours and the child suffers intense anxiety when she is in the presence of both of her parents. [ 68 ] Ms. Hurst testified that the Applicant was audio recording the child, when the child would complain about the Respondent. Ms. Hurst described this behaviour on the part of the Applicant as alarming and not healthy. I would concur in this assessment. [ 69 ] In cross-examination, Ms. Hurst described the parenting styles of the parties as very different.

She described the Respondent as more action oriented and less “feelings oriented”. [ 70 ] The Applicant has asked that considerable weight be placed on a report prepared by the Surrey Family Preservation Program. The report recommends that the Respondent’s access to the child be suspended for six months. There are a number of problems with this report. Firstly, the report writer never spoke with the Respondent. All of the input from the report comes from the Applicant. The report writer was never called as a witness so there has been no opportunity to question her about her report. Ms.

Hurst testified that some of the comments which the report writer attributed to Ms. Hurst in the report are inaccurate. I also concur with Ms. Hurst when she testified “it would not be my recommendation to recommend that a parent not get access when I hadn’t met that parent.” [ 71 ] Until the mediation process could take place, Ms. Hurst set out a list of expectations of the parties. Paraphrased, these were as follows: 1.

The parties were expected to work with a counsellor who could assess the child’s behaviour in the home and to work on strategies for the parents to minimize the impact of their conflict on the child. 2. Access exchanges were to be completed by a third party so there was no direct contact between the Applicant and the Respondent or Ms. Mayer. 3. The parties were not to insult one another while in the presence of the child. 4. The parties were not to attend at the child’s daycare on the other parent’s scheduled parenting time. 5.

The parties were to work with a counsellor to resolve the issue of how best to deal with the issue of the child’s name. 6. The parties were expected to become informed of and involved with the counselling services utilized by the child. 7. Neither party was to audio or video record the child in regard to her feelings, thoughts, opinions or expressions about the other parent. [ 72 ] Unfortunately after the letter of December 9 th was sent by Ms. Hurst, this file was transferred to a different social worker in the Surrey office of the Ministry. Since Ms.

Hurst has ceased involvement there does not appear to have been any follow-up. It is unfortunate for this child that she no longer has someone like Ms. Hurst on her side. [ 73 ] At the trial of this matter, the Respondent testified that he tried to meet with a counsellor, but when he went to do so, he was told that she was on bereavement leave. He testified that he has never been contacted to reschedule the appointment, but he was very surprised to learn that the counsellor has met several times with the Applicant. T.A. testified that the meeting didn’t take place because the Respondent wanted his lawyer present.

She testified that she and the Respondent later went to meet with the report writer but the meeting was cancelled because the report writer was on bereavement leave. They had not been told that this would happen. She said that the Respondent was never called back to reschedule. [ 74 ] A hearing was held before the Honourable Judge MacDonald on December 20, 2013. The parties had conflicting plans about where the child would be over the Christmas holidays. The Respondent and T.A. planned to have their wedding on December 31 st and wanted the child to be the flower girl at the wedding.

But the Applicant and her new boyfriend had planned a trip to Mexico to celebrate his 50 th birthday. Judge MacDonald accurately captured the nature of the parties’ relationship when he said “it appears very obvious that mother would not consent to a request to change the order unless so ordered by a court or unless there were really exceptional circumstances.” Judge MacDonald recognized that it was a difficult situation, noting “there is no way to either grant or deny the application without causing harm to at least one of the parties”.

He permitted the Applicant to take the child to Mexico, but ordered that the 51 hours of lost access time to the father was to be made up within a reasonable time.” [ 75 ] The Respondent conceded in cross-examination that he is often late in picking up the child. He himself has cancelled some of the visits, and when asked about specific visits, he testified that he could not recall the specific reason for cancellation, but that “it must have been important.” [ 76 ] The Respondent testified that he enjoys a good relationship with his two sons from his previous relationship and with his ex- wife.

It is unclear to what extent this is true. The Respondent’s ex-wife, L.A., was subpoenaed to testify by the Applicant. L. A. applied to set the subpoena aside. In short, she didn’t want to get involved in these parties’ conflict. She said in her application “attending court as a witness will bring hardship and strife into my family and children’s relationship with their father. It would be very harmful to them both and their future mental and emotional state.” [ 77 ] L. A.’s application to have the subpoena quashed was refused, and she was questioned by both parties.

Without recounting her testimony, I can simply state that nothing in her testimony has had any effect on the outcome of this matter. The ultimate result in this case is the result of the parties’ conduct, words and actions towards one another, and more importantly towards the child and not anything that L. A. has testified about. [ 78 ] Patricia H., the Respondent’s mother-in-law, testified that she sees the child on average twice per month. She calls the child by her middle name, and this does not appear to upset the child. She testified that when the Respondent is present, the child will call him

dad, but when he is not present, the child will call him by his first name. She describes the child as talkative. She testified about an occasion when the child saw a police officer and said “the police are gonna come and get D.A., he’s been a bad guy, H.S.K.V. told me so.” Mrs. H. also described some disturbing behaviour on the part of the child involving cruelty to animals. [ 79 ] The Respondent’s sister, Maria, testified, but had little good to say about her brother or his new wife.

She described him as having problems with alcohol and testified that he called her in advance of the trial, and in her words “tried to intimidate” her. He left her an angry message on her voicemail and she reported the matter to the police. She describes T.A. as a bully and as very cruel and mean. Maria has developed a friendship with the Applicant and sees the child when she is in the Applicant’s care. [ 80 ] Donna K. had been a mutual friend of the parties. She is now a friend of the Applicant’s and sees the child about twice per week.

She described the child as hyperactive and prone to tantrums and profane language. She also testified that the child pulls her own hair. Ms. K. testified that the child complains about the Respondent and about being called [middle name]. All of this occurs in the presence of the Respondent. Ms. K. had good advice for the parties, saying that she has encouraged them to “move on.” [ 81 ] The Applicant is now in a relationship with S. P. The two of them met in July of 2012. They have decided to wait until after this court action is over before moving to the next stage of their relationship.

He lives in Coquitlam where he teaches martial arts. He has a son from a previous relationship. His son has functioning autism spectral disorder and Mr. P. and his son’s mother share parenting responsibilities for the child equally. [ 82 ] Mr. P. describes the child who is the subject of this action as presenting with behavioural challenges. She displays anger, temper tantrums, foul language and negative attention seeking. He testified that the child has complained to him about being called by her second name. He described a couple of confrontational conversations he had with the Respondent.

They met for the first time in January of 2013 and had this conversation: Resp: Are you the bodyguard? SP: Yes, I’m the bodyguard. No more threats. [ 83 ] On another occasion during an exchange of the child, Mr. P. confronted the Respondent about calling the child by her middle name.

He told the Respondent “the child has a first name, perhaps you could use it.” On still another occasion, he described another confrontational conversation with the Respondent in which the Respondent asked if he was the protection and he said “Yes, why, are you getting out of the car?” He also testified “it is quite clear to me that the child does not like to be called [middle name].” [ 84 ] In the cross-examination of the Applicant, a common pattern emerged in which it became clear that in the Applicant’s opinion, anyone who did not share her point of view was clearly wrong.

For example, she thinks that Allison Hurst was wrong about her assessment of the significance of the child’s name. The Applicant feels that Ms. Hurst was biased in favour of the Respondent. She blames Judge Gardner for removing the requirement that the Respondent’s access be supervised. She believes that her first lawyer did a poor job of representing her and her second lawyer shouldn’t have withdrawn despite not being paid. She says that Joseph S., the witness to the incident at McDonald’s, was wrong and was probably paid for his testimony. She was unable to concede any wrongdoing on her

part in any of the confrontations in which she was involved in, in the presence of the child. At one point however, she began to admit that she might have acted immaturely during the confrontation with T. A. at McDonalds, but then went on to explain why it was all T.A.’s fault. During cross-examination she constantly kept interrupting the questions put to her, wanting to engage in argument rather than answer what were legitimate questions. [ 85 ] It has never been ordered that a report setting out the views of the child be prepared. The Respondent had applied for this, but the Applicant was opposed to it.

Part of the reason was the cost of such a report. In cross-examination of the Applicant, counsel for the Respondent noted that the Applicant felt that it was more important for her to contribute $1500 to the cost of her vacation to Mexico with Mr. P., rather than putting that money towards the cost of a report about the child. [ 86 ] A number of themes emerge from the evidence heard at the trial of this matter: 1. The parties view the child as something to be won, rather than a small human being to be nurtured. 2.

The parties appear to be incapable or unwilling to restrain themselves from acting out on their conflict in the presence of the child. Winning whatever the momentary fight is, seems to be a bigger priority than protecting the child from conflict. 3. Being in control is something very important to both of the parties. The Applicant feels that she must be the one setting the rules, whether or not they are beneficial to the child. In her mind, something is best for the child because she decides it is so. Anyone who has an opinion different from hers is wrong.

For the Respondent, he does not like being told what to do. He sees this as an interference with his “rights” which are more important that the child’s happiness. He sees himself as a victim. 4. The name of the child is more important to the parties than it is to the child herself. She has picked up on the fact that what she is called is a subject of intense anger for each of her parents and she is powerless to contradict either of them. She is likely unable to be honest about her true feelings on the subject because it will upset whichever parent prefers the opposite name. 5.

Neither side is willing to make any concession to the other. Doing so would be losing ground in the battle. Each view matters from an ego-centric perspective, rather than from a child-centric perspective. 6. This child is hurting and has no one taking her side. She knows that if she expresses any affection for one parent in the presence of the other, it will make the other parent angry.

Position of the Parties [ 87 ] In her written submissions, the Applicant acknowledges that the child has serious behavioural challenges which she says the Respondent does not acknowledge. She accuses the Respondent of having financial motivations for wanting to change the status quo. She writes: “D.A. is unable to co-parent effectively due to his negative character issues, immaturity and disrespect, despite several current and historical participating in courses of respectful relationships and anger management.

T.E.V. requires skillful parenting for her to develop as well.” [ 88 ] The Applicant has listed a number of access visits which the Respondent did not attend, and suggests that he has a “limited true desire” to see the child. She takes the position that he “should not be given any more parenting time and decision making power than he has because of his history and the negative impact he is having on his daughter.” [ 89 ] The Applicant is asking for an order that she be the only guardian of the child.

She wants the Respondent to have no parenting time or contact with the child for six months, followed by supervised contact for a period that she calls “gradual re-entry.” She wants to control what this looks like, asking that this contact be “at the mother’s discretion.” She is firmly opposed to any increase in contact, including during holidays. The present Wednesday visits should be done away with, and she should decide what is in the child’s best interest. She asks that the Respondent be the one to pick up and drop off the child from visits and she would like any order for contact to be police enforced.

She asks for an appropriate increase in child maintenance and ongoing financial disclosure. She has set out a number of ancillary orders that she is requesting in her written submissions, including an order that the Respondent only address the child by the name [first name]. [ 90 ] Counsel for the Respondent argues that the Applicant has used her status as sole guardian to control the relationship between father and child. She argues that the records of the Ministry of Children and Families support the notion that the child’s behavioural issues stem from the Applicant’s negativity and control issues.

She notes that the evidence shows that the Respondent has good parenting skills and that when he is with the child, away from the Applicant, the child is happy and does well. The Applicant chooses to frustrate parental contact, make unfounded accusations, about kidnapping for example, and express other irrational fears. The Applicant is constantly critical of whatever the Respondent does, whether it is giving the child a birthday cake or visiting the child’s great- grandmother.

She has made a number of unfounded accusations which had been investigated by the Ministry of Children and Families and none of them have any substance to them. The Applicant has accused the Respondent of being violent, while overlooking the fact the she herself initiated a confrontation with T. A. and assaulted her. This occurred in the presence of the child, in spite of the fact that the Applicant knew that her child had been traumatized by the Halloween incident. [ 91 ] Counsel argues that all of this leads to the conclusion that the Applicant is attempting to alienate the child from the Respondent.

In her written submission, Ms. Wood has set out the warning sign behaviours of an alienating parent, and argues that the Applicant is displaying many of these. [ 92 ] The Respondent testified that he would like an order for joint guardianship and shared parental responsibilities. In his testimony, he proposed that the child live at each home on alternate weeks. In Ms. Wood’s written submission, it is proposed that the child should reside primarily with the Respondent, but that the Applicant should have generous parenting time.

The Respondent also said, in his testimony that he would abide by an order regarding the child’s name. [ 93 ] The positions of the parties are quite divergent. It is clear that the status quo is not healthy for the child, that each of the parties are set in their ways and that the child would be much happier if her parents weren’t so in love with their conflict. Applicable Law 1. Best Interests of the Child [ 94 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

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. [ 95 ]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Parental Alienation [ 96 ] Counsel for the Respondent argues that the Applicant’s behaviour amounts to parental alienation. Parental alienation is a concerted effort on the part of one parent to destroy the present and future relationship between a child and the alienated parent.

This type of negative behaviour is very harmful and abusive to the child because it is negative conduct which is directed toward a young, emotionally vulnerable and impressionable mind. Parental alienation is often grounds for a change of a child’s residence because the harm which may be occasioned by a change in residence is outweighed by the harm to the child that will result if the child is permitted to remain in the care of the alienating parent. [ 97 ] In A.A. v.

S.N.A. 2007 BCCA 363 , the British Columbia Court of Appeal considered the question of when it is appropriate to change the custody of children who are in the care of a parent that is denigrating their relationship with the non-custodial parent. In that case, the trial judge decided not to change the custody of a child from a parent who was described as being “intransigent and highly manipulative” and who was injuring the child’s relationship with the non-custodial parent. The Court of Appeal held that the trial judge’s failure to do so constituted an error in law.

In its reasons, the court wrote: [27]...[T]he trial judge wrongly focused on the likely difficulties of a change in custody... and failed to give paramountcy to M.’s long- term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother’s custody, but to order that she remain in exactly that situation.

The obligation of the Court to make the order it determines best represents the child’s interests cannot be ousted by the insistence of an intransigent parent who is “blind” to her child’s interests. [28] While it is obvious that no court should gamble with a child’s long-term psychological and emotional well-being, the trial judge’s findings show that the status quo is so detrimental to M that a change must be made in this case.

Although M has not been permitted to have a normal relationship with her father for two years, the expert opinion suggests she will succeed in adjusting, although the process will be difficult... [ 98 ] According to the principles set down by our Court of Appeal in this case, the difficulties of a change in the children’s residence are secondary to their long term interest. If I conclude that the status quo is detrimental to the children’s long-term well-being, a change in their custodial status is preferable to maintaining the status quo.

Paramountcy must be given to the children’s long-term interests over the short-term adjustment that may come with a change to the status quo. Analysis 1. The Child’s Health and Emotional Well-Being [ 99 ] The first consideration in an analysis of what is in the best interests of this child is the child's health and emotional well-being. In this case, this child’s health and well-being have been adversely affected by the high level of acrimony that exists between her parents. While the Applicant insists that she is the only one who wants to do what is best for the child, her actions do not match her words.

One of the most glaring examples of this is her initiation of a conflict with and her subsequent assault of T.A., in the presence of the child. I accept the evidence of Joseph Soderstrom as to what took place. He is independent and impartial in this conflict and presented as an honest witness. [ 100 ] It is clear from the evidence that the child is suffering from the conflict and is presenting with behavioural problems. The real difficulty is in identifying which parent could best help the child to address those problems.

The difficulty with the Applicant is that her past behaviour satisfies me that she would likely reject any professional help and advice from anyone who might suggest that she looks at her

part in the causation of the child’s problems. She is only interested in those professionals who support her view of the world. The Respondent sees himself as being pushed around and is intent on getting his “rights” no matter how this affects his daughter. [ 101 ] It is clear that an important

part in getting help for this child is for both parents to see their

part in the conflict. Each of the parties has to stop blaming the other side and clean up their own side of the street. It is obvious to anyone without a side to take in this matter that both of the parties bear some responsibility for that. As things presently stand, neither is willing to do this. [ 102 ] Social Worker Allison Hurst had the best suggestions for helping this child, but the Applicant has rejected any components of that advice which suggest that she somehow change her behaviour.

What this child needs is an environment in which she can be comfortable showing love for both of her parents in the presence of each of them. The child loves her mother and she loves her father. But if she displays any positive feelings for one parent in the other’s presence, she fears that she will be rejected for this or worse. After all, in her eyes her parents are at war. They are enemies. They love their conflict so much that they are unwilling to declare a truce and say the slightest nice thing about the other. That might be taken as a sign of weakness and give the other side an advantage.

It is impossible for the child to relax under these conditions.

[ 103 ] A change of residence would not necessarily address these concerns. One only has to look at the content of the Facebook pages maintained by the Respondent and his wife to see where their focus is. A lot of spiteful anger is directed at the Applicant, and more would follow from a change of residence. Much of the evidence from both sides in this matter has been about criticism of the other parent. Very little concerned the benefits to the child that would flow from a change of residence. It has not been shown that a change of residence would end the conflict.

It may make matters worse by having the Respondent view this as “payback time” and cause him to commence his own alienating behaviours. 2. Views of the Child [ 104 ] On November 2, 2011, the Respondent asked that a “Views of the Child” Report be prepared. The Applicant opposed this. Part of the reason for her opposition was the expense, and yet was she able to find the money for a vacation to Mexico. In the time that it has taken this trial to complete, a free report from the Family Justice Councillor could have been prepared.

A significant concern has been the lack of a voice given to this child. [ 105 ] The least reliable source of the child’s views in this situation comes from the parties themselves. From having had a front row seat to the angry confrontations between her parents, this child is painfully aware of the views of her parents, and it is most unlikely that she would ever feel comfortable enough to express a point of view that would not match that of the parent in whose presence she was in at the time.

It is also not surprising that the friends and family of each party would witness the child supporting the point of view of that party, especially at times when that parent is present. [ 106 ] The best evidence of the child’s views comes from Allison Hurst, one of two independent witnesses who testified in this matter. It was Ms. Hurst’s evidence that it was not so much that the child cared about which name she was called, but that it was a subject she did not want to discuss because of the pressure being put on her about it. It was also Ms.

Hurst’s impression that the child was comfortable in both homes, and this is consistent with the evidence of the family and friends called by both parties, who testified that when the child was in the care of each parent alone, she was comfortable in that parent’s presence. 3. Relationships between the Child and Significant Persons in Her Life [ 107 ] The Applicant argues that the bond between her and the child is a strong one because she has been involved with the child since birth.

She goes on to say that the Respondent “has been absent in the crucial bonding time and has been inconsistent with the access visits he has had.” In support of her request that his parenting time be supervised, she relies on the BC Supreme Court decision in B.J.M. v. K.F.B. 2003 BCSC 390 . That case concerned a situation very different from this one.

As paragraph [6] of that case notes, there the father “had almost no contact with his son for many years and has no meaningful relationship with him.” That is a vastly different situation from the present one, where the Respondent has tried to have a relationship with the child, and has exercised unsupervised access for a time. [ 108 ] Counsel for the Respondent argues that the Applicant’s attitude of wanting to control the conditions of access and to revert to supervised access at this point is indicative of a pattern of parental alienation on the part of the Applicant. Counsel cites the case of A.E.O. v.

T.K.O. 2012 BCSC 708 . In that case, the alienating parent made false complaints to the police that the child was being sexually abused. In this case, both sides have complained to the Ministry of Children and Families. Here the complaints were not simply crying wolf. Ms. Hurst’s letter of December 9, 2013 states: “it was determined that your daughter has been found in need of on-going protective services due to emotional harm.” In this case both of the parties have contributed to that harm. Unfortunately, each is unable to recognize their

part in causing it. For example, the Applicant states in her submission that she accepted counselling on the recommendation of the Ministry “albeit under a false and largely inaccurate allegation made by T.A.” It is also clear that the Applicant wants the Respondent to have a relationship with the child only on terms that she sets and controls. Both sides are in deep denial about their

part in causing emotional harm to the child. [ 109 ] Both of the parties have extended families and friends, and it is in this child’s best interests for her to be able to get to know her step-siblings, aunts and uncles and other extended family members. Of the witnesses who testified, Patricia H., L. A., and Maria all seemed disinterested in enlisting in the war between the parties and just wanted this child to have some peace and happiness. [ 110 ] Both of the parents have new partners, and the new partners have been very supportive of their partner and very critical of the other parent.

This is especially apparent in the case of T.A., whose Facebook pages show an unhealthy pre-occupation with disparaging the Applicant, and who is more than willing to escalate any conflict even when the child is present. S.P. has also demonstrated a willingness to become confrontational, though not to the same extent as T.A. [ 111 ] This is not a situation where one home is better suited than the other to protect the child from disparagement of the other parent. 4. The History of the Child’s Care [ 112 ] The Applicant is quick to point out that she has been the child’s main caregiver throughout her life.

In much of her communication with the Respondent she asserts her position of having sole custody and guardianship of the child. The Applicant is critical of the Respondent for not being present at the child’s birth and not being involved for the first three and a half years of the child’s life. The parties did not live together during the child’s life. The Respondent chose not to reply to the first court document that he was served with and the Applicant suggests that this is a further indication of his lack of interest in the child.

The Respondent brought his first court application when the child was two and a half years old (in November of 2011). Since then any attempts on his part to become more involved in the child’s life have been vigorously opposed. [ 113 ] In her submissions on behalf of the Respondent, Ms. Wood argues that it is not necessarily a good thing for the Applicant to boast about being the child’s primary caregiver. Ms. Wood points out that the child “exhibits behaviours that are not normal for a 5 year old child” and that these have manifested themselves while the Applicant has been the primary caregiver.

She argues that continuing that status is not in this child’s best interest. If the Applicant’s full-time care has resulted in a child with these behavioural problems, then, Ms. Wood asks, how can it be said to be a good thing to continue what has failed thus far?

[ 114 ] Ms. Wood’s argument has some appeal, but it would have greater appeal if the Respondent could demonstrate the willingness and the ability to step back from the conflict. His conduct thus far raises concerns that if a change in primary care-giver was made at this time, the child would still be cared for by one parent who denigrates the other. 5. The Child’s Need for Stability [ 115 ] In her written submission, the Applicant does not acknowledge her

part in the conflict that this child has been experiencing. She argued that “D.A.’s negative involvement needs to be minimized” for the child to do well. There is no mention of her angry outburst at the Halloween incident or her or her assault of T.A., both in the presence of the child. She takes no ownership of her

part in the present state of affairs and views herself as the parent doing everything right, while the Respondent is the one doing everything wrong. [ 116 ] Counsel for the Respondent points out that the lion’s share of the behavioural problems that the child has demonstrated occur when the child is in the Applicant’s care. The Respondent suggests that in this case, maintaining the status quo is not in the child’s best interests because the child is not thriving in her current home.

Once again, this argument would have more force if he had a track record for taking the high road and for walking away from conflict. The evidence instead discloses a string of embarrassing and crude email and text messages, a conviction for threatening in the presence of the child, the disingenuous ignoring of a court order shortly after it was made, and making his child uncomfortable by mocking her name insensitively by calling his dog a name offensive to the child.

His arguments about parental alienation and the need for a change in the child’s residence would have much greater force if he had behaved more reasonably in the past. 6. Parenting Abilities of the Parties [ 117 ] This is not a case where either party has any shortfalls when it comes to caring for the child. Both of the parties are able to properly feed, clothe and meet the child’s material needs. Social Worker Allison Hurst has confirmed that the child is comfortable in either home. The problem has been in the parents’ ability to meet the child’s emotional needs.

Both of the parties acknowledge the problems that this child has. In her submissions, the Applicant blames these solely on the Respondent. She says that he is the one who has “introduced conflict and brought harm in the form of emotional confusion to his daughter.” Any i

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