A.D. v. T.E.D. Date:, 2015 BCPC 219

Citation: A.D. v. T.E.D. Date: 20150702 2015 BCPC 0219 File No: 1326644 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.D. APPLICANT AND: T.E.D. RESPONDENT RULING ON NOTICE OF MOTION OF THE HONOURABLE JUDGE M. GIARDINI Appearing in person: A.D.

Appearing in person: T.E.D. Place of Hearing: Vancouver , B.C. Dates of Hearing: January 22, 23, 2015; February 17and 18, 2015 Date of Judgment: July 2, 2015 A Corrigendum was released by the Court on July 23, 2015. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] T.E.D. (the father) and A.D. (the mother) are the parents of C.N.D., (“the child” or “the son”) who was born on ********. The parties met in late 2007. They later moved in together. They were engaged in July 2009 and were married in August 2010. Their child was born in ***** 2012.

They separated as a couple in February 2013. [ 2 ] Since that time they have made or responded to numerous applications and attended court appearances on various issues. There have been at least 16 court appearances. They appear to be unable or unwilling to resolve their marital/parenting issues without the intervention of third parties; this includes their extended families and this court. They can accurately be described as “high conflict” parties.

The Current Applications [ 3 ] On January 22, 2015, this matter was on the Family Court List for assignment and was duly assigned to me a short while before court opened on 9:30 AM. The file had been set for a hearing to deal with three different Notices of Motion:

a) Notice of Motion filed by A.D. March 10, 2014, (doc # 66) -- an application to renew a protection order made on April 11, 2013;

b) Notice of Motion filed by T.E.D. March 10, 2014, (doc #69) -- an application to settle the terms of the order of April 11, 2013, not to remove child from jurisdiction, prohibit the relocation of a child, enforce an order made on November 18, 2013, adjust parenting time, remove protection order, and parenting time enforcement;

c) Notice of Motion filed by T.E.D. August 29, 2014, (doc #92) -- an application regarding misuse of court process, parental alienation, and denial of access. [ 4 ] By the time the parties appeared before me for the hearing, a number of the orders initially sought had already been addressed. The parties agreed that the March 10, 2014, Notice of Motion filed by A.D. had been dealt with as well as a number of issues set out in the March 10, 2014, Notice of Motion filed by T.E.D.

The matters that remained to be addressed from the March 10, 2014, Notice of Motion filed by T.E.D. are: the adjustment of parenting time granted in earlier court orders issued November 18, 2013, and March 21, 2014, and parenting time enforcement. All of the issues set out in the Notice of Motion filed by T.E.D. on August 29, 2014, also remained to be addressed, namely, an interim order under s. 216 or 217 of the Family Law Act for orders regarding misuse of court process, parental alienation and denial of access.

What orders does father seek? [ 5 ] T.E.D. seeks to vary existing court orders issued November 18, 2013, and March 21, 2014. Additionally he seeks new orders as set out in his Notice of Motion dated August 29, 2014. During the course of the hearing it became clear T.E.D. seeks the following orders from the court:

a) Additional parenting time -- namely, overnight parenting time every other weekend beginning on Friday evening after work and ending on Sunday evening at 8 PM;

b) A change to the current parenting time -- if overnight access is allowed every other weekend, then on the alternate Sundays T.E.D. wants to change the current parenting time of 11 AM to 4 PM by extending it to 8 PM;

c) A change to the current parenting time -- namely, on Tuesday evenings T.E.D. wants to pick up the child right after daycare instead of waiting till 6 PM and return the child as provided in the existing order by 8 PM;

d) A designated pickup and drop-off point -- T.E.D. wants to have a designated location, halfway between T.E.D.’s residence in New Westminster and North Vancouver, for example the McDonald’s at the Willington Avenue exit in Burnaby;

e) Skype communication -- when T.E.D. has overnight parenting time with the child on alternate weekends, he would like to have

communication between the child and his mother or maternal grandmother by Skype. He suggested this would assist in the transition between the current arrangement and the new overnight arrangement he is requesting;

f) An order prohibiting further court applications -- T.E.D. wants an order that A.D. should get leave of the court before filing any future applications; and

g) Use of a parenting coordinator -- he wants an order for a parenting coordinator to address his concern about parental alienation. [ 6 ] T.E.D. acknowledged he had not requested an order appointing a parenting coordinator when he filed the Notices of Motion now before the court. However, on the fourth day of hearing, at the beginning of his final submissions, T.E.D. asked whether he could “refine” his pleadings. He indicated he wished the court to address parenting time for Mother’s Day and Father’s Day and for Christmas as well. The court noted it was late in the day to raise these new additional matters.

In the circumstances I have concluded it is not appropriate to address those new issues as part of the applications before me. Obviously, if the parties wish to address the issues raised by T.E.D. by consent the court would include such consent orders in an order, if one is issued. [ 7 ] The position of A.D. on both of T.E.D.’s applications is that the court should not grant the orders he seeks. PRIOR COURT ORDERS [ 8 ] Before summarizing the parties’ testimony I will set out the court history between the parties in order to provide the backdrop and context for the current applications.

The court file is voluminous; accordingly, my review of the court history between the parties cannot possibly capture all of the appearances the parties made, the applications they filed, case conferences held, and other attendances in Provincial Court. However, I have listed the formal court orders below. The majority of the orders were made by judges of the Provincial Court of British Columbia. However, the parties have also sought a divorce and therefore are also involved in litigation in B.C. Supreme Court.

a) April 11, 2013 (Judge Dhillon) – Interim order without notice ( ex parte ) – This order essentially ordered T.E.D. not have direct contact or communicate directly or indirectly with A.D. or the child except by written electronic communication and then only for the purpose of arranging parenting time, settling financial issues, or through legal counsel. The court further ordered that any contact or parenting time between the father and the son was, as agreed upon by the parties, to take place in a public place or alternatively supervised by a supervisor agreed upon by the parties.

b) April 12, 2013 (Mr. Justice Burnyeat BCSC) – Order made after application – This order was made on the application of A.D., without notice to the father. The order contained a number of terms relating to the mother’s exclusive possession of the matrimonial home located at Raven Woods Drive, North Vancouver, B.C. and other matters related thereto. Additionally, the order contained a term that any peace officer who on reasonable and probable grounds believed the father to be in breach of the terms of the order or of the April 11, 2013, order of Judge Dhillon had authority to immediately arrest the father.

c) June 17, 2013 (Judge Rae) – Order made after application – This order was made on the application of A.D., no one appeared on behalf of the father although duly served. The court ordered the North Vancouver RCMP to provide the mother with all documents, including handwritten notes, of all investigating officers relating to incidents beginning February 10, 2013, in relation to specified RCMP files and any other files opened between February 10, 2013, and the date of the order. The order provided that within seven days of receipt of the documents by the mother they were to be provided to the solicitors for the parties.

d) June 17, 2013 (Judge Rae) – Order made after application – This was an order, following application by the mother, requiring Dr. Susan Chow to provide the mother a copy of a referral letter written by the Rapid Access Psychiatric Clinic at Lions Gate Hospital, dated March 2013.

e) August 2, 2013 (Madam Justice Watchuk) – Release Order – On the application of T.E.D., who had been apprehended on an allegation that he had violated the order of Judge Dhillon, and after hearing from both parties, the court ordered T.E.D. to be released from custody pursuant to an undertaking.

That undertaking provided, among other things, that T.E.D. was to have no direct or indirect contact with A.D. except only by written electronic communication for the purpose of arranging parenting time, settling financial issues, and except through legal counsel, a family justice counselor or a third party agreed to by the parties. The father was not to attend at the residence on Raven Woods Drive, North Vancouver, B.C., or the workplace of A.D.

f) November 18, 2013 (Judge Wingham) – Order – This order was made after hearing both parties. The order dismissed an application made by T.E.D. to set aside the restraining order made by Judge Dhillon on April 11, 2013. It provided T.E.D. could re-apply to set aside that order after the issue of interim parenting time was resolved. The court also dismissed the application to have all matters transferred to the Supreme Court. The court ordered that matters of parenting time and support were to remain in the Provincial Court of British Columbia.

The court varied Judge Dhillon’s order of April 11, 2013, and ordered that T.E.D. was to have reasonable parenting time with the son, such parenting time to be exercised “in the presence of a family member”. In particular T.E.D. was to have three hours parenting time either on Saturday or Sunday and two hours parenting time one day a week. The maternal grandmother was to pick up and drop off the child for parenting time. The court further ordered that T.E.D. was to have a follicle hair drug test completed before 30 days from the date of the order and provide the results to the A.D.

g) December 4, 2013 (Judge Wingham) – Short leave order – Upon hearing from A.D. the court ordered an application could proceed on December 6, 2013, by short leave.

h) December 6, 2013 (Judge Wingham) – Consent order – After hearing from both parties the court varied the order of November 18, 2013, and provided the father would have parenting time with the child on Sundays from 10 AM to 1 PM and on Tuesdays for two hours after daycare.

i) January 2, 2014 (Judge Wingham) – Order – Upon the application of T.E.D. and after hearing from both parties the court ordered that effective immediately the order made on November 18, 2013, was varied to allow the father to have parenting time with the child exercised in the presence of certain named persons.

j) March 21, 2014 (Judge Wingham) – Interim Order – On the application of T.E.D. and after hearing from both parties the court ordered, by consent, that neither party shall relocate the child outside the Lower Mainland of Vancouver, B.C. Additionally, the court cancelled the order of Judge Dhillon dated April 11, 2013.

The court further ordered that the parties were not to have direct or indirect communication with each other except by handwritten or written electronic communication only for the purpose of arranging parenting time, settling financial issues, discussing care, issues involving parenting time and health of the child or through legal counsel. The court dismissed the father’s application to prevent the mother from applying for a passport.

The court varied the order of November 18, 2013, by changing the father’s parenting time to Tuesdays from 6 PM to 8 PM or such other day as the parties agreed to and on Sundays from 11 AM to 4 PM; the maternal grandmother was to facilitate the exchanges. The court deleted the requirement that an adult person be present when the father exercised his parenting time.

k) June 2, 2014 (Judge Wingham) – Interim consent variation order – Upon hearing both parties the court ordered that the earlier order of March 21, 2014, was varied to provide the father would have parenting time with the child on Tuesdays from 6 PM to 8 PM or on such other day as the parties agreed to and on Sundays from 11 AM to 4 PM and the mother was to arrange for a third party to facilitate the exchanges.

l) August 8, 2014 (Judge Denhoff) – Order – On application by A.D. and after hearing both parties the court dismissed a Notice of Motion filed by the mother on August 5, 2014. Further the court ordered that the father was to have compensatory parenting time with the child on August 8 and August 28, 2014.

m) August 20, 2014 (Judge Dyer) – Order – Upon hearing from the parties the court ordered that for a period of 20 days, commencing on the date of the order, the prior order of March 21, 2014, regarding parenting time was to be varied. The father’s parenting days and times remained the same; however, the parenting time was to be at a public place and at all times the father was to be accompanied by an adult person. The court also ordered that the mother had to provide any report from the B.C. Children’s Hospital with respect to their review of the child in the month of August 2014 to the father.

n) September 17, 2014 (Judge Bahen) – Interim order without notice ( ex parte ) – On the application of A.D. the court ordered that the order of August 20, 2014, was extended for a period of 30 days.

o) October 1, 2014 (Judge Wingham) – Conduct order – Upon hearing the parties the court set aside Judge Bahen’s order of September 17, 2014. It further ordered that the father’s parenting time was to be as set out in the order dated March 21, 2014. The court ordered that neither party was to communicate directly or indirectly with one another except by written correspondence or electronic communication except for the purposes set out in the order of March 21, 2014. Moreover the court ordered that each party had to “author” any response to emails.

The court also ordered that the mother was to enroll the child in counseling to deal with issues arising out of the conflict between the parties and provide confirmation of the enrolment as well as the name and contact information of the counselor to the father. Further the court ordered the mother was to provide her consent to the counselor to allow the father to contact the counselor to discuss his concerns.

p) October 20, 2014 (Judge Denhoff) – Order – Upon hearing from the parties the court ordered that the father was to have parenting time with child on October 31, 2014, in place of his regular parenting time scheduled for November 2, 2014. The court also ordered that the father shall have parenting time with the child on December 25, 2014, for a set period of time in lieu of the parenting time scheduled for December 28, 2014. Further, the remaining issues in the Notice of Motion filed by the father on October 3, 2014, were dismissed.

CURRENT OUTSTANDING APPLICATIONS [ 9 ] On October 3, 2014, T.E.D. applied by way of notice motion for further orders including a review of child support because, as of November 2014, he would be receiving employment insurance benefits. T.E.D. wants the return of post-dated cheques for November and December 2014. He also applied to vary Judge Wingham’s order given two days previously on October 1, 2014. He wanted an order that the child be assessed first before “engaging in expensive therapy”. [ 10 ] On October 14, 2014, T.E.D. filed an affidavit seeking to amend the application filed on October 3, 2014.

He sought an order from the court that A.D. provide reliable documentation such as bank statements or cancelled cheques regarding the actual money spent on daycare, a consent order enrolling the child in therapy “if A.D. pays for it.” As well he requested an order that A.D. submit subsequent court documents in proper affidavit form, typewritten or legible handwriting. [ 11 ] As noted above, on October 20, 2014, the parties appeared before Judge Denhoff who granted several orders. The formal order states that all remaining issues on T.E.D.’s October 3, 2014, Notice of Motion were dismissed.

Ostensibly, this appears to apply to T.E.D.’s application to reduce child support. At the hearing before me T.E.D. said he was not proceeding further with the application regarding child support. He did not say it was dismissed. However, it is not clear to me whether issues relating to child support, including the amount of support and other child care expenses (e.g. therapy, day care, medical, dental etc.) have been addressed to the satisfaction of both parties. Further, it is not clear whether all the issues raised by A.D. in her initial application have been addressed.

SUMMARY OF PARTIES’ TESTIMONY [ 12 ] Both parties testified at length at this hearing and also called other witnesses. T.E.D. called his sister Mrs. S.M. A.D. called her mother Ms. N.D. and a family friend Mr. M.R. While I have considered the testimony of the witnesses called by the parties, I have not reviewed their testimony in my written reasons. The most significant evidence is that of the parties themselves and the voluminous set of documents tendered by each of them. What follows below is not all the evidence given by the parties at the hearing but a

summary only. However, I have considered all the evidence in reaching my decision on the applications.

T.E.D.’s Testimony [ 13 ] At the present time T.E.D. is 45 years old. He said he was a computer technician by trade. He worked for [omitted for publication] for approximately 12 years. That job came to an end in September 2014; at that time he said he was the technical manager. [ 14 ] T.E.D. testified that when he first met A.D. she was taking various medications and in particular medication for anxiety and depression. He said she stopped all medications when they decided to have a child. T.E.D. said A.D. exhibited an erratic and emotional pattern of behavior throughout their relationship.

She went from hot to cold, capriciously on a whim. He also said mental health problems ran in A.D.’s family and she has a family member who has mental health issues. [ 15 ] T.E.D. claimed he experienced irrational and erratic behavior by A.D. throughout their relationship. He also noted the same pattern of behavior in A.D.’s use of the court system. T.E.D. said since they moved in together there was a pattern of behavior by A.D.. That pattern escalated after the child was born. He said by November 2012 the escalation of her behavior became unbearable to live with. They saw three marriage counsellors.

He asserted he learned from the counsellors that when dialogue is no longer constructive the parties need a break. [ 16 ] In approximately November 2012, T.E.D. said he “took refuge” at a friend’s home for one week. Furthermore his brother lived by himself and it was not difficult to borrow his brother’s couch. His absence from the family home continued into the new year. He felt the tension in the relationship with A.D. was too much and they separated in February 2013.

He said it was his decision to leave the marriage. [ 17 ] T.E.D. said in March and April 2013, A.D. called the police several times and claimed that: T.E.D. was dangerous, he was a danger to their child, and he had uttered threats. He said the police never contacted him; furthermore, the police never pursued her allegations. On April 11, 2013, A.D. made an ex parte application before Judge Dhillon. In that application she made similar allegations. He noted he had the same telephone number and the same email address for a period of time.

Accordingly, he was very accessible but A.D. went ahead with an ex parte application nonetheless. An interim order was granted which limited the contact between him and A.D. and between him and his child. There was no parenting

schedule as such. Instead, the times had to be mutually agreed upon and the parenting time had to be in a public place. [ 18 ] T.E.D. said his access to their child was sporadic and for the most part based on A.D.’s whims. He asserted that no matter who he suggested as a supervisor for parenting time A.D. declined. Eventually, he got to see their child with the child’s maternal grandmother. He said A.D. made it clear she did not like or trust any of his friends. This was a very difficult time for him. T.E.D. said he even suggested A.D.’s own father as a supervisor but she did not agree.

He maintained A.D. did not make it easy for him or accommodate his schedule. His sister, Mrs. S.M., did not see the child for months. Further in the summer of 2013 he maintained he did not see the child for three weeks. T.E.D. noted that A.D. had consented to have his sister, his mother, and his father, as supervisors. However, because of where they live and other reasons they were not readily available. He viewed this as an unreasonable denial which made his access to the child difficult. [ 19 ] In August 2013, Jennifer Owen was hired as a supervisor. T.E.D. said Ms.

Owen is a social worker who works for the Ministry of Children and Family Development. She also works as a professional child access supervisor. Both he and A.D. agreed Ms. Owen would make a suitable supervisor. For a few weeks there was a good routine. However, he asserts A.D. took issue with Ms. Owen and challenged her professionalism. He said A.D. fired Ms. Owen in approximately October 2013. Accordingly, they had to scramble to find someone else to supervise.

This resulted in T.E.D. missing some weeks of parenting time. [ 20 ] T.E.D. testified that in November 2013 there was a one-day hearing before Judge Wingham of this court. Judge Wingham made an order which removed the need for a supervisor and replaced the supervisor with “a family member present”. According to T.E.D., at that hearing, Judge Wingham asked A.D. what her concerns were. She alleged that T.E.D. used drugs and she was scared of that. T.E.D. testified he volunteered to do a drug test – a hair follicle test – with the Denning Health Group. He paid $500 to have the test done.

He did it within the 30 days as specified by Judge Wingham. That test came back negative. [ 21 ] According to T.E.D., even after that, parenting time was made difficult by A.D. She simply did not agree. In December 2013 their child apparently banged his head and had a seizure. This occurred while the child was with A.D. On December 6, 2013, there was a hearing on short notice. A.D. reported that the banging of the head and the seizure was T.E.D.’s fault. He said that allegation of abuse was dismissed.

That order set out specific days for parenting time. [ 22 ] On December 10, 2013, following an application made by T.E.D., the parties were again in court before Judge Yee. T.E.D. made that application because he said A.D. was interfering with his parenting time. He sought an order that A.D. was to comply with the prior court orders. On that date Judge Yee did not make an order. [ 23 ] There were further applications to the court. On January 2, 2014, the parties appeared before Judge Wingham to amend an earlier order.

T.E.D. said in February 2014 A.D. made an application to the court that he was not to cut their child’s hair. She said that cutting the child’s hair affected his self-esteem. He noted their child was only 18 months at the time. [ 24 ] On March 10, 2014, there was “mediation”. T.E.D. said on that occasion he asked for more parenting time, a more convenient drop-off point, and day care receipts. He said nothing came of his requests. On March 21, 2014, Judge Wingham made a further order.

However, T.E.D. testified the following Monday he received correspondence either from A.D. or her mother that the parenting time was canceled because he had abused their child. He said A.D. sent him a picture showing a small red imprint on the child’s side. This issue ended with a court appearance before Judge Yee on April 2, 2014. Both he and A.D. testified at that hearing. A.D.’s application was dismissed. [ 25 ] In the meantime on March 30, 2014, prior to the hearing before Judge Yee, T.E.D. said A.D. altered the court order by saying access had to be supervised.

On one occasion when T.E.D. was picking up the child for parenting time, the child’s maternal grandmother refused to leave. Therefore, T.E.D. called the RCMP. He said the police reviewed the court order and asked the child’s grandmother to leave.

[ 26 ] Another issue arose regarding who was to be the transition person if the parties did not agree. He proposed several people who could facilitate the transfer of the child for the access visits. However, A.D. always said “No”. [ 27 ] On June 2, 2014, the parties were back in court before Judge Wingham. At that time the order was varied. T.E.D. said A.D. was made responsible for providing a third party to facilitate the transition prior to the access visit. Since that time the parties have been using Mr.

M.R. [ 28 ] T.E.D. said on Saturday, August 3, 2014, he received a text message late at night saying that parenting time with the child for the next day was canceled because the child was sick. He was worried about what was going on and sent a text to the child’s maternal grandmother. He said no details were provided about the nature of the child’s illness. The next thing he knew, on Monday, August 5, A.D. filed an urgent application claiming that T.E.D. had been sexually inappropriate with the child. That application was eventually heard by Judge Denhoff.

She heard oral testimony from A.D., the maternal grandmother and T.E.D. Judge Denhoff dismissed all of the allegations due to no evidence and awarded him compensatory parenting time. [ 29 ] Ten days later on August 19, 2014, Mr. M.R. insisted he was to remain with the child to supervise the visits. This led to a hearing before Judge Dyer on August 20, 2014. In the meantime, A.D. raised allegations in the first week of August with the RCMP, their family doctor, the Ministry of Children and Family Development and the B.C. Children’s Hospital. T.E.D. said he communicated with all of those agencies.

He said the police officer he spoke to was not aware of Judge Denhoff’s order and neither was the person he spoke to at the Ministry. [ 30 ] T.E.D. pointed out that he later received a report from the B.C. Children’s Hospital dated August 12, 2014. That report indicated the child was not in distress and there were no signs of sexual abuse. He said A.D. had a copy of that report in the first week of September. However, she surreptitiously made another ex parte application and appeared before Judge Bahen on September 17, 2014, who extended the supervision order made by Judge Dyer.

T.E.D. noted he had the same telephone number and the same address he has always had. [ 31 ] The next appearance in court was on October 1, 2014, before Judge Wingham who heard evidence from both parties but on learning of the hearing scheduled for January 2015, Judge Wingham pushed a number of issues to today’s date. Judge Wingham cancelled the ex parte order made by Judge Bahen. Therefore, supervision was no longer needed. Judge Wingham also ordered that the child go to a child therapist.

T.E.D. pointed out he was in court on different days for unfounded allegations. [ 32 ] On October 3, 2014, T.E.D. made an application to have child support revisited. He said that application was not dealt with and it is not proceeding any further. He said at the hearing before Judge Denhoff she made allowances for Halloween and Christmas parenting time. [ 33 ] T.E.D. noted his parenting time so far has been one night per week from 6 PM to 8 PM and Sundays from 11 AM to 4 PM. He stressed he is always on time, he never misses the parenting time made available to him, and he pays child support.

He noted that in the last two years he has been to court 15 times. He said over the Christmas period of 2014 he sent A.D. a note hoping to resolve this issue but did not receive a reply. [ 34 ] T.E.D. said his goal is to co-parent his child. He understands he and A.D. have to communicate.

However, he noted: • A.D. has not involved him in doctor’s visits or vaccinations or when the child had a seizure, • A.D. has not consulted with him about babysitters, diet, religion, spirituality, or language, • he has no details about the child’s day-to-day care, • he is not involved and is not asked his opinion about the child’s day-to-day activities, • A.D. has not involved him in grooming decisions, and • she has not involved him in overnight parenting time. [ 35 ] T.E.D. said A.D. does not make him feel like a parent. She makes him feel like an annoying nuisance.

T.E.D. noted that, as a sign of good faith, after they separated he transferred the car which she drives from his name to hers. [ 36 ] With respect to the sexual abuse allegations he pointed out that while A.D. raised those allegations with the RCMP, the Ministry of Children and Family Development, and the family doctor, it was left up to him to supply a copy of Judge Denhoff’s ruling to the Ministry of Children and Family Development as well as a copy of the report from the B.C. Children’s Hospital. He said A.D. had not mentioned the B.C.

Children’s Hospital report to the Ministry of Children and Family Development or Constable Coleman of the RCMP. [ 37 ] I asked T.E.D. whether he had been successful in finding full-time work after September 2014 when his job with [omitted for publication] ended. He said he received severance pay for a couple of months and took advantage of that to work on some of his outstanding income tax matters and to focus on this court case. As well, T.E.D. received, and at time of this hearing was receiving, employment insurance benefits.

He acknowledged that as a result of losing his full-time job he unilaterally reduced the monthly payment he was making to A.D. for child support from $468.00 to $235.88. It appears this change may have been made on or about November 2014. [ 38 ] In late December 2014 T.E.D. obtained a part-time job as an audio-visual technician at [omitted for publication]. This is a casual position of .5 of a full-time equivalent position. The court asked T.E.D. whether he was looking for full-time work. He responded he was not because of this case and because of the divorce litigation.

T.E.D. testified he currently works three days a week, generally during the

day, at times ranging between 7:30 AM and 5:30 PM. However, from time to time he may be required to relieve technicians working in the evenings. A.D.’s testimony [ 39 ] A.D. is in her mid-thirties. She works as a full-time home support co-ordinator. More recently she also began working in a restaurant on weekends to supplement her income. A.D. testified she has three areas of concern regarding T.E.D.’s application for additional parenting time. She does not want the child to have a void in his life by not being able to see his father.

It is not her intention to cut the bond between father and child but to ensure the child is safe. Her overriding position is that parenting time should be supervised and it should be appropriate supervision. The three issues of concern she raised were: emotional, physical, and sexual. [ 40 ] With respect to emotional impact A.D. said from day one she observed there was an intense lack of bonding between T.E.D. and the child. After parenting time between T.E.D. and the child, she notes their son comes back with a lot of conflict and mixed emotions when it comes to interaction with his father.

This reminds her of herself when she was in the relationship with T.E.D. She has observed the child go from tears and disappointment (for example, he may complain that he brought a chocolate chip cookie for his dad and that his dad did not eat it) to a positive reaction (for example, saying that his dad is very funny). A.D. said the child told her that he feels ignored (for example, we went to the library and daddy did not play with me or daddy talked on the phone).

The child has also made comments that he is scared, (for example, daddy takes me downstairs, closes the door and the child says he cried and was scared). [ 41 ] Another area of concern in terms of emotional impact is that A.D. believes T.E.D. has deliberately created a situation in which the child is put in the middle of an issue between A.D. and her father from whom she is currently estranged. She said T.E.D. is aware of the difficult and painful relationship she has with her father.

The child made statements over the course of several months that “good grandpa” was present during some of the parenting time with his father. He has also made comments that “good grandpa” got him an airplane. The child had a tantrum because he wanted A.D. to go back to his father’s to get it. He apparently had been told by his father that he could not take the toy back to his mother’s house with him. A.D. said the child appears to think she is the one who is not allowing him to bring these things home.

As a consequence, she feels she is the one who is being alienated. [ 42 ] Another concern is that the child is being taught to keep secrets from other family members and specifically from her. The child has told her that daddy says don’t say this and don’t say that. Specifically the child has told her - daddy said don’t say good grandpa was here. Her concern is the impact this situation has on their son.

He is a young child and should not be encouraged to keep secrets or be placed in a position where he feels conflicted about something that has nothing to do with him but is a matter for the adults. [ 43 ] A.D. also testified, although these are not her specific words, that the child acts out after parenting time with his father. He will insist that she has to take him to the library because his father took him to the library. If they go to the superstore the child points out what daddy got him, namely toys, and then tells her she has to get it for him too.

He does this with a number of items in the store. [ 44 ] A.D. testified it is difficult to get her son to go for parenting time with his father. When he was younger she would allow him to choose a toy to encourage him prior to the visit. However, the toys were not returned when the child returned to her home. That led to big drama because the child got upset and wanted her to go back to his father’s place to retrieve them. [ 45 ] Another example of the emotional impact on the child is an issue that arose regarding his haircut.

In early January 2014 T.E.D. sent A.D. a note suggesting it was time for the child to get a haircut. She wrote him back saying their son had his hair cut two weeks previously. She said the child had chosen the hairstyle and she didn’t wish to change it until he was a little older. There was a further exchange of emails because A.D. wanted to know what the child ate as he had been vomiting during the night. She received that information and then sent a further email to T.E.D.

She attached a picture of the child getting his haircut two weeks previously and noted the child was quite proud of his hair and loved the comments he received regarding his hairdo. She also sent T.E.D. an email saying she wanted to ensure there would be no surprise haircuts. A few weeks later, when he was with his father for parenting time, T.E.D. had the child’s hair cut without telling A.D. [ 46 ] Another area of concern is that the child’s nutritional needs are not being met.

A.D. testified that shortly before the continuation of this case the child came home on a Tuesday night after parenting time with his father. He told her his father had taken him for sushi but his father had eaten it all. She said she does not know if the child was “playing” her or if he really was hungry. However he ate when he got home and this tells her that he was in fact hungry. A.D. said she experienced something similar with T.E.D., for example, when she was pregnant she had cravings and wanted crepes from the Dutch Pancake House. T.E.D. told her he would take her there but never did.

Then, days later, he sent her a text message saying he was at the pancake house and the crepes were really good. Another example A.D. gave was that their child likes ice cream but he is only allowed to have a sample. He is not allowed to have an ice cream of his own, as was the case in an incident that arose at the Lynn Valley Mall. [ 47 ] A.D. testified the father does not pay attention to important child care details when the child is with him. In particular he does not appear to deal with the child’s physical comfort.

On numerous occasions T.E.D. has not changed the child’s diaper during his parenting time and has not replaced the milk the child had taken with him in his bottle from her home. [ 48 ] The soiled diapers are an ongoing issue. She recalled that after one visit with his father, the child’s diaper was so heavy with urine that when she picked him up after the visit and was holding him she got wet with urine right down to her underwear. On another occasion when she picked up the child he told her he couldn’t walk because his socks were wet with urine.

Often after Sunday visits with his father the child is returned wearing the same diaper he was wearing when he left for the visit. Further, on two occasions she had to leave the child without any pants on, presumably while she was driving him home, and on another occasion she had to buy a new pair of pants for him because the extra pair she had packed for him got lost and the pair he was wearing was soaking wet with urine. [ 49 ] A.D. also testified that her son takes of milk bottle with him every Sunday when he visits with his father.

On a routine basis he has come back home with the same milk in the bottle often spoiled and in some cases curdled. She does not understand why T.E.D. cannot deal with this. She noted when she raised the issue T.E.D. said to her – – Did you tell me? Her view is that T.E.D. has now been enjoying parenting time with their son for some time and these issues are not things of which he needs to be reminded.

[ 50 ] As a consequence of this A.D. said their child has learned to take care of himself. Now before parenting time with his father he insists on having his diaper changed whether he needs it or not. He also insists that she buy him milk and snacks. She believes it is not appropriate for a child so young to have to foresee and prepare for his own needs when spending parenting time with his father. [ 51 ] A.D. also has concerns about what she called physical issues regarding the way T.E.D. interacts with the child.

One issue, which she raised in prior applications, is a mark she found on the child’s leg after parenting time with his father. In March 2014 she noticed red marks on one of the child’s thighs after he had been with his father. She maintained T.E.D. did not tell her about it and denies it was T.E.D. who suggested it could be from a car seat. She said, once it had been discovered, it was her mother who suggested to T.E.D. that the bruises may have come from a car seat and he said that was probably it.

A.D. tried to get information from T.E.D. about the kind of car seat he was using and how the belts in the car seat could have caused the bruising. She maintained the bruising she observed is not a normal kind of thing. [ 52 ] A.D. also testified about other actions related to the child’s comfort and safety. These occurred when he was younger. On one occasion when the child was about four months old T.E.D. was supposed to be looking after him. He left the child in the bouncer on the coffee table and T.E.D. then fell asleep. A.D. felt this was not appropriate but was terrified to raise it with T.E.D.

She eventually asked T.E.D. whether he knew he had fallen asleep. She said that his response was – Did anything happen to him? [ 53 ] With respect to safety during any potential overnight parenting time, A.D. is concerned that T.E.D.’s habit of sleeping with an eye visor and earplugs might make it difficult for him to hear the child. The child still wakes up in the night. She pointed out that when the child was taken to B.C.

Children’s Hospital it was mentioned in the report the child has night terrors. [ 54 ] She has witnessed other behaviors in T.E.D. which cause her concern about how he will handle the day-to-day activities and behaviors of the child. For example, she recalls how T.E.D. behaved when the child spit up when he was an infant. T.E.D. was frantic, angry, and yelled at her saying the floor or counter was ruined. He boiled water and scrubbed the area. A.D. noted this was just a baby spitting up.

How will he behave if the child has diarrhea or vomits which have happened on occasion? [ 55 ] I asked A.D. why she was going back to a time when the child was only three or four months old. She said she has put information in other applications assuming it would be read. Yet on one occasion when she was before another judge she was told it was the first time the judge had heard about a particular matter.

The inference was that she was raising these matters now to place her current concerns within the context of what has happened between the parties. [ 56 ] Another concern regarding the child’s physical safety arose more recently. The child was walking four or five steps behind his father. However, T.E.D. was busy texting. According to A.D. the father was not paying attention to the child. Additionally, she has heard comments from the child that makes her question what is happening when he is with his father.

Sometimes the comments are negative, other times the comments are positive. [ 57 ] A.D. noted the child is now finally going to therapy. She had problems getting the child to therapy. T.E.D. kept saying no. Finally a conduct order was made so that she could take the child to therapy. However, she is the one who is paying for it. [ 58 ] There was an occasion when the child had croup when he was an infant. She was very concerned. T.E.D. kept yelling at her and telling her she was overreacting and exaggerating and had disturbed his sleep. She took the child to emergency by ambulance where he was treated.

This included having x-rays taken and receiving steroids to deal with his lungs. About a month later, when they received an invoice for the ambulance service, T.E.D. told her she had to pay for it because she should have thought about it at the time. [ 59 ] She is concerned about how T.E.D. will handle the child’s health and any medical issues that might arise. She noted that T.E.D. has said she does not consult with him. However, it often takes a long time to get a response from him so she has had to take matters into her own hands. [ 60 ] A.D. is concerned about T.E.D.’s drug and alcohol use.

She acknowledges T.E.D. underwent a hair follicle test to detect drugs in his system. However, she notes it was only a single test. She said during marriage counselling T.E.D. admitted to hearing voices. That concerns her because T.E.D. has not addressed those issues. Moreover, she suspects T.E.D. uses more drugs than he is willing to admit. She bases this on her experience with him during the marriage. [ 61 ] A.D. is also concerned about sexual issues (perhaps more accurately described a sexualization) relating to the child.

Before describing these concerns it should be noted that A.D. raised some of these issues in an earlier application before Judge Denhoff in August 2014. At that time A.D. applied to have all parenting time with the father supervised because she suspected T.E.D. had been sexually inappropriate with the child. Judge Denhoff concluded the allegations made by A.D. about T.E.D. were extremely serious and the burden lay with her to prove the allegations.

Judge Denhoff concluded there was no evidence that T.E.D. had sexually interfered with or been sexually inappropriate with the child and accordingly dismissed the application and gave an oral ruling to that effect on August 8, 2014. [ 62 ] At the hearing before me A.D. testified she realizes that she did not have “court worthy” evidence to substantiate her concerns. However, she referred to comments she has heard the child make and behaviors she has observed. She pointed to the progress report prepared by the child and family therapist who has been seeing the child. That report is dated January 11, 2015.

In that report to therapist notes he must view the audio recordings presented by A.D. with caution, however, some of the content of one of the audio recording “is concerning”. He notes that the comments he heard on the audio tape “will be considered out of the norm of communication about private parts for a toddler”. However, the therapist also notes it is important to keep in mind there are a number of reasons for problematic sexual behaviors.

His report does not address the reasons for those behaviors. [ 63 ] A.D. also referred to previous behaviors/actions/comments of T.E.D. (comments allegedly made by him and his brother when they took A.D.’s brother and sister to Cultus Lake, and an inappropriate movie T.E.D. allowed her 16-year-old sister to watch). A.D. testified that in the past she made excuses for T.E.D. in this regard and put up with a lot of things until T.E.D.’s behavior affected their child. She feels she cannot stay silent any longer.

For her child’s sake she must speak up about what she suspects is the child’s exposure to sexually inappropriate comments or behaviors.

[64] A.D. also referred to a number of other concerns regarding T.E.D.’s parenting time with the child:

a) after being with his father the child has made comments which she views as inappropriate,

b) on two occasions in the summer of 2014 he said “daddy hit”,

c) she is concerned about patterns she sees in the child following parenting time with his father,

d) she is afraid of saying too much to T.E.D. because of his negative reactions in the past. She is afraid she may have said too much incourt about what the child has told her. She said - once we leave here we are on our own,

e) she gave evidence about T.E.D.’s behavior towards her during their marriage. On being asked what the relevance of those behaviorswas, she said she thought those behaviors constituted domestic violence. She gave a number of examples of comments he made to herand about her and about his violent reaction in some situations. APPLICABLE LAW Interim orders [65] The Family Law Act gives a judge discretion to make interim orders in appropriate circumstances if parties to a family lawmatter make an application for relief under the Act: see s. 216.

If a judge makes an interim order she must, to the extent practicable, makethe interim order in accordance with any requirements or conditions of the Act that would apply if the order were not interim order. Thismeans the best interests of the child (see s. 37) must be considered when deciding to grant or deny an interim order. [66] Once an interim order is made, a judge may on application by a party, change, suspend or terminate the interim order.

However,in order to do so the judge must be satisfied there has been a change in circumstances since the interim order was made, or that evidenceof a substantial nature that was not available at the time the interim order was made has become available. [67] The Family Law Act also sets out in s. 216 (4) the factors a judge must take into account when an application is made tochange, suspend, or terminate an interim order.

Those factors are: • a change in circumstances or the evidence of a substantial nature that was not available at the time of the interim order, or both; • the length of time that has passed since the interim order was made; • whether the interim order was made for the purpose having a temporary arrangement in place; • whether a trial has been scheduled; and • any potential adverse effect, on a party or a child of a party of changing suspending or terminating an interim order. [68] Additionally, s. 217 of the Act makes it clear that a judge can only change, suspend, or terminate an interim order if she issatisfied that a change in the circumstances has occurred since the order which is the subject of the application was made, and thehardship to a party of denying interim relief before the application is heard outweighs the hardship to any party of granting interim relief. [69] In addition to the provisions of the Family Law Act it is also prudent to consider the legal principles that apply to interimapplications and the variation of interim orders as set out in the case law.

In Randhawa v. Randhawa, (BC SC),[1999] B.C.J. No. 1082, Madam Justice Martinson pointed out that our Court of Appeal, in the family law context, has said interimproceedings are

summary in their very nature and provide rough justice at best. Madam Justice Martinson also noted that the day-to-daymatters such as who has the children when, and how expenses will be paid, need a speedy resolution while waiting for trial. However,once an interim order is made it should only be varied when there is a compelling change of circumstances such that one or both partieswould be seriously prejudiced by waiting until trial. [70] In J. J. T. v. J. A. S. 2015 BCSC 628, Mr. Justice Weatherill noted that interim proceedings are purposefully

summary and areintended to bridge the gap between the commencement of an action and trial: see paragraph 21. [71] In S.H.M. v. B.E.M. 2015 BCPC 55, Judge Jackson of this court very recently considered an application by a father to vary aninterim order regarding parenting time. The father applied to have the child live with him with generous and reasonable parenting time tothe mother. Judge Jackson dismissed the application to vary the interim order in relation to parenting time.

In doing so she noted: 34 Both s.s 47 and 216 require either there be a change in the circumstances of the child, including a change in the circumstances ofanother person (s47) or a change in the circumstances (s216(3)

a) or evidence of a substantial nature was not available at the time of theinterim order (s216(3)b). 35 Our Court of Appeal in Fitzgibbon v Fitzgibbon [2014] B.C.J. 2605 at paragraph 22 states that "Interim orders are primarily designedto maintain the status quo and to provide short term solutions until issues regarding the best interests of a child can be fully canvassed attrial." 36 The Supreme Court decision of K.J.B. v G.A.B. [2013] B.C.J. 631 gives practical guidance. There had been interim decision of the

same level of court during which a Views of the Child report had been ordered. A variation of the interim order was sought. In paragraph 15, the court wrote, "This court does not sit as an appellate court of the July 27th, 2012 proceeding. Any historical matter which took place before the court at that time is not properly before this court now, as any factual matter raised before Pearlman, J. ought to have been placed before his Lordship. Any such issues cannot now be adjudicated by this court.

The proper issue before this court is whether there has been a change in circumstances which would allow for a variation of the July 27th, 2012 order: see s216 of the Family Law Act ." [ 72 ] In I.F. v. R.J.R . 2015 BCSC 793 , Madam Justice Ballance in the course of dealing with an interim application for spousal support made some general remarks about interim orders. She said that by their very nature, they are stop-gap orders. It is routinely the situation that parties embroiled in matrimonial litigation will have conflicting versions of the material facts.

In the vast majority of cases, the evidence required for a complete exploration of the controversial issues is underdeveloped or not available: see paragraph 13. ANALYSIS General observations about the parties’ testimony [ 73 ] In this case there is no doubt that T.E.D. and A.D. are interested parties who have a high personal stake in the results of the applications before me. It is also clear there is a significant degree of animosity between them.

Accordingly, their views of the “facts” are inextricably tied to and colored by their particular interests in this litigation. [ 74 ] I found A.D. to be genuinely concerned for the well-being of the child. However, her objectivity was compromised in a number of respects because of her particular views about and

interpretation of T.E.D.’s actions. Moreover, the numerous applications she has made in the past suggest she is prone to acting on her concerns by immediately making applications to this court without thoroughly considering the merits of her position. Accordingly, what appears to be her rush to conclusions undermines the concerns and complaints she raises about parenting issues (which in the end may have merit but I reach no conclusion on that point). [ 75 ] T.E.D. also appeared to be genuinely concerned about the well-being of the child in the context of his own desire to “co- parent”.

He presented himself as a well-spoken and objective person. However, it became evident during the hearing that he was focused on his own agenda to such a degree that it undermined the reliability of his evidence. In particular his testimony raised concerns about his accuracy and credibility. A few examples of this are:

a) In direct examination he raised irrelevant issues that appeared designed to place not only A.D. but also her family in a bad light. For example, after referring to the erratic and emotional pattern of behavior he said he experienced during his relationship with A.D., he gratuitously commented that mental illness ran in her family and her brother had mental health challenges.

b) In describing his situation he used language designed to paint himself as the victim; for example, he referred to taking “refuge” at a friend’s place in the fall of 2012.

c) He made statements designed to make A.D. appear unreasonable; for example, he said he suggested A.D.’s father as a supervisor but she did not agree. However, in cross-examination it was brought out that A.D. is estranged from her father and T.E.D. is aware of the difficult and painful relationship she has had with her father.

d) He was not a careful witness. He was asked by A.D. whether he had told a counselor, who they had seen together, that he heard voices. He did not agree. He was also asked whether he still hears voices. He said he did not. He was directed to an email dated March 22, 2013, authored by the counsellor, Ms. Weiler. After reading it he agreed he had made statements about hearing voices. A.D. asked him again whether he still heard voices. His response was – – “No because we’re not married anymore”. Shortly after giving that answer T.E.D. said the hearing voices comment was the

interpretation of the counselor and he did not agree with it. He said what the counselor recorded was not accurate. When I asked him why he did not say so when the email was first put to him, T.E.D. said he did not feel it was worthwhile or relevant.

e) T.E.D. relied on a number of documents to support his applications. One of the documents he relied on was a General Occurrence Report from the North Vancouver RCMP dated April 2013. This report was prepared following a complaint by A.D. In particular, he pointed to a statement in that report which indicated that, although A.D. had stated T.E.D. was involved with drug dealing, the police concluded there was no offense of threats or violence and no history of drug dealing by T.E.D. At this hearing, A.D. asked T.E.D. whether he maintained he did not have a drug trafficking past.

T.E.D. replied that he never agreed or disagreed about having a drug history. He simply pointed to what the police said in the report, namely, that they found no history of threats or assaults and no history of drug dealing. T.E.D. eventually acknowledged there had been an incident in 2001. A.D. submitted a ruling on a Charter voir dire of Judge Bruce, as she then was ( R. v. Ferguson James Brown et al . (June 27, 2003), Vancouver Registry 77824 (B.C. Prov. Court).

The six accused, which included T.E.D. and his brother C.D., were charged with production of marijuana and possession of marijuana for the purpose of trafficking in relation to a marihuana grow operation found in a Burnaby residence. The hydro account for the residence was in T.E.D.’s name. T.E.D. and Mr. Brown were also charged with theft of electricity. The result of the ruling was that Judge Bruce excluded the evidence seized by police because of a breach of s. 10 (

b) of the Charter which occurred when the police elicited incriminating evidence from the accused without first advising them of their right to counsel. In that proceeding all the accused, who were represented by counsel, admitted that the substance seized by the police was cannabis marijuana, that the plants so seized were being produced, and that the amount being produced was inconsistent with personal use and consistent with possession for the purpose of trafficking. The only issue before Judge Bruce was whether the evidence obtained by the police against the six accused should be ruled inadmissible because of a Charter breach.

At this juncture the significance of this evidence is not necessarily about the nature of the offenses with which T.E.D. was charged in June 2001; rather it is the self-serving and dubious manner in which T.E.D. answered the question. He tendered and relied on the police report which stated there was no history of drug dealing. He specifically pointed to that passage in the report when he testified.

However, when he was questioned about that by A.D., instead of admitting to the incident of 2001, he essentially retreated behind the explanation that he had never agreed or disagreed with the statement in the police report but simply pointed it out. His answer is obfuscation of the worst kind. It is clear T.E.D. drew attention to that statement in the police report to leave this court with the impression he had no history of drug dealing and that A.D.’s concerns and her complaints to the RCMP in that regard were unfounded.

However, on the basis of the information before me, I conclude he knew full well that he had been investigated and charged for production of marijuana and possession for the purpose of trafficking and theft of electricity. His answers to questions about his past drug history were not candid and in fact were designed to deceive this court about his past.

f) T.E.D. categorically maintained A.D. had not told him about a seizure the child had which resulted in a visit to hospital. A.D. pointed to an email dated Sunday, March 2, 2014, at 3:12 AM where she wrote that the child was okay but they were at the hospital. She noted the child needed to have some tests as he might have had a seizure. This email was put to T.E.D. and he was asked whether he still maintained A.D. had not told him about the seizure. He said “no” but added he was aware of the seizure because of the claims she made in court and her email.

He was asked why he testified that A.D. had not told him about the seizure. He said he forgot about the email. This answer shows a considerable lack of care and accuracy about the evidence he gave under solemn affirmation. Moreover, such lack of care was also demonstrated in other parts of his testimony. [ 76 ] In considering the evidence of both parties on the applications before me, I must not jump to conclusions as to where the truth ultimately lies in this case. First, these are applications for interim orders or variations thereof and not the trial of this matter. Accordingly, as noted by in I.F. v.

R.J.R ., it is possible I may not have the benefit of a complete record. Second, both parties have invested a lot of time and energy in the various proceedings before this court, including the current proceedings before me. They are both anxious to obtain a positive result and have testified accordingly. However, in order to make an informed decision on the applications before me I must nevertheless assess their credibility and reliability based on the evidence adduced at this hearing. My conclusion is that:

a) their perceptions are clouded by self-interest and,

b) neither of them was as candid as they could have been. Moreover, I also find both parties (but particularly T.E.D.) tended to frame and develop the evidence to suit their needs. Regrettably, the evidence provided by the other witnesses appeared to be aligned along party lines. [ 77 ] Several previous orders, but in particular one made by this court on March 21, 2014, and an earlier one made by the B.C. Supreme Court on August 2, 2013, required the parents to communicate only by written correspondence or electronic communication and then only for the purposes set out in the order.

In the course of this hearing I was presented with and reviewed many email communications between the parties. Those communications provide a clear picture of the degree of animosity and dysfunction that exists between T.E.D. and A.D. The emails demonstrate that both parties have their faults and are not above taking pot-shots at one another or pushing one another’s buttons. However, it is clear from the correspondence that T.E.D. is the more provocative and controlling of the two. T.E.D.’s anger is palpable in some of the email exchanges. Also evident in some of his emails is his disdain for A.D.

There is a hectoring quality to some of the email exchanges that is troubling. Under the guise of making parenting arrangements T.E.D. appears to be lecturing and browbeating A.D. Variation of November 18, 2013 and March 21, 2014 orders [ 78 ] On March 10, 2014, T.E.D. filed a Notice of Motion seeking various orders. By its very nature that Notice of Motion, in the circumstances, seeks an interim order relating to the adjustment of parenting time and parenting time enforcement.

At the beginning of the hearing I asked the parties to identify the outstanding matters arising from the March 10, 2014, Notice of Motion. The primary outstanding issue was the adjustment of parenting time for T.E.D. It was noted that parenting time enforcement could be dealt with under the Notice of Motion dated August 29, 2014.

I will accordingly address that point under the August 29, 2014, application. [ 79 ] The adjustment of parenting time sought by T.E.D. is a variation of the two earlier orders, namely: • to add overnight parenting time with the child every second weekend; • further, if overnight access is granted T.E.D. also wanted to extend his parenting time on alternate Sundays by four hours by extending the current parenting time from 11 AM to 4 PM to 11 AM to 8 PM; • additionally on Tuesdays T.E.D. wants to pick up the child right after daycare ends instead of at 6 PM which is the current pick up time. [ 80 ] As noted in the Family Law Act , if an application is made under the Act , a court may make an interim order for the relief sought.

If an interim order is granted and a party applies the court may change, suspend or terminate the interim order. However, the court must first be satisfied there has either been a change in circumstances since the interim order was made or that evidence of a substantial nature, not available at the time the interim order was made, has become available. On the evidence before me T.E.D. has not established a change in circumstances which could lead to a variation of the existing interim orders.

Additionally, he has not established there was any evidence of a substantial nature that was not available at the time the interim orders were made and that now has become available. Additional interim orders sought August 29, 2014

[ 81 ] T.E.D. also seeks additional interim orders in a Notice of Motion dated August 29, 2014. The orders he seeks are: • an order under s. 221 of the Family Law Act prohibiting A.D. from making further applications without leave of the court. He identified this in his application as a misuse of court process; • an order under s. 61 of the Family Law Act on the basis that A.D. has denied access to the child and is responsible for alienation of the child from his father.

T.E.D. also seeks a court order to ensure the enforcement of parenting time orders. [ 82 ] For the reasons set out below I decline to make any of the further interim orders sought by T.E.D. in the Notice of Motion dated August 29, 2014. I also decline to issue an enforcement order against A.D. The parties appear to have neither the inclination nor the motivation to resolve their family dispute in a reasonable manner. In court they each have pointed to the other as being the one who is unreasonable and difficult.

After spending four days in court listening to their evidence and submissions, my conclusion is that allowing either of them to pursue further interim orders is counterproductive and ultimately damaging to whatever relationship they have left between them and, more importantly, it is damaging to the well-being of the child. The importance of a trial on the merits [ 83 ]

Section 199 of the Family Law Act sets out the responsibilities of the court regarding the conduct of family-related court proceedings. That

section says a court must ensure that a proceeding under the Act is conducted with as little delay and formality as possible, and in a manner that strives to (

a) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (

b) protect children and parties from family violence. Moreover, if a child may be affected by a proceeding under the Act , a court must:

a) consider the impact of the proceeding on the child, and

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties. [ 84 ] This matter first came to court by way of an Application to Obtain an Order filed on April 11, 2013, by A.D. In that Application to Obtain an Order A.D. sought orders relating to: parenting time, allocation of parental responsibilities, spousal support, child support, a protection order, and a conduct order. Since that application was made this matter has proceeded in a piecemeal fashion.

There has been a patchwork of applications heard by at least seven or eight different judges of the Provincial Court and at least two justices of the B. C. Supreme Court. At a minimum two orders were made in Supreme Court and 14 orders (not counting this ruling) in Provincial Court. [ 85 ] In Williams v. Williams 2015 BCSC 928 , a very recent decision of Mr. Justice Punnett, the court commented that the case before it was an unfortunate example of what occurs when matters are litigated by interim motions rather than expeditiously proceeding to trial.

In that case between 2010 and 2014 there had been more than 21 applications resulting in approximately 27 orders and the involvement of numerous justices of the B.C. Supreme Court. Mr. Justice Punnett noted that the matter only came to trial as a result of the intervention of Mr. Justice MacIntosh who directed that a trial be set and refused to give the interim relief sought on an application before him.

The court noted: [2]…He did so on the basis that a trial was required in order to bring finality to this matter, stating that "this court's time has been used extensively and unproductively in this ongoing dispute, and a trial ... is the best way to bring matters to a head." He then stated: ... ...

Finality is essential here, and unless a judge has the opportunity to listen to the parties given their entire story in the witness stand in some detail, the court will be compelled to continue with patchwork, trying to get on top of a complicated file time and time again, judge after judge, in an effort to grant relief based on affidavits often prepared I believe by the Williams, who are self-represented . ... [3] Having now heard the parties and their witnesses over a period of 12 days, the comments of MacIntosh J. are particularly compelling. [ 86 ] Those observations, albeit made in a different court and in a somewhat different context, apply to the case before me.

T.E.D. and A.D. need a degree of finality on various issues including the duties and responsibilities they have to one another as parents, the duties and responsibilities they have to their son and any support obligations. A resolution of this matter can only occur by a full canvassing of all outstanding issues (in an organized and systematic way), at a trial where there can be a full exploration of the unresolved issues between them. Resolution will not be reached by a piecemeal consideration of the issues each of them chooses to raise.

The situation in which the parties find themselves today is a regrettable example of what happens when parties conduct litigation by instalments. CONCLUSION [ 87 ] My conclusions on the applications before me are:

a) T.E.D.’s application to vary two previous orders, namely the order of November 18, 2013, and the order of March 21, 2014, to adjust parenting time by granting overnight parenting time with the child every second weekend, by extending parenting time on alternate Sundays and by allowing T.E.D. to pick the child up at daycare on Tuesdays, is hereby denied.

b) His request to change the pick-up location to somewhere between North Vancouver and New Westminster is also denied.

c) Moreover, his application for enforcement of parenting time orders is also denied.

d) Further, the additional orders sought in the Notice of Motion dated August 29, 2014, namely; an order prohibiting A.D. from making further applications without leave of the court, and an order under s. 61 of the Family Law Act requiring A.D. to compensate T.E.D. for lost wages and other expenses is also denied. [ 88 ] I am referring this file to the Judicial Case Managers for the purpose of setting a court appearance at the earliest available date . Each of the parties must attend that court appearance.

The purpose of that court appearance is for the parties to identify all outstanding issues between them relating to parenting time and support (these were the matters Judge Wingham directed should remain in the Provincial Court of British Columbia in the order dated November 18, 2013) so that this case can be set for trial as soon as possible. [ 89 ] I am not seized of this matter. _____________________________ The Honourable Judge M.

Giardini Provincial Court of British Columbia CORRIGENDUM - Released July 23, 2015 In my Ruling on Notice of Motion dated July 2, 2015, the following changes have been made: [1] On page 8, paragraph 9, the phrase “spousal support” should be changed to “child support”. The sentence will now read: On October 3, 2014, T.E.D. applied by way of notice motion for further orders including a review of child support because as of November 2014, he would be receiving employment insurance benefits. [2] On pages 32/33,

section (f), in the fifth sentence, the phrase “he made” has been changed to “she made”. The sentence will now read: He said “no” but added he was aware of the seizure because of the claims she made in court and her email.