M.K.S. v. L.B.S., 2022 BCPC 79

Citation: M.K.S. v. L.B.S. 2022 BCPC 79 Date: 20220420 File No: 1445898 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.K.S. APPLICANT AND: L.B.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: K. Pavao Counsel for the Respondent: J. Hayes, agent for B. Movassaghi Place of Hearing: Prince George , B.C. Date of Hearing: March 17, 2022 Date of Judgment: April 20, 2022

Introduction [ 1 ] L.B.S. (the “father”) and M.K.S. (the “mother”) separated over 12 years ago, when their daughter J.D.S. was four-years- old. Prior to their separation, these parents lived together with J.D.S. Post-separation, J.D.S. lived with her mother in Delta and [Village] until August 31, 2014, when J.D.S. was nine-years-old. For the next six years, J.D.S. resided with her father in Prince George, BC. Since June 16, 2020, J.D.S. has resided with M.K.S. in [Village]. Throughout the course of proceedings, at varying times J.D.S. told her parents she wants to live with one or the other.

Ultimately, J.D.S.’s changes in primary residence over the years was in accord with her express wishes. [ 2 ] On February 7, 2022, J.D.S. was hospitalized after deliberately ingesting an overdose of her anti-anxiety medication after breaking up with her boyfriend. L.B.S. now applies to have J.D.S. returned to his care, which M.K.S. opposes. Issues [ 3 ] The issues before this Court are as follows: a. Should the court order that J.D.S. live primarily with L.B.S.? b. Should the court order that L.B.S. be prohibited from filing future applications regarding J.D.S.’s residency without leave of the court? c.

How should J.D.S.’s interests be represented during these proceedings? Background information and procedural history [ 4 ] L.B.S. resides in Prince George, BC. He was born [omitted for publication] 1983, and is now 39-years-old. [ 5 ] M.K.S. resides in [Village], BC. She was born [omitted for publication] 1985, and she is now 36-years-old. [ 6 ] L.B.S. and M.K.S. married on [omitted for publication] 2006. They separated on [omitted for publication] 2010, and divorced on [omitted for publication] 2015. [ 7 ] L.B.S. and M.K.S. are the biological parents of J.D.S. (“J.D.S.”), born [omitted for publication] 2005.

J.D.S. is now 16-years-old and in Grade 11 at [Village] Secondary School. [ 8 ] When M.K.S. and L.B.S. initially separated on [omitted for publication] 2010, J.D.S. remained primarily in her mother’s care. At the time, M.K.S. lived in Delta, BC. M.K.S. commenced these family law proceedings on June 25, 2010, with an Application to Obtain an Order filed in the Surrey Provincial Court Registry under File 32596 (CEIS 1). She also filed a Notice of Motion seeking an order that L.B.S. return J.D.S. to her care (CEIS 2).

On July 20, 2010, M.K.S. filed a further Notice of Motion, seeking interim sole custody of and child support for J.D.S. (CEIS 3). Although M.K.S.’s motions were scheduled into Surrey Provincial Court for hearing on July 20, 2010 and August 3, 2010, they did not proceed at that time. It does not appear M.K.S.’s court documents were ever served on L.B.S.: See L.B.S.’s January 13, 2022 Affidavit (CEIS 83), para. 13. [ 9 ] On December 2, 2013, M.K.S. filed a Request to Withdraw her July 25, 2010 Application (CEIS 4).

She filed a new Application to Obtain an Order (CEIS 5) in Surrey Provincial Court seeking guardianship, parenting time and parenting responsibilities, and child support. At that time, J.D.S. still resided primarily with M.K.S. in Delta and had parenting time with L.B.S. on holidays. L.B.S. filed a Reply and Counterclaim on February 7, 2014 (CEIS 8). In early 2014 M.K.S. moved to [Village], BC. L.B.S. filed two Notices of Motion (CEIS 9, 11) seeking orders transferring the file to Prince George, BC, as he resided in Prince George and M.K.S. resided in [Village].

On October 8, 2014, the file was transferred to the Prince George Provincial Court Registry, by consent, and assigned number 1445898 (CEIS 9). [ 10 ] M.K.S. and L.B.S. entered into a written separation agreement on March 7, 2014, which they filed with the Surrey Provincial Court Registry on August 27, 2014 (CEIS 10). They agreed to share parenting responsibilities for and parenting time with J.D.S. M.K.S. was to have the majority of parenting time with J.D.S. until August 31, 2014.

L.B.S. was to have parenting time with J.D.S. every second weekend and on holidays and other times as mutually agreed between the parties. The parties required each other’s consent to travel with J.D.S. outside of Canada. L.B.S. also was to pay M.K.S. $811 per month child support for J.D.S. from March 7, 2014 to August 31, 2014. The amount of child support was calculated on L.B.S.’s Guideline annual income of $87,137. On September 1, 2014, J.D.S. went to live primarily with L.B.S. in Prince George. She was ten-years-old and entering Grade 4.

M.K.S. was to have parenting time with J.D.S. every second weekend and on holidays and other times as mutually agreed between the parties. M.K.S. was to pay L.B.S. child support for J.D.S. in the amount of $198 per month commencing September 1, 2014. This sum was calculated on M.K.S.’s Guideline annual income of $22,854. [ 11 ] Both parents have repartnered. In 2012, L.B.S. met N.S. and they married on August 8, 2015. They are the biological parents of K.S., born [omitted for publication] 2020. M.K.S. partnered with W.H.T., who is a member of the [omitted for publication] First Nation.

Together they have one child, a daughter, K.T.S., born [omitted for publication] 2017. M.K.S. resides with W.H.T., K.T.S. and J.D.S. in [Village]. M.K.S. worked as an Education Assistant with the [omitted for publication] Elementary School in [Village] until September 2021. She is not currently working outside the home. W.H.T. works at [omitted for publication] Mine.

[ 12 ] J.D.S. resided with L.B.S. in Prince George, BC, from September 1, 2014, to June 16, 2020.

From time to time the parties adjusted the parenting arrangements, particularly with respect to the time and location for transitioning J.D.S. between households: See M.K.S.’s July 15, 2015 Application Respecting Existing Orders or Agreements (CEIS 13); and Judge Callan’s October 1, 2015 Order (CEIS 16). [ 13 ] On December 9, 2016, M.K.S. filed an Application Respecting Existing Orders or Agreements (CEIS 19) seeking an order changing existing arrangements for transitioning J.D.S. between households, and an order M.K.S. have additional parenting time with J.D.S. at the time of K.T.S.’s birth.

On January 23, 2017, L.B.S. filed a reply opposing M.K.S.’s December 9, 2016 application, and a counterclaim seeking additional conduct orders (CEIS 21). [ 14 ] On March 10, 2017, M.K.S. filed an Amended Application Respecting Existing Orders or Agreements (CEIS 25), seeking: (

a) primary residence of J.D.S. commencing June 30, 2017; (

b) an order that L.B.S.’s parenting time with J.D.S. during the school year be every second weekend; (

c) a variation of parenting time arrangements with respect to transitioning J.D.S. between households (CEIS 25); and (

d) a full s. 211 report with respect to J.D.S.’s primary residence. [ 15 ] On March 15, 2017, L.B.S. filed a Notice of Motion (CEIS 26) seeking conduct orders and permission to travel with J.D.S. to the United States for a holiday in Disneyland (CEIS 26). [ 16 ] On March 30, 2017, the parties’ reciprocating applications (CEIS 21 and 25) came before Judge Mengering for a first appearance. At that time, Judge Mengering made two conduct orders and referred the matter to a Family Case Conference.

The Family Case Conference proceeded before Judge Mengering on May 23, 2017, who varied the existing parenting arrangements with respect to transitioning J.D.S. and permitted L.B.S. to apply for a passport for J.D.S. The issue of the s. 211 report was adjourned to the family remand list on June 1, 2017.

On June 1, 2017, the parties’ reciprocating applications (CEIS 19 and 21) were adjourned to June 29, 2017. [ 17 ] On June 9, 2017, M.K.S. filed a Notice Motion seeking an order that pursuant to s. 211 of the Family Law Act , Leanne Toews, a family counsellor and social worker, prepare a full s. 211 report (CEIS 30). On June 21, 2017, M.K.S. filed an affidavit (CEIS 32) in support of her June 9, 2017 motion for a s. 211 report. M.K.S. says that since J.D.S. went to live with L.B.S. in September 2014, she had repeatedly told M.K.S. she wanted to live with her in [Village].

M.K.S. also described her communication difficulties with L.B.S. over the years. [ 18 ] On June 29, 2017, M.K.S.’s Notice of Motion for a s. 211 report came before Judge Malfair, at which time it was adjourned to July 6, 2017. On July 6, 2017, after a hearing on M.K.S.’s Notice of Motion (CEIS 30), Judge Brecknell ordered Leanne Toews prepare a full s. 211 Report.

L.B.S. was to pay $1,000 towards the cost of the s. 211 report (CEIS 36). [ 19 ] On July 7, 2017, M.K.S. filed a Notice of Motion (CEIS 33) seeking an interim order for a hearing on changing J.D.S.’s primary residence from L.B.S.’s home to M.K.S.’s. [ 20 ] On July 31, 2017, L.B.S. filed a Notice of Motion seeking third party documents from the RCMP with respect to W.H.T., born 1981 (CEIS 34). On August 2, 2017, L.B.S. filed an affidavit (CEIS 35) in support of his Notice of Motion for third party records in which he attaches information concerning W.H.T.’s criminal associations and activities.

On August 16, 2017, W.H.T. filed an affidavit (CEIS 37) responding to and disputing L.B.S.’s allegations of ongoing criminal behaviour. On August 29, 2017, Judge Mengering ordered the RCMP provide records in their possession in relation to W.H.T. (CEIS 39). Also on August 29, 2017, Judge Mengering made a further conduct order (CEIS 40). [ 21 ] On February 1, 2018, Leanne Toews completed and filed with the Prince George Court Registry her 67-page s. 211 report (CEIS 41). In preparing her s. 211 report, Leanne Toews interviewed M.K.S., W.H.T., L.B.S., N.S., and J.D.S.

Leanne Toews also considered collateral materials and interviewed a number of other witnesses, who were members of J.D.S.'s extended family, friends or caregivers. [ 22 ] Although it was commissioned in response to M.K.S.’s concerns with respect to J.D.S. self-harming, the s. 211 is silent about this issue. [ 23 ] J.D.S. told Leanne Toews she wanted to live with M.K.S. in [Village] and have parenting time with her father.

J.D.S. said that since she was in Grade 4, she had been telling both her parents she wanted to reside with her. [ 24 ] On February 28, 2018, M.K.S. filed a Notice of Motion (CEIS 43) asking for an order permitting her to travel with J.D.S. to Las Vegas, Nevada, from Friday, April 6, 2018, to Monday, April 9, 2018, for a holiday. This would require J.D.S. miss two days of school. In support of her Notice of Motion, M.K.S. filed an affidavit (CEIS 42) setting out her efforts to secure L.B.S.’s consent to this family vacation.

L.B.S. objected on the basis that “[J.D.S.] should not miss anymore school” and that “Las Vegas is not an appropriate place for children” (CEIS 42, Exhibit “B”).

This issue went to hearing before Judge Young on March 8, 2018, who ordered, by consent, that M.K.S. could take J.D.S. on this family holiday and that L.B.S. was required to provide M.K.S. with the requisite documentation to facilitate J.D.S.’s travel to the United States (CEIS 44). [ 25 ] On March 15, 2018, M.K.S. filed a Notice of Motion (CEIS 45) seeking direction that issues with respect to J.D.S.’s residency, parenting arrangements and child support be scheduled for a three-day hearing. On March 29, 2018, Judge Mengering made the order sought.

On April 5, 2018, this matter was scheduled for a four-day trial during the week of September 17, 2018. At the Pre-Trial Conference on July 13, 2018, Judge Mengering ordered the parties exchange witness lists and will-say statements before August 7, 2018 (CEIS 47). On August 9, 2018, Judge McDermick ordered the parties to exchange updated financial statements and trial documents ten days before trial (CEIS 48).

Judge McDermick further ordered the issue of witness fees for Leanne Toew’s attendance at trial for cross- examination be scheduled for a one-hour hearing in advance of the September 5, 2018 Pre-Trial Conference. [ 26 ] The September 2018 trial was adjourned at a Pre-trial Conference on September 5, 2018, due to N.S. experiencing a complication in her pregnancy, resulting in a stillbirth. [ 27 ] On January 16, 2019, L.B.S. filed a Notice of Motion (CEIS 49) and supporting affidavit (CEIS 50) seeking an order M.K.S.

return J.D.S. to his care. L.B.S. says that on January 15, 2019, M.K.S. picked J.D.S. up from school in Prince George and took her to live in [Village] without notice to him or his consent. On January 18, 2019, M.K.S. filed an affidavit (CEIS 51) explaining she had taken J.D.S. to live with her at J.D.S.’s request and because of J.D.S.’s risky and self-harming behaviours while in her father’s care.

In his affidavit filed January 13, 2022 (CEIS 83), L.B.S. says J.D.S. never expressed to him a desire to live with M.K.S. and M.K.S. never advised him of J.D.S. cutting herself prior to receiving M.K.S.’s January 18, 2019 Affidavit. This issue came before Judge Mengering on January 18, 2019, who ordered M.K.S. return J.D.S. to L.B.S.’s care and the parties’ parenting arrangements return to the status quo (CEIS 53).

Judge Mengering refused L.B.S.’s application for an order prohibiting J.D.S. from being removed from the city limits of Prince George, as that would effectively deprive M.K.S. entirely of her parenting time. [ 28 ] In her January 18, 2019 Ruling on L.B.S.’s short-leave application, Judge Mengering states: a. the issue of J.D.S. self-harming first arose in June 2017; b. despite M.K.S.’s concerns for J.D.S.’s well-being, M.K.S. had not sought any medical or psychiatric treatment for J.D.S. or consulted with her physician or counsellor; c. the proceedings were currently scheduled for trial on April 15 – 18, 2019; d.

J.D.S. was “very much involved” in this court case and “torn both ways by her love for both her parents”; e. the court was not satisfied the current parenting regime in which J.D.S. resided primarily with her father was the cause of J.D.S.’s concerning behaviours; and f. the court accepts that both parents “love J.D.S. beyond belief” and are “very interested in J.D.S.’s well-being”. [ 29 ] On September 28, 2018, the trial was rescheduled to proceed on the April 14, 2019 assize.

On March 6, 2019, Judge Brecknell ordered Leanne Toews attend trial on the dates set out in a subpoena to be cross-examined on her s. 211 report (CEIS 52). As Leanne Toews was unavailable on the scheduled trial dates, on March 15, 2019, Judge McDermick ordered a further Pre-Trial Conference on April 5, 2019 (CEIS 55). [ 30 ] On April 3, 2019, M.K.S. and L.B.S. reached an agreement to settle the outstanding issues and the April 2019 trial was adjourned. The settlement unravelled when L.B.S. refused to sign the agreement because he no longer believed that J.D.S. residing with M.K.S. was in J.D.S.’s best interests.

In his January 13, 2022 Affidavit, L.B.S. explained that subsequent to the parties’ settlement discussions, J.D.S. told him and M.K.S. that she no longer wished to move from her father’s house in Prince George to live with her mother in [Village]: see CEIS 83, para. 14. [ 31 ] Despite ongoing negotiations, the substantive issue of J.D.S.’s primary residence remained unresolved for some time. M.K.S. says that J.D.S. wanted to live primarily with her and resorted to cutting herself because she was forced to remain living with her father: see M.K.S.’s July 12, 2021 Affidavit, para. 27-29, attaching Dr.

Snyman’s medical report and records (CEIS 71). [ 32 ] On December 4, 2019, the parties attended at a Family Case Conference before Judge Thomas. The issue of J.D.S.’s residency was not resolved and a further Family Case Conference was scheduled for February 19, 2020. M.K.S. and L.B.S. agreed that J.D.S. should speak to her own lawyer as to where she would like to live. At that time J.D.S. was 14-years-old and in Grade 9 at [omitted for publication] Secondary School, in Prince George, BC. On December 19, 2019, J.D.S. consulted with her own legal counsel, Ms. S.

Elson, and filed an affidavit saying she no longer wished to live with M.K.S. in [Village] and preferred to remain in Prince George residing primarily with her father: see CEIS 61. [ 33 ] The parties attended at a Family Case Conference on February 19, 2020, before Judge Gray, who ordered by consent (CEIS 62): 1. M.K.S. is found to be a resident of British Columbia earning a gross annual income of $20,000; 2.

M.K.S. will pay to L.B.S. the sum of $175 per month for the support of J.D.S. commencing on January 1, 2020, and continuing on the 1st day of each and every month thereafter, for as long as the child is eligible for support under the Family Law Act or until further court order. Such payments may be made bi-weekly in the amount of $80.76; 3. The arrears accrued owing from M.K.S. to L.B.S. as of December 31, 2019, are set in the amount of $2,100 including principal and interest; 4.

M.K.S. will pay to L.B.S. a minimum of $75 including regular payment, commencing January 1, 2020, and continuing on the 1st day of each month thereafter until the arrears are paid in full or until further order of the court; 5. The parties’ proportional share of J.D.S.’s special or extraordinary expenses (inclusive of medical and dental) are 25% for M.K.S. and 75% for L.B.S.; and 6.

M.K.S.’s Notice of Motion filed September 30, 2019 (CEIS 57), seeking an order that J.D.S. reside primarily with her and attend school in [Village], was adjourned to the Judicial Case Manager to fix a one-day hearing. [ 34 ] On May 20, 2021, M.K.S. filed a Notice of Intention to Proceed (CEIS 66). [ 35 ] On June 16, 2020, J.D.S. began living primarily with M.K.S. by choice. According to M.K.S.’s affidavit filed July 12, 2021 (CEIS 71), J.D.S.’s relationship with N.S. deteriorated after K.S.’s birth. J.D.S. complained that she was now burdened with adult childcare and household duties.

In his January 13, 2022 Affidavit (CEIS 83), L.B.S. says that J.D.S. left his home abruptly after she had been caught lying about completing her homework and had not kept in touch as required after spending the night at a friend’s home on June 16, 2020. He denies that J.D.S. was expected or required to be responsible for K.S.

[ 36 ] M.K.S. says when J.D.S. refused to return to L.B.S.’s care in 2020, J.D.S.’s relationship with her father became toxic. M.K.S. attached to her June 16, 2021 Affidavit some “abusive and derogatory text messages” she says were sent from L.B.S. to J.D.S. In his January 13, 2022 Affidavit (CEIS 83), L.B.S. denies sending the abusive text messages to J.D.S. and believes they have been “doctored”.

Although M.K.S. continues to assert L.B.S. authored these text messages, she has not provided the court with evidence verifying their authenticity. [ 37 ] On October 26, 2021, L.B.S. filed an Application About a Family Law Matter (CEIS 72) seeking to reduce his arrears of child support owing to M.K.S. [ 38 ] On November 15, 2021, M.K.S. filed a Request for Scheduling (CEIS 73) seeking to

schedule her Application Respecting Existing Orders or Agreements filed March 10, 2017 (CEIS 25), for a hearing on the issues of retroactive and ongoing child support. [ 39 ] On November 15, 2021, M.K.S. filed an Application About a Family Law Matter (CEIS 74) seeking ongoing and retroactive child support for J.D.S. That same day, M.K.S. also filed an affidavit in support of her child support application (CEIS 75). [ 40 ] On August 20, 2021, L.B.S. and M.K.S. appeared before Judge C.

Lowe for a Family Management Conference, at which time the parties advised the court that J.D.S. has lived primarily with M.K.S. since June 16, 2020, and chooses to continue to do so. M.K.S. and L.B.S. entered into an interim consent order on the following terms and conditions: 1. J.D.S. will determine where she will primarily reside; 2. J.D.S. will reside primarily with M.K.S.; 3. Pursuant to s. 40(2) of the Family Law Act , M.K.S. and L.B.S. will share equally all parental responsibilities for J.D.S.; 4.

Should J.D.S. require medical attention, each parent will inform the other of the proposed medical attention; 5. Each party shall provide the other with continual updates on J.D.S.'s medical condition; 6. J.D.S.’s parenting time with L.B.S. will be in accordance with J.D.S.’s wishes. L.B.S. will be given one week’s notice of J.D.S.’s proposed parenting time; 7. To facilitate J.D.S.’s parenting time with L.B.S., the parties will exchange J.D.S. at [omitted for publication], British Columbia, [omitted for publication]; 8. Each party shall be responsible for travelling half the distance to any exchange point; 9.

Should the parties relocate, the parties will agree upon an exchange point that is approximately halfway between the parties’ respective residences; 10. Paragraphs 3 and 4 of the Order of the Honourable Judge Gray made February 19, 2020 are cancelled; 11.

L.B.S. will pay to M.K.S. on an interim without prejudice basis the sum of $400 per month for the support of [J.D.S.], payable in two instalments of $200 each payable on the 1 st and 15 th day of each month commencing on September 1, 2021, and continuing on the 1 st and 15 th day of each and every month thereafter as long as J.D.S. is eligible for support under the Family Law Act or until further court order; and 12.

This Order replaces the terms of the Family Law Agreement made between the parties on July 9, 2014, (the “Agreement”) to the extent of the family arrangements and child support arrangements between the parties outlined therein. Where the Agreement and this Order conflict, the terms of this Order shall prevail. [ 41 ] J.D.S. continues to live primarily with M.K.S. in [Village]. J.D.S. has her own private cell phone in which she can communicate directly and independently with L.B.S. [ 42 ] On January 11, 2022, L.B.S. filed a Reply to an Application About a Family Law Matter with a Counter Application (CEIS 79).

He disagreed with M.K.S.’s application for child support and sought a change in the amount payable and a reduction of arrears. On January 13, 2022, L.B.S. filed an affidavit (CEIS 83) in support of his January 11, 2022 Reply. [ 43 ] On or about February 7, 2022, J.D.S. overdosed on her anti-depressant medication (Fluoxetine) after breaking up with her boyfriend. She was transported to Prince George via ambulance to be assessed at the UNHBC psychiatric department. [ 44 ] M.K.S. kept L.B.S. updated on the events. L.B.S. spoke with J.D.S. directly and daily over the phone.

When able to do so, N.S. visited J.D.S. in the hospital. [ 45 ] On March 3, 2022, the parties appeared before Judge Nadon in Prince Geoge Provincial Court for a hearing on M.K.S.’s March 10, 2017 Application Respecting Existing Orders or Agreements (CEIS 25), M.K.S.’s November 15, 2021 Application about a Family Law Matter or Agreements (CEIS 74), and L.B.S.’s January 11, 2022 Reply and Counterclaim (CEIS 79). M.K.S. appeared represented by her legal counsel Ms. K. Pavao. L.B.S. appeared represented by Mr. A. Singleton, as agent for his legal counsel, Mr. Movassaghi.

On March 3, 2022, Judge Nadon made a final order by consent concerning the parties’ respective ongoing and retrospective child support obligations. The Order recognized that pursuant to Judge Lowe’s August 20, 2021 Order, L.B.S. paid $400 per month to M.K.S. for J.D.S.’s support since September 1, 2021, and that J.D.S. has resided primarily with M.K.S. since June 16, 2021. The March 3, 2022 Consent Order provided: 1. The arrears of child support owing from L.B.S. to M.K.S. as of February 18, 2022, are set in the amount of $9,000, including

principal and interest (the “Arrears”); 2. On or before July 1, 2022, L.B.S. will pay to M.K.S. a lump sum payment of $1,000 towards the Arrears; 3. Commencing August 1, 2022, and continuing on the 1 st day of each month thereafter until the Arrears are paid in full or until further order of the court, L.B.S. will pay a minimum of $75 per month in addition to the regular payment of chlid support under the interim child support order; 4. Despite the minimum monthly payment set out in paragraph 3 of this order, all Arrears are required to be paid in full on or before February 28, 2024.

L.B.S. will make any additional payments towards Arrears as required to ensure all Arrears are paid in full on or before February 28, 2024; 5. The retroactive child support payable by M.K.S. to L.B.S. made in Judge Gray’s February 19, 2020 Order is fully satisfied; 6. The matters of retroactive child support owing by either party as of February 18, 2022, are resolved by this current order and Judge Gray’s February 19, 2020 Order; 7. Following the entry of this order, neither party can bring further claims for child support arrears with respect to J.D.S.

The consent order constitutes the full, complete, and accurate position of both parties after having voluntary, meaningful discusions; and 8. For as long as J.D.S. is eligible to receive child support, the parties will exchange (

a) copies of their respective income tax returns for the previous year, including all attachments no later than July 1 st of each year, and (

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency immediately upon receipt. [ 46 ] On March 3, 2022, L.B.S. filed an Application About Priority Parenting Matter (CEIS 85) and a supporting affidavit (CEIS 86). He seeks an order that J.D.S. reside primarily with him because she is no longer safe living with M.K.S.

In his application, L.B.S. states that if J.D.S. were to reside primarily with him, she would receive the “care, medical help, and counselling she is asking for and needs, but not receiving in her mother’s care.” [ 47 ] L.B.S. bases his March 3, 2022 Application About Priority Parenting Matter on the fact that while she was in her mother’s care, J.D.S.: a. was sexually abused; b. experienced a mental health crisis, resulting in her hospitalization; c. suffers bouts of debilitating anxiety and trauma; d. has engaged in self-harm and attempted suicide; e. consumes alcohol and cannabis; f. experiences problems at school, including deteriorating grades, absenteeism, and suspensions; g. has a discordant relationship with her mother fraught with conflict and tension; and h. runs away or threatens to run away from home for extended periods. [ 48 ] L.B.S. says that in his care, J.D.S.’s mental and emotional health improves, as does her performance at school.

L.B.S. and N.S. provide a safe haven for J.D.S. and she relies on them for confidential advice, consolation and succour. On the other hand, M.K.S. exacerbates J.D.S.’s distress and does not adequately involve L.B.S. in J.D.S.’s care. [ 49 ] On March 15, 2022, M.K.S. filed a Written Response to Application (CEIS 87) with a supporting affidavit (CEIS 88). M.K.S. opposes L.B.S.’s March 3, 2022 Application About Priority Parenting Matter on the following basis: a. J.D.S.’s residency has been in dispute since March 2017. J.D.S.’s preferential parenting arrangements have fluctuated over time.

As set out in Leanne Toews’ February 1, 2018 s. 211 report, J.D.S. expressed a desire to reside primarily with her mother. Then, in an affidavit filed December 19, 2019, J.D.S. said she wanted to continue to reside with her father; b. J.D.S. has now lived with M.K.S. since June 16, 2020; c. J.D.S. has independent means to communicate with L.B.S. via her private cell phone; d. Although M.K.S. acknowledges J.D.S. has experienced significant trauma in the past year, it was not connected to J.D.S.’s residency.

Specifically, J.D.S.: i. was sexually abused by a peer, not in circumstances created by her residency with M.K.S.; and ii. was verbally abused and harassed by L.B.S. through text messages; e. J.D.S. overdosed on her anxiety medication in response to a breakdown in her romantic relationship with her boyfriend; f. J.D.S. has been in counselling in [Village] as a result of the sexual and verbal abuse she experienced; g. It is not in J.D.S.’s best interests to disrupt the status quo at a time when J.D.S. has a heightened need for stability;

h. L.B.S.’s request for a change in J.D.S.’s residency is motivated by his reluctance to pay child support; i. In the past, L.B.S. has reneged on agreements as to J.D.S.’s primary residency; j. J.D.S.’s relationship with L.B.S. has been “marked by abuse, emotional manipulation and attempts to influence and guilt J.D.S. forwanting to live outside his home;” k. J.D.S. is of an age where she has the standing and capacity to make her own decisions as to where she chooses to reside; and l.

Given the history of and negative impact on J.D.S.’s relationship with L.B.S., it is not appropriate to change her residency withoutJ.D.S.’s consent or participation in these proceedings. [50] M.K.S. seeks the following relief with respect to L.B.S.’s March 3, 2022 Application About Priority Parenting Matter: a. L.B.S.’s March 3, 2022 Application About Priority Parenting Matter be dismissed; b. Pursuant to s. 211 of the Family Law Act, L.B.S. be prevented from filing further applications regarding J.D.S.’s residence withoutleave of the court; c.

Pursuant to s. 203 of the Family Law Act, J.D.S.’s interest be represented by an independent lawyer appointed by the court; and/or d. Pursuant to 202(

b) of the Family Law Act, the court hear evidence directly from J.D.S.; and/or e. Pursuant to s. 201 of the Family Law Act, the court appoint J.D.S. a litigation guardian or be permitted to act on her own behalf in allor part of these proceedings where the court deems appropriate. [51] On March 17, 2022, L.B.S.’s March 3, 2022 Application About Priority Parenting Matter and M.K.S.’s Written Reply, camebefore me for hearing. I heard from Mr. J. Hayes, as agent for Mr. Movassaghi, on behalf of L.B.S., and from Ms. K Pavao, legalcounsel for M.K.S. At the conclusion of the hearing, I reserved my decision.

Since then I have reviewed the court file in its entirety. Thisis my decision and reasons for judgment. Legal principles [52] L.B.S.’s application necessitates a variation of Judge Lowe’s August 20, 2021 Order. The August 20, 2021 Order was a “consentorder”, meaning that it is a formal expression of an underlying agreement between the parties to resolve the matters in issue. Subject tothe relevant statutory provisions, a consent order may be set aside on the same grounds as an agreement between the parties: Shackletonv.

Shackleton, 1999 BCCA 704 at para. 12. [53] As L.B.S. seeks an order varying parenting time with J.D.S., s. 47 of the Family Law Act applies.

It states: Changing, suspending or terminating orders respecting parenting arrangements 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since themaking of the order, there has been a change in the needs or circumstances of the child, including because of a change in thecircumstances of another person. [54] While s. 47 of the Family Law Act uses only the words “change in the circumstances”, the BC Court of Appeal in Williamson v.Williamson, 2016 BCCA 87 (at para. 30) held this provision adopts the common law “material change” test from Gordon v.

Goertz, (SCC). Accordingly, the threshold requirement for variation of an order is: (

a) a change in the condition, means, needs orcircumstances of the child or in the ability of the parents to meet the needs of the child, (

b) which materially affects the child, and (

c) thatwas not foreseen or could not have been reasonably contemplated at the time of the order. If the threshold in s. 47 is met, then s. 37 ofthe Family Law Act requires the court to consider the best interests of the child only, and the factors listed in s. 37(2), in making aparenting arrangement order. [55] The August 20, 2021 Order has all the hallmarks of a final order with respect to parenting arrangements of J.D.S., but is recordedas an “interim order”. The August 20, 2021 Order was drafted by Ms.

Pavao, counsel for M.K.S., and approved as to form by Mr.Cowan, who was counsel for L.B.S. at the time. [56] If the August 20, 2021 Order is an interim order, then ss. 216(3) and (4) also come into play. These sections state: 216 . . .

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

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

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

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

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

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

(

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that thearrangement (i)would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii)would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [57] Also relevant is s. 217, which states: 217 If an application is made to change, suspend or terminate an order, an interim order for the relief applied for may be made only if thecourt is satisfied that (

a) a change in circumstances has occurred since the order that is the subject of the application was made, and (

b) the hardship to a party of denying interim relief before the application is heard outweighs the hardship to any party of grantinginterim relief. [58] Poole v. Poole, 1999 BCCA 2003, the B.C. Court of Appeal stated at para. 25, the party seeking to alter a child’s status quo hasthe onus to show the status quo is unsatisfactory, not in the best interests of the child, and therefore should be changed.

In C.T.H. vC.H.H., 2018 BCSC 189 , Justice Pearlman states at para. 44: [44] Ultimately, because the court is concerned only with the best interests of the child, if an applicant demonstrates those interestswould be better served by a different parenting arrangement pending trial, the court will make the appropriate order. [59] In this case, the change of circumstances is J.D.S.’s overdosing on her anti-depressant medication following the breakdown in herrelationship with her boyfriend.

A number of L.B.S.’s concerns for J.D.S.’s safety and well-being pre-date the August 20, 2021 Order.Specifically, L.B.S.’s allegations that while in M.K.S.’s care, J.D.S. had been sexually assaulted. I understand this incident occurredearlier in July 2020. Moreover, J.D.S. was already showing signs of psychological and emotional distress in 2019.

In his January 13,2022 Affidavit (CEIS 83), L.B.S. stated that he learned of J.D.S. cutting herself when he received M.K.S.’s January 18, 2019 Affidavit.M.K.S. says she provided L.B.S. copies of J.D.S.’s medical records long before the August 20, 2021 Order. [60] M.K.S. acknowledges that J.D.S. has had a difficult year and as a result now attends counselling. Since her overdose, M.K.S.monitors J.D.S.’s use of medication. She asserts J.D.S.’s recent self-destructive behaviour was ignited by her breakup with her boyfriend,not by J.D.S.’s relationship with her mother.

M.K.S. also acknowledges that J.D.S.’s cannabis use is an issue between them. J.D.S. hasasthma and vaping marijuana aggravates her condition. [61] Upon considering the s. 216(3) and (4) Family Law Act factors with respect to a variation of the August 20, 2021 Order, I find: a. There has been a change in J.D.S.’s circumstances since the August 20, 2021 Order was made; b. The August 20, 2021 Order has been in place for seven months; c. The August 20, 2021 Order does not suggest it was intended to be simply a temporary parenting arrangement pending trial.

At theAugust 20, 2021 Family Management Conference, counsel for the parties both represented to the court the consent order was to resolvethe issue of J.D.S.’s primary residence. It was the issue of child support that was unsettled; d. Specifically, the August 20, 2021 Interim Consent Order, does not contemplate that at sometime in the future the parties will beproceeding to trial on the issue of permanent parenting arrangements for J.D.S.; e.

No trial had been scheduled or even sought to be scheduled for a final determination of J.D.S.’s parenting arrangements prior toL.B.S. filing his Application About Priority Parenting Matter; f. The issue of ongoing and retroactive child support proceeded to hearing before Judge Nadon on March 3, 2022; and g.

A variation of the August 20, 2021 Order, either making it or not making it, could have an adverse effect on J.D.S. [62] I am less certain whether the evidence of a change of circumstance is of a substantial nature that was not available at the time theAugust 20, 2021 Order was made. [63] In order to determine whether to vary J.D.S.’s existing parenting arrangements, I must consider those factors set out in s. 37(2) ofthe FLA in determining the best interests of the child, including: (

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

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

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

d) the history of the child’s care; (

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

(

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, 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. [ 64 ] Section 37(3) of the Family Law Act states that an order is not in the best interests of the child “unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being”. (

a) the child’s health and emotional well-being [ 65 ] The evidence suggests J.D.S. is emotionally and psychologically unstable. She has been traumatized by a sexual assault by a peer and has a long history of self-harming behaviours, including a recent suicide attempt. (

b) the child’s views, unless it would be inappropriate to consider them [ 66 ] In order to determine what is in the best interests of a child, s. 37(2) (

b) of the Family Law Act requires the court to consider the views of the child unless doing so would be inappropriate. The August 20, 2021 Order empowers J.D.S. to determine her primary residence. At the time, she chooses to reside primarily with M.K.S. and when to have parenting time with L.B.S. I have no clear indication as to J.D.S.’s views about whether she wishes to change her residence in light of her recent medical crisis. In four months J.D.S. be 17-years-old. I agree with M.K.S. that J.D.S. is of an age where her views should be given paramount consideration.

I also agree with L.B.S., that her recent medical crisis raises concerns as to J.D.S.’s ability to make decisions in her best interest. In the circumstances, I find the best recourse is that which M.K.S. proposes, namely, appointing J.D.S. her own legal counsel to help her define and articulate her views. (

c) the nature and strength of the relationships between the child and significant persons in the child’s life [ 67 ] Although the evidence suggests to me that J.D.S. is somewhat mercurial, I accept she does have a strong bond with both her parents, their partners and her younger half-sisters. I say this despite J.D.S.’s penchant for making hurtful allegations against her parents in order to manipulate her parenting arrangements. [ 68 ] I do not know what to make of the offensive emails M.K.S. claims L.B.S. sent to J.D.S., given he denies authorship.

As the emails do not set out the phone number from where they were sent, I will want some verification as to their authenticity. It is extremely troubling if L.B.S. did send J.D.S. these messages; it is equally troubling if J.D.S. fabricated these messages for some ulterior motive. [ 69 ] According to M.K.S., J.D.S. claims she was forced to take on significant childcare responsibilities for K.S. while residing with her father. L.B.S. says this is untrue.

Frankly, I find it unlikely that N.S. would assign the care for her new-born infant to an unstable and recalcitrant adolescent, particularly since N.S. had been recently traumatized by the loss of her previous infant. (

d) the history of the child’s care [ 70 ] J.D.S.’s history of parenting time with her parents is set out above. In a nutshell, J.D.S. lived primarily with both parents until their separation on or about January 1, 2010. Thereafter, J.D.S. lived primarily with her mother in Delta and [Village]. Commencing September 1, 2014, J.D.S. lived primarily with her father. Since June 16, 2020, J.D.S. has resided primarily with her mother in [Village]. Until the August 20, 2021 Order, J.D.S. had parenting time on alternate weekends and holidays with the parent with whom she did not share a primary residence.

Because the parents have not resided in the same community since they separated, when J.D.S.’s primary residence changes, so does her school. (

e) the child’s need for stability, given the child’s age and stage of development [ 71 ] J.D.S.’s mental health issues suggest she does need more stability than an adolescent of her age would ordinarily require. Nevertheless, I gather at some point the parents began suffering battle fatigue over the issue of J.D.S.’s primary residence and on August 20, 2021, they agreed to leave it to J.D.S. to decide where she would live. (

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 [ 72 ] The evidence before me indicates that both M.K.S. and L.B.S. are ordinarily competent parents capable of exercising their parenting 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; [ 73 ] The evidence before me does not confirm that J.D.S. is exposed to family violence in either her father’s or her mother’s home; (

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;

[ 74 ] I have not found on the evidence before me either guardian or their respective partners are responsible for acts of family violence. (

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 [ 75 ] M.K.S. and L.B.S. are critical of each other’s parenting skills and lifestyle. Although it would be preferable if they spoke to each other about important issues involving J.D.S., I gather this is difficult. M.K.S. says she began speaking directly with J.D.S. because she found it so difficult communicating with L.B.S.

This too generated conflict in the nature of what information M.K.S. shared with J.D.S. Still, although the parents’ communication has not always been harmonious, they have resolved many issues in these proceedings by way of consent orders. Given J.D.S. has the independence to communicate with either parent and the maturity to do so, I am confident M.K.S. and L.B.S.’s communication difficulties will gradually abate. (

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being [ 76 ] I am not aware of other civil or criminal proceedings relevant to J.D.S.’s safety, security or well-being. DECISION ON APPLICATION [ 77 ] I am persuaded the best recourse to the matter before me is to adjourn L.B.S.’s March 3, 2022 Application About Priority Parenting Matter pending the appointment of legal counsel for J.D.S. My decision on the issues of J.D.S. ’s primary residence and L.B.S.’s future filings is adjourned until such time as J.D.S. is represented by legal counsel. In the interim, this Court orders: Appointment of legal counsel for J.D.S. [ 78 ] Pursuant to

section 202/203 of the Family Law Act, SBC 2011, c. 25 , J.D.S., born [omitted for publication] 2005, may be represented by legal counsel appointed by the Society for Children and Youth Legal Centre, whose address for service and location is Suite 303 - 1720 Grant Street, Vancouver, BC, V5L 2Y7, phone/facsimile 778-657-5544, or by a lawyer appointed by them; Authority of J.D.S.’s appointed counsel [ 79 ] Counsel for J.D.S. shall have full power to act for J.D.S. as though she is a party to these proceedings and without limitation, counsel for J.D.S. is authorized to: a.

Receive copies of correspondence between counsel (or the parties, if unrepresented) in relation to the proceedings; b. Receive copies of all professional reports and all records relating to J.D.S.; c. Appear and participate in this proceeding, including the right to examine and cross-examine witnesses; to call evidence and make submissions to the court, such submissions to include positions advanced on behalf of J.D.S.; d. Talk to and meet with J.D.S. alone and confidentially or with others at any location without prior notice to the parents, including but not limited to J.D.S.’s school; e.

Talk to and meet with J.D.S. alone and confidentially, with reasonable prior notice to the parents, at the residence of either parent; f. Communicate directly with the parents of J.D.S. for the purpose of scheduling any matters relating to J.D.S.; g. Apply to be removed as the legal representative of J.D.S. if counsel for J.D.S. believes that such involvement is no longer in J.D.S.’s best interest or as instructed to do so by J.D.S.; and h.

Take other steps as authorized by the court; Communications between parties and J.D.S.’s counsel [ 80 ] All third parties involved with J.D.S. and her guardians, including but not limited to J.D.S.’s teachers and school authorities, family and child counsellors and assessors, mediators, church representatives, visit supervisors, health care providers, psychologists, social workers and child-welfare authorities are hereby authorized to release any and all information about J.D.S. to counsel for J.D.S. without the consent of the parents and/or guardians; [ 81 ] The parties may communicate with counsel for J.D.S. via email or written correspondence.

All communications between the parties and counsel for J.D.S. are not confidential and may be disclosed to the other party; Report to the court by J.D.S.’s counsel [ 82 ] Counsel for J.D.S. shall be permitted to provide a

summary to this Court of the information acquired in the course of performing his or her duties and by doing so, counsel for J.D.S. shall not be deemed to be a witness in these proceedings; Registry to provide court documents and information form for appointment of lawyer for child to the society [ 83 ] The court registry shall forthwith provide the society with a copy of the following documents: a. Judge Doulis’ entered Reasons for Judgment dated April 20, 2022;

b. The entered copy of this order made April 20, 2022; c. Leanne Toews s. 211 report filed with the Prince George Provincial Court Registry on February 1, 2018, and recorded in the Court Electronic Information System (“CEIS”) as document 41; d. J.D.S.’s affidavit filed December 19, 2019 (CEIS 61); e. Judge Gray’s order made February 19, 2020, and entered March 4, 2020 (CEIS 62); f. M.K.S.’s affidavit filed July 12, 2021 (CEIS 71); g. M.K.S.’s affidavit filed November 15, 2021 (CEIS 75); h. Judge C. Lowe’s order made August 20, 2021, and entered on February 17, 2022 (CEIS 84); i.

L.B.S.’s affidavit filed January 13, 2022 (CEIS 83); j. Judge M. Nadon’s order made March 3, 2022, and entered March 21, 2022 (CEIS 89); k. L.B.S.’s Application About Priority Parenting Matter filed March 3, 2022 (CEIS 85); l. L.B.S.’s affidavit filed March 3, 2022 (CEIS 86); m. M.K.S.’s Written Response to Application filed March 15, 2022 (CEIS 87); n. M.K.S.’s affidavit filed March 15, 2022 (CEIS 88); o. Any other document filed with this Court that counsel may request; and p.

A copy of the completed “Information Form for Appointment of Lawyer Child” (a copy of which is appended to this order); Continuation of hearing [ 84 ] The Judicial Case Manager will

schedule a one-day continuation of the hearing of this matter (CEIS 85, 86, 87, 88) after May 23, 2022; [ 85 ] Judge Doulis is seized of this matter; and [ 86 ] Judge Doulis will draft this order and the signature of counsel approving it as to form is dispensed with. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia