T.L.F. v. A.J.D., 2021 BCPC 43

Citation: T.L.F. v. A.J.D. 2021 BCPC 43 Date: 20210308 File No: 14516 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.L.F. APPLICANT AND: A.J.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing in person: T.L.F. Counsel for the Respondent: A. Florescu Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 5, February 12, 2021 Date of Judgment: March 8, 2021 I. Introduction [ 1 ] A.M.D. (the “child”) is a nine-year old child who is at the center of a dispute between her parents. The Applicant, T.L.F., is her father and the Respondent, A.J.D., is her mother. While A.M.D. presents as a very pleasant child, it is also apparent that she is experiencing a considerable amount of stress, far beyond what any child of her age should be experiencing.

The best evidence of this comes from several videos that her father, the Applicant, has taken of her. He estimates that he has taken over 500 videos of this child. In the videos she is appears nervous and has dark circles around her eyes, and in many of them she is being peppered with questions from the Applicant. [ 2 ] The Applicant’s questioning are part of an effort on his part to prove that the child has been inappropriately touched at some point in the past by a man named C. The Applicant seems intent on, and obsessed with proving that this happened.

He says that he is doing so because it is in the best interests of this child. The Respondent believes that he is manufacturing a false narrative as a tactic to gain an advantage in family litigation. Whatever the case may be, the Applicant seems to either be unaware of or indifferent to the distress his constant questioning and probing is causing to his child. [ 3 ] The allegations which the Applicant is making have previously been investigated by the Abbotsford Police Department and by the Ministry of Children and Families.

They have recommended against any sort of prosecution, and the Ministry has concluded that it has no child protection concerns if the child remains in the care of the Respondent. [ 4 ] The child has told the Applicant, in a video recording, that she has been inappropriately touched. This admission has been discounted by the authorities because the manner in which it was obtained by the Applicant make its reliability suspect. If there is any truth to the allegation, the Applicant has likely sabotaged any hope of prosecution. [ 5 ] One of two things has occurred.

Either the child actually was offended against, or she was not, but has told the Applicant what he wants to hear from her, either in order to please him, or to make him stop questioning her so intently. This application will not decide whether or not the child was victimized in the manner that the Applicant alleges. It is intended to decide how much parenting time with the Applicant is in the child’s best interests and under what conditions. [ 6 ] If the Applicant intends to keep probing the child in this manner as he says he does, it is unlikely to achieve his desired goal.

Any hope of any sort of prosecution has been derailed. But as long as the Applicant keeps pressing the child to talk about what may or may not have happened, it can only add to her distress. If indeed she has been victimized as the Applicant believes, he is forcing her to relive the experience every time she is with him, by constantly bringing up this subject. If the child was not victimized, the Applicant is continuing to build and reinforce a false memory.

Each time she is questioned about this by the Applicant he is forcing her to relive an unpleasant memory, either real or otherwise. [ 7 ] In addition to the dark circles under the child’s eyes that are visible in the videos, the Respondent reports that the child has had difficulty sleeping, has expressed thoughts of self-harm and has even mentioned thoughts of suicide. The Respondent has the child meeting with a counsellor to address these serious concerns. The Applicant seems more concerned with proving himself right about the allegations of past abuse to the exclusion of everything else.

When a child is experiencing this kind of distress, one would expect that parents would put aside their own conflict and work together to restore their child’s happiness. In this case, that is not happening. [ 8 ] The Applicant has the burden of proving that he should have more parenting time with the child because his way of doing things is in the best interests of the child. II. Past History of the Parties [ 9 ] A.M.D. was born in [omitted for publication]. At the time the Applicant was approximately 53 years of age and the Respondent was 29.

The Respondent alleges that her pregnancy was the result of exploitation on the part of the Applicant. She says that she had a strong addiction to marihuana at the time and the Applicant fed her addiction in return for sexual favours, something that he denies. The child was removed from her mother’s care by the Ministry of Children and Family Development (MCFD) on October 20, 2011. The child remained in care until January of 2013 when she was returned to the care of the Respondent. [ 10 ] In 2013 a trial was held before the Honourable Judge G. J.

Brown of this Court and an order was made naming both parties as guardians of the child. The Respondent was given the majority of the parental responsibilities for the child and the Applicant was given specified parenting time. [ 11 ] Following Judge Brown’s Order, a number of other orders were made in the summer of 2013 including another order by Judge Brown finding that the Respondent had been wrongfully denied parenting time by the Applicant and authorizing police officers to assist in the return of the child.

The Applicant applied to vary Judge Brown’s order and this application was dismissed at a hearing held before the Honourable Judge MacDonald in December of 2013. [ 12 ] In 2017 and 2018, the parties participated in a 10 day trial that experienced some unfortunate delays due to health issues experienced by the judge who had commenced sitting as the trial judge. After it was determined that the assigned judge would be unable to conclude the trial, the remainder of the trial was presided over by the Honourable Judge N. Adams of this court.

The parties agreed that a transcript of the evidence heard before the trial judge who had commenced hearing the trial would be deemed to be evidence that could be considered by Judge Adams.

[ 13 ] One of the witnesses who testified at this trial in 2017 was C.U. (“C.”). In her reasons for judgement, Judge Adams found C. to be evasive and untruthful, especially about the reasons why his own children had been removed from his care by MCFD. He was also evasive when asked about whether he had been living with the Respondent. Judge Adams concluded that the Respondent showed a lack of boundaries when it came to C., and that she had allowed him to bathe the child, feed her and put her to bed.

Judge Adams was also surprised that she did so without learning why MCFD had intervened in the removal of C.’s own children. [ 14 ] Judge Adams went on to conclude that the Applicant had a lack of insight into his own conduct, noting how, if he did not get what he wanted, he would cast the blame elsewhere, disparaging those who didn’t share his point of view.

She concluded that the Applicant “values the contest more than the well-being of the child.” She described the Applicant as “single minded in his purpose to do things his way and only his way, even where they are fundamentally opposed to the child’s interests.” [ 15 ] Ultimately, Judge Adams kept in place the order made by Judge Brown regarding guardianship, parental responsibilities and kept the primary residence of the child with the Respondent.

She also kept police enforcement in place in the event that the Applicant did not return the child to the Respondent at the end of his parenting time, and made conduct orders which required the parties to be respectful to one another and ordered them not to question the child about the other parent or discuss any inappropriate adult matters or court or legal matters. The parties were also ordered not to blame, criticize or disparage one another to the child.

The Applicant did not attend court on the day that Judge Adams made her order. [ 16 ] The following year, in October of 2019, yet another hearing was held before the Honourable Judge Rounthwaite in which changes were made to the Applicant’s parenting time and the police enforcement provisions ordered by Judges Brown and Adams were kept in place.

The order was to be reviewed in December of 2019, but once again the Applicant did not attend court for the review. [ 17 ] On April 7, 2020, in an order made shortly after the commencement of the COVID-19 pandemic, Judge Rounthwaite made another order varying her earlier order and providing that the Applicant would have his parenting time remotely, using Skype. The Applicant was to have parenting time each Monday, Wednesday and Friday, between 4:00 p.m. and 5:00 p.m. In addition, Judge Rounthwaite ordered that: 1.

The Applicant was not to question the child about “inappropriate matters of an adult nature, including sexual matters and shall not speak derogatorily about” the Respondent; 2. The Respondent was to monitor the Skype calls and was authorized to end the calls if the Applicant broke the previous rules; 3. The Respondent could have supervised parenting time in person, supervised by a professional supervisor or by another supervisor approved of by the Respondent if pandemic conditions allowed for such; 4.

The Respondent would not change the child’s residence from outside of the Fraser Valley without the Applicant’s consent or a court order allowing her to do so; 5. The Applicant would not remove the child outside of Abbotsford without the Respondent’s consent or a court order allowing him to do so; and 6. The Respondent was to ensure that the child would have no face-to-face conduct with C. except in the presence of the Respondent and another adult. III.

Evidence at this Hearing [ 18 ] Prior to presenting their respective cases, each of the parties were reminded that their evidence should focus on what had changed since the making of the previous orders that would justify a change in the status quo. It is a requirement under

section 47 of the Family Law Act that before changing, suspending or terminating an order respecting parenting arrangements, a court must be satisfied that “there has been a change in the needs or circumstances of the child” since the making of the previous order or orders in existence. This became particularly important in this case where the Applicant has stated in his submissions that unless he gets the order he desires, he will be back again and again and again with new applications. [ 19 ] The requirement for a change in circumstances is required for a number of reasons.

First, it is to prevent a dissatisfied party from bringing the same application over and over again in front of a number of different judges until that party obtains the result desired. If a party feels that an error has been made, the remedy is an appeal of that decision, not a repetition of the same application. Secondly, it is to prevent such a party from using court proceedings as a means of harassment of the other side.

Thirdly, multiple hearings for the same issue delays the resource of court time to others waiting in the cue to have their matters heard. [ 20 ] The primary concern raised by the Applicant was a disclosure that the child made to a friend of his, A.A. According to Ms. A., in the fall of 2019 the child told her that the Respondent’s friend C. does things which make her uncomfortable. Specifically, she says that the child told her that C. cuddles with her in bed; that he uses the bathroom in front of her; that he comes into the bathroom when she is in the bathtub, and that he touches her in her “privates”.

According to Ms. A., the child also reported that C. took pictures of her privates. In her evidence, Ms. A. said that the child did not go into details and did not elaborate about the touching. Ms. A. testified that the child made these disclosures to her when the Applicant was not present, but that she had been asked by the Applicant to speak to the child. [ 21 ] The Applicant testified that what has changed since the making of the previous orders is that the child has made the new disclosures and that the he believes that Respondent is living with someone who may be harming the child.

He also complained that his time with the child has been drastically reduced and he accuses the Respondent of being unwilling to facilitate his parenting time. It is the Applicant’s belief that the Respondent is doing so in order to cover up C.’s abuse of the child and to alienate him from his child. [ 22 ] In cross-examination, the Applicant said that when he had visits with the child he would make video recordings of the child and that he has over 500 videos of her. He was asked if he ever video-recorded the child when she was in the washroom, but he denied doing so.

He acknowledged that he would discuss the alleged abuse with the child, and said in cross-examination, “every time I see her, I tell

her not to get into bed with C.”, adding that he plans to continue to ask her about this if he gets the chance to do so. The Applicant claims that he has only had about 40% of the Skype calls that he was ordered to have and he blames this on the Respondent. [ 23 ] Ian Van Deventer, a social worker and team leader with MCFD testified about the investigation made into the allegations made against C. in December of 2019. At that time both MCFD and the Abbotsford Police Department investigated the matter.

An interview of the child took place and the child reported a number of things that were not seen as being credible. For example, the child reported that she had been thrown through a window, and she also said that the Applicant has a room in his house where he is making plans to ruin the Abbotsford Police Department. [ 24 ] Mr. Van Deventer testified that in a later interview, the child recanted her accusations about C., and said that these accusations were not true and that the Applicant had prompted her to say them.

He also said that C. was interviewed by the Abbotsford Police Department and that he offered to participate in a polygraph examination, but that this was never followed up on. [ 25 ] Mr. Van Deventer testified that in January of 2020, the child was making new allegations, this time accusing the Applicant of video-recording her when she was on the toilet. She also reported that the Applicant had inserted some sort of plastic bottle in her private parts. She also reported that the Applicant had left her unattended for two weeks while he went to New York.

These disclosures were reported to the Abbotsford Police, but they declined to investigate because of the child’s history of unreliable reporting. He said that he was informed by the Applicant that there was a conspiracy between MCFD, the Abbotsford Police, and the judges to take away his parenting time. In the end, MCFD concluded that as long as the child was primarily in the Respondent’s care, it had no protection concerns regarding the child. [ 26 ] The Respondent testified that she lives in a home with her mother and with her child.

She reported how the conflict between the Applicant and herself has caused the child considerable distress and how the child has reported having suicidal thoughts as recently as this past December. She has the child in counselling since August of 2020, and she reports that the child appears to have developed a good bond with her counsellor. [ 27 ] The Respondent was asked about C., who she describes as a family friend and as a good friend. She testified that he does not live in the residence, but he does come over for holidays and had been to her home for Christmas dinner this past December.

She said that C. had once been homeless, but now has his own home. She testified that he is never left alone with the child and in her opinion he does not pose any danger to the child. She is reluctant to end her friendship with C. because, in her words, “I don’t have many good friends.” [ 28 ] C. did not testify. The Applicant might have issued a subpoena for him to testify, but he took the position that it was not the Respondent’s responsibility to do so.

Counsel for the Respondent correctly stated that it was his responsibility to subpoena the Applicant’s witnesses and chose not to subpoena C. as part of his client’s case, believing that doing so would only play into the Applicant’s pattern of harassment. [ 29 ] On October 11, 2019, after Judge Rounthwaite had made an order, the Applicant was permitted to have parenting time, with the child being transported to and from his visits by a man named B., someone who was not a stranger to the child.

The Respondent testified that she was happy that the Applicant was seeing the child again, until one particular visit in December when the child returned home and seemed to be distressed. The child was hugging a stuffed animal very tightly and said that she was afraid because a social worker was coming to get her. The Respondent did meet with a social worker, and she was told to keep C. away from the child until MCFD concluded its investigation. The Respondent complied with that order. [ 30 ] The Respondent reported that at this time the child began expressing thoughts of suicide.

According to the Respondent, the child said that the Applicant was making videos of her, including when she was in the bathroom. The matter was investigated by MCFD and by the Abbotsford Police Department at the time. [ 31 ] In April of 2020, Judge Rounthwaite ordered that the Applicant’s parenting time would resume by means of Skype visits every Monday, Wednesday and Friday from 4:00 to 5:00 p.m. The order provided that the Applicant was not to question the child about “inappropriate matters of an adult nature, including sexual matters and shall not speak derogatorily about” the Respondent.

The Respondent was to monitor the Skype calls and was authorized to end the calls if the Applicant broke those rules. The order also provided that the Respondent could have supervised parenting time in person, supervised by a professional supervisor or by another supervisor approved of by the Respondent if pandemic conditions allowed for such. [ 32 ] The Respondent testified that for the most part these calls have taken place. Some of the calls were unable to occur because of the quality of internet available at the farm that she lives on. One call did not occur because of a recent power outage.

Another was missed because the Applicant was out of town. The Respondent said that the calls go well as long as the Applicant does not discuss any of the prohibited subjects. For example on one call the child was cooking with the Applicant and on other occasions the child shows the Applicant what she has learned in her typing class. [ 33 ] The Respondent appears to want to facilitate the relationship between the child and the Applicant, as long as the Applicant does not subject the child to more questioning and scrutiny about past possible sexual abuse.

For that reason, she feels that the Applicant’s visits should continue to be monitored until she can be confident that he isn’t continuing to force the child to discuss this subject or keep making videos of her in which he keeps on peppering her with questions about this subject. The Respondent says that the child fees safe in her home, but still feels uncomfortable outside of the home. [ 34 ] The Respondent testified that the only time she has ever withheld the child from the Applicant was after the child made the disclosure that the Applicant was filming her in the washroom.

She reiterated her concern that if unsupervised visits resume, the Applicant will continue to harm the child by his constant questioning and videotaping about a subject that is causing the child psychological torment. [ 35 ] During cross-examination of the Respondent, the Applicant played a number of videos he had taken of the child. The videos show constant questioning by the Applicant of the child, in which he questions her about where she wants to live. In another he discusses court proceedings with the child and discusses a plan in which the Applicant talks with the child about court. It is not clear what the

Applicant is referring to, when he tells the child “I had to do that so your mom would let me – the judge would let me see you, okay?” What he is referring to is not included in the video. The Applicant then goes over what the child is to tell his lawyer and what she is to tell the court. He has conversation with the child containing the following questions and answers: App: Okay, and what are we going to tell him [his lawyer]? Child: That I want to live with you and we will live happily ever after and then we have breakfast together every day… App: So the plan here, (

a) is to go back to your mom’s house. Child: Yeah, B. drops me off. Okay, B. drives me in his truck. Then I arrive at your house, and then we go to the courthouse and then we talk to [his lawyer] and then we live happily ever after… App: Okay, you know what, if you go, like shouldn’t you talk to [his lawyer] before you go to the courthouse? Child: Oh, (laughter), we don’t have to go to the courthouse to talk to [his lawyer]? Applicant: No, we have to talk to [his lawyer] first cause he’s like our lawyer with the shoestrings tied.

Child: Well, if we’re gonna do that, then like we’re gonna skip this and then come back to it here after we talk to [his lawyer] (laugher). Oh and then next thing you know dad, we’re gonna be home free. Applicant: Well the judge actually said she wanted to talk to you. Child: Okay. Applicant: What are you going to tell the judge? Child: That I want to live with my daddy. [ 36 ] In another video, the Applicant discusses revenge with the child and the two of them have this conversation: App: Okay, um, what about revenge? Child: Well I really just want to do what my mom did to my dad.

That’s what I want to do to my mom. App: And what’s that? Child: Well I will keep my mom from seeing my dad. App: Yeah. Child: And that’s what I will do to the cops too. If the cops ever come to my dad’s house then I will tell them to get lost. [ 37 ] It is not unusual for one party to accuse the other of tainting a child’s views by coaching the child to say things beneficial to that party’s case. What is unusual in this case is that it is the Applicant himself who furnishes video-recorded evidence of himself doing that very thing. IV.

Position of the Parties [ 38 ] The Applicant seeks an order making his residence the primary residence of the child. He sees this as the only remedy available to give him sufficient parenting time with the child.

He concedes that the Respondent is a good parent, and said in his submissions, “this is the best I’ve ever seen [the Respondent] parent the child, but it doesn’t leave any time for me.” He believes that unless the child has more time with him, in his words “it will give her problems in life.” The Applicant alleges that the Respondent is unwilling to facilitate his parenting time and says that she has done all she can to frustrate his parenting time. [ 39 ] The Applicant remains firm in his belief that the child has been abused while in the Respondent’s care and states “it’s gonna come out what’s been going on.” He alleges that the complaints made against him are false complaints, motivated by an intention to frustrate his parenting time. [ 40 ] In his submissions, the Applicant went on at some length about his history of coming into conflict with the Abbotsford Police Department.

He said that by involving local police in the investigation of allegations concerning the child, the Respondent was threatening his life. [ 41 ] The Applicant also asks for parenting responsibilities. For example he says that he would like to take the child to a doctor, to investigate if the child’s rectal problems are the result of some sort of physical abuse. [ 42 ] On behalf of the Respondent, her counsel submits that the issue is whether or not loosening the restrictions on the Applicant’s parenting time will be safe for the child. He argues that it would not.

Counsel points to the Applicant’s own evidence of taking the child to a number of third parties to discuss possible past abuse, including his lawyer as well as Ms. A., and his making hundreds of videos of the child, many of which discuss this subject.

Counsel submits that the Applicant is not doing this because it is beneficial to the child, but because of his own obsession to be right, while being oblivious to the harm that this is causing the child. [ 43 ] Counsel argues that more time with the Applicant is harmful to the child and has resulted in the child requiring counselling and showing visible signs of distress. Counsel asserts that if the Applicant is allowed more parenting time, he will use not use that time for

the child’s best interests, but instead will cause her more trauma by subjecting her to more videos, more questioning, probing by doctors, and more coaching, sacrificing his child’s mental health to satisfy his own obsession and his own agenda. As counsel put it, “unsupervised parenting time will mean more of the same. More of the same will mean more trauma.” [ 44 ] Counsel also notes that the allegations involving C. have been investigated by police and social workers, and no substance has been found to them.

It is counsel’s belief that the Applicant is simply using this as an excuse to support his case to try to get what he wants. Counsel notes how much of the Applicant’s submissions were spent talking about himself, demonstrating an unhealthy ego- centric perspective, as opposed to the child-centric point of view of the Respondent.

He points to similar findings made about the Applicant, including the following assessment made by Judge Adams in her reasons for Judgement of August 21, 2018: [173] [The Applicant’s] pattern of abusive behaviour towards [the Respondent] has continued for 5 years, further court applications have aggravated the conflict, and the child is exhibiting social problems at school and emotional trauma as a result of the parental conflict. (Sunny Hill Assessment). He has taken no steps to change his conduct. One may even say he thrives on it. [ 45 ] In

summary, counsel asserts that the Applicant has not shown any change in circumstances to justify a change in the existing parenting time orders. He has simply proven that he will use his parenting time to hurt his child by telling her what to say, teaching her to hate the Respondent and by forcing her to talk about subjects that obviously cause her considerable anxiety and trauma. It is his position that enough is enough. [ 46 ] In his reply the Applicant asserts that he is taking the actions that he does because the child is asking him to do so.

He blames the Respondent’s counsel for spinning things to make him look like the bad guy. V. Analysis [ 47 ] The Applicant has the burden of proving that a change in the existing orders are in the best interests of the child. The factors to be taken into account in determining what is in a child’s best interests are set out in section 37(2) of the Family Law Act . An obvious factor that has presented itself is the child’s health and emotional well-being. In this case four potential risks to the child have emerged from the evidence:

a) The risk to the child that the Applicant alleges exists if the child is left alone with C.;

b) The risk of the child being traumatized by the Applicant if he continues to force her to relive memories (real or false ones) of past trauma;

c) The risk alleged by the Applicant that the Respondent will deny him parenting time with the child in future, leading to parental alienation; and

d) The risk to the child alleged by the Respondent that the Applicant is behaving inappropriately with the child by video-recording her and doing other inappropriate things to her in the bathroom. [ 48 ] The allegation made by the Applicant against C. is not a new one. It has been considered in past court applications and more recently by the reports made to MCFD in the fall of 2019. This allegation was taken very seriously by MCFD and by the Abbotsford Police Department. Following interviews with the child, the Abbotsford Police Department concluded that the evidence did not support the laying of charges.

While the child had made some disclosure, the reliability of this disclosure was highly problematic for at least three reasons. Firstly, the child was also making other disclosures that were obviously untrue, making the reliability of the disclosures regarding C. highly suspect. Secondly, the child’s statement is tainted because of the manner in which the Applicant questioned the child, using leading questions, and by conducting the questioning himself, rather than allowing the child to be questioned by someone independent and trained in how to question children about abusive behaviour.

Finally, the Applicant himself has furnished evidence showing that on multiple occasions he has told the child what to say to persons in authority.

This raised legitimate concern about the likelihood that the child is telling what the Applicant tells her to say instead of telling the truth, in order to gain an advantage for the Applicant in family court litigation. [ 49 ] This potential risk is best managed by continuing the Order of the Honourable Judge Rounthwaite, made on April 7, 2020, in which she ordered that the Respondent was to ensure that the child had no direct contact with C. except in the presence of the Respondent and one other adult person.

Absolutely nothing in the evidence suggests that the Respondent would allow or enable the type of harm alleged by the Applicant to come to the child, and if this risk is in fact a real one, as long as any opportunity for such harm is prevented, the first of the four potential risks can be managed. Because C. was not called by either party to give evidence in this matter, an order will be made concerning his interaction with the child.

While this may cast unfair aspersions on his character, in light of Judge Adams’ assessment of C., if an error is to be made, the error will be made on the side of safety of the child. [ 50 ] The second risk is more problematic. Once again it is the Applicant’s own evidence that demonstrates that the child experiences considerable distress when the Applicant questions her about his belief that the child has been abused in the past. This is supported by the child’s demeanour in the video, and by the dark circles around her eyes that are unusual for a child this young.

Her anxiety is also apparent from the reports of her distress at home, her difficulty in sleeping, her speaking of self-harm and of suicide, and her need for counselling. [ 51 ] Management of this risk is more challenging. The Applicant has made it clear that he does not intend to stop questioning the child about this. He says that the child wants him to do this, but this is clearly false, as shown by her level of distress.

Each time he does this, he forces the child to relive a traumatic event, one that either is real, or one arising from a false memory created by the Applicant that feels just as real to the child. It is hard to understand why a loving parent would want to do this to a child. Reasonable parents would leave addressing this to professionals and would band together to reduce the child’s stress, but the Applicant refuses to let up. This makes management of this risk difficult. It is certainly not managed by affording the Applicant more time and unrestricted time with the Applicant.

[ 52 ] The Applicant alleges that the Respondent is restricting his parenting time. In fact the restrictions result from his own behaviours and choices.

His decisions to constantly video-record the child (he says he has over 200 hours of video of her), to record the child saying disparaging things about the Respondent, his telling the child what she is to say to person in authority (rather than letting the child have her own unfettered voice) and his constantly talking to her about subjects that make her uncomfortable are the reasons why his parenting time is being reduced, and why it has to be supervised and monitored. [ 53 ] The Respondent has testified that she would like to have the child have more time with the Applicant, because she believes that this would make the child happy, so long as the Applicant did not behave inappropriately.

She is not the one keeping the child from the Applicant. This is something the Applicant is doing to himself by his own actions. [ 54 ] The parties would benefit from keeping a record of Skype visits and of reports of any professionally supervised visits that occur in order to address any further suggestion of denial of parenting time. The production of these records, such as Skype logs, or reports from visit supervisors will show when visits occurred. If a Skype visit fails because an interruption in internet service, the Respondent can provide make-up time and can show that offer in an email record.

If the Respondent facilitates parenting time as presently ordered, and has the records to prove that this is being done, she can show that any accusations to the contrary that are being made by the Applicant are being done only for the purpose of harassment. [ 55 ] The Applicant’s accusations of parental alienation on the part of the Respondent are unsupported by the evidence. In fact, it is his own evidence that demonstrates he is the one making efforts to alienate the child from the Respondent.

This is shown in videos he has recorded in which he delights in the child stating disparaging things about the Respondent without making any effort to correct her, and in his video evidence in which he tries to script the child on what to say in court. [ 56 ] It is difficult to know what to make of the allegation made by the Respondent that the child has reported that Applicant has video-recorded the child while in the bathroom. On one hand he says “when would I have time to do this?” while at the same time admitting that he has over five hundred video recordings of the child spanning over 200 hours.

Nothing in the evidence suggests that the Applicant would act inappropriately physically toward that child. It may be that this is another inaccurate report from a child who has been conditioned to say negative things about one parent to the other; or perhaps this may have been some poorly thought out attempt by the Applicant at looking for evidence of abuse to the child. Suffice it to say that this has been reported to and investigated by MCFD.

Any risk is being managed by the orders that are in place, and whether or not there is substance to the Respondent’s concern may become clearer with further counselling for the child. [ 57 ] In

summary, on a consideration of the risks that each of the parties have identified at this hearing, it is not in the child’s best interests to make the changes to parenting time that the Applicant seeks. Unsupervised parenting time puts the child's health and emotional well-being at risk for as long as the Applicant is intent repeating his past behaviour. His actions have denied the child a true voice in expressing her views by his insistence that she can only be heard if what she says is filtered through him, thus making the child's views inappropriate for consideration.

The child's need for stability, given her age and stage of development is best addressed in the manner proposed by the Respondent, relying on counselling and professionals, rather than by the Applicant’s approach of seeing himself as knowing what’s best. [ 58 ] The Applicant has said that if he gets an order for increased and unsupervised parenting time he will continue to question the child about abuse, oblivious to any distress he causes her. It is also likely that he will continue his actions of teaching the child to hate the Respondent.

It is also likely that if, as the Applicant desires, the child was placed in his primary care, the child would soon be removed from his care by MCFD. None of this is in the child’s best interest. For these reasons, the Applications brought by the Applicant are refused. [ 59 ] The Applicant has said that unless the current parental roles are reversed, a multiplicity of further court applications will follow. While the current family rules do not address vexatious litigants, the court can control its own process to avoid harassment by unwarranted family applications.

It is hoped that the current status quo is not a permanent one and that the Applicant will someday be able to fulfil a more traditional role as his child’s guardian, once he is able to satisfy the Respondent or the Court that restoring him to that position will not cause further harm to his child. [ 60 ] In her reasons for judgement at paragraph 143 Judge Adams observed how the Applicant “has a history of butting heads with persons in authority” and how he is disparaging of those professionals whose duty it is to act independently for the protection of children such as social workers, police and government agencies.

In most cases when parents have a child in distress, they will put aside their conflict and work together so that their child can be helped. In this case, the Applicant acts as if being right is more important to him than his child’s happiness. It is unclear if this is due to a personality disorder or some other condition. Whatever the case may be, this is the biggest impediment to his being afforded a greater role in his child’s life.

It is those professionals that he refuses to work with that are necessary to provide assurances about what is in the best interests of the child. [ 61 ] In order to bring about changes to the Applicant’s parenting time, the following independent evidence would be helpful to the Applicant: (

a) A Parental Capacity Assessment of the Applicant: In the past MCFD has been willing to provide such an assessment. Although MCFD has closed their file, and while this court cannot order MCFD to provide such an assessment, it may be that MCFD could be convinced that providing such an assessment may result in preventing further services to this family in future. Such an assessment should only be undertaken if the Applicant is willing to acknowledge that a change in his conduct is called for and that he is willing to make those changes. (

b) A psychological assessment of the Applicant, which can assess whether any personality disorder is present preventing the development of a healthy family relationship with the child, and if so how such disorder can be managed to remove any family conflict or trauma from the life of the child. (

c) A report from the child’s counsellor: This report could make recommendations on what conditions may be required to increase the Applicant’s parenting time.

(

d) Reports from visit supervisors: These can demonstrate a pattern of conduct in the visits in which the child can spend more time with the Applicant, safe from any actions which might cause her further trauma or encourage alienation from the Respondent. [ 62 ] In order to prevent any further applications which may result in harassment by litigation, any subsequent applications brought by the Applicant must be supported by an affidavit setting out what change in circumstances as required under

section 47 of the Family Law Act has occurred, and what independent evidence exists in support of the application. The application can then be vetted by a Judge of this Court for determination of whether or not the application has merit and if it should be placed on a court list or if it should be summarily dismissed either because no change in circumstances exists or because it is frivolous or vexatious. VI.

Order [ 63 ] For the foregoing reasons, the following order is now being made: Upon the Court being advised that the name and birth date of the child is A.M.D, born [omitted for publication] (“the Child”): 1. The Notices of Motion filed by the Applicant T.L.F. (“the Applicant”) on November 4, 2020 (document #235) and November 25, 2020 (document #238) are dismissed. 2. The Respondent A.M.D. (“the Respondent”) and the Applicant continue to be the guardians of the Child under section 39 (1) of the Family Law Act (“the FLA”) as found in the Order of the Honourable Judge G. J.

Brown made in this Court File on May 24, 2013. 3. The parties will continue to have parental responsibilities as set out in the Order of the Honourable Judge G. J. Brown made in this Court File on May 24, 2013. 4. The Applicant will have parenting time with the child at the same times and on the same conditions as set out in the Order of the Honourable Judge C. J. Rounthwaite on April 7, 2020, unless otherwise modified by the terms of this order, namely: (

a) Parenting time via Skype or other video conferencing technology every Monday, Wednesday and Friday between the 4:00 p.m. and 5:00 p.m. (

b) In-person parenting time at such times agreed to by the parties, supervised by a professional visit supervisor approved of by the Respondent or some other supervisor approved of by the Respondent; (

c) If a video conferencing visit does not occur due to the failure of the Respondent to make the child available, the visit shall be rescheduled for an equal amount of time within the next five days at a time between 4:00 p.m. and 7:00 p.m. If a visit does not occur because of the absence or unavailability of the Applicant, the Respondent shall not be required to reschedule the visit. (

d) Parenting time may occur at such other times and subject to such other conditions as are approved of by the Respondent, including location, supervision or monitoring of the visit, or pick-up and return arrangements. (

e) Video visits may be monitored by the Respondent. The Respondent may terminate the visit if the Applicant questions or speaks to the child about inappropriate matters of an adult nature, including sexual matters, or if the Applicant speaks derogatively or disparagingly about the Respondent. (

f) The parties will keep a record of the video visits, along with a copy of any Skype logs of the visits or other similar records that are capable of being retained. (

g) The Applicant shall not remove the child from the City of Abbotsford without the written consent of the Respondent or further order of this court. 5. The Respondent shall ensure that the Child is not left alone in the presence of C.U. The Child shall have no direct contact with C.U. unless another adult is present at the time. The Respondent shall not permit the Child to be cared for, bathed, dressed, put to sleep or placed in any other situation of an intimate or private nature with C.U. 6.

In the event that the Respondent is wrongfully denied parenting time with the Child by the Applicant, a police officer may apprehend the Child pursuant to section 231 (4) of the Family Law Act and return the Child to the Respondent. For the purpose of locating and apprehending the Child, a police officer is authorized to enter and search any place he or she has reasonable and probable grounds to believe that the child may be. 7.

Further applications in this matter made by the Applicant shall require leave of a Judge of this Court to be placed on a court list, and must be supported by an Affidavit setting out what change in circumstances exist under

section 47 of the Family Law Act , along with any independent reports or other independent evidence supporting the application. _____________________________ The Honourable Judge K.D. Skilnick Provincial Court of British Columbia