H.F.E. v. J.C.E. Date:, 2016 BCPC 107

Citation: H.F.E. v. J.C.E. Date: 20160418 2016 BCPC 0107 File No: 14805 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.F.E. APPLICANT AND: J.C.E. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Appearing in person: H.F.E.

Counsel for the Respondent: D.A. Strebchuk Place of Hearing: Abbotsford , B.C. Dates of Hearing: November 3, 2015, January 18, March 10 and 16, 2016 Date of Judgment: April 18, 2016 Introduction [ 1 ] The parties to these proceedings are H.F.E. and J.C.E., who are the parents of two children: A.J.E., born (d.o.b.), 2001, and G.J.E., born (d.o.b.), 2006. On January 22, 2013, H.F.E. filed an application for what was then called “access” to the children, although there was already an order of this court giving both of the parties what was then called “joint custody and joint guardianship” of these children.

Subsequently, on January 16, 2015, J.C.E. filed her own application “to have all” of the parenting time with and the parental responsibilities for the children. [ 2 ] Each of the parties has filed a reply to one another’s applications in which they have expressed their disagreement with what the other is asking for.

Because both parties have filed applications, and because H.F.E.’s application is first in time, I will refer to H.F.E. as the “Applicant” and I will refer to J.C.E. as the “Respondent.” [ 3 ] At the conclusion of hearing evidence for four days, I asked each party what the order was that they were asking me to make (as well as why I should make that order.) The Applicant said that he wanted me to order a shared parenting arrangement in which the children would spend alternating weeks in each parent’s home.

He wants that order to be enforced by police officers if it is not followed by the Respondent and he wants child support to be adjusted based on this proposed residency scheme. He also wants expenses under

section 7 of the Federal Child Support Guidelines to be limited to medical expenses and counselling, but as for discretionary extracurricular expenses, he proposes a rule of “he (or she) who enrols pays.” He also wants parental responsibilities to be given to the parent with whom the children are residing that week. [ 4 ] The Respondent wants an order that gives her all of the parental responsibilities. While she asks that the order to provide that the Applicant be given “reasonable and generous access”, she wants to leave it up to the children when and if they see their father.

She also wants an order permitting her to change the surname of the children and she wants a retroactive adjustment in the amount of child support and

section 7 expenses that the Applicant is paying. She also asks for spousal support. [ 5 ] The issue of parenting time is a problematic one. There is currently a court order in place which calls for a shared parenting schedule, but this has never been followed and the children have stayed with the Respondent for the bulk of the time. The Respondent blames the Applicant for this and attributes this to the Applicant’s “antagonism and apathy”. The Applicant believes that the Respondent is guilty of alienating the children against him, especially his daughter.

There is certainly evidence of the daughter’s expression of anger towards her father, and while the Respondent blames the Applicant for this, the Applicant points out that the children have been in the Respondent’s company for the vast majority of time and she has been in a much better position to shape their attitudes than he has. [ 6 ] A plethora of email communications was filed as exhibits, and for the most part, the Applicant presents a more respectful tone in his communication, though neither party is perfect in this regard.

The Respondent and the children live with the Respondent’s family and the Applicant also alleges that the Respondent’s family disparages him. There was even one reported incident of angry comments towards the Applicant from the Respondent’s sister as the parties were leaving the courtroom.

If in fact this type of behaviour is on display at a court house where parties are usually expected to be on their best behaviour, one can only guess what the Respondent’s family members have to say about the Applicant when there aren’t deputy sheriffs around. [ 7 ] Finally there is one other lasting wound in the relationship between the parties that will likely continue to adversely affect their ability to co-parent, unless they receive appropriate professional help. Prior to their separation, the parties were both employed with Correctional Service Canada.

While in the course of that employment, the Respondent showed very poor judgement by entering into a romantic relationship with a federal inmate. Her infidelity was not only injurious to her marriage and to hurtful to the Applicant, as well as a blatant disregard for her professional responsibilities. It had the added embarrassment of occurring at the parties’ workplace. The Respondent then chose to include the inmate in activities with the children. She has testified that she is no longer in a relationship with this man, but they still maintain a friendship.

The Applicant asserts that the Respondent’s horrible judgement in this regard should be taken into account when considering her ability to parent and to make decisions that are in the children’s best interests. The Applicant asserts that this is conduct contemplated in section 37(4) of the Family Law Act .

That provision directs that in making orders of the nature that are now being sought, “a court may consider a person's conduct only if it substantially affects” one of the factors which are listed for consideration of what is in a child’s best interests “and only to the extent that it affects that factor.” The Respondent argues that it is not relevant to those factors. [ 8 ] It is against this background that the issues presented before this court at the hearing of this matter will now be considered.

Summary of Evidence [ 9 ] The Applicant is 38 years of age and the Respondent is 37. They will both have their next birthday in July. The Applicant was born in Zimbabwe and the Respondent was born in Nicaragua. The parties were married on August 17, 2000 in Bermuda. Both are Canadian citizens. Their daughter was born in [omitted for publication] 2001 and their son was born in [omitted for publication] 2006. The parties separated sometime in early 2012. The Respondent says that they separated in January, while the Applicant says that they separated on March 16 th of that year.

I am informed that when the parties appeared in the Supreme Court of British Columbia for divorce proceedings, that court made a finding that the Applicant was correct about the date. I am also informed that the Supreme Court decided that issues respecting guardianship of and parental responsibilities for the children should be left in this court.

[ 10 ] On March 20, 2012, the Applicant filed an application in this court for what was then termed “custody” of the children. In his application he wrote “J.C.E. is not permitting me to take the kids out anywhere. I am asking for full custody. I would like to visit and take my kids home without constant supervision.” The Respondent filed a reply on March 23, 2012 in which she made some very serious accusations against the Applicant. She wrote: “[The] Applicant is not handling the very recent separation very well. I fear for the safety [of] myself and out children.

He is a correctional officer… He has a gun in his possession and I am fearful for my life and that of the children. When serving me with his Application he brought three of his colleague correctional officers to my parents’ residence where he verbally abused me in front of my parents. Our daughter was terrified and asked the Applicant to leave her alone and not touch her. She was extremely upset. I was evicted from the matrimonial home by the Applicant’s colleagues and under threat and am now in a transition home.

We had a joint bank account from which the car and other payments were being made. [The] Applicant closed that. I am using the vehicle for myself and the children. [The] Applicant has changed the locks in the matrimonial home and precluded myself and the two young children from staying there.” [ 11 ] At the hearing of this application, the Respondent did not allege any fear that the Respondent would use his gun to harm her or the children. She was upset that he attended to serve documents on her with three other corrections officers.

The Applicant testified that he did so because the Respondent has a volatile temper and he wanted credible witnesses to be present in case she became violent or otherwise acted inappropriately. [ 12 ] The Respondent testified that at the time the parties separated, “things were tense. We couldn’t communicate.” In an affidavit that the Respondent swore on March 23, 2012, the Respondent stated that she had been discharged from her job at the same institution where the Applicant worked because she “became emotionally attached to one of the inmates” there.

She denied having a physical relationship with the inmate, but admitted that she had exchanged letters with the inmate, which was inappropriate with that setting. She alleged that the Applicant had sent her an obscene message on Facebook, although the copy of the message she attached actually purported to be sent from another person. She also alleged that the Applicant wanted to take the children to live in Portugal, and said that she had heard this from her mother. [ 13 ] On May 26, 2012, the Honourable Judge C.J, Rounthwaite of this court made two orders.

One order gave joint custody of the children to both parties and ordered that the children were to live four days with the Applicant and five days with the Respondent on an alternating cycle. A second order prohibited both parties from taking the children more than 100 kilometres from Abbotsford unless he or she had the written consent of the other party to do so. [ 14 ] For the first few months, the children lived with the Applicant for four days and with the Respondent for five. According to the Respondent, during this time there was significant conflict between A.J.E. and the Applicant.

She claims that the Applicant prevented the child from calling her, while he states that the Respondent was constantly calling, wanting to infringe on his parenting time. [ 15 ] On May 22, 2012, the Honourable Judge W.A. Young of this court made an order which required the Applicant to give his consent for counselling services for the children as deemed necessary by any professional at the Abbotsford Regional Hospital. [ 16 ] On August 31, 2012, the Honourable Judge G.J. Brown amended Judge Rounthwaite’s order of March 26 th to provide that the parties were to have shared residency of the children.

It also provided that the Applicant was to pay $660 to the Respondent each month for the support of the children, and fixed arrears of child maintenance at $3,300.00. The order also made provision for the sharing of

section 7 expenses on an equal basis over the summer and in proportion to their incomes commencing September 4, 2012. It was a prerequisite that receipts for any such expenses were to be provided. Unfortunately

section 7 expenses were not clearly defined or identified. [ 17 ] The Respondent testified that when Judge Brown’s order was made, it was anticipated that the Applicant would change his work

schedule to accommodate a “week on, week off” routine, but he never did this. In an email sent to the Applicant on November 18, the Respondent complained that the purpose of Judge Brown’s order was so that the parties could divide parenting time with the children being with each parent during alternating weeks. She went on to write: “We are now almost at the end of November and you have made no efforts to change your

schedule or to take the kids for the time that was agreed. I think it is time that you owned up to your responsibilities and actually do what we agreed upon.” [ 18 ] According to the Respondent’s evidence, the Applicant never took the children overnight for the rest of 2012. She said that he had a very brief visit with the children at Christmas and that he saw them very briefly for their birthdays. She alleges that the only times that he demonstrated any interest in seeing the children was when a court date was approaching.

It appears that in December of 2012, the Applicant wanted the shared parenting arrangement modified to accommodate his work schedule. The Respondent was not sympathetic to this request. In an email dated December 24, 2012, she wrote to him: “The four days/five days is convenient for you, but not for the kids. There needs to be stability in their lives.

It is not their fault that you have a job that requires you to work in shifts… What would be fair for the kids as well as you and I is a (one week on/one week off) rotation from Sunday to Sunday.” [ 19 ] The Respondent testified that she has not encouraged the children to spend time with the Applicant because, in her words, “the kids don’t want to spend time with him.” It was her evidence that she told the children to see the Applicant and that she does not malign or disparage him to them.

While complaining on the one hand that the Applicant never asks to see the children, she also complains that when he does want to see them, he doesn’t give her enough notice. [ 20 ] On January 22, 2013, the Applicant filed another application in which he wanted the times that the children were with him to be specified. He said that he was a shift worker on a “four days on, five days off” schedule. He was essentially asking for the children to be with him on his days off.

He also asked for an order preventing the Respondent from calling frequently while the children were with him and an order for police enforcement of his parenting time.

[ 21 ] It appeared that problems were beginning to escalate with the amount of the Applicant’s parenting time. For example, on January 28, 2013, the Applicant emailed the Respondent giving her notice of his intention to pick up the children the following day. Her response read “No you won’t. Both kids have been sick with the flu and are not attending school. Have a good night.

At the present time I will ask that you stop emailing me until further notice.” This was followed by another email from the Respondent dated January 30, 2013 in which she asked for reimbursement for the cost of cold and flu medication and she complained that A.J.E. did not want to speak to the Applicant. [ 22 ] On February 7, 2013, the Respondent wanted a further restraint in the Applicant’s communication with her. She wanted him to only call her on her landline, not on her cell phone. [ 23 ] A “Views of the Children” Report was prepared and filed on February 20, 2013.

At the time of the report, A.J.E. was eleven years old and G.J.E. was six. In the report, G.J.E. was described as energetic and playful and as someone who was saddened by his parents’ separation. In the report, G.J.E. complained to the report writer that the Applicant would shout at him and his sister for no reason. It was also apparent to G.J.E. that his parents fought a lot. He told the report writer “they argue every day on the phone and when getting me.” [ 24 ] The report describes A.J.E. as “articulate and thoughtful”, but sad.

A.J.E. told the report writer that she would tell her mother about anything that her father did that she didn’t like. This would often result in the Respondent getting angry with the Applicant. A.J.E. described the Applicant by saying that “when he is nice, he is nice. When he is mean, he is mean.” She did not like his insistence on following the rules in his house. She also complained that the Applicant would grab her by the arm very hard. She says that she initially withheld this information from a social worker that she spoke with. She also mentioned that she had experienced thoughts of suicide.

She said that she did not want to go to the Applicant’s home because she was frequently “slapped and/or grabbed” there. She disclosed that this had last occurred in January of 2013. This incident was reported to police. She told the report writer that she preferred to live with her mother and see her father briefly once per week. She seemed to express a lot of resentment toward the Applicant, going so far as to blame him for the two C grades she received in school. [ 25 ] In the report A.J.E. discloses some very concerning statements attributed to the inmate that the Respondent was involved with.

According to A.J.E., the inmate would often tell the child that she was thin and beautiful and that he would like to take her to the West Edmonton Mall someday. The Respondent sees these comments as innocent and did not express any concern about them. [ 26 ] The author of the report concludes as follows: “Both children have indicated a concern with their father’s verbal actions towards them and for A.J.E., the physical punishment she is also receiving. G. J.

E. would like to see his parents reunite, while A.J.E. would like to have the ability to remain full-time with her mother and have only daytime visits with her father.” [ 27 ] The application filed on January 22, 2013 was adjourned generally on March 27, 2013, likely because the Family Justice Counsellor’s report was not very helpful to the Applicant’s application. [ 28 ] The Respondent testified that there are different parenting styles in each of the homes. It was her evidence that she disciplines the children by taking away technology from the children.

She testified that she contacted the Ministry of Children and Family Development to investigate her daughter’s complaints that the Applicant was using physical forms of discipline and punishment. The Respondent testified that when she is unable to look after the children, she relies on her parent to care for them, rather than asking the Applicant to do so. [ 29 ] On January 1, 2014, the Respondent forwarded an email to the Applicant from A.J.E. The email read as follows (with punctuation editing): “Dad, I am not ready to see you. It is not fair that you can leave my life and then walk in like you never left.

My life is not a toy you can play with and ruin then put back when you are bored of it. You have broken the toy and pieces are everywhere. Tape and glue may put it back together but the cracks are always going to be there. You ask why I do not answer your texts. It is because I don’t want to. It is my phone and I should not have to make excuses about it. You expect to be called dad, but you don’t act like a dad. A dad would not hurt his daughter as much as you have. You have abused me physically and emotionally and I am tired. I have been suicidal more times than you know of because of you.

It is not my responsibility to call you either. You should call us. And I do not want to go shopping with Jen. It is not something I want to do. I am not going to subject myself to more heartache. And you have no one to blame but yourself. I am not going to let you push me around anymore. It is time I stop trying to make you happy and make me happy for once in my life.” [ 30 ] It is difficult to discern from the evidence presented how much of the sentiments expressed in the letter are those of the child and how much may be the product of influences from others.

They call out for a need for independent professional analysis and counselling. From the tenor of the Applicant’s email, it appears that he was making an effort to maintain a relationship with his daughter. On the one hand he was making efforts to contact her, despite criticism that he never called, but when he did make the effort, his daughter would not talk to him.

As the Applicant stated in an email to his daughter dated April 6, 2014, “every time I call to talk to you, you never want to talk to me”. [ 31 ] The child requested that the Applicant supply food for a sleepover that she was having with friends in April of 2014. The Applicant declined to do. The child’s response suggests an influence of the part of the adults in her life, of an alienating nature against the Applicant, because it suggests that the child has heard complaints about money. It is difficult to conclude that the sentiments expressed by the child are the product of her own thought process.

The child’s reply is very hurtful. She replied to him: “Really, where did that money go for me and G.J.E.? Did you go to Paris or was it spent on your girlfriend and her son that you rather go and spend a summer with instead of your kids? So no, don’t bother coming for my birthday to give me a present or doughnuts. By the way, I don’t like doughnuts, but if you spent the time to get to know your daughter you would know that I don’t like doughnuts. My birthday wish is to not see you on my birthday. So don’t call because I never want to talk to you. Stop calling.”

[ 32 ] In an email from the Respondent to the Applicant dated July 22, 2014, the Respondent stated that she intended to let G.J.E. decide whether or not he wanted to see the Applicant. She wrote: “G.J.E. is a very smart little boy who makes up his own mind and does what he wants to do with some discretion from me. The times that you have called I offer each of them the phone and the opportunity to speak with you and they make their own decisions.” [ 33 ] On July 25, 2014, the Applicant emailed the Respondent and told her that he had managed to get Saturday off of work and would like to see the children.

The Respondent refused to allow this because she planned to meet the inmate that she had been involved with prior to losing her job and the two of them had “made plans to go out with the kids .” Later, in an email dated August 5, 2014, the Respondent told the Applicant that “the ‘FORMER’ inmate which I like to call my ‘BOYFRIEND’ is not going anywhere.

The sooner you get used to it the better it will be for all involved!” According to the Respondent’s evidence at trial however, her relationship with that person ended later that month. [ 34 ] In the email of July 25th, the Respondent told the Applicant that she no longer saw a “week on/week off” arrangement as acceptable to her, in part because the Applicant was now in a new relationship, and the Applicant did not want the Respondent to meet his new girlfriend. She complained that she had to borrow money to hire a lawyer and she told him that she intended to commence new court proceedings.

On January 16, 2015, the Respondent filed her own application in which she asked for an order giving her the majority of the parenting time with the children, all of the parental responsibilities for the children, and a retroactive adjustment of the amount of child support and

section 7 expenses. [ 35 ] The Respondent has provided documents showing that she has paid for the following: Exhibit 1: Swimming lessons for the children in 2012 at a cost of $159 per child for a total of $318; two sets of “weekly before care” at a cost of $25 per child for a total of $100; “Youth Adventure” summer camp at a cost of $159 per child for a total of $318. The total cost of these expenses is $736. They were paid by the Respondent to the Matsqui Recreation Centre in the summer of 2008. Exhibit 2: Expenses for another “Youth Adventure” summer camp and for more swimming lessons for 2012.

Costs are $25 per child for “weekly before care” (total $50); $159 for each child for the camp (total $318); swim lessons for A.J.E. for $120, Camp for A.J.E. for $95.40; “Camp-adventure biking” for A.J.E. for $76, Private Swim lesson packages for A.J.E. for $90, and another charge for “Camp- Youth Adventure Camp” for A.J.E. for $159. These expenses total $908.60. The Respondent’s evidence is that these expenses are for 2013, although the first four documents filed (totalling $736) are dated for 2012. Exhibit 3: This is a claim for children’s medication.

The receipt has other items on it, but includes two prescriptions, one for $18.05 and one for $46.74. It was the Respondent’s evidence that these costs pertained to G.J.E.’s bronchitis and that the Applicant paid for this. Exhibit 4: One of these documents is a duplicate of the receipt for A.J E.’s swim lessons for 2013 that is part of exhibit 2.

The exhibit also includes G.J.E.’s swim lessons for 2013 ($120), a receipt for a program called “Creative Kids Camp” for 2013 for A.J.E. and G.J.E. ($175 each for a total of $350), a receipt for A.J.E.’s “Camp Adventure Biking” for 2013 ($76), a receipt for G.J.E.’s Camp-Kid Chefs Camp in 2013 ($65), the same receipt for A.J.E.’s swim lessons that was included in exhibit 2, a receipt for G.J.E.’s swim lessons for 2013 ($90), the same receipt for A.J.E.’s Youth Adventure Camp that was included as part of exhibit 2, and a receipt for G.J.E.’s Camp Super Summer for 2013 ($159).

The total amount of these documents which are not duplicates is $784. Exhibit 6: A receipt for A.J.E.’s gym membership at “She’s Fit Gym” for $66.96. Exhibit 8: A receipt for the Respondent’s medication for $18.01. Exhibit 11: A receipt for A.J.E.’s glasses dated August 18, 2014 for $80.

Exhibit 12: A receipt for swim lessons for July 13 to 22, 2015 ($120 per child for a total of $240), July 17, 2015 ($30 per child for a total of $60), July 27 to October 5, 2015 ($90 per child for a total of $180), August 10 to August 19, 2015 ($120 per child for a total of $240), September 13 to October 4, 2015 ($120 per child for a total of $240), October 18 to November 1, 2015 ($90 per child for a total of $180) and November 8, 2015 to November 29, 2015 ($120 per child for a total of $240). The total of these expenses is $1,380. Exhibit 15: A receipt for A.J.E.’s glasses dated August 26, 2015 for $265.

Exhibit 17: A receipt for A.J.E.’s dental visit for $63.84. [ 36 ] One of the Applicant’s objections to the cost of swimming lessons is that the Respondent enrols the children in the more expensive private swimming lessons rather than in the much cheaper group lessons. The Respondent says that she does so because the children learn to swim much better in the private classes. She also testified that G.J.E. has attention problems and has a difficult time functioning in a group environment. The Applicant expressed his concern about the high cost of swim lessons in an email to the Respondent dated July 17, 2015.

The Respondent points out that these types of lessons were the norm when the parties lived together and has provided receipts to confirm this. [ 37 ] Following the parties’ separation, the Applicant has entered into a new relationship with a woman named Jennifer. She did not testify at trial, and the Applicant was not very forthcoming with information about her. Jennifer has a son named P. and it appears that A.J.E. and G.J.E. show some jealousy of P..

The Respondent testified that A.J.E. does not like Jennifer or P., stating “A.J.E. doesn’t want another brother.” She also says that the Applicant refuses to let her meet Jennifer, telling her “no, you’re too scary.” The Applicant confirmed in cross-examination that he did not want to introduce Jennifer to the Respondent, stating that this was none of the Respondent’s business and “if they met, I would ask that it all be videotaped.” He said that he was afraid that the Respondent would behave in an angry manner if she met Jennifer. [ 38 ] The Respondent is also concerned that the Applicant and Jennifer live in a small 920 square foot two-bedroom condominium, and she is concerned that when the children visit the Applicant, they either have to share the same bedroom or one of them has to sleep

on the living room couch. [ 39 ] In January of 2014, the Applicant added Jennifer and P. as beneficiaries on his employment benefits plan. The Respondent testified that once this occurred, she became responsible to pay Medical Services Plan costs for herself and for the children. She provided an invoice for these costs for 2014, in the amount of $138.50. But this assertion is contradicted by a document provided by the Applicant as Exhibit 26, a letter which confirms that the children are covered under his Medical Services Plan.

He also confirmed that the children are covered under his employee health care plan and provided a letter to this effect. [ 40 ] During the Christmas season of 2014, the Applicant emailed the Respondent on December 17 th proposing times when he could see the children. The Respondent’s reasons for refusing to permit him to see the children were not very substantive. He wanted to see the children on Sunday, December 22 nd for the day, but the Respondent replied “unfortunately, I have plans with the kids this weekend.

We are making the last round of Christmas shopping with the family, sorry about that.” It is not clear why the Respondent could not go shopping alone and let the Applicant spend some time with the children. The Applicant told the Respondent that he had also managed to get Christmas Day off work, and asked to see the children on Christmas morning. The Respondent also nixed this request. She told him “we celebrate on the 24 th (you know that as well).

I will not be putting the kids off to bed early.” She promised to email him when they woke up and were showered and she told him that he could only have the children until 4:00 p.m. that day, when her sister would be picking them up. Once again, it is unclear why she gave her sister priority over the Applicant, and it is this type of behaviour on the part of the Respondent that reinforces the fear that she is deliberately attempting to minimize the role of the Applicant in the lives of the children. [ 41 ] For much of 2015, the Applicant was unable to see the children, despite his efforts to come and get them.

For example, according to an email sent by the Applicant on April 3, 2015 requesting that he be permitted to see the children on Easter Sunday, the Respondent replied “I have asked both and they replied ‘Thank you but no thank you.’” On July 17 th , he had hoped to see the children on Saturday, July 11 th , and had sent an email to the Respondent on July 7 th giving her notice of this. But when he attended to get them, he was denied because the Respondent’s parents were taking the children to a movie.

Yet again, the Respondent’s conduct continued to minimize the children’s relationship with the Applicant by thinking that having the children go to see a movie with people they reside with was more important than maintaining their relationship with the Applicant.

Once again, it is this type of conduct on the part of the Respondent that gives rise to a real concern that she is deliberately working to minimize the role of the Applicant in the lives of the children. [ 42 ] In an email dated July 17, 2015, the Respondent told the Applicant that she was abdicating her responsibility to see that the previous court orders about parenting time were followed. She wrote: “Let me be very clear. They [the children’] are the ones that decide whether or not they want to spend time with you.

Before I used to be the one to send you the emails I think it got lost in translation that they were the ones telling me that they didn’t want to see you or spend time with you. Now to be even more clear and eliminate the middle man, me, I get them to contact you directly and tell you themselves so that you are not under the impression that I do not ask them and am simply saying No to you.” [ 43 ] Earlier, on May 29, 2015, the Applicant requested to see the children to wish his son a happy birthday and possibly take him out for lunch. The Respondent replied with a very lengthy and angry email.

In the email, the Respondent wrote: “You have no one to blame for the relationship you have built or in this case destroyed with your kids. You must really think that they’re babies and that they don’t know or see things. A.J.E. is 14 years old and G.J.E. is 9 now. In the process of hating me, you also took things out on them. I work 7:30 a.m. to 4:00 p.m. and spend my spare time with them (and yeah, I spoil them rotten) that’s what I work for. I don’t care, nor do we talk about you. I will not waste one moment of my life or theirs lamenting about you….

I told you before and I’ll tell you again, when and if they want to talk to you, they will call. You want to call and show up when it’s convenient for you? Go ahead!” [ 44 ] The Applicant replied with a lengthy email in which his frustration is apparent. He states in part: “If you were ‘such a good parent’ why wouldn’t you encourage our kids to talk to their father? You and I have our differences - yes - haven’t you learned yet that bringing the kids into this is doing nothing for anybody?

You are hurting the kids, mentally and emotionally.” [ 45 ] Unfortunately this email only generated another angry response from the Respondent in which she defends her position and accuses the Applicant of being a “master manipulator.” She also refers to Jennifer’s son as “G.J.E.’s replacement” and appears resentful over the fact that the Applicant has entered into a new relationship. [ 46 ] The Applicant requested to visit the children on Father’s day of 2015, but in a text message the Respondent informed him that the children did not want to go. [ 47 ] In an email sent by the Respondent to the Applicant on August 28, 2015, she tells him that he should not attend to her home to see the children “unannounced and when I am at work.” In what appears to be a contradictory statement, she tells him “you are more than welcome to stop by” but asks him to call or text first and not to show up when she is at work.

For some reason the Respondent is insistent about being present when the Applicant talks to the children. He suspects that this is because she wants to influence their choices by her presence and she is unwilling to let them speak freely to him. The Applicant noted in an email sent on September 23, 2015 that on the one hand, the Respondent tells him not to come to the house unless he asks first, but when he does ask, his requests to see the children get turned down.

He also pointed out that the messages from his daughter that she didn’t want to see him seemed to always follow his refusal to pay for things that the Respondent had obtained without any prior discussion with him. He also noted that A.J.E. always asks him why he isn’t paying for these things, and wonders why the Respondent discusses these things with the child. [ 48 ] This past Christmas, the Applicant once again tried to make arrangements to see the children. He emailed the Respondent on

December 16 th , which seems to be a reasonable amount of notice. The Respondent did not attempt to work this out with the Applicant. Instead she put that responsibility on the shoulders of her fourteen year old daughter. The child responded as follows: “If you really want to see us, you are more than welcome to come to our house for a visit, where both G.J.E. and myself feel more comfortable. We believe that going to your house may not be an enjoyable experience to share since your partner, her child and possibly her parents will be in there.

G.J.E. and myself would not feel very comfortable, which would in return make you and your family uncomfortable as well and we wouldn’t want to ruin your Christmas. We do hope you can understand and respect our decision not to go. We hope you have a very Merry Christmas with your family and a great rest of your day.” [ 49 ] When the Applicant offered to have the Christmas gathering just with the children and not with his new partner or her family, A.J.E. emailed back and said that she and her brother still did not want to come to the Applicant’s home.

The unfortunate conclusion is that at this point in time, A.J.E. appears to have closed her mind to developing any sort of meaningful relationship with her father. Her contempt for him comes through in a text message sent on January 1, 2016. In the message, she refers to a very minor earthquake that was felt in the lower mainland. It was not the type of quake where anyone would expect persons to be harmed. But for some reason A.J.E. was upset with the Applicant for not being concerned about how she coped with the quake.

Although she had previously criticized the Applicant for trying to talk to her, in this text she was upset that he did not call after the earthquake. Her text message (edited for grammar and punctuation) reads as follows: “I thought I would just give you three days to ask but you didn’t. So don’t worry, G.J.E. and I are fine. The earthquake did shake us up a little, but we are fine. Thanks for the call or text asking in case you don’t remember, your only two kids you have are fine after an earthquake.

I don’t know why I expect you to be a good dad after I talk to you because you just let me down, every time, every single time! I always want to kid myself into thinking that you are my loving dad, that you show up at my house, but that is fake, because a good dad would have called! I hope you and your family are okay because clearly G.J.E. and I aren’t because family cares about each other’s wellbeing! Thanks for always reassuring me that my coldness as you call it is legitimate and I am not just being a mean person.

I think you just like to screw with us and that is why you come to the house and act nice and stuff. I can’t believe how inconsiderate you are. Don’t text me back asking if we are good or whatever because we will not respond. We don’t want anything to do with you right now so don’t expect us to be our dad as far as I can tell you were just someone who was necessary in the process of creating me, so peace from daddy’s little girl.” [ 50 ] This response is markedly out of proportion to the Applicant’s not calling after a very minor event.

It is difficult to come up with an explanation for the hateful tone of this text message, other than from some sort of alienating influence on the child’s mind by the adults in her home. It is difficult to imagine that such spite would emerge from the child herself. It also speaks to how much her relationship with the Applicant has been injured and how her affection for her father has been alienated. It is difficult to say if the relationship can be repaired at this stage.

Also of great concern is whether or not the Applicant’s relationship with G.J.E. is also similarly being poisoned. [ 51 ] The Applicant expressed concern about the children’s performance in school. A.J.E.’s report cards show that she was absent for over 35 days in 2013-14 and over 28 days in 2014-15. She is doing well in her subjects, except for mathematics, where she has been working toward making up missed tests and rewriting others to improve her mark. G.J.E. has also missed a lot of school, over 28 days in 2013-14 and 38 days in 2014-15.

He is meeting expectations in three of his subjects and approaching expectations in the fourth, writing. [ 52 ] The Applicant was asked to inquire as to what his employment benefit coverage was for family counselling. He testified that according to his inquiries, his coverage provides for reimbursement of up to $2,000 with 80% of the cost of each visit covered to a maximum of $190 per hour or $285 for a ninety minute session. One of the counsellors covered by the plan is Doctor Susan Goldsmith, a local psychologist.

The Respondent testified that she had arranged to have A.J.E. see a counsellor with Expression Counselling for five sessions that she paid for. She provided a receipt which showed that she had paid $560 to Expression Counselling. The issues that the Respondent wants addressed in that counselling do not include rebuilding the child’s relationship with her father. The Respondent believes that A.J.E.’s problems are entirely the fault of the Applicant. She testified that A.J.E.’s anxiety comes from the child’s relationship with the Applicant, not from her being in the midst of the parental conflict.

According to the Respondent, A.J.E. has “no good memories of her father.” [ 53 ] The Applicant testified that his current work

schedule provides for four days on (two day shifts, followed by two “graveyard” shifts) and five days off. For the tax year 2015 he earned $80,469.36 and paid union dues of $1,373.32. The Respondent also provided her T-4 for the 2015 tax year, which showed that she earned $37,416.32, and did not pay union dues. [ 54 ] The evidence in this case leads to some troubling conclusions. A.J.E. has developed a very unhealthy negative attitude toward the Applicant. It is not reasonable to assume that this arose naturally, and without influence from the adults in her life. The Respondent blames this on the Applicant.

This disregards a number of important considerations. Firstly, the Respondent is the one that the child spends the most time with and is the person having the greatest amount of influence over the child. Secondly, the Respondent bears a large part of the responsibility to ensure that her child does not grow up to be the type of mean-spirited and angry person that comes through in her communications.

As long as the Respondent says “it’s not my fault it’s his” and does nothing more about it, she is abdicating that responsibility and passing bitterness and resentment on to her children. [ 55 ] It is also concerning that the Respondent has shown very poor judgement in a number of areas. Her inappropriate relationship with the inmate at the institution that she was working at showed disregard for her professional responsibility and integrity, as well as for the economic security of her family.

She has also abdicated much of her responsibility as a parent by leaving it up to the children as to when and how often they see the Applicant. Hopefully she would not give them the same freedom of choice in other matters such as drug use, or their conduct with boyfriends or girlfriends, so it is difficult to understand why she would do so when it comes to her responsibility to see that they maintain their relationship with their other parent. It is more likely that she finds this a convenient excuse for hurtful conduct towards the Applicant.

It also puts the children in a difficult position, living in a house in which there is universal contempt for the Applicant. The Respondent does not appear to have ever intended to follow the court orders calling for shared parenting. Concerns about parental alienation are very real in this case.

[ 56 ] This is not to suggest that the Applicant is perfect in every way. There is no doubt that the hurt caused by the Respondent’s infidelity and her jeopardizing the family security has resulted in considerable resentment on his part against the Respondent. This resentment is likely bolstered by the fact that he feels it to be justified because of the Applicant’s immaturity and very poor choices. There is plenty of blame to be shared, but blame is a useless commodity because while the parties are mired in their resentment, their children are being hurt.

The Applicant and the Respondent are the models for the relationships that each of the children will build in their lives, and thus far the children are observing modelling of how to hurt their future partners. [ 57 ] This situation has travelled past the point where the words on a court order are likely to convince the parties to cultivate an atmosphere in which their children can be encouraged to love both parents and not feel disloyal to one parent by loving the other.

This situation cries out for the intervention of a trained professional counsellor to repair the harm that has been done to the children, to allow them to rebuild and maintain their relationship with the Applicant. Position of the Parties [ 58 ] The Applicant asks for an order which requires the children to live with each parent for a full week. He also wants the order to be enforced by police if the Respondent continues to refuse to follow court orders for shared parenting, as she has done in the past.

He also asks for an order that the parties share special expenses such as medical and dental costs, as well as counselling for the children. But he asks that when it comes to any extracurricular activities such as swimming or camp, the rule should be that “he (or she) who enrols pays.” He opposes the Respondent’s request to allow her to change the surname of the children and sees this as further proof of her intention to alienate the children from him. [ 59 ] The Respondent asks for an order giving her all of the parental responsibilities set out under the Family Law Act .

She argues that this is in the children’s best interests due to the Applicant’s “antagonism and apathy”. While she is willing for the Applicant to have “reasonable and generous parenting time”, she says that this should be set according to the children’s wishes. She wants the authority to change the children’s surname, and asks for an order awarding her spousal support, child support and special expenses under

section 7 of the Federal Child Support Guidelines retroactive to March 1, 2012. [ 60 ] The Respondent denies that A.J.E.’s refusal to see the Applicant is because of any poisoning of the child’s mind. She blames this on the Applicant’s lack of involvement in the child’s life. She also argues that shared parenting is not feasible because the Applicant does not have suitable living accommodation. She says that one should be suspicious about the Applicant’s secrecy about the other person in his new relationship.

The status quo is that the children are comfortable in their current living situation and the Respondent argues that the case has not been made out for disturbing the current situation, especially by forcing the children to spend half of their lives being someplace that they do not want to be. Applicable Law 1. Best Interests of the Child [ 61 ]

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

section 37 specifically mentions the following factors: (

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

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

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

d) the history of the child's care; (

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

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 62 ]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Parental Alienation [ 63 ] Parental alienation is described as being a concerted effort on the part of one parent to destroy the present and future relationship between a child and the alienated parent.

This type of negative behaviour is very harmful and abusive to the child because it is negative conduct which is directed toward a young, emotionally vulnerable and impressionable mind. Children deserve the right to have both of their parents in their lives and to be free to love both parents, without being made to feel as if loving one parent makes them

somehow disloyal to the other. Children should not be forced to take sides between their parents and parents should never put children inthat position. [64] Parental alienation is often grounds for a change of a child’s residence because the harm which may be occasioned by a changein residence is outweighed by the harm to the child that will result if the child is permitted to remain in the care of the alienating parent. [65] In A.A. v.

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

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

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

Although M has not been permitted tohave a normal relationship with her father for two years, the expert opinion suggests she will succeed in adjusting, although the processwill be difficult... [66] According to the principles set down by our Court of Appeal in this case, the difficulties of a change in the children’s residenceare secondary to their long term interest. If the status quo is detrimental to the children’s long-term well-being, a change in their livingstatus is preferable to maintaining the status quo.

Paramountcy must be given to the children’s long-term interests over the short-termadjustment that may come with a change to the status quo. 3. Retroactive Variation of Child Support Order [67] The Family Law Act permits the retroactive variation of an order for child support.

Section 152 of the Act provides in part asfollows: 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively orretroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it intoconsideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support wasmade; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [68]

Section 14 of the Federal Child Support Guidelines sets out what a change of circumstances is. That

section reads as follows: 14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to themaking of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 of

chapter 1 ofthe Statutes of Canada, (1997). [69] The Supreme Court of Canada set out the law pertaining to applications for retroactive variation of child support orders in itsdecision in D.B.S. v. S.R.G. 2006 SCC 37 , [2006] S.C.J. No. 37. The principles for retroactive variation can get quitecomplicated. (They are “summarized” in 25 points in D.M.P. v. G.E.A. 2013 BCPC 117 at paragraph 10.) Salient points for thepurposes of this application are that: 1. Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payorparent’s obligation. 2.

Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders. Courts shouldtake an expansive view of what is blameworthy conduct, which is defined as “anything that privileges the payor parent’s own interestsover his/her children’s right to an appropriate level of support. 3. If the payor parent informs the applicant of income increases in a timely manner and is not otherwise blameworthy, a retroactive orderis less likely.

4. A payor parent who does not increase support automatically is not necessarily guilty of blameworthy conduct. The gap between whatthe payor parent should be paying and what that parent actually is paying, in a good indicator of whether or not blameworthy conductexists, with a small gap suggesting no blameworthy conduct and a large gap suggesting blameworthy conduct. 5. A court must also consider any hardship that will result from a retroactive award in exercising its discretion: for example, if aretroactive award adversely affects a payor parent’s other children, this must be considered.

Hardship of a payor parent is less of aconcern if it results from his or her blameworthy conduct. 6. A court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [70] A perplexing question is whether retroactive child support should be awarded if a child has been in one party’s care because thatparty has failed to follow an existing court order for shared parenting.

This question must be answered with a view to keeping in mindthat support is the right of the child, and the fairness of making a retroactive award, having regard to all of the circumstances. 4. Spousal Support [71]

Section 160 of the Family Law Act directs a consideration of the objectives of spousal support that are set out in

section 161before determining if one spouse has an entitlement to spousal support and if the other has a duty to provide support for that spouse.

Section 161 reads as follows: 161. In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or thebreakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide supportfor the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [72]

Section 162 of the Family Law Act next sets out what a court must base the amount and duration of spousal support on. Section162 requires that the amount and duration of spousal support “must be determined on consideration of the conditions, means, needs andother circumstances of each spouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [73] In determining whether or not a spouse is entitled to support, all of the considerations in

section 161 must be taken into accountand no single consideration is paramount. In Bracklow v. Bracklow (SCC), [1999] 1 SCR 420, the Supreme Court ofCanada held that the law recognizes three grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory, and (3)contractual (not applicable in this case). [74] Compensatory support is intended to give a remedy to a spouse who has suffered an economic disadvantage from the marriageor who has made sacrifices in order for the other spouse to gain an economic advantage.

It is based on the notion that if a spouse suffersan economic loss as the result of the relationship or the breakup, which would not have otherwise occurred, that spouse is entitled to becompensated for that loss. It recognizes sacrifices made by a spouse in order to assume primary childcare and household responsibilities.

Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’s sacrifice. [75] If there is no compensatory basis for an order of spousal support, the Supreme Court of Canada, in Bracklow, held that needalone may be enough to establish entitlement to spousal support. For example in some circumstances such as where a spouse has asignificant health problem such as an injury, an illness or a disability, spousal support may be based on need. [76] In Moge v.

Moge (SCC), [1992] 3 S.C.R. 813, the Supreme Court of Canada stated that the goal of self-sufficiency should not become the “pre-eminent objective in determining the right to, quantum and duration of spousal support.” Thecourt went on to say that it is to be made a goal “only in so far as practicable.” The court cautioned against taking a “sink or swim”approach to promoting a spouse’s self-sufficiency. [77] In fixing the specific amount of spousal support, once entitlement has been established, the court can be guided by the SpousalSupport Advisory Guidelines (SSAG).

Unlike the Child Support Guidelines, the court is not bound to follow the SSAG. The SSAG area guide developed with the intention of bringing more certainty and predictability to the determination of spousal support. The SSAGhave not been legislated and operate on an advisory basis only.

They are intended as a practical tool to assist spouses, lawyers, mediatorsand judges in determining the amount and duration of spousal support in typical cases. [78] In a number of decisions of our Court of Appeal, the SSAG have been described as “a useful tool to assist judges in assessingthe quantum and duration of spousal support”. (See Yemchuck v. Yemchuck 2005 BCCA 406 at para. 64; Tedham v. Tedham 2005BCCA 502 at para. 75; Redpath v Redpath 2006 BCCA 338 at para. 38; Chutter v. Chutter 2008 BCCA 507 at para 100).

Although theSSAG are not binding on the court, the BC Court of Appeal has shown great deference to the guidelines. In the words of JusticeNewberry in Redpath at para. 38: [T]he Guidelines may indicate whether a proposed award is "in the range" of what should be a pattern of predictable maintenance awards

across the province.

Section 7 Expenses [ 79 ] In deciding whether or not to order a party to pay expenses under

section 7 of the Federal Child Support Guidelines, three issues must be decided: 1. Is the claimed expense a proper

section 7 “special” expense? 2. Is the claimed expense an “extraordinary” expense? 3. If yes to 1 or 2, should the court allow or disallow all or part of the expense? [ 80 ] “Special Expenses” fall into a number of categories: 1. Child care expenses that arise due to the resident parent’s employment, illness, disability, education or training. 2. Medical and dental insurance premiums (but only that portion that pertains to the child). 3. Post-secondary education expenses (not applicable in this case). 4. The child’s health care expenses that

a) cost more than $100 of any amount that the parties can be reimbursed for from any insurance plan, and

b) fall in one of these categories: orthodontic treatment, professional counselling, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses, and some other health-related expense in this class. [ 81 ] If the expense falls in any of these four categories, then it is considered to be a special expense. However the expense may still be disallowed or allowed in a smaller proportion. [ 82 ] If the expense does not fall in any of these four categories, it may still be an extraordinary expense. These types of expenses must pertain to one of the two areas: 1.

Primary or secondary school or some other education program. 2. Extracurricular activities of the child. [ 83 ] The expense must not cost more that the resident parent can reasonably cover. Otherwise, an expense may still be considered “extraordinary” within the meaning of

section 7 of the Guidelines, but in order to decide this, the court must consider these things: 1. The amount of the expense in relation to that parent’s income and child support; 2. The number and type of activities and programs; 3. Any special talents or needs that the child has; 4. The overall cost of the expense or program; and 5.

Any other similar factors that the court considers to be relevant. [ 84 ] Recreational sports costs are usually not considered to be extraordinary expenses unless the child is very talented. [ 85 ] Even where an expense is found to be “special” or extraordinary, a court has the discretion to disallow or to reduce the allowable amount of the expense if: 1. It isn’t a necessary expense in relation to the child’s best interests. 2.

It is unreasonable considering the means of the parties (and the child) and the spending pattern of the parties before separation. (“Means” includes income, capital assets, cost of exercising parenting time, and in some circumstances, the means of the extended families.) 3. The applicant has not made full financial disclosure. 4. There has been no previous discussion about incurring a large expense. 5.

There is no evidence that the cost benefits the child. [ 86 ] The amount of any special or extraordinary expense should be reduced by any benefits, subsidies, tax credits or other credits (except for the Universal Child Care Benefit.) If the expense is a special expense or an extraordinary expense, and if it is not reduced or disallowed, then it should be ordered to be paid in proportion to the parties’ incomes. [ 87 ] In determining when to order the payment of expenses under

section 7, Justice N. Brown of the British Columbia Supreme Court offered the following wise guidance in B.E.M. v. A.H.M. 2013 BCSC 827 : 47… [T]he law expects parties to recognize what extra-curricular activities their combined incomes are capable of supporting. No matter

how beneficial they might be, if the parties cannot afford to pay for them, they cannot afford to pay for them.

The law expects parties to communicate with a view to coming to an agreement on what activities are most beneficial for the children and are affordable . 60… A parent is not obliged to support every athletic endeavour a child becomes interested in because they are inherently athletic. 106 It is not in the best interest of any child to see their parents' finances become so compromised that they find themselves in financial difficulty and end up unable to give their children any future support . 107 It is healthy for children to learn about family limitations and family budgets. Most parents have limited means.

Sometimes a child has to make choices, as well. If R.'s talent is as exceptional as the respondent maintains, it will stand out. Even if his chances are hampered by an inability to participate in the full panoply of baseball activities available to him, the parties' financial well-being should not be sacrificed on an extra-curricular activity. (Emphasis added). 6. Conduct Orders for Counselling [ 88 ] Division 5 of

Part 10 of the Family Law Act gives the court the power to make orders respecting dispute resolution and counselling. Under

section 222 of the Act , the purposes of such orders include bringing about the settlement of an issue that may become the subject of a family law dispute, as well as the management of behaviours that might frustrate the resolution of a family law dispute. To accomplish this,

section 224 of the Act gives the court the following power: 224

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

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

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

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs. [ 89 ] This

section has not been the subject of much, if any, jurisprudence. In making orders for counselling, the purposes set out in

section 222 must be kept in mind, as well as the general direction under

section 37 to make orders that are in a child’s best interest. Analysis 1. Parenting Time and Parental Responsibilities [ 90 ] As previously stated, this family’s situation presents some troubling issues, the most glaring of which is the animosity that the children have developed toward the Applicant. The Respondent’s unwillingness to see this as a problem and her response that this is entirely the Applicant’s fault is not an acceptable resolution or an acceptable status quo.

If this continues to be the case, more drastic measures may have to be taken, which may include a change in the residence of one or both of the children, but for now it is not clear that this would be in the children’s best interests. It is also not an acceptable resolution to replace one object of blame for them with another.

The parties must first be given the opportunity to work collaboratively with a counsellor to repair the damage done to their children before looking for stronger measures. [ 91 ] In considering the best interests of these children, one of the paramount concerns is the children's health and emotional well- being. While there have been no concerns expressed regarding their physical health, their emotional well-being is a very significant concern here. The very antagonistic attitude toward the Applicant by his daughter is not in proportion to the wrongs attributed to him.

It appears to be influenced by the Respondent and the other adults in her home. According to the evidence of the parties, the child’s complaint of excessive physical discipline that she voiced to the author of the “Views of the Child” Report have been investigated both by police and by the Ministry of Children and Families.

Neither investigation disclosed protection concerns or resulted in the making of any court orders. [ 92 ] Although the Respondent states that her daughter’s attitude has nothing to do with her, this is not a reasonable conclusion, considering the amount of time the child spends in her home, the freedom of choice that she gives to her daughter and the Respondent’s own antipathy towards the Applicant. [ 93 ] The children have expressed their views, in a limited and dated manner, to the report writer.

They have made their preference known to be that they wish to spend more time with the Respondent and limited time with the Applicant. What is unclear is to what extent the children’s view of the Applicant has been coloured by the Respondent and by the other adults in her home. The strongly worded negative remarks that A.J.E. has directed towards the Applicant are out of proportion to the complaints that she says give rise to them. This is very suspicious and gives rise to concerns about whether or not the Respondent and the other adults in the home are working to alienate the child from the Applicant.

This concern also comes through from some of the comments that A.J.E. has made about the parties’ money situation and about the Applicant’s new relationship. It is unclear yet whether or not G.J.E. will develop a similar attitude, but this is an obvious concern as his connection to the Applicant becomes weaker and weaker. [ 94 ] The children appear to enjoy their relationship with the Respondent’s family, in whose home they are currently living. For some reason they have not developed a positive relationship with the Applicant’s new partner and with her son. This is unfortunate.

Children in blended families often develop strong bonds and closeness. What is troubling is that the Respondent appears unwilling to encourage the children to build a relationship with the Applicant’s partner and with her son P.. P. is a little boy and he has not done anything deserving of contempt on his part, but for some reason the Respondent condones her children’s unwillingness to build any sort or relationship with P.. [ 95 ] During the time that the parties were together, both parents worked outside the home and both were able to act as caregivers.

No significant complaint was raised at trial about either parent’s abilities as a caregiver for the children (although the level of animosity was such that both were reluctant to compliment the other either). Both parties present as capable caregivers and this is not a factor that would tip the balance when it comes to making decisions about parenting time or parental responsibilities. [ 96 ] These children are at an age where their stability is not inherently tied to either home.

There is a concern however about A.J.E.’s mental health, given some of the statements that she has made in the past about suicidal ideation, as well as because of the disproportionate level of animosity she has directed towards the Applicant. A drastic change in her circumstances, such as forcing her to reside with the Applicant would not be in her best interests, so long as she participates in appropriate counselling and so long as neither party impedes or interferes with that counselling. [ 97 ] Both parties present as having the ability to exercise parental responsibilities.

Of concern is whether, if the Respondent was given sole responsibility for parental decision making, she would exercise that power immaturely or vindictively, as she appears to have done in the past. For example, her decision to deny the Applicant the opportunity to spend more time with the children at Christmas and other times because she saw a shopping trip or a movie as more important raises serious concerns. Her decision to let the children decide when and if they spent time with the Applicant, rather than acting as the parent in the relationship, also calls her judgement into question.

This consideration casts doubt about whether or not leaving sole decision making in her hands for parental responsibilities would be in the children’s best interests. [ 98 ] Both parties have alleged conduct that might be described as family violence, but this generally does not appear to be a concern in this matter. The Respondent’s earlier complaints about her fears because the Applicant had access to a gun in the course of his employment, now appear disingenuous and a means of using exaggeration as a strategy to gain an advantage in the court proceeding.

Similarly, the Applicant’s unwillingness to have the Respondent meet his new partner because he is afraid that she will do something crazy is also highly speculative. A.J.E.’s complaints about excessive discipline cannot be minimized. These have been investigated by police and by social workers and did not result in any protection concerns being found or any criminal behaviour being investigated.

However these will likely require further exploration with a competent family counsellor to examine whether they are genuine fears on the child’s part (and if so, why the child has these fears, what can be done to address them and what the Applicant can do to change his conduct) or whether they are the product of the child living in an environment where the Applicant is regularly disparaged. [ 99 ] Finally, in considering the subsection 37 (4) of the Family Law Act in determining what type of order for parental responsibilities and parenting time would be in the best interests of these children, the following observations should be made regarding the Respondent’s infidelity and her conduct which resulted in the loss of her job.

Nothing useful is to be gained by making any orders in this matter as any sort of a punishment of the Respondent. The reality is that the marriage relationship between these parties has ended. The Respondent’s conduct was very hurtful to and embarrassing for the Applicant. It has had an effect on the children in that they live in the shadow of the lingering resentment that their parents have towards one another. To his credit, the Applicant has moved on and has found a new relationship.

The Respondent continues to let her resentment adversely affect her by frustrating the time that the Applicant is able to spend with the children. While she continues to engage in conduct that injures the children’s relationship with the Applicant and discourages them from participating in this relationship, this is certainly something that has to be taken into account in considering what is in the best interests of these children. [ 100 ] The first step going forward is for the parties and the children to participate in family counselling. The goals of that counselling should be as follows: 1.

To determine to what extent the affection of the children for the Applicant has been alienated. 2. To rebuild that relationship to the extent possible. 3. To re-establish regular parenting time for the Applicant with the children. 4. To ensure that the children feel comfortable and safe with the changes in parenting time. 5. Specifically to address A.J.E.’s well-being and emotional wellness. 6. To enable the parties to parent the children collaboratively and co-operatively. 7. To assist the parties in getting past their mutual resentment and to shelter their children from that resentment. 8.

To assist the parties in fostering an atmosphere of mutual respect for each parent by the children. [ 101 ] In setting out these goals, it is not intended in any way to impair or fetter the professional discretion of any counsellor in determining what is best for the welfare of these children. [ 102 ] To accomplish this, the first order will be for the Applicant to be given the parental responsibility for selecting and retaining a professional family counsellor for the parties and the children to seek counselling services with.

The counsellor shall be Doctor Susan Goldsmith (provided that she is willing to do so) or some other counsellor whose services are covered by the Applicant’s employee benefit program. The costs of counselling shall be paid from the Applicant’s employee benefit program, with any shortfall being paid by the parties, with the Applicant paying 67.9% of that cost and the Respondent paying 32.1% of that cost. The parties and the children are ordered to attend for such counselling pursuant to

section 224 of the Family Law Act . [ 103 ] Insofar as parental responsibilities generally go, it would not be in the children’s best interest to accede to the Respondent’s request that she be given all of the parental responsibilities solely. Her practice of letting the children decide matters that a parent should be deciding, and her decision to put less important activities ahead of the children’s time with the Applicant do not inspire confidence that the Respondent would exercise this responsibility wisely or fairly.

One of the goals of family counselling is for the parties to learn to parent collaboratively and the degree to which this will be achieved will depend on the extent to which they are serious about wanting to put the welfare of their children ahead of their own resentments.

[ 104 ] Accordingly, it will be ordered that the parties will share the parental responsibilities set out in

section 41 of the Family Law Act. In the event that the parties are unable to agree on a significant decision, the matter shall be resolved initially in one of the following manners: (

a) By seeking guidance from their family counsellor and following the recommendation of the counsellor (if the counsellor is willing to make a recommendation). (

b) By meeting with a Family Justice Counsellor pursuant to section 10(2)(

b) of the Family Law Act. (

c) By an application to this court provided that the two previous options have first been attempted. (

d) Neither party shall enrol either child in any activity that takes place at a time when the child is in the care of the other party without the permission of the other party. [ 105 ] It is important that the Applicant’s parenting time resume as soon as possible, but that it resume gradually at first. The parenting time shall initially apply only to G.J.E., but nothing shall prohibit A.J.E. from accompanying her brother during these parenting times. [ 106 ] The Applicant shall have parenting time with the child G.J.E. at the following times: (

a) For a period of three consecutive hours on a day selected by the Applicant during the week of April 18-24, 2016. (

b) For a period of four consecutive hours on a day selected by the Applicant during the week of April 25-May 1, 2016. (

c) For a period of six consecutive hours on a day selected by the Applicant during the week of May 2-May 7, 2016. (May 8, 2016 is not included as Mother’s Day falls on that day). (

d) For a period of twenty-four consecutive hours selected by the Applicant, during the week of May 9-15, 2016 and for each week thereafter for the next three weeks. (Notwithstanding this, on Sunday May 29, 2016, the child shall be in the Respondent’s care if it is a day when the Applicant is working. If the Applicant is not working, then the child shall be in each party’s care for at least four consecutive hours between 11:00 a.m. and 8:00 p.m.). (

e) For a period of forty-eight consecutive hours selected by the Applicant during the week of June 6-12, 2016 and for the next three weeks. If the Applicant is working on Father’s Day (June 19), he may have additional parenting time with the child for up to three consecutive hours on that day between the hours of 11:00 a.m. and 8:00 p.m.. (

f) Commencing the week of July 4, 2016, for four consecutive days which coincide with the Applicant’s days off of work, commencing at 9:00 a.m. if a school day, or otherwise at the end of the school day, and ending at 8:00 p.m. on the fourth day. (

g) Notwithstanding the aforesaid schedule, the child shall be in the care of the Respondent on all of December 24 th , and

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