N.M.M. v. C.W.P., 2022 BCPC 41

Citation: N.M.M. v. C.W.P. 2022 BCPC 41 Date: 20220304 File No: 14845 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.M.M. APPLICANT AND: C.W.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: M. Awan, by telecommunication Counsel for the Respondent: D. Komori, by telecommunication Place of Hearing: [omitted for publication], B.C. Dates of Hearing: February 1, 28, 2022 Date of Judgment: March 4, 2022

INTRODUCTION [ 1 ] N.M.M. and C.W.P. are the parents of E.J.P., almost 12-years-old, and A.K.P., who is nine. They separated six and one-half years ago when E.J.P. was five-years-old and A.K.P. was three. Initially, N.M.M. and C.W.P. co-parented amicably and effectively without conflict or court intervention.

On May 16, 2017, N.M.M. filed an Application Respecting Existing Orders or Agreements in [Community 1] Provincial Court; thereafter, the parties’ parenting relationship completely unravelled. [ 2 ] For the past five years, N.M.M. and C.W.P. have aggressively litigated issues of parenting time, parenting responsibilities and child support. The only issue they seemed to agree on is that they are both guardians of E.J.P. and A.K.P.

The Court Electronic Information System (“CEIS”) indicates there are 109 documents filed in relation to these proceedings, inclusive of pleadings, affidavits, motions, financial statements, court orders and notices. There have been at least 44 court appearances, with many more yet to come.

N.M.M. and C.W.P.’ conflict burgeoned to engage not only the family court, but also the criminal justice system, the Ministry of Child and Family Development (“MCFD”), the Royal Canadian Mounted Police (“RCMP”), the [omitted for publication] Hospital, as well as various medical personnel, educators, counsellors, social workers, supervisors, caregivers, friends, family members and of course, lawyers. [ 3 ] On April 9, 2021, after a two-day trial, N.M.M. and C.W.P. obtained a Final Order resolving all their outstanding issues.

The court awarded N.M.M. primary parenting time with the majority of parenting responsibilities for the children. The parties followed the order peaceably until November 6, 2021, when A.K.P. refused to return to her mother’s care and threatened suicide if forced to do so. N.M.M. says A.K.P. needs to come home and asks the court to enforce the April 9, 2021 Order. C.W.P. acknowledges A.K.P. needs to heal the rift with her mother, but asks that she now be allowed to remain living primarily with him.

ISSUES [ 4 ] The salient issue before me is whether the court ought to enforce, in whole or in part, Judge Mengering’s order of April 9, 2021, made after a trial on the merits. If I conclude the order ought to be enforced, then I must decide how that should be done. If I decide the order should not be enforced, then I must decide what interim order I should make pending a more fulsome trial on this change of circumstance. [ 5 ] A subordinate issue in this hearing is the weight to be given to the court-ordered s. 211 report prepared by a private assessor and the admissibility of an expert critique of that report.

EVIDENCE AT TRIAL [ 6 ] At trial, I heard the viva voce evidence of N.M.M., C.W.P. and K.R. I also received into evidence as Exhibit 1, a Book of Documents, which includes: Tab 1 : MCFD letter dated November 18, 2021 to N.M.M.; Tab 2: MCFD letter dated November 26, 2021 to N.M.M.; Tab 3:

Section 211 Family Law Act – “Views of Child Assessment” January 8, 2022, (the “s. 211 Report”) authored by RCSW Ms. Carrie McNeely of Dragonfly Counselling, Mediation and Assessment Services; Tab 4 : Affidavit of N.M.M. filed January 11, 2022 (CEIS 95), attaching the following exhibits: (

i) Order of Judge Mengering, made April 9, 2021; (ii) a letter from the Ministry of Child and Family Development (“MCFD “) to N.M.M. dated November 18, 2021; (iii) a letter from Family Maintenance Enforcement Program (”FMEP”) to N.M.M. dated November 17, 2021, enclosing a “Child’s Circumstance Form”; (iv) a letter from MCFD to N.M.M. dated November 16, 2021; (

v) transcript of the evidence of Dr. Jeffrey Peimer on January 5, 2018, (vi) the s. 211 Report; Tab 5: Affidavit of C.W.P. filed January 11, 2022 (CEIS 97), attaching: (

i) clinical records of A.K.P. obtained on January 6, 2022, from Interior Health pursuant to a request under the Freedom of Information and Protection of Privacy Act; (ii) the s. 211 Report; (iii) emails exchanged between N.M.M. and C.W.P. with respect to C.W.P. enrolling A.K.P. in [omitted for publication] Elementary School in [Community 2], BC; (iv) A.K.P.’s Report Card from [omitted for publication] Elementary School dated December 14, 2021; Tab 6 : Affidavit of K.R. filed January 11, 2022 (CEIS 96); Tab 7: Correspondence from Carrie McNeely to the court dated January 26, 2022; and Tab 8: Correspondence from Mr.

Komori to Mr. Awan dated January 2, 2022. BACKGROUND FACTS [ 7 ] Sadly, this file has all the hallmarks of high-conflict litigation. I concluded that in order to determine where this litigation is going, I needed to understand where it has been. To that end, I have constructed a chronology from the court records and proceedings.

As both counsel are also relatively new to this matter, I have set out below the background facts and procedural history in the hope it will assist the court and counsel in the inevitable future litigation. [ 8 ] The applicant, N.M.M. was born on [omitted for publication] 1983, and is now 38-years-old. Although she was born in [omitted for publication] BC, she has spent most of her life in the [Community 1].

[ 9 ] N.M.M. met C.W.P. in 2008. C.W.P. was born on [omitted for publication] 1979, and raised in the [Community 1]. N.M.M. and C.W.P. both worked in the carpentry trade in [Community 1], BC. N.M.M. has Grade 11 and learned her trade in dry walling from her father. In early 2008, N.M.M. established a proprietorship, [omitted for publication] . For a time, it was a productive and profitable business, which employed N.M.M., her father ST.M., her brother SH. M. and occasionally C.W.P.

I gather it has been dormant over the past few years when N.M.M. was a “stay-home-mother”. [ 10 ] N.M.M. and C.W.P. formed an intimate relationship in October 2008, but never married. They are the biological parents of E.J.P., born [omitted for publication] 2010 , and A.K.P., born [omitted for publication] 2012, and together with “E.J.P.”, the “ children"). [ 11 ] On December 11, 2010, C.W.P. was involved in a serious motor-vehicle collision on [omitted for publication] Road, near [Community 1], BC.

He sustained physical, psychological and emotional trauma which significantly impaired his ability to work for many years (CEIS 78). To make matters worse, by 2013, C.W.P. became addicted to codeine prescription pain medication. His addiction persisted until 2017 (CEIS 78). [ 12 ] N.M.M. and C.W.P.’ relationship changed irreparably as a result of his injuries. They were no longer able to engage in the outdoor activities they once enjoyed, such as quadding and motocross. N.M.M. became the main breadwinner. C.W.P. assumed various household and childcare duties.

N.M.M. and C.W.P. separated briefly in 2011 (CEIS 1, 2, 3). At that time, N.M.M. and C.W.P. had one child, E.J.P., who was about one-year-old. N.M.M. commenced a family proceeding in [Community 1] Provincial Court. On March 22, 2011, the parties appeared before Judge Gray who ordered, by consent, that, (

a) N.M.M. have parenting time with E.J.P. from Sunday night to Friday afternoon; (

b) C.W.P. have parenting time from Friday afternoon to Sunday night; and (

c) neither parent was to consume or be under the influence of alcohol or drugs while they had E.J.P. in their care. [ 13 ] On April 6, 2011, N.M.M. filed a Notice of Withdrawal of her pleadings when she and C.W.P. had reconciled (CEIS 5) . N.M.M. soon became pregnant with A.K.P., who was born on [omitted for publication] 2012. In May 2012, N.M.M. purchased the small acreage at [omitted for publication] Road in rural [Community 1], BC (the “Property”).

This five-acre hobby farm became the family home, where N.M.M. continues to reside. [ 14 ] When E.J.P. was three, he began to exhibit behavioural problems and developmental delays. Ultimately, he was been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”). He has an individual education plan (“IEP”) and an education assistant (“EA”) assigned to him full time at school.

He is well supported at school and medically with paediatricians, child psychiatrists and counsellors. [ 15 ] Up until the fall of 2021, A.K.P. was generally considered healthy. [ 16 ] Because of C.W.P.’ inability to work, he and N.M.M. suffered significant financial hardship. Until C.W.P. could return to work, N.M.M. had to singlehandedly keep the family afloat. In doing so, she amassed a sizeable debt. As a result of taking on physically demanding work four days after A.K.P.’s birth, N.M.M. suffered serious internal medical complications. [ 17 ] N.M.M. and C.W.P. separated permanently in August 2015.

N.M.M. retained her drywall business, the family home, some vehicles and her tools. C.W.P. kept his own business, vehicles and his tools. N.M.M. also retained the debts registered in her name, which in essence was all the family debt. [ 18 ] N.M.M. continued to reside on the Property along with their children and a menagerie of horses, dogs, cats, chickens, turkeys, rabbits and geese. At some point, N.M.M. obtained a horse named Pablo for A.K.P. [ 19 ] From August 2015 until June 2017, N.M.M. and C.W.P. co-parented without incident.

C.W.P. exercised parenting time on alternating weekends and in January 2016, began voluntarily paying N.M.M. $400 per month in child support (CEIS 20). This continued until late 2016, when his payments became sporadic and eventually fizzled out. [ 20 ] When he separated from N.M.M., C.W.P. was still in the throes of his addiction to prescription pain medication (CEIS 78, Tab B). In her April 9, 2021 decision, Judge Mengering notes that in the months immediately following their separation, N.M.M. was very sympathetic to C.W.P.’ financial plight.

She supported him through his addiction to painkillers without ever using it against him or denying him parenting time because of it. N.M.M. brought him meals, cigarettes and pain patches. At the 2019 trial, C.W.P. expressed remorse that N.M.M. was unable to stay home with the children, which Judge Mengering accepted was genuine. [ 21 ] Immediately after his separation from N.M.M., C.W.P. continued to live and work in the [Community 1] area. In 2016, he met and formed an intimate relationship with his current partner K.R.

In January 2017, C.W.P. moved into K.R.’s residence at [omitted for publication] [Community 2], BC, where he still resides. K.R. has two children from a prior relationship. She is a registered nurse who works in the emergency department of the [omitted for publication] Hospital in [Community 2], BC. [ 22 ] Collectively, C.W.P. and K.R. have five children: a. C.E.P., born [omitted for publication] 1999. C.E.P. is C.W.P.’ 22-year-old son from a previous relationship with C.S. C.E.P. stayed with C.W.P. and K.R. from time-to-time, but now lives independently in [Community 2]; b.

H.A.M.R., born [omitted for publication] 1999, who is K.R.’s daughter from a prior relationship. H.A.M.R. is 22-years-old, lives independently and attends college; c. D.R.A.R., born [omitted for publication] 2006, is K.R.’s son from a prior relationship. He is 15-years-old and resides full time with K.R. and C.W.P.; d. E.J.P., born [omitted for publication] 2010, soon to be 12, who is C.W.P.’ son from his relationship with N.M.M. E.J.P. resides on two out of every three weekends with C.W.P. pursuant to the terms of Judge Mengering’s April 9, 2021 Order; and

e. A.K.P., born [omitted for publication] 2012, who is nine-years-old and resides with C.W.P. two out of every three weekends pursuant to the terms of Judge Mengering’s April 9, 2021 Order. [ 23 ] C.W.P. returned to his trade as a journeyman carpenter part time in 2013 and was back working full time in 2020. He now works full time as a carpenter for [omitted for publication] in [Community 2], BC [ 24 ] On March 9, 2016, C.W.P. received $468,000 from the Insurance Corporation of British Columbia in settlement of his personal injury claim rising from his 2010 motor-vehicle accident (CEIS 78).

On March 9, 2016, C.W.P. gave N.M.M. $82,000 from this settlement. N.M.M. used those funds to pay off her Scotia VISA, Scotia line-of-credit and arrears of income tax. She was also able to make a down payment on a new truck she purchased from [omitted for publication] and fence the Property. In the April 2021 trial, C.W.P. testified that the monies he received from ICBC was exhausted a little more than a year after its receipt. In addition to the $82,000 he gave to N.M.M., C.W.P. also paid $41,000 to C.E.P.’s mother, C.S., for arrears in child support.

The remainder was spent on vehicles for himself, C.E.P. and H.A.M.R., recreational vehicles, tools and residential renovations to K.R.’s residence. [ 25 ] At trial, C.W.P. argued the $82,000 he gave to N.M.M. was for past, present and future child support. Judge Mengering found that when he gave N.M.M. the $82,000, C.W.P. intended it was for N.M.M. to pay off all of her existing debt and give her a fresh start. This took $56,000 of the funds. The remaining $26,000 was to be applied towards arrears in child support and extraordinary expenses. [ 26 ] N.M.M. also repartnered shortly after she separated from C.W.P.

In the beginning of 2016, N.M.M. formed an intimate relationship with A.D.W. A.D.W. has a son, R.L., from his previous relationship with C.L. R.L. ordinarily lived with his mother in [omitted for publication] and A.D.W. had parenting time with him every second weekend. [ 27 ] N.M.M. and A.D.W. married on [omitted for publication] 2016. They have one child of their relationship, P.W., born [omitted for publication] 2019.

A.D.W. generally worked in logging camps in [omitted for publication] BC, while N.M.M. cared for the children in [Community 1]. [ 28 ] N.M.M.’ s relationship with A.D.W. alarmed C.W.P. who discovered A.D.W. had a significant criminal history including convictions for home invasions to collect drug debts: Exhibit 1, Tab 5, para. 3. C.W.P. was also concerned about N.M.M.’s problems with substance abuse and driving the children while under the influence of alcohol. N.M.M. believed that she and A.D.W. had a solid relationship and denied using drugs and/or drinking irresponsibly.

BACKGROUND AND PROCEDURAL HISTORY 2017 [ 29 ] N.M.M. and C.W.P.’ early post-separation collaboration ended abruptly on May 16, 2017, when the court proceedings began. On June 2, 2017, C.W.P. complained to MCFD, alleging the children were not safe or well cared for in N.M.M.’s home. A MCFD social worker attended the Property and interviewed the children.

MCFD concluded the children were not in need of protection and closed its file (CEIS 20). [ 30 ] On June 27, 2017, C.W.P. filed a Form 4 Financial Statement (CEIS 9) indicating he worked for [omitted for publication], N.M.M.’s proprietorship, and that he was “looking for work.” He attached his 2014 Notice of Assessment indicating a Line 150 income of income of $19,742, which included $17,342 from Employment Insurance and $2,400 from the Universal Child Care Benefit.

C.W.P. also attached a 2015 T4 Statement from N.M.M. stating he earned a total of $12,805.60 from his employment with [omitted for publication], and a T5108 Statement of Contract Payments stating he earned a gross business income in 2015 of $6,164 and profits of $3,320, from his own business. [ 31 ] On September 28, 2017, N.M.M. filed a Form 4 Financial Statement with attachments (CEIS 12) indicating: a. In 2014, N.M.M. earned a gross business income of $134,669.72 from her proprietorship [omitted for publication], with profits of $44,857.80. She also received $2,400 in the Universal Child Care Benefit; b.

In 2015, N.M.M. earned $80,212 gross business income from her proprietorship [omitted for publication], and $22,548.81 in profit; and c. In 2016, N.M.M. earned $35,728.55 gross business income from her proprietorship [omitted for publication] and $2,009.86 in profits. She says she incurred expenditures of $65,579 and had debts totalling $71,500, not including her mortgage payments. [ 32 ] On October 17, 2017, C.W.P. refiled his June 27, 2017 Form 4 Financial Statement (CEIS 9, 13). Also on October 17, 2017, N.M.M. and C.W.P. attended a Family Case Conference (“FCC”) before Judge Galbraith (CEIS 14).

N.M.M. attended in person and represented by Ms. S. Elson. C.W.P. attended self-represented. Any parenting arrangements had to recognize the fact that N.M.M. and C.W.P. now lived 120 kilometres apart, which could be a treacherous drive for many months of the year. The parties entered into a consent order giving C.W.P. alternating weekend parenting time with the children, together with specified parenting time during the school spring, summer and winter breaks. Specifically, C.W.P. was to have Christmas parenting time with the children from December 29, 2017 to January 5, 2018 (CEIS 17, 18 and 20).

The children were to return to school on January 8, 2018. [ 33 ] N.M.M. and C.W.P. attended a further case conference on December 19, 2017, before Judge Galbraith (CEIS 18). N.M.M. appeared in person and represented by Ms. S. Elson. C.W.P. also appeared in person and represented by his newly appointed legal counsel, Mr. J. Rempel. Although they had been separated for over a year, C.W.P. refused to disclose to N.M.M. his residential address in [Community 2], or where the children would be residing while in his care (CEIS 18, 20). I gather this was the result of his unease with N.M.M.’s relationship with A.D.W.

BACKGROUND AND PROCEDURAL HISTORY 2018 Dr. Peimer’s report to MCFD

[ 34 ] On December 31, 2017, during his Christmas parenting time, C.W.P. attended at the [omitted for publication] Hospital with E.J.P., then seven-years-old. C.W.P. explained to Dr. Jeffrey Peimer that E.J.P. was manifesting suicidal ideations and behaviours suggesting that while in his mother’s care, E.J.P. experienced physical and sexual abuse. Given his extreme anxiety, Dr. Jeffrey Peimer did not examine E.J.P. or even speak to him. Based on the oral history he received from C.W.P., on January 2, 2018, Dr.

Jeffrey Peimer notified MCFD that E.J.P. may have been abused while in his mother’s care (Exhibit 1, Tab 4, Transcript) and recommended a social worker investigate the children’s well-being. [ 35 ] On January 4, 2018, C.W.P. sent N.M.M. a text message informing her he would not be returning the children to her care on January 5, 2018 (CEIS 20). N.M.M. filed a Notice of Motion (CEIS 21) and supporting affidavit (CEIS 20), seeking judicial intervention. N.M.M.’s motion came before Judge Galbraith on January 5, 2018, in [Community 1] Provincial Court. N.M.M. was represented by Ms. S. Elson and C.W.P. by Mr. J.

Rempel. Judge Galbraith heard from Dr. Jeffrey Peimer with respect to his interactions with C.W.P., K.R. and E.J.P. on December 31, 2017. Dr. Jeffrey Peimer testified he never examined or spoke to E.J.P. He simply took an oral history from C.W.P. and wrote a report to MCFD based on what C.W.P. had told him (Transcript, Exhibit 1, Tab 4; CEIS 28).

At the conclusion of the hearing, Judge Galbraith ordered C.W.P. return the children to N.M.M. forthwith and included a police apprehension provision should he fail to do so (CEIS 22). [ 36 ] On January 5, 2018, C.W.P. filed an Amended Reply and Counterclaim (CEIS 23) in which he sought, among other things, an order that: (

a) he and N.M.M. are guardians for the children; (

b) C.W.P. have primary residence of the children; (

b) the children be relocated to reside with C.W.P. in [Community 2]; (

c) C.W.P. have all parenting responsibilities for the children; (

d) N.M.M. submit to hair follicle drug testing for a year; (

e) N.M.M. have such parenting time as the parties may agree; (

f) A.D.W. have no contact with the children, directly or indirectly. On January 23, 2018, N.M.M. filed an Amended Reply opposing C.W.P.’ Counterclaim (CEIS 27). [ 37 ] On January 15, 2018, N.M.M. filed a Notice of Motion seeking MCFD records (CEIS 25). On January 30, 2018, Judge Galbraith granted N.M.M.’s request for an order for MCFD disclosure with respect to the children (CEIS 29). [ 38 ] On February 20, 2018, the parties attended before Judge Galbraith for a FCC.

At its conclusion, Judge Galbraith made an interim order that C.W.P. would have telephone communication with the children Wednesdays and Sundays between 7:00 p.m. and 8:00 p.m. Judge Galbraith also ordered pursuant to s . 40(2) of the Family Law Act, both parents were entitled to request and receive from third parties: health; education; or other information respecting the children (CEIS 30). [ 39 ] On March 20, 2018, C.W.P. filed a Form 4 Financial Statement (CEIS 31) indicating he was self-employed as “ [omitted for publication] Contracting” and earned a net business income of $18,000.

He also attached his 2014, 2015, 2016 and 2017 income tax returns, assessments and supporting documentation. [ 40 ] On March 27, 2018, C.W.P. filed a Notice of Motion and supporting affidavit seeking RCMP records with respect to A.D.W., born [omitted for publication] 1982 (CEIS 32, 33 and 34). The search records from Court Services Online indicate A.D.W. does have a number of convictions for criminal offences (CEIS 33). As a result of difficulties serving A.D.W. with the application, it was not until the fall of 2018 that C.W.P. was able to obtain his order for production of RCMP Records (CEIS 35, 36, 40, 41).

On September 26, 2018, Judge Bayliff made an order that the RCMP disclose A.D.W.’s adult criminal court records (CEIS 47). [ 41 ] On July 26, 2018, the parties’ reciprocating applications were scheduled for trial on December 3 to 6, 2018, with a Trial Preparation Conference on September 26, 2018 (CEIS 37 and 38). C.W.P.’ alleged assault on E.J.P. [ 42 ] On or about July 31, 2018, C.W.P. was arrested for assaulting E.J.P. on July 19, 2018, in [Community 2], BC.

On that same day, he was placed on a Police Undertaking restricting his access to the children or going to the Property, except in accordance with visits and communication arranged by MCFD ([Community 2] Criminal File 35543-K-1). In his June 6, 2019 decision, after a hearing on Notices of Motion filed April 17, 2019 (CEIS 49) and April 18, 2019 (CEIS 52), Judge B. Hoy described the incident underpinning the assault charge against C.W.P.: a. E.J.P. has been described by his teachers and medical professionals as suffering from poor impulsive control.

He reacts by hitting or punching and is frequently non-compliant with adult direction; b. When E.J.P. is in a heighten state of aggression, caretakers deal with him with words of calmness; c. C.W.P. is well aware of E.J.P.’s difficulty; d. On the offence date, E.J.P. was unruly as to K.R.’s direction he wear a helmet while riding a bike; e. E.J.P. elbowed K.R. and tried to punch her in the face in opposition to her instructions; f. C.W.P. intervened and backed E.J.P. against the wall and was holding him; g. E.J.P. tried to kick and punch at C.W.P.; h. E.J.P. remarked, “Mom’s right, you’re a bad man”; i.

E.J.P. began shaking his head from side to side; j. C.W.P. cupped E.J.P.’s chin with one hand trying to calm him; and k. C.W.P. sent E.J.P. to his room for a short time, after which E.J.P. came out and apologized. [ 43 ] On October 15, 2018, N.M.M. filed a Notice of Motion and supporting affidavit seeking third-party records from MCFD with

respect to the children and from the RCMP with respect to C.W.P. (CEIS 42). Judge Galbraith granted the motion on October 24, 2018 (CEIS 47, 48). [ 44 ] The RCMP swore Information 35543-K-1 on October 3, 2018, charging C.W.P. with assaulting E.J.P. on July 19, 2018. On March 28, 2019, on the eve of trial, the Crown directed a stay of proceedings.

As a result of this charge and bail conditions, C.W.P. had no contact with either A.K.P. or E.J.P. between July 31, 2018 and April 6, 2019. [ 45 ] On October 24, 2018, N.M.M. and C.W.P. attended before Judge Galbraith in [Community 1] Provincial Court for a first appearance on N.M.M.’s October 15, 2018 Notice of Motion (CEIS 42). Both parties attended represented by counsel: N.M.M. by Ms. S. Elson; and C.W.P. by Mr. J. Rempel.

At that time, Judge Galbraith referred all relief other than child support to December 3, 2018 to fix a date to hearing as the issue of child support was currently scheduled for the December 3, 2018 assize. Judge Galbraith also ordered C.W.P. provide further financial disclosure for 2017 and 2018. [ 46 ] Long before the Crown directed a stay of the criminal proceedings, which occurred on March 28, 2019, MCFD approved C.W.P. having supervised visits with his children.

C.W.P. arranged for his visits to be supervised by C.J. of [omitted for publication] Family Services at his own expense even though MCFD did not require his visits be supervised by a paid professional supervisor. Nevertheless, N.M.M. continued to refuse C.W.P. any parenting time. She insisted C.W.P.’ contact with the children be in the presence of B.L., a family therapist in [Community 1], BC (CEIS 50, 55), who accepts referrals from MCFD. Mr. Landon, however, was not prepared to offer his services to C.W.P. while the criminal proceedings were pending.

BACKGROUND AND PROCEDURAL HISTORY 2019 [ 47 ] When N.M.M. received notice the criminal proceedings against C.W.P. for assaulting E.J.P. were stayed on March 28, 2019, she consented to him having parenting time with the children provided it was supervised by C.J., the same person she rejected as a supervisor when C.W.P. put forward her name in October 2018. [ 48 ] On April 17, 2019, C.W.P. filed a Notice of Motion returnable April 24, 2019, together with a supporting affidavit seeking an order that N.M.M. comply with the October 17, 2017 Order, failing which, C.W.P. could ask for police assistance to enforce the order and financial penalties against N.M.M. (CEIS 49, 50). [ 49 ] On April 18, 2019, N.M.M. filed a Notice of Motion, also returnable April 24, 2019, asking Judge Galbraith’s October 17, 2017 Order be varied to restrict C.W.P.’ parenting time to supervised daytime visits in [Community 1] (CEIS 52) and an order pursuant to s. 224 of the Family Law Act that C.W.P. be required to take counselling as recommended by MCFD, including anger-management counselling.

Also on April 18, 2019, N.M.M. filed an Application Respecting Existing Order or Agreements (CEIS 53) seeking similar relief as set out in the Notice of Motion, as well as a supporting affidavit (CEIS 54).

In her April 18, 2019 affidavit (CEIS 54), N.M.M. says the charges against C.W.P. “were stayed without advance notice to me.” She states she was concerned for the children’s safety and wanted C.W.P.’ parenting time supervised until she obtained RCMP records and an assessment could be made regarding C.W.P.’ ability to safely parent the children (CEIS 54). [ 50 ] On July 5, 2019, C.W.P. filed a reply opposing N.M.M.’s request that his parenting time with the children be supervised (CEIS 60) or that he take counselling as directed by MCFD.

Trial before Judge Hoy [ 51 ] The parties’ reciprocating Notices of Motion filed April 17, 2019 (CEIS 49) and April 18, 2019 (CEIS 52) came before Judge Hoy for trial on June 4, 5 and 6, 2019. Both parties were represented by counsel: N.M.M. by Ms. S. Elson; and C.W.P. by Mr. Rempel. Judge Hoy heard oral evidence from C.W.P., K.R. and N.M.M. He also received into evidence: (

a) outpatient consult report by Dr. Chaudhry with respect to E.J.P. (Exhibit 1); (

b) Conduct History of E.J.P. from [omitted for publication] Elementary School (Exhibit 2); (

c) Promise to Appear and Police Undertaking dated July 31, 2018, with respect to C.W.P.’ charge of assault of E.J.P. (Exhibit 3); (

d) C.W.P.’ Parent Certificate dated March 12, 2019 (Exhibit 4); (

e) Supervision Access Report of C.J., [omitted for publication] Family Services (Exhibit 5); (

f) June 4, 2019 letter from MCFD (Exhibit 6); (

g) text messages between C.W.P. and N.M.M. from March 31, 2019 to May 11, 2019 (Exhibit 7); (

h) text message to “C.W.P.” (Exhibit 8); (

j) RCMP Statements taken from: (

i) A.K.P. on September 9, 2018; (ii) E.J.P. on September 14, 2018; and (iii) N.M.M., dated September 14, 2018 (Exhibit 9); and (

i) MCFD ICM Production Report Memo (Exhibit 10); and (

j) the 25-page affidavit of J.R. filed in these proceedings on April 23, 2019 (CEIS 55), (Exhibit 11). [ 52 ] In his oral reasons for judgment handed down on June 6, 2019, Judge Hoy found the prosecutor stayed the criminal charges against C.W.P. on the eve of trial (March 28, 2019) because the Crown had no reasonable likelihood of a conviction.

Judge Hoy made the following observations about the criminal proceedings instituted against C.W.P.: a. the Crown’s case against C.W.P. was weak and not provable on the criminal standard of beyond a reasonable doubt or on the civil standard of balance of probabilities; b. the Crown’s case was weak from its inception and Judge Hoy was “frankly surprised it made it through the initial charging phase”; c. “Objectively considered, there is nothing to support any charge of criminal misconduct.

This is not an assault”; d. “Furthermore, reflecting on the circumstances in the context of the [ Child, Family and Community Services Act ], I would not conclude there were any protection concerns”; and e. the Police Undertaking prohibiting C.W.P. from having any direct or indirect contact with the children was “highly restrictive”, “onerous”, “regrettable and should not have occurred.” [ 53 ] On June 6, 2019, Judge Hoy confirmed Judge Galbraith’s October 17, 2017 Order and dismissed the balance of the relief sought. Judge Hoy made the following conduct orders (CEIS 58):

. . . 3. The parties will: a. Put the best interests of the Children before their own interests; b. Encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent and that parent's partner in a positive and respectful manner; and c. Make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the Children. 4. The parties will not: a.

Question the Children about the other parent or time spent with the other parent beyond simple conversational questions; b. Discuss with the Children any inappropriate adult, court or legal matters; or c. Blame, criticize or disparage the other parent to the Children. 5.

The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the Children concerning family issues or litigation. [ 54 ] C.W.P’s Notice of Motion filed July 22, 2019 (CEIS 61) for financial disclosure from N.M.M. came before Judge Galbraith for hearing on December 5, 2019. At that time, Judge Galbraith granted some of the disclosure requests and dismissed others (CEIS 72). Judge Galbraith directed the issue of child support be set for a one-day hearing.

BACKGROUND AND PROCEDURAL HISTORY 2020 [ 55 ] On January 28, 2020, the Judicial Case Manager scheduled a trial of the parties reciprocating applications (CEIS 6, 8) for April 24, 2020, with a trial preparation conference on April 1, 2020 (CEIS 68). [ 56 ] In 2020, the C OVID-19 pandemic caused a significant disruption to the operations of this Court. In March and April 2020, all non-custodial trials were administratively adjourned to trial preparation conferences to fix new dates for trials (CEIS 69, 70). [ 57 ] On June 29, 2020, this matter came before me for a trial preparation conference. Ms. S.

Elson appeared on behalf of N.M.M. and Mr. J. Rempel, on behalf of C.W.P. At that time, counsel for the parties advised me that the issues that were outstanding and required adjudication by the court were: (

a) N.M.M.’s May 16, 2017 Application to Obtain an Order (CEIS 6) with respect to the issue of child support and C.W.P.’ June 27, 2017 Reply and Counterclaim (CEIS 8) with respect to the issue of child support. In other words, the parenting arrangements were no longer in issue. I ordered the parties file updated Form 4 Financial Statements including all attachments listed on page 2 of that form , within 30 days of the next trial date. The matter was adjourned to the Judicial Case Manager for the [Community 1] Provincial Court on September 9, 2020, to

schedule a one-day in-person trial (CEIS 71). [ 58 ] On September 16, 2020, the Judicial Case Manager scheduled a one-day trial of the parties’ reciprocating applications on November 26, 2020, with a trial preparation conference (“TPC”) on October 28, 2020 (CEIS 74). This matter came before Judge Galbraith on October 28, 2020 for a TPC as scheduled and he confirmed the November 26, 2020 trial date. [ 59 ] On October 22, 2020, C.W.P. filed a Form 4 Financial Statement (CEIS 76), attaching his 2017, 2018 and 2019 Income Tax Returns and Notices of Assessment and 2020 Statement of Earnings from his employer.

C.W.P. indicated he worked as a contractor for [omitted for publication] and had a 2020 Guideline income of $55,000 and incurred expenditure of $56,374. [ 60 ] On November 17, 2020, C.W.P. filed a Notice of Motion (CEIS 77) seeking a Final Order that: a. N.M.M. and C.W.P. are guardians of E.J.P. and A.K.P.; b. N.M.M. and C.W.P. share parental responsibilities; c. C.W.P. will have parenting time with the children every two out of three weekends; d. C.W.P. and N.M.M. will share equal parenting time with the children during the school winter, spring and summer breaks; e.

C.W.P. will have telephone calls with the children twice weekly; and f. No person will use or be under the influence of non-prescription intoxicants while N.M.M. or C.W.P. are exercising parenting time. [ 61 ] On November 23, 2020, C.W.P. filed an affidavit (CEIS 78) in support of his November 17, 2021 Notice of Motion (CEIS 77). C.W.P. attached as exhibits to his affidavit: (

a) his Income tax returns from 2010 to 2015 (Exhibit “A”); (

b) the medical report of Dr. David Koo dated May 12, 2014, and the medical reports of Dr. Valerie A. Jones, Psychiatrist, dated September 29, 2013 and November 26, 2015 (Exhibit “B”); (

c) the physical capacity evaluation of QT Consulting dated November 24, 2014 (Exhibit “C”); (

d) the release C.W.P. signed with respect to his personal injury claim, together with his lawyer’s ICBC mediation brief (Exhibit “D”); (

e) a copy of C.W.P.’ bank draft to N.M.M. in the amount of $82,000 dated March 9, 2016 (Exhibit 17); (

f) N.M.M.’s bank statements from the Integris Credit Union from February 2014 to June 30, 2017 (Exhibit “F”); (

g) N.M.M.’s bank statements from BMO from July 31 to August 31, 2015 (Exhibit “G”); (

h) N.M.M.’s Scotiabank line-of-credit statements from March 2015 (Exhibit “H”); (

j) N.M.M.’s Scotia VISA statements for 2015 (Exhibit “J”); (

k) N.M.M.’s BMO MasterCard Statement for August 2015 (Exhibit “K”); and (

l) the Contract of Purchase and Sale for the Property dated April 27, 2012 (Exhibit “L”).

[ 62 ] On November 26, 2020, N.M.M. filed an updated Form 4 Financial Statement (CEIS 79), attaching her 2017, 2018 and 2019 Income Tax Returns and Notices of Assessment. N.M.M. indicated her Guideline income for 2020 was $6,425 and her expenditures totalled $72,872. [ 63 ] This matter came before Judge Galbraith for trial on November 26, 2020, at which time it was adjourned to the Judicial Case Manager (“JCM”) to

schedule a three-day trial. BACKGROUND AND PROCEDURAL HISTORY 2021 [ 64 ] On February 3, 2021, the JCM scheduled a three-day trial on April 7, 8 and 9, 2021, with a TPC on March 4, 2021. [ 65 ] In 2021, C.W.P. complained to MCFD his children were endangered while in N.M.M.’s care because of domestic violence. On March 26, 2021, MCFD wrote to N.M.M. advising her they had investigated these allegations and found the children were not in need of protection. [ 66 ] On March 4, 2021, the parties appeared before Judge Mengering for a TPC.

On that date, she confirmed the trial would proceed on the April 7 to 9, 2021 trial dates as scheduled with respect to N.M.M.’s May 16, 2017 Application (CEIS 6) and C.W.P.’ November 17, 2020 Notice of Motion (CEIS 77). At that time, Judge Mengering ordered the parties exchange witness lists and updated Financial Statements by March 19, 2021 (CEIS 81). Trial before Judge Mengering [ 67 ] This matter last went to trial on April 7 and 8, 2021. N.M.M. appeared represented by Ms. S. Elson and C.W.P. appeared represented by his current counsel Mr. D. Komori.

Judge Mengering identified the primary parenting issue as whether the court ought to increase C.W.P.’ parenting time from alternating weekends, to two out of every three weekends. [ 68 ] Judge Mengering heard from N.M.M., C.W.P., K.R. and S.G. (S.G. was a neighbour of and character witness for C.W.P. and K.R.) Judge Mengering also received into evidence an exhibit binder from the applicant (N.M.M.) (Exhibit 1), and the respondent (C.W.P.) (Exhibit 2). Almost all the documents included in these exhibits were financial documents and much of the April 2021 trial focused on financial issues.

Judge Mengering had before her N.M.M. ’s financial statements filed with the [Community 1] Court Registry on September 28, 2017 (CEIS 12) and November 26, 2020 (CEIS 79); and C.W.P.’ financial statements filed on June 27, 2017 (CEIS 9), October 12, 2017 (CEIS 13), March 30, 2018 (CEIS 31), October 22, 2020 (CEIS 76).

She also had before her the parties’ various Income Tax Returns, Notices of Assessment, contractor invoices, bank statements and other financial documents. [ 69 ] With respect to the issues of parenting arrangements, in her April 9, 2021 Reasons for Judgment Judge Mengering found: • Both N.M.M. and C.W.P. are loving, diligent, concerned parents that enjoy time with their children; • N.M.M. did not dispute that C.W.P. was a good father to their children; • Historically, the children lived with their mother; • Since shortly after their separation, the children have visited with their father as often as they reasonably could; • N.M.M. never denied C.W.P. parenting time with the children except when he was charged with assaulting E.J.P. and subject to a no-contact condition as a term of his bail; • It appears that the children want to spend time with both parents and benefit from doing so.

There is no evidence of the children having any issues with K.R.; • N.M.M. and C.W.P. were on amicable terms from post-separation, until N.M.M. filed her May 16, 2017 application for child support in these proceedings, after which their relationship deteriorated dramatically; • There did not appear to be a history of family violence; • A.K.P. required some future eye surgery but was otherwise healthy; • E.J.P. has been diagnosed with ADHD and ODD and had an IEP and an EA assigned to him full time at school.

He was well supported at school and medically with pediatricians, child psychiatrists and a counsellor; • Historically, both parents have been involved in the children’s healthcare. Eventually, N.M.M. stopped consulting with, or informing, C.W.P. of the children’s medical and dental issues, because C.W.P. lied to the children’s medical practitioners; • In the past four years, C.W.P. made five unfounded complaints to MCFD alleging: (

a) N.M.M. and A.D.W. abused drugs and alcohol; (

b) N.M.M. and A.D.W. sexually and physically abused the children; and (

c) N.M.M. and A.D.W.’s home is fraught with domestic violence; • C.W.P. also made an unsubstantiated allegation to the children’s pediatrician that N.M.M. used alcohol and crack cocaine throughout her pregnancy with E.J.P.; and • Given that the children will be primarily living with N.M.M. and having regard to C.W.P.’ conduct and expectations, it would be inappropriate for the parties to share parental responsibilities. [ 70 ] On April 9, 2021, Judge Mengering made a Final Order (CEIS 83) with respect to guardianship, parenting responsibilities, parenting time, parental conduct, ongoing and retroactive child support and ongoing financial disclosure. In a nutshell, Judge Mengering

ordered: • N.M.M. and C.W.P. are the children’s guardians under s. 39 of the Family Law Act ; • N.M.M. will have the majority of the parenting responsibilities for the children; • N.M.M. will have the majority of the parenting time with the children; • C.W.P. will have regular and specified holiday parenting time with the children; • C.W.P. was solely responsible for transitioning the children between the two households; • C.W.P. had an imputed Guideline income of $42,000 for 2017, 2018 and 2019; • C.W.P. had a 2020 Guideline income of $57,402; • C.W.P. will pay to N.M.M. $891 per month in child support based on a 2021 Guideline income of $57,402; • C.W.P. will pay 50% of the children’s special or extraordinary expenses; • C.W.P. was in arrears of regular child support in the amount of $37,530.

From that sum he was credited with $26,000 (from the $82,000 March 9, 2016 payment), leaving the total arrears of $11,530; and • C.W.P. was in arrears of special or extraordinary expenses in the amount of $1,774, bringing his total arrears owing to N.M.M. as of April 9, 2019 of $13,304 ($11,530 + $1,774 = $13,304). [ 71 ] As to parenting time, Judge Mengering provided that C.W.P. have parenting time as follows: • Commencing April 16, 2021, C.W.P. will have parenting time two out of every three weekends from Friday at 3:30 p.m. until Sunday at 5:00 p.m. provided that if the day preceding or following his weekend is a statutory holiday or professional development day, the parenting time will include that extra day; • C.W.P.’ weekend parenting time shall be suspended during the Christmas, spring and summer school breaks; • One-half of the school Christmas break, provided that during the last two days of the school Christmas break, the children shall be in the care of N.M.M. in each year and further, provided that C.W.P.' parenting time will include Christmas Day in even numbered years and N.M.M.'s parenting time will include Christmas Day in odd numbered years; • The first half of the week during the spring school break each year commencing Friday at 3:30 p.m. on the day school is released for spring break, and continuing until the Saturday eight days later at 7:00 p.m. (if spring break is two weeks long) or until the following Wednesday at 4:30 p.m. (if the spring break is one week in duration); • The first and third week of July and August each year from Friday at 3:30 p.m. until the following Friday at 4:30 p.m. provided that each parent will reasonably accommodate summer parenting time in excess of one week in duration if the other parent has holiday plans involving the children; and • Such further and other parenting time as agreed to by the parties. [ 72 ] Judge Mengering’s April 9, 2021 Order further provided that: • Each party will have reasonable telephone contact with the children, subject to the wishes of the children during their non- parenting times; • C.W.P. will pick up and drop off the Children at the beginning and end of his parenting times at the home of N.M.M. unless the parties otherwise agree; • Neither party will not consume or possess any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician, nor allow anyone else having contact with the children to do so, during parenting time and for 12 hours prior to exercising parenting time. [ 73 ] On April 24, 2021, N.M.M. registered the April 1, 2021 Order with the Family Maintenance Enforcement Program (“FMEP”) (CEIS 84).

Post-April 9, 2021 Order [ 74 ] N.M.M. and C.W.P. began sharing parenting time with the children pursuant to the terms of the April 9, 2021 Order. [ 75 ] Shortly after the April 2021 trial, N.M.M.’s relationship with A.D.W. began to disintegrate. N.M.M. learned he had been spending money on gambling and they began arguing about this indulgence. A.K.P. overheard one or more of these arguments. At the end of April or early May 2021, A.D.W. pushed N.M.M. extremely hard, leaving visible bruises.

A.K.P. noticed these bruises and N.M.M. blamed them on the horse. [ 76 ] In June 2021, N.M.M. called the police and asked they remove A.D.W. from the home. The police attended to keep the peace while A.D.W. packed some of his belongings and left the Property. N.M.M. considered the possibility of reconciling with A.D.W. if he engaged in counselling, but E.J.P. and A.K.P. were dead set against having him in their home.

[ 77 ] N.M.M. and A.D.W. agreed to separate in July 2021. Still, A.D.W. continued to come to the Property to access his belongings, which still remained on the property. Also, N.M.M. and A.D.W. wanted to co-parent P.W., R.L., E.J.P. and A.K.P. [ 78 ] In mid-August 2021, N.M.M. went to speak to A.D.W. who was working in the workshop on the Property. She protested that he had left her caring for all the children, including R.L. A.D.W. pushed N.M.M. so hard she fell against a shelf and broke two ribs. The children were not present to witness the incident. Initially, N.M.M. did not tell anyone about its occurrence.

Eventually, N.M.M. told her parents and stepfather about the violence so that she could “not make excuses anymore.” [ 79 ] On or about August 20, 2021, N.M.M. took A.K.P. to the BC Children’s Hospital in Vancouver, BC, for eye surgery. She said she had to sell her horse to finance the trip. She made the trip despite her broken ribs. N.M.M. left A.D.W. in charge of caring for E.J.P. and P.W. and the farm animals for the four days she was at the Children’s Hospital with A.K.P.

When asked why she did not arrange for C.W.P. to care for E.J.P., N.M.M. said that E.J.P. had a good relationship with A.D.W. and enjoyed being at home on the farm. She did not explain why it was then that E.J.P. did not wish her to reconcile with A.D.W. [ 80 ] Although N.M.M. notified the RCMP about A.D.W.’s assault, she never provided them with an official statement. Instead, she opted for simply ending the relationship and evicting A.D.W. once and for all from her home.

She said by the time of the last assault, most of A.D.W.’s belongings had already been removed from the Property. [ 81 ] C.W.P. says while in his care in early October 2021, A.K.P. told him she was unhappy at her mother’s home and wanted to kill herself. C.W.P. told A.K.P. that she needed to tell her mother how she was feeling. He then told N.M.M. that she needed to talk to A.K.P.

The next time she saw C.W.P., A.K.P. told him she had discussed how she felt with her mother, who responded with words to the effect that “everyone feels that way now and then.” N.M.M. testified that she did talk to A.K.P. as C.W.P. requested. N.M.M. says that she had a good relationship with A.K.P. and they talked about many things. A.K.P. never said she was unhappy at home or that she wanted to kill herself and N.M.M. did not say “everyone feels that way every now and then.” A.K.P.’s change of residence [ 82 ] The events precipitating the matter before me began on October 29, 2021.

This was the beginning of C.W.P.’ weekend parenting time. He drove to [Community 1] to pick up the children at the gate of the Property, which was the agreed transition point. On that day, at N.M.M.’s request, C.W.P. went to L.M.’s home to pick up the children for his court-ordered parenting time. A.K.P. was feeling unwell and insisted on remaining behind. N.M.M. and C.W.P. agreed that A.K.P. could remain with her mother and he would have makeup parenting-time the following weekend.

It was on this day that N.M.M. advised C.W.P. that she and A.D.W. had separated as a result of family violence. [ 83 ] On or about November 5, 2021, A.K.P. went to C.W.P.’ residence for make-up parenting time. E.J.P. remained at home with his mother. N.M.M. says that when A.K.P. left, she was happy, told N.M.M. she loved her, hugged P.W. and “everything seemed fine.” [ 84 ] C.W.P. says that when A.K.P. came to his home on November 5, 2021, she questioned him about his mother’s death. C.W.P.’ mother had committed suicide with a firearm and unfortunately, L.M. told A.K.P. about this event.

C.W.P. told A.K.P. that people sometimes commit suicide because they are sad. A.K.P. relayed she was “sad, depressed and wanted to kill herself daily at her mother’s house because of what was happening at her home.” K.R. was present during these discussions. When K.R. asked her how she would kill herself, A.K.P. responded she would slash her throat with a knife. [ 85 ] K.R. said that at approximately 2:00 a.m. on November 6, 2021, she woke to A.K.P. crying. K.R. went and laid down with A.K.P., who began rambling about all the things that were stressing her out. K.R. stayed with A.K.P. until about 4:00 a.m.

She told A.K.P. she needed to talk to someone about those issues. By “someone”, K.R. meant a professional social worker or counsellor. [ 86 ] On November 6, 2021, K.R. went to work at 7:30 a.m. at the emergency department of the [Community 2] Hospital. One of her duties is to perform risk assessments of suicidal patients who attend the hospital in distress. Later that morning, C.W.P. consulted with the police, who spoke with A.K.P. C.W.P. then took A.K.P. to the emergency department of the [omitted for publication] Hospital at about 1:06 p.m. (Exhibit 1, Tab 5, Exhibit A).

There, A.K.P. was assessed by H.E. of the Community Crisis Response Team and Dr. S. The clinical records indicate the medical practitioners considered A.K.P. a moderate-to-high risk of suicide and admitted her to the hospital for ongoing assessment. The clinical records indicate that A.K.P. was mature for her age and demonstrated good insight and judgment. She was also unequivocal that she wanted to live with her father. [ 87 ] On November 7, 2021, Dr. S called N.M.M. and informed her A.K.P. was hospitalized for suicidal ideation. N.M.M. was stunned. She drove to [Community 2] with H., her stepfather.

N.M.M. quickly began to suspect A.K.P.’s suicidal ideation was a ruse. N.M.M. says A.K.P. feigned fear of her in the presence of others, but when they were alone, A.K.P.’s fear dissipated and A.K.P. became defiant. A.K.P. said to N.M.M., “I guess you shouldn’t have told dad everything, heh Mom”. She lifted her eyebrows and said, “we’re poor right now anyhow Mom.” N.M.M.’s visit with A.K.P. was brief. A.K.P. wanted her mother to leave her room so she could return to using K.R.’s laptop. [ 88 ] N.M.M. says that on November 8, 2021, she contacted Mr.

R.M., who was the principal of A.K.P.’s school in [Community 1] ([omitted for publication] Elementary). He advised her neither he nor any of A.K.P.’s teachers had observed anything of concern with respect to A.K.P.’s mental health. [ 89 ] On November 8, 2021, MCFD Social Worker Lea Leslie came to N.M.M.’s home at 11:00 a.m. with a safety plan she asked N.M.M. to sign. The safety plan states as follows: a. N.M.M. agrees to not allow A.D.W. to come to her home without another adult present; b. N.M.M. agrees to allow A.K.P. to stay with C.W.P. until notified by SW Kerry Thaler; and c.

N.M.M. agrees not to be intoxicated while caring for her children.

[ 90 ] N.M.M. says that although she now regrets agreeing to the safety plan, at the time MCFD approached her, she was in shock. N.M.M. said: They came, and said we want you to sign a safety plan – I would have signed my house away at that time. I didn’t know what was going on. [ 91 ] The Safety Plan commenced on November 8, 2021, and expired on December 8, 2021 (CEIS 88, Exhibit 4). Kerry Thaler, a MCFD child protection social worker, was to contact N.M.M. when she returned from holidays on November 16, 2021. [ 92 ] On November 9, 2021, after being interviewed by MCFD, A.K.P. was released from the hospital.

As a result of the safety plan, Dr. S released A.K.P. into C.W.P.’ care. Also on that day, N.M.M. had a telephone interview with MCFD social worker Kerry Thaler (Exhibit 1, Tab 2). [ 93 ] N.M.M. says that E.J.P. is confused and unsettled by these events. C.W.P. picked him up for parenting time on November 12, 2021, and returned him to N.M.M.’s care on November 14, 2021.

I gather E.J.P. was upset that A.K.P. was getting all the attention at C.W.P.’s home. [ 94 ] On November 16, 2021, Glen Grunau, a Child and Youth Mental Health worker, wrote to N.M.M. summarizing her meeting with MCFD on November 9, 2021 (Exhibit 1, Tab 2). Mr. Grunau states: We were able to obtain some additional screening information from the school principal Mr. R.M. He said that he has known A.K.P. since kindergarten and has seen no changes in her presentation over the years, including recently.

He has not noticed any variation in her mood, no evidence of emotional dysregulation, and no evidence of any withdrawal. He has always found her to be a confident girl. He noted that she has a strong personality and can be a little bossy with other students. He was happy to arrange for the WEISS Symptom Record to be completed by the teacher, perhaps also with input from him given his long-standing relationship with A.K.P. Her classroom teacher completed the WEISS Symptom Record and the results are unremarkable.

The ratings suggest that there is no evidence in the school setting of any behaviour, emotional, or mental health concerns. [ 95 ] The November 16, 2021, MCFD report goes on to state: Currently, it does not appear that A.K.P. is exhibiting any significant mental health symptoms beyond what appears to have been a recent adjustment reaction to events in her family.

Although it does not appear that she requires direct mental health intervention, it is recommended that she be given an opportunity to speak to a counsellor about the domestic violence she has been exposed to at home between you and your recent partner and abut the ongoing situation in her family where she has been inevitably caught in the middle between parents who have ongoing animosity toward one another. It does not appear that A.K.P. requires any further direct services from our agency and we will now be closing her file. [ 96 ] N.M.M. says she texted C.W.P. and asked that he return A.K.P. to her care.

She says he refused and would notify the RCMP if she tried to come on their property. Despite MCFD having determined N.M.M.’s children were not in need of protection in her care, A.K.P. continues to live full time with C.W.P. [ 97 ] On November 19, 2021, N.M.M. filed: (

a) an Application about a Priority Parenting Matter (CEIS 87) seeking a police assist clause to return A.K.P. to N.M.M.’s care: (

b) her affidavit (CEIS 88) in support of her Application about a Priority Parenting Matter (CEIS 87); and (

c) an Application for a Case Management Order without notice or attendance (CEIS 85). The hearing before Judge Bowry [ 98 ] N.M.M.’s Application about a Priority Parenting Matter (CEIS 87) came before Judge R. Bowry on November 22, 2021. At that time Judge Bowry made the following order: 1. Upon the court being advised that the name and birth date of each child is as follows: A.K.P., born [omitted for publication], 2012 and E.J.P. born [omitted for publication], 2010; 2.

A member of BC Hear the Child Society will prepare a s. 211 Views of the Child Report to assess parenting time with respect to the Child, A.K.P. born [omitted for publication] 2012; 3. The cost of the Views of the Child Report will be paid entirely by C.W.P.; 4. Parenting time for C.W.P. with regard to E.J.P. is suspended until further order of the court and the child will remain in the care of N.M.M. until further order of the court; and 5.

C.W.P. is to advise N.M.M. as to the name and phone number of the individual who will be conducting the Views of the Child Report. [ 99 ] Judge Bowry did not make any changes to N.M.M.’s parenting time with A.K.P. from that set out in the April 9, 2021 Order. [ 100 ] C.W.P. retained Carrie McNeely, one of the three people from the BC Hear the Child Society who Judge Bowry said prepared private s. 211 reports and lived in relative proximity to the [Community 1]. Ms.

McNeely is a Registered Clinical Social Worker who carries on business as “Dragonfly Counselling, Mediation, and Assessment Services” in [omitted for publication], BC. Ms. McNeely says she interviewed C.W.P. on November 28, 2021, N.M.M. on November 29, 2021, and A.K.P. on November 29, 2021, and again on January 2, 2022. Ms. McNeely never interviewed K.R. [ 101 ] On December 31, 2021, N.M.M. filed an Application about Enforcement (CEIS 92) in which she states that C.W.P. has not

allowed her to see or talk to A.K.P., even on Christmas.

N.M.M. seeks the following orders: • An order A.K.P. be returned forthwith to N.M.M.’s care; • C.W.P.’ parenting time with A.K.P. be suspended until further court order, or alternatively, C.W.P.’ parenting time with A.K.P. be resumed in accord with the April 9, 2021 Order; • C.W.P. pay a fine of $5,000 for wrongful denial of parenting time; • C.W.P. be restrained to deny parenting time in the future; • A police assist clause to recover A.K.P.; • An anticipatory police assist clause in the event C.W.P. withholds A.K.P. from N.M.M. in the future; and • C.W.P. pay ongoing child support of $891, arrears of child support in the amount of $13,037.69, arrears of special expenses or extraordinary expenses of $73 since August 2021, and ongoing monthly special or extraordinary expenses.

PROCEDURAL AND BACKGROUND HISTORY 2022 [ 102 ] On January 8, 2022, RCSW Carrie McNeely produced s. 211 Views of the Child Assessment which she subsequently filed with the court on January 27, 2022 (CEIS 100). After two interviews with A.K.P., Ms. McNeely states at para. 117: [117] The primary themes in A.K.P.'s interview include: a. Feeling overwhelmed by the responsibilities at her mom's house, b. Feeling caught between the high needs of her older brother and younger sister due to mental health issues and age, respectively , c. Being exposed to inappropriate adult information at both parents' homes, d.

Feeling unloved and uncared for at her mom's house, e. Feeling heard and listened to at her father ' s home ; f. Having "fun " and no responsibilities at her father's home, g. Being essentially an "only child " at her father's home due the other children ' s ages and stages of life , and h. Being highly supported by her father and paternal family to believe she has the right to make the decision about where she will live, including support from dad and stepmom to not have to return home to mom's house nor have any contact with her. [ 103 ] One of the questions on which Ms.

McNeely was asked to opine was A.K.P.’s views regarding the current parenting arrangement and her preference, if any, for a different arrangement. Ms. McNeely states at para. 162: The current parenting arrangements are that A.K.P. lives full time with her mother and sees her dad 2 out of every three weekends. Her expressed preference is to live with her father and never see her mother again. [ 104 ] At the parents’ request, Ms. McNeely also inquired whether there was any basis for A.K.P. rejecting her mother. Ms.

McNeely opined (at para. 163) that A.K.P.’s rejection was consistent with her being alienated from a parent. Ms. McNeely’s conclusion is based on: • the instantaneous onset of A.K.P.’s refusal to see her mother; • the intensity of A.K.P.’s rejection of her mother; • the insufficient rationale to substantiate the intensity of A.K.P.’s rejection; and • A.K.P.’s unwillingness to engage in discussion of reconciliation strategies. [ 105 ] Ms.

McNeely concludes (at para. 163) A.K.P.’s alienation has occurred as a result of the parents' high-conflict relational dynamics and A.K.P. being afraid that her mother is mad that she disclosed private information to her father in the context of being fully aware of the acrimony between her parents. [ 106 ] Ms. McNeely also considered whether A.K.P. had been influenced or pressured by anyone in forming her views. Ms. McNeely noted there was no evidence that A.K.P. has been pressured by anyone, but there was evidence of influence by others. Ms. McNeely states at para. 164: 164. . . .

Influence is a word that should be understood as being on a spectrum, with usual and reasonable parental influence on one end of the continuum and outright malicious alienating behaviours at the other. In this instance, both parents have engaged in denigrating the other parent, and exposing A.K.P. to adult information, but those behaviours seem to be more a factor of a long-standing high conflict relationship punctuated by inappropriate adult/child boundaries than a deliberate attempt to alienate the child from either parent.

In terms of influence, the father and his family have facilitated discussions about the possibility of A.K.P. moving to her father's home, supported the notion that she has choice over where she lives, and supported choosing her father's home over her mother's. In terms of

influence relative to the resist/refuse dynamics, they have been instrumental in allowing A.K.P. to avoid contact with her mother. [ 107 ] Ms. McNeely bespeaks the obvious when she says in para. 165, “the priority be to reconcile A.K.P. and N.M.M.'s relationship. ” She recommends reunification counselling with the support of a “ First Nations Health Authority ” funded counsellor who is versed in high conflict co-parenting and provides trauma-informed therapy. Unfortunately, neither N.M.M. nor A.K.P. are First Nations. N.M.M. may be entitled to become a member of the Métis Nation, but has not yet done so.

Although the Métis are considered “Aboriginal”, they are not generally considered “First Nations.” This is a distinction with a difference, hence the enactment, “ An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019 c. 24 .” A.K.P. does not have the requisite degree of consanguinity to be become registered with the Métis Nation. Ms.

McNeely recommends that N.M.M., A.K.P. and E.J.P. attend counselling and that C.W.P. needs to pay his arrears of child support. [ 108 ] On January 11, 2022, N.M.M., C.W.P. and K.R. filed affidavits (CEIS 95, 96 and 97), which are found under Tabs 4, 5 and 6 of Exhibit 1 in these proceedings. [ 109 ] In his January 11, 2022 affidavit (CEIS 97), C.W.P. states (at para. 9) that he attempted on numerous occasions to get A.K.P. to speak to her mother on the phone or to visit her in person.

Each time he asks her, A.K.P. gets angry and tells him she will harm herself or others or burn down her mother’s house so she has no home to go back to. C.W.P. states, “She is very forceful and angry when she says these things and gets emotional crying and running to her room”. [ 110 ] On January 20, 2022, N.M.M. called [omitted for publication] Elementary School, where A.K.P. now attends school in [Community 2], and asked to speak to A.K.P. N.M.M. wanted to invite A.K.P. to P.W.’s third birthday party. P.W. loves her big sister.

She follows A.K.P. around and refers to her as “my A.K.P.” N.M.M. planned a birthday party for P.W. at L.M.’s house, where N.M.M. thought A.K.P. may be more comfortable. In any event, N.M.M. could not speak to A.K.P. at the time she called the school because A.K.P. was still in class. The staff said they would ask A.K.P. to call her during a break. At 1:30, C.W.P. sent N.M.M. an email admonishing her for calling A.K.P. at school. After school, A.K.P. called her mother and said she wanted to come to P.W.’s birthday party. On January 28, 2022, Mr. Komori, on C.W.P.’ behalf, sent a letter to Mr.

Awan stating: C.W.P. appreciates A.K.P., despite her opinion, must start seeing her mother. He also acknowledges she has stated she wants to attend P.W.’s birthday tomorrow. Having said that, to go from our present situation where she has refused to see or even talk to her mother to an unsupervised visit with various N.M.M. family members in attendance is likely to be too traumatic for all concerned. There is also concern that once A.K.P. is at the N.M.M house, your client will not return A.K.P. despite any agreement we have as to A.K.P.’s return.

Therefore, here is what he insists occur: He will bring A.K.P. to L.M.’s home at 12 noon on January 29, 2022. He will also bring [C.J.], who will supervise the visit at his expense.

He will give [C.J.] instructions to be minimally involved; to ensure A.K.P. is comfortable during the visit and that A.K.P. is returned. . . . [ 111 ] On January 13, 2022, the JCM scheduled a one-day hearing of N.M.M.’s Application about Enforcement (CEIS 92) on February 1, 2022 (CEIS 98). [ 112 ] On February 10, 2022, C.W.P. filed his Certificate of Completion of the Parenting after Separation Course (CEIS 104). [ 113 ] On February 11, 2022, C.W.P. filed an Application for a Case Management Order Without Notice of Attendance (CEIS 105), asking to be excused from filing a financial statement contemporaneously with his Application about a Family Law Matter.

Judge Galbraith granted C.W.P.’ request and on February 14, 2022, ordered (CEIS 107): Application to modify the requirement to file a financial statement is granted.

C.W.P. shall complete, file with the Registry of this court, and deliver to N.M.M. a sworn Financial Statement in Form 4 of the Provincial Court Family Rules, including all attachments set out on page two of Form 4, within 90 days of this Order, or as otherwise ordered by the Court. [ 114 ] On February 14, 2022, C.W.P. filed an Application about a Family Law Matter (CEIS 108) wherein he seeks primary care of A.K.P., with N.M.M. having supervised parenting time until A.K.P. and N.M.M. have re-established their relationship.

C.W.P. states that he believes such an order would be in A.K.P.’s best interests because: - A.K.P. has expressed suicidal concerns for some time, and this came to a head on November 5, 2021.

Since then despite repeated efforts to get her to talk to her mother or visit her mother she has refused to do so. - It appears that A.K.P. has been exposed to family violence and other hardships while at the mother’s home. - I have a close and loving relationship with A.K.P. and there is no reason for her not to live full time with me. [ 115 ] C.W.P.’ February 14, 2022 Application (CEIS 108) is not before the court for adjudication at this time. LEGAL PARAMETERS AND PRINCIPLES Best interests of the child [ 116 ] This Court’s overarching duty in this matter is A.K.P.’s best interests.

Section 37(1) 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 .” Section 37(2) provides a non-exhaustive list of factors the court must consider in determining the best interests of the child:

(

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. [ 117 ] Under s. 37(3) of the Family Law Act, 37(3) An . . . order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. [ 118 ]

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.” Parenting arrangements [ 119 ] Sections 40, 41 and 42 of the FLA govern parenting arrangements and responsibilities.

Section 40(2) creates a presumption that each guardian will exercise all parental responsibilities in consultation with the other guardian, unless consultation would be unreasonable or inappropriate in the circumstances and again, subject to contrary agreement or court order. Section 40(3) provides for the allocation of parental responsibilities between guardians by agreement or order based on the best interests of the child, as defined by the factors set out in s. 37.

Section 40(4) states that there is no requirement that parental responsibilities should be allocated equally among guardians and that no particular parenting arrangement is presumed to be in the best interests of a child . [ 120 ] Parental responsibilities are specifically listed in s. 41 of the FLA . They include, among other things, (

a) making day-to-day decisions affecting the child; (

b) making decisions respecting where the child will reside, with whom the child will live and associate; (

c) the child’s education and participation in extracurricular activities; (

d) and consenting to medical and other health-related treatments. [ 121 ] The April 9, 2019 Order divvied up parental responsibilities between N.M.M. and C.W.P., giving the majority of the responsibilities to N.M.M. It states: . . . 2. Under section 40(3)(

a) of the Family Law Act , during their respective parenting time each party will be entitled to make decisions: a. Making day to day decisions affecting the Children and having day to day care, control and supervision of the Children; b. Making decisions respecting where the Children will reside [during their parenting time]. 3. Under section 40(3)(

a) of the Family Law Act , N.M.M. will have sole parental responsibilities as follows and N.M.M. must forthwith Inform C.W.P. of all such decisions: a. Making decisions respecting with whom the Children will live and associate; b. Making decisions respecting the Children’s education and participation in extracurricular activities, including the nature, extent and location; c. Making decisions respecting the Children’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the Children are aboriginal, the Children’s aboriginal identity; d. Subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Children; e. Applying for a passport, licence, permit, benefit, privilege or other thing for the Children; f. Giving, refusing or withdrawing consent for the Children, if consent is required; g. Subject to any applicable provincial legislation,

i. Starting, defending, compromising or settling any proceeding relating to the Children, and ii. Identifying, advancing and protecting the Children’s legal and financial interests; 4. Under s. 40(3)(

a) of the Family Law Act, each party will have the parental responsibilities detailed at sections 41(

j) and (

l) of theFamily Law Act, and in particular: a. Requesting and receiving from third parties health, education or other information respecting the Children [except in relation tohealth care provided pursuant to sec. 17 of the Infants Act]; b. Exercising any other responsibilities reasonably necessary to nurture the Children's development. 5. Each guardian will have the obligation to advise the other in a timely manner of any matters of a significant nature affecting theChildren. . . . [122]

Section 42 of the FLA provides that “parenting time” is the time a child is with a guardian, as allocated under an agreement ororder. Parenting time is the right of the child and not the right of a guardian: Boychuck v. Singleton, 2008 BCCA 355 , citingYoung v. Young, (SCC); J.B.D.K. v T.A.B., 2017 BCSC 1186 ; Slawter v. Bellefontaine, 2012 NSCA 48;MacGyver v. Richards, (ON CA). Change of circumstances [123] C.W.P. asks that I make an interim order permitting A.K.P. reside primarily with him.

This necessitates a variation of JudgeMengering’s April 9, 2021 Order with respect to parenting time and parenting responsibilities.

Although N.M.M. asks for enforcement ofthe April 9, 2021 Order, she also seeks its variation to restrict C.W.P.’ parenting time with A.K.P. [124] The parenting arrangements in the April 9, 2021 Order were made pursuant to the Family Law Act, therefore s. 47 applies: 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since themaking of the order, there has been a change in the needs or circumstances of the child, including because of a change in thecircumstances of another person. [125] In my view, there has been a sea change in A.K.P.’s circumstances since the April 9, 2021 Order.

The fact that A.K.P. refuses toreturn to her mother’s care on threat of suicide changes A.K.P.’s needs and her parents’ ability to meet those needs in a fundamental way.Whereas Judge Mengering anticipated the parents could not or would not co-parent in the children’s best interests, clearly she could nothave reasonably anticipated this turn of events before the year was out (See: Gordon v. Goertz, [1992] 2 S.C.R. 27 at paras. 11–12).

Supervised parenting time [126] C.W.P. asks the court to impose a regime of supervised parenting time to facilitate A.K.P.’s reunification with her mother.Section 45(3) of the FLA states that a court may order that parenting time be supervised if supervision is in the best interests of a child. InQ.B. v. W.I.M., 2014 BCSC 219 , Justice Fleming made the following comments about supervised parenting time at para. 42: Supervised Parenting Time [42] . . .

Supervised access is not a long term solution to access problems which usually arise in high conflict custody and access cases wheredistrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include thefollowing: (

a) where the child requires protection from physical, sexual or emotional abuse; (

b) where the child is being introduced or reintroduced into the life of a parent after a significant absence; (

c) where there are substance abuse issues; or (

d) where there are clinical issues involving the access parent. Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the childand each application is to be determined on its own merits. [127] In J.J.T. v. J.A.S., 2015 BCSC 628 , Justice Weatherill states: [45] The principles of supervised access were discussed by Griffin J. in F.K. v. M.K., 2010 BCSC 563, citing V.S.J. v. L.J.G., (ON SC), [2004] O.T.C. 460 (S.C.J.) at para. 137: . . .

It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/childrelationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relE.C.t to parenting; createa bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, theimpact upon children. [46] At para. 143 of V.S.J., the court stated that when terminating or restricting access, it is necessary for the court to weigh and balance

numerous factors in the context of the child’s best interests including: 1. The maximum contact principle; 2. The right of a child to know and have a relationship with each parent; 3. A limitation of a consideration of parental conduct to that conduct which impacts on the child; 4. The risk of harm: emotional, physical and sexual; 5. The nature of the relationship between the parents and its impact on the child; 6. The nature of the relationship and attachment between the access parent and the child; and, 7.

The commitment of the access parent to the child. [47] Supervised access generally requires evidence of exceptional circumstances as it is just one step away from a complete terminationof the parent-child relationship: F.K. at para. 147 and V.S.J. at para. 1. [48] Though the above cases were decided under the former Family Relations Act, R.S.B.C. 1996, c. 128, the case of Q.B. v.

W.I.M.,2014 BCSC 219 it clear that the same principles apply in the context of the FLA, which has a new focus on the issue of family violenceand a mandate to protect the child emotionally and psychologically (at para. 49). [128] Recently, in C.M. v N.L, 2020 BCSC 3 , Justice Dillon referenced Q.B. v. W.I.M, in her discussion of supervisedparenting time: [104] Supervision orders reflect on the child’s best interests. Section 45(3) FLA states that a court may order that parenting time besupervised if supervision is in the best interests of a child.

The need for supervision may arise because of a history of violence oruncontrollable behaviour, extreme parental alienation, ongoing denigration of the other parent, child abuse, or the child wishes (Q.B. v.W.I.M., 2014 BCSC at para. 42; M.H. v. A.M. at para. 132; Siebel v. Davis, 2017 BCSC 847 at para. 55). A supervision order may protecta child from risk of harm, promote the parent/child relationship, direct a parent to programming to enhance parenting skills, create abridge between no parenting and normal parenting, and avoid or reduce conflict (Siebel at para. 56).

Indefinite supervision should onlybe ordered in rare cases as an extreme measure where the interests of the child demand it (Siebel at paras. 56-58). Supervision is not along term solution in most cases and is not appropriate if its purpose is to provide comfort to the custodial parent (Q.B. v. W.I.M atparas. 42-43). [105] There is no maximum contact principle under the FLA. However, a child should have the benefit of both parents in his/her life forwhatever picture those parents represent (Siebel at para. 59; H.H. v. L.H., 2016 ONSC 707 at para. 22).

SECTION 211 REPORTS [129] On January 8, 2022, RCSW Carrie McNeely prepared a s. 211 Views of the Child Report with respect to A.K.P. C.W.P. takesissue with some of the content of that report and retained Dr. Michael Elterman to prepare a cr

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