K.D. v. J.A. Date:, 2011 BCPC 210

Citation: K.D. v. J.A. Date: 20110617 2011 BCPC 0210 File No: 15021 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K.D. APPLICANT AND: J.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE Birnie Counsel for the Applicant: B. Barker Counsel for the Respondent: T. Hudson Place of Hearing: Smithers , B.C.

Date of Hearing: June 8 - 10, 2011 Date of Judgment: June 17, 2011 with written reasons filed July 20, 2011 [ 1 ] This is an application by K.D., (the mother) and a cross application by reply of JA, (the father) for custody of their daughter GA born [DOB] and now just 8 years old. KD also applies for a restraining order against JA. I heard the evidence on this trial over three days from June 8 th to 10 th in Smithers.

On June 17 th I heard argument from both counsel and later that day gave my decision: joint custody and guardianship, primary residence to KD, access to JA and a number of other terms to focus the parties on their obligation to cooperate in GA’s best interests. I advised the parties on June 17 th that I would provide written reasons for my decision.

I will set out the specifics of the Order again at the conclusion of these reasons. [ 2 ] I will give a brief overview of the history of this matter and of the concerns and conflicts between the parties as they relate both to GA, and to their respective abilities to parent her and to communicate about her. I will then focus first on GA; who she is, how she is doing and what she needs, and then on each of the parties – their circumstances and the factors which affect their capacity as parents.

This will include my assessment of the credibility of the testimony I heard, particularly that of KD and JA, and my findings of fact. I will also refer to the two

Section 15 reports, one prepared in B.C. in relation to KD and the other prepared in Alberta in relation to JA. Finally, I will consider the factors which are relevant to GA’s best interests as these are set out in the Family Relations Act and give my conclusion as to where her best interests lie. Overview: [ 3 ] KD and JA were in a relationship for 8 years, from 2000 – 2008. This relationship was characterized by multiple separations and reconciliations and by periods of acrimony and mistrust, though until recently that acrimony did not have a significant impact on their ability to cooperate in relation to GA.

[ 4 ] GA was born in [DOB]. When the relationship ended in 2008 KD was granted sole custody on an uncontested application and JA was granted access. JA married in the summer of 2009. He and his wife have three children. KD has two other children, both teenagers. [ 5 ] During the periods when they were separated from 2003 to 2009 KD and JA were able to cooperate around GA’s care. This cooperation faltered and then ended after JA met and subsequently married his new partner LA.

KD sought and obtained an ex parte order for the return of GA during the summer of 2009 when GA was on an extended five week visit with JA on Vancouver Island. This application coincided with JA’s marriage and involved allegations of drug use and trafficking, of leaving GA unattended and of absconding with her and leaving no information about where GA was. [ 6 ] Shortly after GA was returned to Smithers, with police involvement, this Court had a fuller version of events and directed that GA be returned forthwith to complete the visit with JA.

It was clear from the affidavit material which was filed in relation to that fuller version that GA was very upset and confused by her removal from JA by the police. It was also clear that when KD brought the ex parte application she did not advise the Court that she knew that JA and his spouse were away on their honeymoon with GA and LA’s daughter at Tofino and that she had contact information for his parents in Victoria which would likely have provided a means to be in touch with JA.

Nor did she advise the Court that the allegation that GA was being left alone was one she had checked into already and determined that it appeared to relate to GA being in the basement apartment of LA’s Mom’s home with other people present upstairs. [ 7 ] GA visited with JA and LA over the Christmas and New Year period in December 2009 to January 2010.

In May or June 2010 KD refused to allow GA to have any unsupervised visits with JA and thus to effectively terminate in person access, as JA lived in Victoria while she lived in Smithers with GA, and supervision for extended visits was not realistic. [ 8 ] KD’s reasons for the refusal was that she had found a video which GA had made of herself on a camera given to her over the Christmas access visit in December 2009 to January 2010. She alleged the camera had been given to GA by JA with the direction that she send him pictures of herself.

The video in question was of GA lifting her clothing and filming her naked genital area. KD was concerned about sexual abuse and put GA into a play therapy program. Since January 2010 JA had only text, phone and Skype access with GA until the end of the hearing on June 10 th when he had a visit with her. [ 9 ] KD’s case was focussed on JA and his shortcomings as a person, a partner and a father. She has testified that he was regularly unfaithful, violent and abusive toward her throughout their relationship. He was abusive on a couple of occasions to her children MD and BD.

Just prior to or during their final separation in the summer of 2008 he tried to kill her by throwing a rock toward her while they were on a hike.

She testified that JA used and sold drugs, that he has behaved in a sexually inappropriate manner toward GA during their relationship and that he continues to be violent toward his current wife. [ 10 ] JA, while he agreed that the relationship with KD was at times difficult and stormy denies any allegations of violence or abuse – except one occasion when he put a bar of soap in BD’s mouth because he was swearing, and an incident a year ago with his current wife when they were in a heated argument about his relationship with KD and he picked her up to move her from the doorway so he could leave the house.

He denies any allegations of sexually inappropriate behaviour with or around GA. He says that KD’s refusal to allow him to see GA is because he finally turned away from her and began a new relationship and that her conduct is essentially vindictive and contrary to GA’ best interests. [ 11 ] This rather long overview has been necessary to show that many of the issues which must be resolved revolve around credibility. [ 12 ] A

Section 15 Custody and Access was ordered in November 2010 and was submitted on June 1, 2011. Unfortunately this report is not as helpful as it might have been for two reasons: 1) It is in fact two reports rather than one. A family justice counsellor in B.C. prepared a report in relation to GA and KD and that family situation in Smithers. A separate family justice counsellor prepared a report in relation to JA and his family in Alberta.

Neither counsellor spoke to the other parent or other persons in that parent’s household. 2) Neither report sheds any light on the various allegations which have been made concerning JA as an abusive, violent person or on whether the video of herself which GA made is any way connected to him. The Child – GA: [ 13 ] GA is now eight years old. She is just finishing Grade two in a French immersion program in Smithers. Her report cards, which were filed as Exhibit 3, show that she is doing very well in school both academically and socially.

She is in a French immersion program and fully meets, and in some areas exceeds, the curriculum and performance expectations. Her current teacher, Mme Tessier, noted in her last report card from this past March that GA’s artistic talent and creativity is evident in her work, she grasps concepts and language easily and speaks French beautifully. In addition to her performance in the academic curriculum she fully meets expectations of social behaviour including being friendly, considerate and helpful, solving problems in a peaceful way and demonstrating responsibility. [ 14 ] The portion of the

Section 15 report done in B.C. refers to GA as a normal and generally healthy child. She had a respiratory virus, (RSV), when she was a baby which causes inflammation of her lungs when she gets the flu or a cold but this does not affect her activity level or her school performance, despite the fact that according to her report cards she has missed approximately 20 days of school each year since kindergarten. She has contracted head lice due to outbreaks at her school, but this has not had any real impact on her health. She maintains regular contact with JA and his mother by phone.

She enjoys attending the counselling sessions and the play opportunities it provides. [ 15 ] W.R., a friend of KD testified. She was a straight forward and credible witness. She has known KD and GA for almost three years. GA is a good friend of her daughter and they often play together. She says GA is a very nice, sweet girl and that she and KD have a loving relationship and that when GA plays dress up she likes to dress up “like Mommy”. [ 16 ] MD, KD’s 14 year old daughter, testified and I accept her evidence about GA and the family life in KD’s home.

She said that she is good friends with her siblings, i.e. her older brother BD and GA. She described GA as a happy kid. While GA can be annoying and

sometimes steals her clothes, they also draw and watch TV together. I note that MD and KD are both talented artists and GA also seems to have an affinity for art as indicated on her report cards from school. Some of the time they eat as a family. She described KD as loving, caring and supportive. [ 17 ] KD testified and while I have real concerns about her credibility in relation to her evidence about JA, which I will deal with later in these reasons, I consider her evidence about GA, in terms of her health, her interests, her personality and her day to day activities to be credible.

It was straight forward, it made sense and there were no contradictions between direct and cross or in relation to the testimony of other witnesses. [ 18 ] She said that while GA is not athletic and can tire easily because of the RSV she had as a baby, she enjoys biking and hiking and is interested in starting swimming lessons. GA does artwork with her in her garage studio. GA has regular household chores including feeding the dog and helping her older sister clean the bathroom. She has a regular

schedule for meals and bedtime and reads with KD before bed. GA is now reading

chapter books in both French and English. KD’s mother, who lives about 40 minutes away visits with them each Sunday and will be taking the whole family to Sweden to visit extended family this coming fall. GA has two close friends who live in the same neighbourhood with whom she plays and shares sleepovers. [ 19 ] GA also enjoys being with the two daughters (ages 11 and 12), of her current partner AN, who have recently begun to stay with him at her home when he is back from his camp job in Alberta. Both of his daughters go to GA’s school and one of them has started to teach GA to swim.

GA has had vaginitis on and off since she was 4 years old, so her vaginal area can be easily irritated and she has to shower regularly and avoid things like bubble baths. [ 20 ] It is clear to me that despite the difficulties between KD and JA, GA is doing well. The video of herself which GA made on the camera she received at her father’s home over Christmas 2009 is a matter which KD was understandably and properly concerned about. GA has been in a form of play therapy counselling since.

I have not heard evidence of anything which has arisen from that counselling or since KD saw the video in early 2010 that provides any basis to conclude that the video is the result of sexual abuse in any form and in particular sexual abuse or “grooming” of GA by JA. I note that the

Section 15 report prepared in BC refers to KD’s comments that JA had given the camera to GA so she could send him pictures of herself. JA was not spoken to by Ms. Fenton and he has denied that this was the context of GA having the camera. [ 21 ] I will refer to the other assertions with respect to GA’s behaviour which are set out in the

Section 15 report in the context of my review of KD’s evidence as these assertions are those of KD and are then repeated in the report as apparent statements of fact. K.D.’s Evidence: [ 22 ] K.D gave evidence in direct and cross examination for over one and a half days of this three day hearing. Her direct evidence took most of the first day of trial and the focus of most of that evidence was JA and what a bad person he is and has been in the context of her relationship with him, his relationship with her children and his relationship with GA.

There is nothing wrong with this focus to the extent that it is relevant to JA’s capacity as a parent and whether it is in GA’s best interests that he have anything other than supervised access to her. My observation, however, was that during her testimony KD spared no opportunity to cast JA in a negative light and made negative remarks about him where they were clearly gratuitous – such as the fact that when they first met he came to live with her after he was “kicked out” of his accommodation.

Or when asked a simple question as to whether he attended at the birth of GA, ( which he did), she spoke of how she had not wanted him at the birth and the nurses at the hospital thought perhaps he should not attend but ultimately she relented.

I heard very little about GA herself and her personality, routine and needs until the last half hour or so of KD’s evidence. [ 23 ] The concerns expressed by KD about JA in essence are as follows: 1) He was an emotionally and physically abusive and unfaithful spouse, 2) He was physically abusive to her son BD when he was 9 yrs old, 3) He engaged in a sexual relationship with his current wife when she was 15 years old and he was 25 years old, 4) He showered nude with GA until she was three years old and slept with her in their bed up to January 2010, 5) He was involved with illegal drugs, 6) He assaulted his current spouse in May 2010,, 7) He gave GA a camera on the Christmas 2009 access visit and told her to take pictures of herself with it and a few months later she found a video on the camera of GA filming her genital area, 8) He encourages GA to isolate herself from KD when speaking to him on the telephone. [ 24 ] I will review the evidence on each of these points and set out my findings of fact and credibility in relation to them as this is the essence of her position that it is not in GA’s best interest that JA have anything other than supervised access with GA. [ 25 ] Some of her evidence on these points is from telephone conversations or email or Facebook exchanges which KD says she had with JA’s current spouse LA.

Some of these Facebook exchanges were put into evidence as Exhibit 2 and some were email messages put in as Exhibit 8 and as attachments to Exhibit 9. [ 26 ] Exhibit 2 was created by KD cutting and pasting exchanges from Facebook and creating a separate file of this material. The exchanges are undated and do not make a lot of sense as a “conversation” as they are disjointed and do not seem to follow one from the other. Exhibit 2 was put to LA and she said she had not had either these or any other Facebook exchanges with KD as she had blocked

KD on her Facebook account. There was no other evidence to corroborate these exchanges. [ 27 ] The email correspondence referred to in Exhibit 8 and 9 was also put to LA on both direct and cross examination. Exhibit 8 was alleged to be emails from LA to a police constable in Victoria and forwarded to KD by LA in May 2010 after an incident in which JA had been charged with assaulting LA. LA testified that she did not communicate by email with KD and had only spoken to her briefly on the telephone after the May 2010 incident with JA.

She agreed she had emailed the police constable but that the content of the emails in exhibit 8 did not represent what she had written. She then reviewed the emails and highlighted the portions which she had composed. [ 28 ] Exhibit 9 included emails allegedly sent to KD from LA during this same period, i.e. May 2010. In relation to Exhibit 9 she testified that none of this correspondence came from her.

It appeared to be from JA’s email address, which she said she did not use and referred in one exchange to a telephone number which was not hers or one she used. [ 29 ] It is becoming increasingly common for email and Facebook correspondence to be simply copied and put into evidence. When there is no issue as to whether the exchange took place then there is no problem in considering it as part of the evidence subject to understanding the context in which the exchange occurred.

However, when the authenticity of this material is questioned, unless there is independent evidence as to the source, timing and content of the correspondence, it becomes an issue of credibility as to whether the conversation or exchange occurred at all or what the actual content of it was. There is no such independent evidence in this case. Given the concerns which I will set out below about KD’s credibility and the absence of any other authenticating evidence of Exhibits 2, 8 and 9 I am not prepared to attach any evidentiary weight to them.

JA as emotionally and physically abusive re K.D. : [ 30 ] KD testified that while JA was initially a nice guy when they first got together this shifted and he became verbally and physically abusive and controlling. She described him as a “Jekyll and Hyde” type of character; gentle and funny on the one hand and crazy, abusive and manipulative on the other. [ 31 ] Her evidence was that JA was continuously verbally abusive of her and was always swearing at her. He pushed her downstairs, threw her into walls and hit her in front of her friends for no reason.

No dates or timeframes, no details and no corroborating evidence was provided in relation to these allegations. MD gave evidence that JA was abusive toward KD. She recalled a lot of yelling by both her Mom and JA, and on one occasion remembers getting out of bed to find JA yelling and her Mom on the floor. [ 32 ] KD spoke of an incident around the time of GA’s birth in which he had shoved a pillow into her face seven times. She testified that he constantly threw drinks on her head and spoke of one specific incident when they lived in Kelowna which would have been between 2003 and 2006.

She said he had come over to her place with his brother after a party and was throwing basketballs out into the street and then threw his drink on her. His sister had observed this. Later in her evidence she referred to this incident again and spoke of him having accidently spilled his drink on her. She did not call the police in relation to incidents of abuse, because at one point when she did call, the police were unhelpful and she understood that unless she had been cut with a knife then it was “just domestic assault”.

She was also very afraid of JA, “scared shitless”. [ 33 ] Despite being so afraid of him she was able to cooperate with him to share the care of GA during a period of separation from 2004 to 2006 and continued to see him during this period. She does not appear to have had any concerns about his ability to parent GA during this time. I find this remarkable if he was the violent and abusive person she describes. [ 34 ] She described an incident which she says occurred during the late summer of 2008 after she and JA had separated.

He had asked her to go on a hike to Twin Falls just outside of Smithers in order to discuss how they could work together to parent GA. During the walk, there was no discussion about GA. He asked her to walk down the steep side of the trail. She declined. She had a “gut feeling” that something was wrong. During their walk down the trail she turned around to see him holding a large boulder over his head which he threw down beside her in what she viewed as an attempt on her life. She insisted he walk down the trail in front of her and accused him of trying to kill her.

When they reached the bottom she had him drive her to a friend’s house. She was very upset and described this incident to the friend and then drafted a Will as she was very concerned he might make further attempts on her life. I note that JA in his testimony agreed that they had gone for a hike to Twin Falls in the summer of 2008 , but it was simply an outing, nothing untoward happened and he did not throw a rock at her or try to harm her in any way. [ 35 ] A friend of hers, Wendy Rolufs did testify. She has known KD since October 2008.

She described an incident in the summer of 2009, after KD had sought an ex parte order to have GA returned to her during a visit to JA, and after that order had been set aside. Ms. Rolufs testified that KD was very concerned because JA was very upset at her and she was fearful he might do something to harm her. KD drafted a Will and gave it to Ms. Rolufs for safe-keeping. Thus it appears that the Will was drafted a year after KD said it was and in relation to a completely different concern.

It makes no sense that KD would have drafted one Will in 2008 and another in 2009. [ 36 ] It is also clear from KD’s evidence that during the fall of 2008, after this event would have occurred she and JA worked cooperatively so that he could have time with GA. [ 37 ] I do not find KD’s evidence about this event credible because:

a) The only evidence which purports to corroborate it, ( i.e. Wendy Roluf’

s) relates to a completely different incident and timeframe. According to Ms. Rolufs she did not even know KD in the late summer of 2008,

b) If she really believed at that time that JA had just attempted to kill her I consider it unlikely she would have gotten into a vehicle with him and had him drive her anywhere, or that over the next few months she had no apparent concerns about him spending unsupervised time with GA. [ 38 ] KD’s evidence about JA’s violent and abusive behaviour with her was rife with descriptors such as “always, “constantly”, “continuously”. I have no doubt that the relationship was at times volatile, that there were mutual accusations of infidelity and that there were arguments which degenerated into yelling matches. This is consistent with the evidence of KD, JA and KD’s daughter MD.

However I found that KD had a strong tendency to exaggerate and to embellish. [ 39 ] I do not believe that the police would have given her information to suggest that a domestic assault was a matter they would not be helpful with unless it amounted to her having been cut by a knife. I do not find her evidence of ongoing assaults credible as there is no detail provided, no timeline and no supporting evidence. (I will deal with MD’s evidence in this regard later in these reasons).

The ongoing fear she describes having had of him does not match her behaviour, particularly in relation to the period from 2004 to 2006 when they lived separately, apparently without animosity, continued to see each other and during which time JA had regular access to GA, including overnights, without any concerns. JA as abusive toward BD: [ 40 ] KD testified that JA had whipped BD with his belt when BD allowed the dog to get out of the yard. BD would have been about nine at the time. BD is now 17 years old. BD did not testify and did not say anything about this incident or any other incidents of abuse to Ms.

Fenton who prepared the

Section 15 report. BD did tell Ms. Fenton that he does not want to see JA and is fearful that JA would hurt GA physically and emotionally if he was to see her alone. He did not give any reason for this view and it does not seem he was asked. [ 41 ] KD did not see the incident with the dog. She stated that she was told about it by her daughter MD who would have been six at the time. She also saw marks on BD’s bottom. She did not contact a doctor.

She did not contact the police because JA begged her not to and she told him never to touch her kids. (I note that such a response from JA is at odds with her description of him as someone whom she was in constant fear of.) She also said she did not call the police because she was always scared of him and he told her he would do what he wanted....which is quite different from him begging her not to tell anyone. [ 42 ] KD’s evidence about JA’s use of a belt to discipline BD is corroborated by MD who spoke of JA having hit BD with a belt. She did not describe the particulars of this but simply that it happened.

JA denies that he ever hit BD or that he would hit a child- period. He says that the incident with the dog resulted in them having to go to the pound to get the dog back and that BD was grounded as a consequence. [ 43 ] While KD said nothing about this MD testified that there was an occasion when JA put dish soap in BD’s mouth causing BD to be sick. JA testified that when BD was about five or six he was swearing a lot and both he and KD considered it appropriate to put a bar of soap on his tongue to stop this. He said that BD was not sick and he did not pour dish soap into his mouth.

He felt badly about it at the time and spoke to BD about it. He considered this to be a reasonable discipline method as his mother had used it on him and it was effective. [ 44 ] Both MD and JA were consistent in their evidence both generally and on this issue in particular. I have no rational basis to prefer one version over the other and I find that the incidents of child abuse by JA as alleged by KD have not been established. JA’s Behaviour with GA: [ 45 ] KD testified that after the birth of GA, he insisted that GA sleep with them 75% of the time.

Grace slept between them and both GA and JA wore only underwear. JA would “spoon” GA or have her “spoon” him. While she thought this was inappropriate she did nothing about it as JA told her she could just go and sleep somewhere else if she didn’t like it. JA also showered naked with GA until she was 3 – 4 years of age and washed her vaginal folds. She objected to this and as a result of her objections JA began to shower with GA wearing his underwear.

JA’s current wife told her this was still happening over Christmas 2009 when GA would have been 6 years of age. [ 46 ] JA’s testimony is that he did shower with GA when she was less than a year but even then he considered it appropriate to wear underwear and this was his concern and not KD’s. Since she was a baby he has not cleaned her pubic area. He has not showered with her since she was a baby. He did not have GA sleep in bed with him and KD as he does not believe in children sleeping with adults.

His view is that they should come to the adult bed only if they are sick or are scared for some reason. [ 47 ] I can see no reason to prefer KD’s account of events. It doesn’t make sense to me is that KD, who appears to be an otherwise competent, concerned and attentive parent would go along with the kinds of behaviours she describes from JA in relation to GA.

Throughout the periods of time when these events were occurring, including the timeframe from 2004 – 2006 when she and JA were separated, she took no issue with him caring for GA on his own and not have any apparent worries about his ability to parent GA. [ 48 ] I note that her concerns about JA’s adequacy as a parent, including the allegations of abuse and sexually inappropriate behaviour around GA only surfaced in the context of court proceedings after JA married his current spouse LA.

JA engaging in a sexual relationship with a 15 year old: [ 49 ] KD testified that during the period when she and JA were separated in 2005 that she went to his home with GA one day to find him in the shower with a 15 year old girl. That girl was LA who JA later married. In 2005 JA would have been 25 years old. LA testified that she met JA in 2008 and there was no “shower incident”.

JA testified that there was an incident when KD came into his apartment while he had a young woman there but it was not LA, she was not 15 and the only problem was KD’s forcing her way in with GA in her arms. [ 50 ] The potential relevance of this incident relates to JA’s judgment in having a relationship with a 15 year old and the possible inferences which might be drawn from that. KD referred to JA in her testimony on a number of occasions as “ sick and disgusting” an opinion which was related to her having found him in the shower with LA and to the showering with GA as discussed above.

Given the diverging evidence on this point I am not able to find, on the balance of probabilities that this event happened as described by KD. JA and Illegal Drugs: [ 51 ] KD testified that during her relationship with JA he smoked marijuana regularly and that this would be followed by him going

into rages two days later. During the period they lived in Saskatchewan she saw him do cocaine and his friends were always there getting him to do drug deals. In July 2009 at the same time that she made an ex parte application for the return of GA she contacted the Ministry of Children and Families in Victoria, where JA was living with LA to report that he was using cocaine and leaving GA alone.

This was because she had received a copy of a Facebook message purportedly from LA’s sister, sent three months earlier to another woman and then forwarded to KD, to the effect that JA was using drugs, selling them and leaving GA unattended. [ 52 ] The Ministry of Children and Families did an investigation and found no basis for the allegations. [ 53 ] Again, it is difficult to separate the hyperbole from the facts. This is because of KD’s tendency to generalize from one incident to, “all the time” or to alter the nature of an event in the retelling.

E.g. – an incident in which JA accidently spills a drink on her becomes him throwing a drink on her head – which “always” happened. [ 54 ] JA admitted to using marijuana in the past but said that he had not done so for five or six years. He denied selling it and denied any use of or sale of cocaine. I have no rational basis to accept KD’s evidence on this point over JA’s , particularly given the fact that MCF has looked into these concerns and been satisfied there is not a problem.

JA assaulted his current spouse in May 2010: [ 55 ] KD’s evidence on this point relates to emails and Facebook correspondence which she received from LA in May 2010 and which I have referred to supra in paragraph 25 to 28. Given my concerns in relation to KD’s evidence as it relates to JA, and for the reasons set out in the paragraph 29, I am not prepared to attach any weight to the content of these Exhibits. [ 56 ] KD also testified that she and LA spoke regularly on the telephone for a three week period in May 2010.

She said that LA had told her that the assault by JA had consisted of him choking her, leaving bruises on her neck and that when she escaped from him he had come after her holding a knife. [ 57 ] No charges resulted from this incident which is described quite differently by JA and LA. I find it unbelievable that if the assault had occurred as allegedly told to KD by LA, which LA had apparently also told to the police, charges would not have been forthcoming. Domestic assaults are taken seriously and particularly those which involve choking or a weapon.

A decision not to pursue charges is much more consistent with the version of events as testified to by both JA and LA. [ 58 ] JA testified that in early May 2010, he and LA had gotten into an argument, as she had received correspondence from KD to the effect that JA had slept with her and forced sex on her after LA and JA had begun their relationship. LA was livid and would not believe his denial of this. They had a heated argument yelling back and forth. He wanted to leave the home and LA blocked his way. She was holding their six month old son. He picked her up, moved her out of the way and left the house.

A concerned neighbour had called the police. JA told them what had occurred and they advised that this was sufficient to charge him. He was arrested and spent the night in jail. He then stayed with a friend for a couple of weeks. After this he and LA began to go to counselling to find ways to deal with both this incident and conflicts arising from this matter and generally in their relationship. [ 59 ] LA described this incident in similar terms.

She said there were no injuries or marks on her as a result and that she was told by the police officer some time after she had given a statement that there was not enough evidence to proceed. She agreed that she spoke with KD on the telephone the day after this incident as KD had called to speak to JA about child maintenance for GA.

She told KD that JA was not present and that they were separated as a result of the incident from the day before. [ 60 ] KD also testified that when GA returned from her Christmas visit with JA and LA in 2009 she told KD that her dad and LA played games in which her dad would pretend to hit LA, LA would pretend to cry and then call the RCMP and her Dad would then pretend to slam the phone down.

Both JA and LA denied that anything like this occurred. [ 61 ] In her evidence regarding JA’s access to GA, KD stated that she did not allow GA to visit JA during the spring break of 2010 because JA had had her for the spring break the year before and it was her turn. She does not appear to have made the decision to not permit GA to go and visit JA, until June 2010 as a result of her discovery of the video GA had made and her concerns for GA’s safety.

Thus, even though she knew about these “pretend” fights upon GA’s return home from the Christmas visit, she did not do or say anything about it and did not consider it to be a basis for reviewing JA’s access until some 5 – 6 months later. [ 62 ] I found KD’s evidence about GA and about her parenting of GA to be entirely credible. I consider her to be a competent, loving and caring parent and I cannot reconcile this side of her with a person who would not take any steps to deal with a concern that GA was witnessing domestic violence in JA’s home.

For this reason I do not find her evidence as to GA’s reports of “pretend” fights between JA and LA to be credible. JA gave GA a camera on the Christmas 2009 access visit and told her to take pictures of herself with it : [ 63 ] KD testified that GA brought a camera home with her from her visit to JA and LA’s home over Christmas and New Year of 2009-2010. She says that GA told her JA gave her the camera so that she could take photos of herself to send to him. JA and LA both testified that during the Christmas 2009 visit GA enjoyed playing with the camera along with their daughter KP.

The two children took photos and videos. LA told GA she could take the camera home with her if she liked. No suggestion or direction was given to GA about what to take photos of or to send them to JA. I note that in order for GA to have sorted out how to transfer photos from the camera to a computer and then to send them on to JA would obviously have required adult assistance from KD.

Thus even if there was a direction to GA as to what to use the camera for it is clear that anything she did with the photos or videos would have required the oversight of KD and this is inconsistent with an effort to be secretive or to direct GA to use the camera for some improper or perverse purpose. [ 64 ] I am not prepared to read into GA returning home with the camera and using it to photograph and video herself among other things, an intention on JA’s part to have her send him photos or videos of herself naked, or to “groom” her for sexual purposes as has been suggested in at least one prior affidavit on the file.

[ 65 ] GA did use this camera and KD looked at its contents from time to time, seeing nothing of concern. In the spring of 2010 she was cleaning up, came across the camera and viewed the contents which were a number of short videos. A DVD of these videos has been put into evidence as Exhibit 1 and it consists of 7 very short video clips. Most of these are innocuous. However two of them were of concern to KD.

The first of these shows GA talking or singing, she appears to be crying and is saying, “Dad, I love you.” [ 66 ] KD’s concern about this clip is that she believes that GA is not really crying but “fake” crying, and that this represents JA somehow being manipulative of GA’s emotions. [ 67 ] The second shows GA sitting in a room by a lamp, apparently in the living room of KD’s home. She says she is going to sing “Oh Canada”, pans the camera down to her genital area and shows her naked pudenda.

She then sings “Oh Canada”. [ 68 ] KD also stated that GA did not like her looking at the camera. [ 69 ] KD was particularly concerned about the second video and took it into a counsellor in Smithers to have it reviewed and subsequently put GA into a form of play therapy counselling and decided that JA should not have unsupervised access with GA until she could determine if he had done anything harmful or improper with GA. [ 70 ] GA is still in this therapy and apparently enjoys going.

There was no information forthcoming as to anything which has been revealed in this counselling which would suggest that anyone, including JA, had engaged in any form of sexual touching or abuse or inappropriate behaviour of any kind with GA. There is no other evidence which establishes that JA has been or is a risk to sexually abuse GA. [ 71 ] There is also no evidence to support KD’s concern that GA was “fake” crying in the first video clip. She asserted that she could simply tell that this was the case. How she could tell was not made clear.

I viewed the video as part of the evidence and there was nothing I could see which suggested the crying was fake. It was not exaggerated or loud or dramatic in any way. It simply appeared to be a child crying a bit and saying that she loved her Dad. I do not find that this clip supports the suggestion that JA is somehow trying to manipulate GA’s emotional state. [ 72 ] I find that KD’s concern about the contents of the second video clip was genuine and entirely appropriate.

The steps she took to have the video viewed by a counsellor were reasonable as was her decision to have GA engage in play therapy to determine if there was anything sinister about the video or if anything had happened to GA to cause her to film herself in this way. [ 73 ] While I think it would have been helpful if she had advised JA of the problem and of her concerns I can appreciate that given her suspicions and the mistrust that had built up between her and JA, this was difficult to do.

In the circumstances, while I think it was unfortunate and not in her best interests that GA was not able to see JA for an extended period of time, I consider KD’s actions in denying access to have been motivated by a genuine concern for GA. However, neither the camera nor GA’s use of the camera including the two video clips I have dealt with provides a basis for inferring that JA has behaved toward GA in a harmful or manipulative way either sexually or otherwise.

JA encourages GA to isolate herself from KD when speaking to him on the telephone . [ 74 ] In January JA sent GA a cell phone to use so he could keep in touch with her. This allowed them to text or call back and forth. KD had some concerns about the cell phone as it was restricted to JA’s number and could not be used for local calls including to her or to an emergency number. She was also concerned about the long term negative effects of cell phone use. She checked the phone and its contents on a somewhat regular basis.

GA questioned her about this and began to delete messages from her inbox. [ 75 ] KD did not find anything inappropriate or concerning on the phone but she did restrict GA to using it to text JA and ultimately took it away about three months ago as she was concerned that GA was becoming secretive about the phone as GA had also not wanted KD to look in her camera.

She was also concerned that when JA spoke to GA on the phone he would ask her to go to another room and shut the door so he could talk to her. [ 76 ] JA testified that he did at times ask GA to go to her room so they could talk where it was quiet but he was not encouraging her to be secretive. [ 77 ] I do not interpret GA’s desire to keep her phone messages from KD as an indication that there was anything inappropriate in those messages, or that JA was encouraging her to be secretive, but rather as an indication that GA was alive to the tension between KD and JA and felt the need to protect the only space she had to communicate with JA. [ 78 ] KD stated that GA was not aware of the conflict between her and JA and she was careful not to speak negatively of JA in GA’s presence.

She also testified, however, that she had asked GA about where JA lived – since she did not know this after he and LA moved to Alberta, and also that until she and JA figured out what was going on she could communicate with him by Skype or phone.

She stated that GA felt sad and left out of JA’s life, especially when he sent her pictures of himself and his other three children. [ 79 ] GA is clearly an intelligent and observant child and given the very strong feelings that KD has had toward JA, I think it very unlikely that GA would not have picked up on these to some extent, particularly in light of the traumatic experience she had in being removed from JA in the summer of 2009 and returned to KD.

KD’s Credibility: [ 80 ] For the reasons set out in the above review of KD’s evidence I found her testimony lacked credibility in relation to JA and the various allegations against him. However, as set out above I considered her evidence about GA and her parenting of GA on a day to day basis to be quite credible. She has an appropriate daily routine for GA, is encouraging her artistic sensibility, and provides a secure and sustaining home. The fact that GA is doing so well clearly supports KD’s evidence in this regard.

The

Section 15 Report – B.C.: [ 81 ] I have reviewed the Custody and Access report prepared by Karen Fenton, a Family Justice Counsellor in B.C. The background information provided in that report included KD’s reporting of violence in her relationship with JA toward both herself and BD. As set out above I am not persuaded on the balance of probabilities that those allegations are true or that the allegations that GA has witnessed violence between JA and LA are true.

There is no information in the report which supports a conclusion that JA is a risk to GA, other than the information from KD and the assertions of him being “mean” from MD and BD which are not particularised in any way. [ 82 ] Ms. Fenton spoke with GA about JA and she thought that he was living too far away to visit. She spoke of having gone on an airplane to see him. GA had happy memories of a visit with JA’s mother that she had in October 2010 in Smithers. She keeps in touch with both JA and his Mom on a regular basis. [ 83 ] KD’s two older children MD and BD considered JA to be mean and manipulative.

KD’s mother was guarded about GA being alone with JA but did not say why. JA’s mother, who lives in Kelowna, was spoken to and described being involved with GA since she was born and remains committed to maintaining contact with her. She did not have any concerns about JA’s care of or conduct with GA. [ 84 ] While the report does not include any specific conclusions about KD’s parental capacity it is clear that Ms. Fenton considered KD to be a capable parent. Her focus was on KD’s concerns about JA.

I find that her conclusion that JA should not have unsupervised access to GA is not supported by anything other than KD’s assertions and reports about JA; assertions which have not been established on the evidence. KD’s ability to cooperate in GA’s best interests: [ 85 ] Prior to the summer of 2009 and JA’s marriage to LA, KD was able cooperate with JA in terms of him spending time with GA, even when the relationship with JA was difficult and marred by mutual distrust.

She and JA did this for a two year period from 2004 to 2006 and then for a period of a number of months after their final separation in the summer of 2008. As set out in the

Section 15 report prepared in B.C., she recognises that GA has a close bond with JA and that contact with him is important. Even when she was concerned about the possibility of sexual abuse she was open to phone, text and Skype contact and set up the Skype account to provide for contact. [ 86 ] I consider her to be a capable parent and to have the capacity to put her own conflict with JA aside to provide for GA’s needs. She just has to choose to engage this capacity. JA’s Evidence: [ 87 ] I have already referred to some of JA’s testimony in the context of my review of KD’s evidence.

I found JA to be a credible witness. He had a temperate and straight forward manner. His evidence made sense and there were no contradictions of any significance between his direct and cross or between his evidence and that of LA in relation to events which occurred after February 2009. [ 88 ] He denied the allegations of abuse toward KD though he agreed their relationship broke down as a result of mistrust. He says this was a result of KD being unfaithful to him.

He denied the allegations of showering naked with GA or sleeping with her, the allegation of any sexual behaviour toward GA, the allegation of being in a sexual relationship with LA when she was 15 years old and the allegations of violence toward KD’s older two children MD and BD [ 89 ] His testimony in relation to these alleged incidents was straight forward, there were no internal inconsistencies and his testimony was not undermined on cross examination.

There is a conflict between his evidence and that of MD in relation to whether he hit BD with a belt when he was eight years old which I have already referred to. As I concluded in paragraph 44 I have no rational basis to prefer one version of this incident over the other. [ 90 ] J.A. now lives in Black Falls Alberta where he relocated in June 2010. He and LA were married in July 2009. They have three children: KP who is LA’s daughter from a prior relationship and is now 4 yrs old, J., 1 ½ yrs old and M., 3 months old. He works full time for [removed for publication] as a derrick hand and relief driller. His work

schedule is 16 days on and four off. He and LA have their own home and there is plenty of room there for GA. . LA takes care of the home and the children and they have a nanny to assist them a few days during the week. [ 91 ] JA met KD when he was 20. He worked throughout their time together and supported KD and MD and BD.

He was employed at different times on oil rigs in Alberta, as a bus driver in Kelowna, for a car dealership in Smithers and on the construction of a hotel in Smithers and then back at different times to the oil rigs. [ 92 ] He was 23 years old when GA was born and stated that this was the best day of his life. He testified that he wanted to keep the relationship with KD together for GA’s sake as his own parents had broken up and he had found that very difficult as a child.

He did not want his own child to experience this. [ 93 ] He was involved in GA’s care as a baby, feeding bathing and changing her and when he and KD did separate in the summer of 2004 he cared for GA 50 % of the time. He and KD had a very good working relationship around GA’s care. [ 94 ] In 2006 they reconciled and moved to Smithers. There was still difficulty in their relationship and there was shouting and fighting. They ultimately split up in the summer of 2008 and he moved into a hotel in Smithers and then to his brother’s in Telkwa.

He continued to see GA regularly and stayed in Smithers to work rather than going back to the rigs as he was concerned about the children. He took GA to school as she had just started Kindergarten and went on outings with her class. [ 95 ] He described the period after this separation as a difficult time for him and that he became depressed. He and KD were still able to work together around GA however. In December 2008 he got together with LA and they moved to Victoria in February 2009.

GA came to visit them there at Spring break and was with them on an extended summer visit for 5 weeks when he and LA got married in July 2009.

[ 96 ] Prior to the marriage in March 2009 the Ministry of Children and families had come to their home as the result of allegations that he was selling drugs. They came in the evening, unannounced and he invited them in. They looked through the house and returned for other visits. Ultimately the Ministry sent LA a letter that they had no child protection concerns, (regarding LA’s daughter KP). [ 97 ] After their wedding he and LA took GA and KD with them on their honeymoon to Long Beach.

While they were there they received a cell phone message from his father that the police were looking for them so they packed up and returned to Victoria where he contacted a lawyer and then went to the police detachment where GA was removed from him. He described it as a very difficult scene with GA crying and screaming and very upset. [ 98 ] After this incident the Ministry of Children and Families came to see them again as the result of KD’s allegations that he and LA were dealing in and using drugs and leaving GA and KD unattended.

The Ministry advised them in a letter dated July 15th ( Exhibit 5) that there was no evidence to substantiate the allegations and they had no concern about his and LA’s home or their ability to care for the children. [ 99 ] He continued to receive texts, email and phone calls from KD and she made various allegations about him to LA. This created conflict between him and LA and in May 2010 they had the argument referred to infra in which he ended up pushing LA to the side so that he could leave the house. [ 100 ] He stayed with a friend for a week or two and was then able to return home.

He was never charged with any offence. Since that time he and LA have gone to counselling to deal with this incident and to find ways to deal with the stress in their relationship as the result of difficulties with KD and otherwise. He testified that he and LA are doing well now. [ 101 ] JA has not seen GA since January 2010 because KD would not permit access. He did come to Smithers at one point as KD had told him that he could see GA if he came alone.

When he arrived there was no answer to his phone calls and he was unable to visit GA. (KD was asked about this and said she did not recall this occurring or telling JA he could see GA if he came alone). [ 102 ] He has maintained regular phone and text contact and calls every couple of days though he does not always get through and has to leave a message. He provided GA with a cell phone in January 2011 and put a password on the phone so she could only call the contacts which had been keyed into the phone. He would have given this password to KD if she had asked.

He has found Skype has not worked to communicate with GA because his internet connection is slow and because KD is often with GA monitoring the contact and interjecting. [ 103 ] If KD were to live with him and LA she would have her own room and would go to the elementary school which is within walking distance of their home and has a French immersion program. He has an aunt and brother who live in nearby communities and his father visits from Vancouver Island 4 times per year.

When GA has been with him and LA in the past she and KP have been “joined at the hip” and GA and LA had a good relationship. [ 104 ] He is home from work most nights by 7:00 or 8:00 and is away from home about 5 days per month. He usually helps with bedtime routines. His time off is devoted to family. If GA were to live with him and LA he would allow her to have contact with KD whenever she wished and to ensure KD had access on all the school holidays.

GA has flown to visit with him as an unaccompanied minor or he and KD have driven and met part way and he sees these as viable ways to manage the travel. [ 105 ] He has been considering a move back to another drilling company which is working in the area south of Telkwa as he has been missing GA. He is very proud of GA and how well she is doing in school – though he had not seen any of her report cards until this court hearing. He feels they have a close bond and does not want this to be lost.

He is concerned that GA has been emotionally harmed by being kept away from him and feels that KD has tried to alienate her from him. He is willing to “make this work to be better parents for GA”. [ 106 ] He paid support to KD for GA in the amount of $400.00 per month when he moved to Victoria. That amount was reduced to $200.00 per month while he was working in Victoria at a lower wage. He stopped paying for a period of about 4 months when access was denied and then began to pay again at $250.00 per month as of September 2010.

There is a separate application for maintenance and this issue will be determined if necessary at another hearing. I mention the support only to note that JA has been making some financial contribution for GA. [ 107 ] His view of the video which GA made of herself is that it was childish goofing around and he feels KD should not have brought it into the “public eye”. LA’s Evidence: [ 108 ] I found LA to be a credible witness.

There were no internal or external inconsistencies, her testimony made sense and she seemed to have genuine concern for GA and her best interests. [ 109 ] LA testified that she began dating JA in February 2009. She became pregnant in April and she and JA decided to get married. She had one child at that time, KP, who was then two years old.

She met GA in March 2009 when she visited JA and his Mom in Kelowna during JA’s spring break access visit with GA. [ 110 ] She testified that the incident in the summer of 2009 when GA was removed from them by the police was very difficult for everyone as no one really explained what was going on and that both GA and KP were upset and crying. When GA came back to them to complete the summer visit she asked questions about it and they told her that it was a misunderstanding and would not happen again and JA apologised to GA. [ 111 ] She stated that GA and KP get on very well and that KP looks up to GA.

KP still asks for GA almost every day. She used to talk to GA on the phone but doesn’t now as she doesn’t want there to be any more conflict. She said JA is a great Dad, very hands on, that he helps around the house and is a loving, funny, nice guy. When GA has been with them she has been very happy and loves to be with JA.

She told GA she could keep the camera after the Christmas 2009 visit as GA was very interested in it. [ 112 ] She has never seen JA shower with GA. They have bathed the girls (GA and KP) and taken them out of the shower. JA did not sleep with GA and the children come into her and JA’s bed only if they have nightmares. She does not drink and JA has not drunk since she met him. [ 113 ] She has tried to be civil with KD but KD has not been civil with her and in the past has yelled at her and called her names. She just wants everyone to get along and for the conflict to stop.

She feels it is heartbreaking for GA to have to go through this and to be unable to see JA. [ 114 ] She described the incident from May 2010 as an argument that occurred after KD had told her that JA had slept with her in 2009. She was very angry at JA when she confronted him and was not prepared to believe his denials. He wanted to leave the house. She stood in the doorway and he picked her up and moved her and then left. She gave a statement to the police. She did not receive any injuries or bruising. She was told by the police that they would not proceed with charges as there was insufficient evidence.

She was not asked to retract her statement. Since that incident she and JA went into counselling to find ways to deal with conflict and have gone 10 – 15 times. [ 115 ] She loves children and grew up with a Mom who ran a day care. She finds her

schedule with three young children busy but she has a nanny who helps out two days a week – though that Nanny was recently hospitalised for a blood clot in her brain and cannot work at present. The Alberta

Section 15 Report: [ 116 ] This report was prepared by Teri Boyce who is a registered social worker. She interviewed JA and LA in person at their home along with their other three children. She spoke to JA’s parents and a family friend on the telephone. She also did a Criminal Record check on JA, checked the Alberta Children’s Services Intervention Records and reviewed the June 2009 letter to JA from MCF in British Columbia, (Exhibit 5). [ 117 ] She concluded that JA has the “desire, preparedness and environment” to meet GA’s needs.

Her interviews indicated that his parents are supportive of him and have maintained their own contact with GA. Jeremy was described by his parents and a long term friend as an attentive and involved parent. His mother speaks with GA once per week and has pleasant communication with KD.

She described GA as bright and happy and largely unaffected by the conflict between KD and JA, though she was upset when she had to leave JA in the summer of 2009 JA’s Parental Capacity: [ 118 ] Based on the testimony of JA and LA and the findings of the S. 15 report I find that JA is a capable and concerned parent and that GA is attached to him and to his parents – in particular his mother. Factors Relating to GA’s Best Interests: [ 119 ] S. 24 of the Family Relations Act sets out the factors which must be considered in determining where a child’s best interests lie. They are:

a) The health and emotional well being of the child, including any special needs for care and treatment,

b) If appropriate, the views of the child,

c) The love affection and similar ties that exist between the child and other persons,

d) Education and training for the child,

e) The capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. [ 120 ] In the circumstances of this case I am approaching the best interest inquiry without any presumption in favour of the status quo. I consider that the concerns in (

c) and (

e) are the factors which require emphasis. GA is too young to be canvassed for her views and GA’s education and training can be adequately addressed in either the Smithers area or the community of Black Falls. [ 121 ] GA’s health and emotional being are obviously vital to her best interests.

However she has no special needs and apart from a tendency to get colds as a result of the respiratory infection, (RSV),she had as a baby and a vaginal infection which comes and goes and is being treated, ( and has not been associated in any way with the allegations of possible sexual abuse) she is a normal, bright, healthy child. The fact that she has contracted lice on a few occasions at school does not appear to have had any ill effect on her.

I do not accept the submission by JA that there has been any mismanagement of the RSV. [ 122 ] I find that both JA and KD have the financial means to provide for GA and have appropriate homes and home environments. Love and Affection: [ 123 ] There is no doubt that both KD and JA love GA and that she is very attached to both of them. Prior to the period from January 2010 to June 2011, when she did not see JA, they had a close relationship and she has remained in touch with JA by text and phone during this period of “separation”. She is also fond of JA’s mother and looks forward to their time together.

It is also clear that she is very attached to KD. The fact the she is managing so well despite the separation from JA shows that she feels loved by and secure with KD. [ 124 ] GA’s attachment to all of her step-siblings is important and needs to be encouraged. While MD and BD are much older than she is they have been her family and she has lived with them since she was born. She has not yet developed a relationship with JA’s two

youngest children but it is clear that she enjoyed being with KP and has felt somewhat left out of JA’s life with his other children. [ 125 ] Counsel for JA has submitted that GA’s bond to JA and LA has been seriously harmed by KD’s refusal to permit JA to see her for 17 months. There is no evidence of “serious harm” here. However common sense suggests that it has been contrary to GA’s interests not to be able to see JA and that if regular access with JA is not restored then there would likely be serious harm to her bond with him.

At the same time common sense tells me, that having just spent almost a year and a half without seeing JA it would be very traumatic for GA to be removed from KD and from her siblings, home, friends and school and to relocate to Alberta. Capacity of KD and JA: [ 126 ] As I have already stated I consider both JA and KD to be capable and loving parents to GA. They both provide stable home environments for GA. I do not accept JA’s submission that KD’s new relationship with AN and the fact that his children now stay with their father at KD’s home is an indicator of instability.

Though KD has been in a “partner” relationship with AN for only a few months she has known him for four years and GA seems quite happy with the addition of his two daughters into her home and routine. [ 127 ] My concern is whether or not KD can overcome her hostility to JA so as to cooperate with him in relation to GA.

This would require her to facilitate regular contact for GA with JA by phone and computer and in person, to share information about GA with him as regards GA’s schooling, activities and her health and to consider his views on decisions relating to GA’s well being. [ 128 ] KD’s willingness to work cooperatively with JA diminished significantly after JA married LA. Her application to remove GA from him in the summer of 2009 was precipitous and ultimately unsupported.

It was not in GA’s interests. [ 129 ] I accept that KD’s denial of access to JA after January 2010 was motivated by her concern in relation to the video GA had made of herself. However, her acrimony toward JA, prevented her from being pro active in finding ways to ensure GA continued to see JA, such as by having his mother or father visit with him during access with GA, and from focussing on ways of involving JA in any assessment of or counselling of GA.

While KD was motivated by her concern for GA she allowed herself to become pre-occupied with her negative view of JA and in doing this she put her own concerns ahead of GA’s. [ 130 ] Given her past history of cooperation with JA in relation to GA I find that KD is able to continue that cooperation if she chooses to do so. I find that this trial has been and will continue to be a wake up call to KD that she must put her own anger and disappointment with JA aside and return to her previous approach which was to encourage and support GA spending time with JA.

I find that she will be motivated to do so because of the close and loving relationship she has with GA , because she is capable of appreciating that such an approach is in GA’s best interests and because she is motivated to act in GA’s best interests. [ 131 ] For these reasons I consider that it is in GA’s best interests to continue to live with KD but for KD and JA to share joint custody and guardianship of GA. Such an order will bring home to KD the need to engage her capacity to work in a cooperative way with JA and with LA and to honour and support GA’s relationship with JA and with his family.

If KD chooses instead to put her own interests ahead of GA’s, and to deny or interfere with JA ‘s access time for reasons related to her dislike of him, rather than to GA’s best interests, this would likely be viewed as a material change of circumstances for the purpose of any future application. Restraining Order: [ 132 ] Given my findings of fact as set out above the evidence does not support a restraining order against JA in relation to KD. It has not been established on the balance of probabilities that JA has harmed, molested or harassed KD or that he is likely to do so.

The application for a restraining order is denied. Order [ 133 ] For all of these reasons I made the following final order on June 17, 2011: 1. The Parties will have joint custody of GA. 2. KD will have primary residence of GA. 3. The Parties will have joint guardianship of GA on the Master Horn model with the following modifications:

a) Clause 3 of the Master Horn model which requires consultation respecting alternate caregivers, day care and preschool is deleted,

b) Clauses 4, 8 and 9 of the Master Horn model will require KD to “advise JA of and give him an opportunity to have input into” decisions relating to GA’s schooling, health and social environment – rather than to “consult” him on these issues, 4. JA will have reasonable and generous access with GA. This access will include but is not limited to the following:

a) One half of the school summer holidays, either the full first half or the full second half,

b) One half of the school Christmas Break with the period including Christmas day alternating between the parties commencing with JA in December 2011,

c) All of the school Spring Break,

d) GA shall be permitted to call, text or Skype either parent when she is in the are of the other parent when she wished to do so,

e) When GA is in the care of KD, JA will have regular access by phone, text, Skype or some other form of “messaging” and this will be no less than three times per week.

f) When GA is in the care of JA, KD will have access by phone, Skype, text or some other form of “messaging” no less than two times per week. 5. There will be such additional or different access as agreed by the Parties. Access will not be unreasonable refused but will be facilitated as much as possible. 6. The Parties will share the cost of transportation to enable this access to take place. 7. Each of KD and JA will:

a) Put the best interests of GA before her or his own interests,

b) Encourage GA to have a good relationship with the other parent,

c) Make a real effort to maintain respectful and polite communications with each other in the best interests of GA,

d) Speak to GA about the other parent in a positive, respectful and constructive manner,

e) Not speak negatively about the other parent or that parent’s partner to GA or in her presence and take all reasonable steps to ensure that others do not do so,

f) Not question or harass GA regarding the time spent with or seek information about the other parent beyond conversational questions, and

g) Explain to their respective families the importance of facilitating a positive relationship with the other parent and his or her family. [ 134 ] I understand counsel for JA will draft a form of this Order and will include a copy of the Master Horn model with the amendments.