D.F.S. v. L.K.S. Date:, 2015 BCPC 363

Citation: D.F.S. v. L.K.S. Date: 20151211 2015 BCPC 0363 File No: 16024 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.F.S. APPLICANT AND: L.K.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: D. F. S.

Counsel for the Respondent: M. K. Vilvang Place of Hearing: Abbotsford , B.C. Dates of Hearing: November 9-10, 16-18, 2015 Date of Judgment: December 11, 2015 Introduction [ 1 ] The Applicant D.F.S. and the Respondent L. K.

S. are the parents of four young children whose names and dates of birth are: [Oldest son], born d.o.b., 2004 [Oldest daughter], born d.o.b., 2006 [Youngest son], born d.o.b., 2009 [Youngest daughter], born d.o.b., 2011 [ 2 ] The parties separated in May of 2014, and they are now asking this court for an order concerning guardianship, parenting responsibilities and parenting time or contact with the children. The children were all born in British Columbia and have lived here for almost all of their lives.

Prior to the parties’ separation and until a year ago, the Applicant was the primary caregiver for the children. Under normal circumstances, it would almost be a foregone conclusion that the children would remain in the Applicant’s care for most of the time. Unfortunately, in September of 2014 the Applicant made a very poor choice that changed things considerably. [ 3 ] The Applicant is an American citizen by birth and the children, though born in Canada, are all dual citizens of Canada and the United States by virtue of their mother’s birthplace.

On September 19, 2014, on a day when a hearing was scheduled in this court to determine the same issues now before this court of guardianship, parenting responsibilities and parenting time or contact, the Applicant chose not to attend the hearing. Instead, she disobeyed a previous court order that prohibited removal of the children from outside of Canada and took the children into the United States with the intention of relocating them there. She was able to take the children to North Carolina where her sister and brother-in-law reside.

It was not without considerable effort that the Respondent was able to secure the children’s return to Canada. [ 4 ] Further complicating this matter is an accusation that the Applicant has made alleging that the Respondent has acted inappropriately with one of the children. The Respondent has vehemently denied these allegations and investigations conducted by police and by the Ministry of Children and Families have found no substance to them. Family members who have been close to the children are also convinced that these accusations are baseless.

Coincidentally, the Applicant began levelling these charges at the same time that she learned of the Respondent’s infidelity. The Applicant is unwilling to accept the conclusions of the police and Ministry and is unwilling to trust the Respondent until her allegations have been disproven to her satisfaction. [ 5 ] The Applicant is asking for an order that the children be returned to her care and that she be allowed to take the children to live with her in the state of Washington, where she promises the Respondent would still be able to visit with them.

The Respondent asks that the status quo remain in place, which would mean that the children would remain in his care and the Applicant’s contact with the children would continue to be supervised. [ 6 ] The difficulty in crafting an order under these circumstances is in balancing the children’s right to have a relationship with both parents, while managing the risk that the Applicant will once again flee with the children and attempt to sever their relationship with their father. [ 7 ] At the trial of this matter, both parties testified.

Also called as witnesses were the Applicant’s brother-in-law, the Respondent’s father, his brother and his sister-in-law, a former friend of the Applicant, and her former room-mate. Following is a

summary of the evidence presented, a

summary of the applicable law, and the reasons for making the order that is now being made.

Summary of Evidence [ 8 ] The Applicant and the Respondent met in 2000. At that time the Applicant, who is an American citizen, was working on her master’s degree at a local university. She met the Respondent there, and the two of them were married in August of 2002 in Vienna, Virginia. The Applicant was able to complete her Master’s Degree in Linguistics and the Respondent had obtained a Bachelor’s Degree in Business Administration.

The Respondent is a Canadian citizen and after the wedding, the parties returned to Canada to live in Langley, BC. [ 9 ] According to the Applicant, the parties made a plan in which the Applicant was going to work in the field of bible translation. This work would require her to work overseas. This was not unfamiliar territory for the Respondent. His father had worked as a bible translator and that work took him to Ghana and Cameroon. According to the Applicant, they had participated in an orientation session about working overseas, but at some point the Respondent changed his mind about this plan.

The Applicant testified that she was saddened by the Respondent’s change of heart, but she decided to put her marriage ahead of her ambition and remain in Canada rather than pursue her goal.

[ 10 ] In the summer of 2004 the parties’ first child was born. The Applicant testified that the birth was a difficult one. The Respondent acknowledged that one of his difficulties throughout the marriage has been in supporting his family financially. According to the Applicant, in 2006, while she was pregnant with the couple’s second child, the Respondent took a job in Abbotsford and the family moved into a condominium that they purchased. The Applicant contributed $15,000 towards the down payment and another $10,000 came from a gift from her parents.

Sometime that year, the Respondent left that job and tried to operate a home-based marketing business building websites. This was a divisive issue in the relationship and the Applicant was unhappy that the Respondent had left a secure position for such a speculative one. In hindsight, the Applicant appears to have been much wiser about the matter because the couple ran into financial difficulties following this decision.

They were forced to sell their condominium, and according to the Applicant, they netted approximately $79,000 on the sale. [ 11 ] The family moved back to Langley where they rented a basement suite. The Respondent continued to work from home. As the family’s financial position continued to suffer, the Applicant told the Respondent that she wanted to move the family to the United States, where she could be closer to the support of her family. The Respondent was not providing much of an income and the family lived off of the sale proceeds of the Abbotsford condominium.

The Applicant tried to supplement her income by working as a photographer. She bought some camera equipment to help her to work in this field. She testified that she and the Respondent began the process to apply for an application for the Respondent to obtain a Visa permitting him to reside in the United States.

The Applicant was able to enter the United States as of right, without requiring a visa, because of her birth there and the children also enjoyed the same privilege by virtue of the fact that one of their parents was an American Citizen. [ 12 ] The Applicant testified that the Respondent changed his mind about wanting to move to the United States. In 2008 he took a job with a company that was in the business of marketing websites. This did not work out and he left that job after four months and returned to his own business.

The Applicant testified that she did not realize how bad their financial situation was and when she asked the Respondent to return the $10,000 that the couple received from her parents for their house purchase, she found out that it had been spent paying off credit card debt. [ 13 ] The Applicant testified that sometime in 2009 the Respondent had spent $40,000 to buy a marketing company.

The economic downturn that North America was experiencing at the time made this a bad investment and the Applicant said that she found out that the Respondent had acquired credit card debt somewhere in the range of $20,000 to $40,000 and interest was accruing on that debt at a horrendous rate. All of this was taking place at a time when they were getting notices from the utility companies threatening discontinuance of service. The Applicant said that she was doing everything possible to save on household expenses at that time.

The birth of the couple’s third child on early 2009 placed additional demands on the parties, both emotionally and financially. [ 14 ] The Applicant testified that she asked the Respondent to get a vasectomy after their third child was born, but he was unwilling to do so. A fourth child was born in 2011 and the Applicant testified that this was a difficult pregnancy for her and that she suffered severe back pain at the time. The couple took in a boarder to help make ends meet.

In September of 2012 they decided that the children would be home-schooled by the Applicant, and she was very busy caring for four children as well as attending to their educational and extra- curricular needs. [ 15 ] The Applicant testified that in December of 2012 she and the Respondent decided once again that it would be better for them to live in the United States. Her sister and brother-in-law were living in Charlotte, North Carolina, and this seemed to be a place where the family would be better able to find both emotional and economic support.

The Respondent applied for a Visa and he travelled to North Carolina in January of 2013. The Respondent spent 27 days there and at that time he expressed an interest in moving his family there. According to W.R., who is married to the Applicant’s sister, the Respondent even began to purchase items in anticipation that he and his family would be moving to Charlotte in the near future. [ 16 ] When the Respondent returned, the Applicant threw a surprise party for him with his family present.

Shortly after this however, sometime after Valentine’s Day of 2013, the Applicant found some incriminating evidence on the Respondent’s iPad which led her to believe that the Respondent had an affair with another woman when he was in Charlotte. It was later discovered that the Respondent had been unfaithful to his marriage vows with other women, though the precise extent of this is unclear.

In his testimony he said “I was involved with other women” and admitted that he had “kissed and made out with them.” The Applicant believes that the Respondent may have been unfaithful with four or five different women. [ 17 ] The parties attempted to work out their marital issues with the assistance of marriage counselling. It was in the course of this counselling that the Applicant learned that the Respondent had been unfaithful to her with more women than just the one in Charlotte.

She testified that she contemplated ending the marriage, but decided that a trial separation might help to work out their difficulties. In mid-April of 2014 the Respondent left the home and moved in with his parents. The Respondent testified that he believed that this was going to be a brief trial separation of about three months. He said that they agreed to attend couples counselling and that there was no discussion about divorce.

The Applicant’s expectation was that the Respondent would look after the children two nights a week. [ 18 ] The Applicant testified that in May of 2014 she discovered that, without her knowledge, the Respondent had taken money from an education fund that her parents had set up for the children. She alleges that he spent some $42,000 from the fund, which she estimated to have been $65,000. In spite of this, the rent was not being paid on the residence that she and the children were living in.

Faced with eviction, and lacking in a means of supporting herself and the children, the Applicant considered moving to the United States with the children, where her family would be able to help her. She testified that she had asked the Respondent if he and his mother could look after the children more so that she could work and attack some of their debt, but she says that the Respondent refused. The Respondent denied that there was any unwillingness on his part to look after the children.

He admitted that he had spent some of the money that had been set aside for the children, but said that he needed to do so in order to support the family. [ 19 ] It was also at about this time that the Applicant began to believe that the Respondent had inappropriately touched the youngest child, who was then about seventeen months old. He recalls that these allegations were first levelled about two weeks after their separation at a time when the Applicant was very upset about his admissions of infidelity and about the financial difficulty that the family was in.

[ 20 ] The Applicant testified that she was concerned about some troubling behaviour exhibited by the youngest child. This was based on essentially two incidents. One of these involved some sort of a fluid from the child’s vaginal area that she discovered when she was changing the child’s diaper. She did not identify what this was and it was unclear how this was indicative of something that the Respondent was responsible for. The second incident was a concern she had when she noticed that the Respondent appeared to be aroused when he was changing a child’s diaper.

This happened after some intimacy between she and the Respondent was interrupted by the child’s cries and the Respondent got out of bed to attend to the child. She does not believe that his signs or arousal might be related to their activities in bed before they were interrupted by the child’s crying.

The Respondent acknowledges that some intimate activities between he and the Applicant were interrupted as she described by the child, but he says that his arousal began during the intimacies with the Applicant and were unconnected to the child. [ 21 ] The Applicant testified that she contacted the Ministry of Children and Families and reported her concerns to them. She testified that on May 11, 2014, the child was taken to the Langley Detachment of the Royal Canadian Mounted Police.

The Respondent testified that he was cooperative with the investigators and did everything that he was asked except submit to a polygraph test. He did not do so on the advice of his lawyer. [ 22 ] The Applicant testified that she discussed these allegations along with the possibility of moving herself and the children to the United States with the Pastor of her church. The Pastor shared this information in an email to the Respondent, and the Respondent became concerned that the Applicant was planning on taking the children out of the country without telling him.

On May 15, 2014, the Respondent applied to this court, without notice to the Applicant, for an order preventing her from taking the children out of the province. He did so with the encouragement of his father. The Respondent had sought his father’s counsel before making this application. [ 23 ] Often, persons who apply for court orders without notice to the other side, do so with the intention of preventing the court from hearing disparaging evidence about them.

To his credit the Respondent voluntarily disclosed to the judge hearing his application for an ex parte order that the Applicant had accused him of inappropriate touching of the youngest child. The Respondent told the Honourable Judge Hicks of this court: Respondent: Yeah, she has -- my wife has some mental health issues, I believe. They have not been diagnosed, but some of her perceptions are -- are -- are off and she’s made numerous false allegations against all sorts of people, myself included right now. She’s -- she’s gone to the police this last week charging me with -- sexual interference.

I’ve not been charged with it, but accusing me of that. And I’ve been -- so I went and spoke to the police in Langley. Judge: When did that happen? Respondent: I spoke with the police on Tuesday, I believe. Judge: All right, Tuesday of this week? Respondent: Yes. Judge: All right. Were the children with you last weekend? Respondent: I had the older three, but not the youngest one that she’s alleging. Judge: All right, when did this allegation come to your attention?

Respondent: She has -- she has been saying that I violated her trust from some other stuff in our marriage and she believes that I’ve been, you know, abusing her. She went -- Judge: Abusing her, you mean -- Respondent: My -- my daughter. Judge: I see. Respondent: My youngest, my two year old daughter, which I have not. And she went to the police either Saturday -- I think Saturday or Monday just -- just past. [ 24 ] The Respondent told the court that the Applicant was packing up the house. He also said that “she told the pastor not to tell me that she was making plans to move.

She spoke with my sister-in-law who’s one of her friends and also told her.” At the conclusion of the hearing Judge Hicks made an order that neither party was to remove the children out of British Columbia without the consent of the other party. The order was to expire on May 20, 2014 at 5:00 p.m. [ 25 ] On May 20 th , that order was extended to May 27, 2014 by order of the Honourable Judge Brown of this court. Both parties were present in court on May 20 th . The Applicant testified that when she went to court in May she was considering moving the children to the United States because she had run out of money.

She testified that she asked the court for a relocation order, but was told that she could not do so, likely because she was attempting to do so without either the consent of or notice to the Respondent, contrary to

section 66 of the Family Law Act. [ 26 ] On May 27, 2014 the parties appeared in front of the Honourable Judge Point of this court. At that time Judge Point ordered that the order made by Judge Hicks on May 15, 2014 was extended “until further order of this court.” Judge Point also ordered specified parenting time for the Respondent and he ordered that the Respondent’s parenting time with the youngest child was to be supervised.

Judge Point made a separate Protection Order in which he ordered that neither party was to remove the children from the Province of British Columbia until further order of this court. Both of the parties were represented by counsel and the orders were made with the consent of both parties. [ 27 ] In the time since the Applicant made the allegations that the youngest child was inappropriately touched by the Respondent, the child has been seen by police, by the Ministry of Children and Families and by the HEAL (Health Evaluation And Liaison) Clinic.

No independent source, or for that matter no one other that the Applicant, has found anything to substantiate the Applicant’s accusations. The Ministry of Children and Families completed its investigation and concluded that it had no protection concerns about any of the children being in the Respondent’s care. The police investigation concluded that no charges would be laid against the Respondent.

The HEAL Clinic concluded that there were no findings to support the Applicant’s allegations. [ 28 ] Despite the lack of anything independent supporting the Applicant’s allegations, she maintains that she is convinced that her daughter was abused and that nobody is doing anything about it. She testified in cross-examination that the Ministry investigation was not conducted according to how she thought it should be done.

She has written letters of complaint over the fact that the investigation was not done to her standards. [ 29 ] The Applicant testified that in July of 2014, while she and the Respondent were in the process of exchanging their motor vehicles, the two of them were sitting in their van. She claims that he became upset with her for reporting her allegations to police and said that she deserved “a good smack” for doing so. She also alleges that he squeezed her fingers as she was trying to start the van and that this hurt her, but that he immediately apologized for doing so.

In cross-examination she said that this was the only time that the Respondent had ever been violent with her. [ 30 ] In August of 2014 the Applicant raised new allegation against the Respondent. This time she alleged that he may have improperly touched the couple’s older daughter. She came to this conclusion after the child had allegedly said to the Respondent “remember our secret daddy.” The Respondent testified that this was in fact a reference to a surprise that was being planned for the Applicant.

The Applicant viewed this as sufficient evidence for the belief that the Respondent was touching this child inappropriately. She reported this concern to the Ministry of Children and Families, who once again investigated the matter. Once again, the Ministry concluded that it had no protection concerns. [ 31 ] The Applicant was not satisfied with the results of the investigations conducted by the independent agencies. She attempted to obtain an admission from the youngest child on her own and recorded a conversation that she had with the child.

In the recording the Applicant asks quite a few leading questions about bad touches, but the child seems to be preoccupied about talking about the movie “Frozen”. At one point in the recording the child is asked who gave her a bad touch and she says that it was the Applicant, not the Respondent, who touched her. The recording is certainly not supportive of the suggestion that the child was inappropriately touched by the Respondent.

In the recording, the child seems preoccupied with other matters and displays no interest in the subject that the Applicant is trying to steer her to. [ 32 ] On September 19, 2014, a trial was scheduled in this court to address the issues of guardianship, parenting time and parental responsibilities for the children. The Applicant says that just prior to trial her counsel withdrew from acting for her. She testified that she called twenty-two different lawyers, but that none of them were able to represent her.

I note however that in the transcript of proceedings of what occurred in this court on September 19 th , the Honourable Judge Brown stated that counsel was present for the Applicant, even though she was not there. The Applicant said that on the night of September 18 th , she decided that her best option was not to attend the trial and to take the children to the United States instead. She cut her older daughter’s hair and admitted in cross-examination that she did so with the intention of making the child unrecognizable. [ 33 ] That morning the Applicant first drove to the home of her good friend S.

C., in Langley. Ms. C. testified that she received a phone call from the Applicant at 7:00 a.m. that morning asking for her passport. She did not say why she wanted it, but Ms. C. told her to come over and get it. When the Applicant arrived, all of the children were in the car with her. Ms. C. testified that the Applicant told her “I’m leaving, I fleeing, I’m returning to the states.” Ms. C. said that she tried to discourage the Applicant from doing this, and she told the Applicant that she was making a poor decision. Ms. C. then told the Applicant that if the Applicant left, she would call the police.

This did not deter the Applicant. Ms. C. was aware that there was a court order in place prohibiting the Applicant from taking the children out of British Columbia, so she called the police, hoping that they would prevent the Applicant from making matters worse for herself by leaving. [ 34 ] On the morning of September 19 th , the Applicant decided that she would not attend the trial that was scheduled in this court. Instead, she drove the children to the Canada-US border at the Aldergrove crossing.

For a time she was detained by officers of the United States Department of Homeland Security, but ultimately they came to the conclusion that they had no grounds to prevent the Applicant, an American citizen by birth, and the children, dual citizens by birth, from entering into the United States.

The Applicant said, in cross- examination, that she told the United States Homeland Security officers about the non-removal order that was made by this court. [ 35 ] The Respondent testified that when he learned that the children and the Applicant were being detained at the border that morning, he went to the Aldergrove border crossing and attempted to talk to the children. He was able to see them across a counter, but was not allowed to speak to them.

He watched them leave with the Applicant. [ 36 ] At the hearing on September 19 th , the Honourable Judge Brown was made aware of the fact that the Applicant was not present because she had left and crossed the border with the children. He found that this was in contravention of Judge Point’s order of May 27, 2014. That afternoon, after the Respondent had gone to the border and had made unsuccessful efforts to prevent the Applicant from taking the children to the United States, Judge Brown heard evidence from the Respondent, as well as from the Respondent’s sister-in- law A.

S. and he was provided with correspondence from the Ministry of Children and Families stating that they had no protection concerns about the children being in the Respondent’s care. Judge Brown made an order with what he called “an unusual

preamble”. The order began: “Upon this court being satisfied that the mother has attempted to cross the Canada-US border with four children while the trial of this matter was to be heard and in contravention of an existing non-removal order”.

[ 37 ] Judge Brown went on to find that the Respondent was the guardian of the children and that interim primary residence of the children was to be with the Respondent. He also made a separate protection order, with the same

preamble, and he ordered the Applicant to surrender her passport and all passports, birth certificates and citizenship papers pertaining to the children to this court. He also authorized a police officer to apprehend the children and return them to the Respondent pursuant to section 231 (5) of the Family Law Act.

He also gave that police officer the powers set out in section 231(6) of the Act to enter and search any place that the officer had reasonable and probable grounds to believe that the children may be. [ 38 ] Over the next couple of weeks, the Applicant drove the children across the United States, on route to the home of her sister and brother-in-law in Charlotte, North Carolina. They made stops at Yellowstone National Park and at Mount Rushmore and they stayed in hotels and in homeless shelters.

She said, in cross-examination, that “God led me to take the children to the United States.” While she was travelling, she did not make any effort to contact the Respondent and let him know that the children were all right. [ 39 ] According to W.R., the Applicant and the children arrived at their home in Charlotte sometime in late September. When the Applicant and the children arrived at the R’s. home, she took steps to enrol the children in school in Charlotte. On October 23 rd she sent an email to the Respondent informing him where the children were.

She permitted the children to speak by telephone with the Respondent and with his parents. W.R. recalled that the parties’ oldest son was upset with the Respondent. Mr. R. attempted to mediate a resolution to the matter, but was unsuccessful in doing so. [ 40 ] The Respondent hired a private investigator to attempt to locate the children. He had been misled by Mr. R., who had told him that the children were “in a safe house”, implying that the children were in some house other than Mr. R’s.

The Respondent also retained a local lawyer to go through proper legal channels and use the court process in North Carolina to retrieve the children. He flew to North Carolina, but was met with some resistance by the United States Homeland Security officers, who detained him for a time, such that he almost missed his flight to North Carolina. [ 41 ] On October 27, 2014, the Respondent arrived in North Carolina. The Applicant testified that a hearing was held at a court house in Charlotte and that an order was made in that court for the children to be returned to the Respondent.

The Respondent confirmed this to be the case. He was able to take the children, with the assistance of local police officers. The children were returned to Canada on October 29, 2014. [ 42 ] At the hearing in North Carolina, one of the issues had been a concern that the Applicant might harm the children. When she fled the parties’ home in Canada, she had abandoned a significant amount of property, but one of the items that she had taken was a set of knives. The Respondent said that at the time he was concerned because the Applicant was not acting rationally.

She had disobeyed a court order and had been behaving strangely and he was concerned about her mental health. Although it later became clear that the knives were taken because they had some value and could be sold, the Respondent said that at the time, given the Applicant’s irrational behaviour and some of the statements she had made about “not wanting to live” if the children were ordered to live with him, he felt it prudent to express concern that the Applicant had left with the knives. [ 43 ] After the Respondent and the children returned to Canada, the Applicant also decided to return.

She arrived back on October 31, 2014. On November 10, 2014, the parties appeared in this court before the Honourable Judge Raven. Judge Raven made a Protection Order pursuant to

section 183 of the Family Law Act prohibiting the Applicant from having any contact or communication, directly or indirectly, with the children, except for the purpose of exercising supervised contact or telephone or Skype contact with them. Judge Raven also ordered that the Applicant was to surrender her expired American passport, her Canadian passport, all passports, birth certificates and all citizenship papers for the children in her possession to Paul Daltrop, who was then the Applicant’s lawyer. Mr.

Daltrop was to hold these documents until further order of the court or until he had the written agreement of the parties to release the documents. [ 44 ] At the same time, Judge Raven also ordered that the Applicant was to have a minimum of six hours per week of supervised contact with the children, depending on the availability of a supervisor. Eight individuals and the Ann Davis Society were all deemed to be acceptable supervisors for the contact, along with anyone else that the parties agreed to in writing.

Judge Raven ordered that the supervisor had to be present during the entire contact time, and that the Applicant was to provide the Respondent with forty-eight hours of notice when arranging contact time with the children, but the Respondent was to make reasonable efforts to ensure that contact was arranged if he received less than forty-eight hours of notice.

The Applicant was also ordered to have telephone or Skype contact with the children between 7:00 p.m. and 7:30 p.m. each day unless the parties arranged alternate times. [ 45 ] The parties attended at a Family Case Conference on January 16, 2015 and at that time a consent order was made.

Under the terms of that order, the Respondent was to provide the Applicant with copies of all of the children’s report cards and “related documents in his possession.” At that time Judge Raven’s order was amended to increase the Applicant’s supervised visits with the children to a minimum of ten hours per week. [ 46 ] The Applicant continues to assert that there continue to be what she describes as “behavioural indicators” that her youngest child may have been inappropriately touched. These never occur in the presence of anyone else, at least not in the presence of anyone else who gave any evidence at trial.

The Applicant made a vague reference to some sort of computer expert in the United States who might support her assertions, but she either would not give that person’s name or did not know it. She was very cryptic in asking if that person could give evidence, but in the months leading up to trial, no steps were taken by her to arrange for this person to testify. [ 47 ] The Applicant’s visits with the children have been supervised, either by a member of the Respondent’s family or by a professional supervisor, such as someone from the Ann Davis Society.

Besides the obvious concern that the Applicant might attempt, once again, to flee the country with the children, there have also been concerns about her efforts to manipulate the children. For example, on one visit with the children, the Applicant decided to read the children a rather disturbing story about a fictional child who had been sexually abused. The Applicant does not see this as a problem and said that she did so because she is concerned that the child will not make a disclosure about being abused while she is under her father’s roof.

She was asked in cross-examination if she thinks it is normal for a mother to keep asking her children if they have been sexually abused. The Applicant responded “if she knows they have, then yes.” She added “I don’t believe the girls are safe there and I’d prefer them to be in foster care than at their dad’s.” She went on to state

“there’s no one in Canada who will help me or my children. No one has protected my children in my eyes.” She went on to state that “if I took the kids to the USA my hope is that someone there will help my children.” [ 48 ] In May of 2015, the Respondent was contacted by the Abbotsford Police Department once again. An allegation had been made by a room-mate of the Applicant’s that one of the children had bruising on her face. This turned out to marks from a marker that one of the child’s siblings had used to draw on the child’s face. Although each party has a different

interpretation of the investigating officer’s response, that officer was not called to give evidence. This appears to be an innocent matter that one party is attempting to put an unfair spin on. The Respondent’s father testified that the day before, the other children had made up the child’s face to look like a cat and some of the markings were still present from that.

Given the previous investigation that had occurred, I am satisfied that if a police officer as experienced as the one who saw the child had noticed any actual harm to the child, further investigation would have been done. [ 49 ] Some of the Respondent’s family were once very close with the Applicant, closer in fact than they probably were with the Respondent. These persons took the Applicant’s concerns that the children had been abused very seriously at first.

But as it became apparent to them that there was no substance to them, and as they became concerned about the Applicant’s mental state and poor decision-making, the Applicant has severed her friendships with those persons. For example, the Applicant was once very close with her sister-in-law A.S. A.S. is married to the Respondent’s brother M.S. and she was someone that the Applicant trusted to supervise visits that the Respondent had with the children during the time that his visits were court-ordered to be supervised.

Allison testified that she has seen nothing that would indicate to her that the Respondent has ever acted inappropriately with his children. She became concerned when the Applicant told her “I’d rather die than let Lane have the children.” The Applicant admitted in cross-examination that she made this statement, but says that this doesn’t mean that she was suicidal or that she would harm the children. [ 50 ] The Applicant also admitted, in cross-examination, that she spoke to the children about this court action.

She acknowledged that she had told the children that their daddy’s lawyer was trying to take the children away from her. She said that this made her oldest child very upset. [ 51 ] The Respondent testified that he has experienced a number of concerns about the Applicant’s behaviour during visits with the children. On one occasion, the children were at the zoo and the older daughter complained about a bruise she had. The Applicant insisted on examining the child in a public setting and over the child’s objections before the Respondent told her that she was acting inappropriately.

He told her “You need to stop.” The Respondent has had to ensure that phone visits are conducted on speaker phone because the Applicant continues to tell the older children that the Respondent has hurt their youngest sibling.

The Respondent says that the Applicant has not used her phone contact with the children to build a relationship with them, and has instead seen her priority as using the phone visits as an opportunity to insult or disparage him in the eyes of the children. [ 52 ] The Respondent testified that his parents have had to block the Applicant’s phone number because the Applicant would call his parents repeatedly to the point where they felt that they were being harassed. The Applicant would attempt to call them repeatedly about matters that she should more properly have spoken with the Respondent about.

The Respondent also admitted that on occasion he has hung up the phone during conversations with the Applicant, either because she was very angry or because she was saying inappropriate things to the children. [ 53 ] The Respondent testified that he does not talk to the children about what happens in court. He acknowledged that on occasion his mother had disparaged the Applicant, but he immediately told her to stop.

He said “in my home we don’t talk negatively about the children’s mother.” [ 54 ] The Applicant was not able to testify as to any sort of concrete plan for the children if they were to be returned to her care. She says that she would find a residence in Bellingham suitable for them, but does not have one at this time. In cross-examination, she stated that she was homeless at present and that she has had ten different homes in the past year. She has no current source of income and is relying in part on support from her family members.

She is optimistic about being able to find a means of supporting the children, but once again, has no firm plan to present at this time as to how she will do that. [ 55 ] On March 13, 2015, an information was sworn in this court charging the Applicant with four counts (one for each child) of taking the children in contravention of a court order with intent to deprive a parent from what is termed the “possession” of the child, contrary to

section 282 of the Criminal Code . A warrant issued for the arrest of the Applicant, who made her first appearance in court on March 15, 2015 in custody. At that time she was released on a recognizance. That order was amended and on September 25, 2015, the Honourable Judge Solomon of this court placed the Applicant on a recognizance which contained five terms, including the following: Condition 2: Not to contact directly or indirectly with [the four children] except during supervised visits or by telephone.

Condition 3: Not to attend within 100 meters of any work, school or residence of [the Respondent] except for purposes of arranging, facilitating or exercising access to your children. [ 56 ] The Applicant signed the new recognizance on October 15, 2015. The terms of that recognizance continue to operate. The trial of those charges was to be held on November 10, 12 and 13, 2015 but on November 3, 2015, the trial was adjourned at the Applicant’s request.

It has been rescheduled for May 11, 12 and 13, 2016, with a pre-trial conference scheduled for March 18, 2016. [ 57 ] On March 17, 2005, it was ordered that a “Views of the Children” report was to be prepared, pursuant to

section 211 of the Family Law Act . The parties agreed that the report writer would be Doctor Lawrence Krywaniuk. Doctor Krywaniuk was willing to write a report, but according to an email from him, the Applicant took it upon herself to cancel the preparation of the report. Dr Krywaniuk’s email of November 9, 2015 (the day on which this trial began), reads as follows: “This is to confirm our recent conversation in which I indicated that [the Applicant] informed me that she wished to suspend work on the

section 211 report for the time being. My understanding as well is that [the Applicant] informed [the respondent] of those intentions over the last few days. I am able and willing to proceed on this matter if and when the decision is made to do so. However I will be away from

November 14 to December 3. Should you have any questions, please feel free to contact me.” [ 58 ] The Applicant says that she told Doctor Krywaniuk to suspend preparation of his report because she didn’t think one would be prepared in time for this trial. This does not adequately explain why she thought that she could unilaterally cancel the preparation of the report, when an order of this court had directed that it be prepared.

It is hard to understand why she would silence the best opportunity for the children to have a voice in the outcome of this litigation, and why, if she honestly believes that the children have been abused, she would prevent them from being heard by a trained, independent professional. [ 59 ] At present, the children are living with the Respondent in the home of his parents. He hopes to be in a position to move the children into their own home at some point, but in the meantime, they are being cared for and looked after with help from the Respondent’s extended family.

The Respondent remains concerned that if the Applicant is able to care for the children without some form of supervision, she will attempt to flee the country with them again. This is a problem because in order to recover them again, the Respondent would once again face resistance from the United States authorities and would be put to considerable expense.

It has been his experience that the United States authorities show little deference to orders of this court and therefore sometime more is required than simply the Applicant’s promise that this time she really means it when she says she will obey orders of this court. [ 60 ] According to the Respondent, the oldest son, is in grade five. He is struggling academically and has difficulty completing homework assignments. The Respondent has been conscientious about the child attending counselling.

It is apparent that seeing his parents’ marital discord has been difficult for this child, although the Respondent is hopeful that he is a resilient child. The Respondent’s father describes this child as being antagonistic towards the Applicant. [ 61 ] The second child and oldest daughter, is described by her father as “wise beyond her years” and as generous. She enjoys crafts and shows proficiency with them. She is in grade four and also sees a counsellor, but says that this makes her feel sad.

The Respondent’s father describes her as “torn and hurt” about her parents’ separation and the issues that have arisen between them. [ 62 ] The third child and youngest son, attends grade one and is described as very smart. He is quiet by nature and is described as a keen observer. He has seen a counsellor but is not seeing one at present. The Respondent’s father describes him as very quiet, hurt in some ways, but perhaps the most resilient of the children. [ 63 ] The youngest child, is described as a sweet child, but is prone to tantrums. These have lessened since she began living with the Respondent.

She has a very good relationship with her grandmother. Whereas the three older children are quiet and calm, this child is described as being more excitable. The Respondent’s father says of his youngest child, “she loves her mom to death.” The child has told him “God told mommy to take us away from daddy.” [ 64 ] The Respondent’s father testified and gave his evidence with considerable candour. He acknowledged that his son had fallen short in his responsibility to provide financially for his family and in other ways and said that this disappointed him.

He was complimentary of the Respondent’s ability to parent his children especially in his ability to cook for the children and attend to their hygiene. He says that the Respondent is measured in his discipline of the children and has a gentle demeanour with them. [ 65 ] It was apparent that the paternal grandparents find themselves in a difficult position. On the one hand they want to be there to give support to their grandchildren, but do not want to enable the Respondent in avoiding his own responsibilities as a parent.

While the paternal grandparents obviously love their grandchildren very much, they are not happy to see their son’s marriage disintegrate and would likely be happier if he was able to find a solution to his problems that he was able to craft on his own without their help. [ 66 ] The Respondent’s father testified that when he became aware of the allegations that the Applicant was making against his son, he took the accusation very seriously, and was open to the possibility that it might be true.

When the children came to live in his home, he was watchful for anything that might concern him about the safety of the children. He said “we were vigilant, without running a police state.” In the period of over a year that the children have been in his home, the Respondent’s father has seen nothing that leads him to believe that the Applicant’s allegations are true, adding “if there were any concerns, I would have called the cops”. [ 67 ] The Respondent’s father is very complimentary about the Applicant’s parenting abilities.

He says that when it comes to daily care of the children, “she’s excellent.” His concern is over some of the disturbing things that she says and how it will affect the long- term mental health of the children. He says that she teaches them about a form of Christianity that is coloured by her own selfish notions and he is concerned that the children will grow up having a skewed understanding of God. [ 68 ] The Respondent’s father testified about one visit that the children had with the Applicant which he supervised.

During the visit, the Applicant began to read a story to the children which paralleled the allegations that she was making against the Respondent. It was a story about an uncle who was abusing a child. He found the Applicant’s conduct appalling. He also testified that the older daughter has expressed discomfort to him over the fact that the Applicant always asks her about the Respondent. He said that the oldest child becomes agitated after talking with the Applicant.

His observation of the Applicant’s conduct on the visits with the children has made him unwilling to act as a supervisor for her visits. [ 69 ] The Respondent’s father added that the children don’t seem to talk about the Applicant much. As an example, he mentioned a family prayer session at which the children are encouraged to pray for a relative. He said that none of the children seem to ever think of their mother during these times. [ 70 ] The children have a large extended family on the Respondent’s side. They have the support of the Respondent’s parents.

His brother M.S. and his sister in law A.S. live in Abbotsford and they have three children aged 8, 6 and 4 and the cousins see one another quite often. [ 71 ] A.S. testified that her family was very close to the Applicant and Respondent. When the Applicant first raised concerns about inappropriate conduct on the part of the Respondent, A.S. was considered by the Applicant to be an appropriate supervisor of the

Respondent’s contact with the children, and she acted in that capacity during the time that he was being supervised. A.S. testified that she has never observed anything either with the Respondent or with the children to suggest that the children are in any danger from the Respondent. She was very close to the Applicant and was very complimentary about the Applicant’s abilities as a parent.

Her only concern is that the Applicant will try to flee with the children once again, if given the opportunity. [ 72 ] A.S. testified that on two separate occasions, the Applicant said to her “I’d rather die than let [the Respondent] have unsupervised access to [the youngest child]”.

She testified that when the Applicant did not show up with the children on the morning of September 19, 2014 for court, she became very afraid that something might have happened to the children. [ 73 ] The Respondent’s brother M.S. testified that both the Applicant and the Respondent are very caring and capable parents and that his only concern about the Applicant is that she would flee the country with the children if given another opportunity to do so.

He testified that on one occasion when he was supervising a visit that the Applicant was having with the children, he heard the Applicant say to the children “I don’t know if you guys will ever live with me again.” This upset the children. The remark was made at the end of a visit. M.S. testified that if the remark had been made earlier in the visit, he would have ended the visit because he found the comment to be very inappropriate and upsetting for the children. [ 74 ] M.

S. testified that he stopped acting as a supervisor after the incident in May of 2015 when it was falsely reported that one of the children had bruising, when she actually had make-up on her face. At that point he began to doubt whether or not the Applicant had the ability to act rationally. Position of the Parties 1. The Applicant [ 75 ] The Applicant is asking for an order that would place the children in her care and allow them to reside with her in the state of Washington. She has not filed an application to relocate the children pursuant to

Part 4, Division 6 of the Family Law Act, and has not given the notice referred to in

section 66 of the Act . She argues that neither of these is necessary. Assuming that she is ordered to be the children’s primary caregiver, she asks that the Respondent’s parenting time with the children be supervised until the children have been interviewed and the issue of whether or not the Respondent has abused the parties’ daughters has been eliminated as a possibility, to her satisfaction. [ 76 ] The Applicant notes that all of the witnesses have been complimentary about her parenting abilities.

She points out that until the children were removed from her care in North Carolina, she had been their primary caregiver, and she states that her character and abilities as a caregiver have not changed. She also argues that the goals of the Hague Convention are for the restoration of a primary caregiver’s rights and accordingly, the status quo in which she was the primary caregiver for the children should be restored.

She argues that there has been no evidence presented to suggest that her relocation of the children endangered them in any way. [ 77 ] The Applicant complains that the rules placed by the Respondent and his family regarding her contact with the children are unreasonable ones and they are preventing her from maintaining a relationship with the children. She asserts that the safety of the children calls for them to be in her care and argues that the police, the Ministry and the doctors have not investigated the matter properly.

She also argues that the children should not be denied the full extent of their relationship with her just because she holds a belief that does not accord with that of the investigators. [ 78 ] Finally, the Applicant argues that allowing her to move the children to Washington will not prevent them from having a relationship with the Respondent. She points to roots that she has set down in that state which include her membership in a local church there, her becoming registered to vote in Washington, her obtaining a business license, a library card and eligibility for food stamps there.

She also feels that it is unfair to blame her for cancelling the preparation of the Views of the Child Report that was ordered, stating that she did not want it to be rushed. 2. The Respondent [ 79 ] On behalf of the Respondent, Ms. Vilvang asks that the status quo be maintained and that the mother’s contact with the child be supervised by a professional agency. She also asks for the Respondent to be the sole guardian of the child because doing this will make it more difficult for the Applicant to abscond with the children again.

She notes the difficulty that the Respondent had in effecting the return of the children to Canada and the resistance that he was met with from some of the American authorities. [ 80 ] Ms. Vilvang argues that since the Applicant has not complied with the Relocation sections of the Family Law Act, this court cannot make an order permitting the relocation of the children.

The Applicant cannot rely on any plans concerning relocation which were made when the family was one unit because the separation is a material change in the circumstances under which the earlier discussions took place. [ 81 ] The Respondent, through his counsel, notes the Applicant’s previous history of self-help remedies and her wilful disobedience of the prior court order and says that these make it impossible to place any trust in the Applicant’s promise that she would follow any court order which gave him contact with the children.

The Applicant’s pending criminal trial adds to the unlikelihood that she would ever permit the Respondent to see the children again if she was allowed to take them to Washington under any circumstances. [ 82 ] Respondent’s counsel also points out the troubling disregard that the Applicant has shown for the findings of the professionals and the lack of any objective support for the allegations that the Applicant has made against the Respondent. Ms.

Vilvang argues that, in effect, the Applicant is saying that even though the police, Ministry, doctors and previous court orders disagree with her, they’re all wrong and she’s right. The Applicant’s unreasonableness and inflexibility is reinforced by that fact that she has played a recording in which the child accuses her (the Applicant) of inappropriate touching along with others, but says that this is insignificant, and that the only significant portion of the recording is the

part in which the child includes the Respondent. Ms. Vilvang argues that it is virtually impossible to rely on the Applicant to follow any order which will require her to be reasonable and to respect any order that does not mirror her own opinion.

[83] Ms. Vilvang notes that it is significant that when the Applicant took the children to North Carolina, she contacted her sister, hersister-in-law and even a friend of hers to tell them that the children were safe, but that she did not contact the Respondent. She cites thisas clear evidence of an intention on the Applicant’s part to prevent the Respondent from having any meaningful role in the lives of thechildren. Of even greater concern is the Applicant’s practice of seeking to reinforce the notion in the minds of the children that theRespondent is an abuser.

Not only is this allegation contrary to all of the independent evidence, but it has the likelihood of harming thechildren by creating false memories. [84] The Respondent notes the current lack of stability in the Applicant’s life, including the lack of a fixed residence locally, thelack of a means of support and the lack of any feasible plan of how the children will be cared for and supported and how theirrelationship with the Respondent will be maintained. The Applicant has not shown any insight into how her poor choices have adverselyaffected her children. Applicable Law 1. Best Interests of the Child [85]

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

section 37 specifically mentions the following factors: (

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

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

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

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

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

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parentingtime 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 thechild 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 carefor 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, includingwhether 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. [86]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person'sconduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Supervised or Unsupervised Contact [87] As a general rule, children have a right to a meaningful relationship with the parent that they do not reside with. However, as theSupreme Court of Canada pointed out in Young v. Young (1993) (SCC), 84 B.C.L.R. (2d) 1, that objective may berestricted where the welfare of the child requires it.

Contact between the non-resident parent and his or her children is often restricted,made subject to conditions or even denied completely, where it presents a risk to the child. [88] The decision on whether or not to order supervised contact will depend on what is in the best interests of the children. Someexamples of when supervised contact (formerly supervised access) has been ordered as being in the best interests of children include: (

a) Where the child has not seen the party exercising access for a long time and that person is essentially a stranger (e.g. McCann v.McCann 2006 BCSC 880) (

b) Where the child has a fear of the person exercising access (e.g. V.G. v. T.G. [2005] BCJ No. 493, 2005 BCSC 299) (

c) Where the person exercising access has an untreated substance abuse problem (e.g. Polajzar v. Polajzar 2005 BCSC 899; Uto v.Szemok 2005 BCSC 912; Gallant v. Gallant 2007 BCSC 151) (

d) Where there is a reasonable possibility that the party exercising access has been physically abusive or sexually inappropriate withthe child (e.g. K.M.E. v. D.M.Z., [1996] BCJ No. 464 (B.C.S.C.); B.D.L. v. B.K. [2004] BCJ No. 536; 2004 BCPC 58) (

e) Where the party exercising access has removed or attempted to remove the child outside of the jurisdiction of the court incontravention of a court order (e.g. Grant v. Grant 2006 BCSC 1974; J.C.M. v. I.C.M. [2007] S.J. No. 256)

[ 89 ] In cases where a parent has absconded or has attempted to abscond with a child, in contravention of an existing court order, it is unusual for that parent’s subsequent contact with the child to be supervised. For example in Grant v. Grant , supra, the mother breached a court order that restrained her from removing her two children from B.C.

She did so after the court denied her application to allow the relocation of the children to France so she could continue her studies at a French university (unlike the case at bar, where the mother removed the children before making any application to approve the relocation of the children). She did not inform the father of her move until she arrived in France. For almost the next five years the father pursued his application for the return of the children under the Hague Convention in the French courts.

It was necessary for the father to travel to France and to enlist the assistance of the French police to find the children. In that case, the court took it as a given that the mother’s contact with the child would be supervised and fixed terms of that supervision. [ 90 ] Similarly, in J.C.M. v. I.C.M., supra, the mother removed children from Saskatchewan and did not inform the father where the children resided. The children were ultimately located by police in Alberta and returned to the father.

The mother claimed that she took the children because she believed that they were being abused by the father, but the court found that there was no substance to these allegations. Unlike in the case at bar, the mother later agreed to accept the results of the investigation which concluded that the father had not acted inappropriately. Despite this, it was ordered that the mother’s continuing contact with the children would be supervised. The court also held that under the circumstances, it was appropriate for the father to have (in the language of the Saskatchewan legislation) sole custody of the child.

Gabrielson J. stated, at paragraph 18 of the reasons for judgement, that whereas it was once “thought that the cooperation of the parties, which would be necessary for joint custody, was possible”, the mother had “demonstrated that it was not.” [ 91 ] The Applicant has submitted the Supreme Court of Canada’s decision in Thomson v. Thomson [1994] 3 SCR 552 for consideration. In that case, the parties were married in Scotland, where their child was born. The Scottish court gave the mother an order for interim custody, but ordered that the child was to remain in Scotland pending a final order.

The mother ignored the order and moved the children to Manitoba, and decided that she and her child would make that their permanent residence. The father obtained an ex parte order for custody in Scotland and applied under the Hague Convention for the return of the child to Scotland. A judge of the Manitoba Court of Queen’s Bench allowed the father’s application, but ordered that the child was to remain in the interim custody of the mother for four months, to allow her to apply for custody of the child in Scotland.

On appeal, the Manitoba Court of Appeal upheld the father’s order, but ordered the mother to return the child to the father forthwith. The mother’s appeal to the Supreme Court of Canada was dismissed. The court did not address the issue of supervised contact with the absconding parent. The case considered the issue of whether or not the Hague Convention permitted the court to make an interim order that was in conflict with the goals of Hague Convention to return the child. The majority concluded that Manitoba court could only make orders which did not conflict with or frustrate the Hague Convention.

This is not a consideration in the case at bar. Analysis [ 92 ] In this case, I would note that neither party has been proven to be an unfit parent, in the sense that both are capable of meeting the children’s needs insofar as their physical health, their nutrition, their hygiene, their education, their shelter and their provision with the necessaries of life are concerned. If it were a competition on this ground alone, it is likely that the Applicant would be found more able in this respect, something that the Respondent quite reasonably concedes.

Up until the Applicant attempted to relocate the children, the history of the children’s care was such that the Applicant had clearly been their primary caregiver and that she had performed that role most ably. [ 93 ] The principal issue is one of whether or not the Applicant may harm the children emotionally by taking unilateral action to sever or severely restrict their relationship with their father, and by uprooting them from everything they have known for all but a month of their lives. The evidence makes it clear that the children have been adversely affected emotionally by the Applicant’s actions.

Their sudden departure for North Carolina, followed by their sudden return to Canada has been confusing, disruptive and hurtful to them. It has caused them to view their parents as enemies rather than as two adults working collaboratively on their behalf. It would clearly not be in their best interests if this history was to repeat itself and they were once again uprooted suddenly by the Applicant’s rash action. [ 94 ] The Applicant has submitted that she has learned from her mistakes, yet her words do not seem to match her actions.

She has ignored one court order which prohibited her from taking the children from this jurisdiction. She refused to participate in a scheduled trial despite advice from wise friends and family members that this was a foolish choice. She attempted to change the residence of the children without attempting to follow the lawful method of obtaining the right to do so as set out in the Family Law Act . She forced the Respondent to great expense and effort to ensure compliance with the law. After facing criminal charges, one might hope that the Applicant would become more deferential to following the law.

But instead, she has once again refused to follow a court order by telling the writer of a report under

Section 211 not to complete the report. This was not her prerogative to do so.

The report had been ordered by this court. [ 95 ] There has been some mention of God’s will during these proceedings, but the Applicant’s actions are more consistent with someone who is entrenched in a mind-set of “my will be done.” Her refusal to follow the advice of lawyers, wise friends and concerned family members, and her continuing pattern of acting as if she is the one to decide which court orders she will follow and which she will not, do not inspire confidence that she would allow her children to maintain their relationship with the Respondent if an order was made on the terms that she is requesting.

It is especially concerning that she is proposing that the children be allowed to move with her to another jurisdiction where her compliance with orders of this court would be very expensive and nearly impossible to enforce. [ 96 ] The Applicant argues that an order maintaining the status quo is not in the children’s best interest because the allegations which she has made against the Respondent have not been resolved to her satisfaction. These allegations have been investigated by police agencies who regularly and professionally investigate such offences that are often prosecuted in this court.

They have been investigated by social workers who regularly and diligently report to this court on such matters, and who err on the side of protection of children. They have been investigated by physicians at the HEAL Clinic who are trained to recognize when children have been harmed. The children have also been under the watchful eye of loving family members and friends who would not hesitate to report any indication of harm to the children. The Respondent himself has been cooperative in speaking with investigators, and in answering their questions.

His refusal to participate in a polygraph test on this advice of his counsel is not unusual, especially as more scientific evidence is presented

questioning the reliability of this technology. If there was something of substance to support the Applicant’s allegations, an order would certainly be made to err on the side of caution and to protect these children. However nothing has been found to support the Applicant’s allegations. [ 97 ] It is suspicious that the Applicant’s allegations followed on the heels of her discovery of the Respondent’s infidelity. It is also suspicious that no independent source supports the Applicant’s allegations.

Under these circumstances, the real risk to the children comes from the possibility that they may suffer emotional harm from the creation of false memories arising from the Applicant’s efforts to convince them that something bad has happened, when it has not. [ 98 ] The child's views are generally to be taken into account in considering what is in their best interests. Unfortunately, the Applicant chose to deny the children their best opportunity to be heard when she unilaterally cancelled the preparation of the

section 211 report. The children’s views have been heard to some extent through their grandfather and through some of the other witnesses. While the children are not happy with the current state of affairs, the Respondent cannot be faulted for this. He has used his best efforts to ensure that the children remain in a place where they can maintain contact with the family that they’ve known best for most of their lives, in surroundings that are most familiar to them.

He is to be commended for using proper lawful channels as opposed to self-help. [ 99 ] The nature and strength of the relationships between the children and significant persons in their lives can best be addressed by maintaining the status quo. The Applicant is proposing that the children be moved to a new community, to an uncertain residence with an unknown support network. In their current location the children enjoy the love and support of grandparents, aunts and uncles, cousins and familiar friends.

They can continue to attend the same schools and be taught by the same teachers, to have the same friends at school and would not be removed yet again from the stability of the life that they are familiar with. The recent disruption in the children’s lives makes it all the more important for them to have stability in their lives. I am of the view that such stability can be better met with their remaining in the Respondent’s care. [ 100 ] There is no question that, but for the Applicant’s desire to abscond with the children, her ability to parent the children would not be in question.

What places into question her ability to carry out parental responsibilities is whether or not she can be trusted to follow court orders. While there is an unresolved concern about whether or not the Applicant would nurture or hinder the children’s relationship with the Respondent, caution must be exercised when it comes to giving the Applicant parental responsibilities or the position of guardianship. The difficulty is that doing so enhances her opportunity to flee the jurisdiction, while restricting or removing those roles inhibits it.

This is an important consideration, especially where doubt exists about whether or not the Applicant sees herself as accountable to court orders, and in light of the evidence that the American authorities have not exhibited any willingness to assist the Respondent in enforcing those orders. [ 101 ] These children have not been the subject of family physical violence and have not been witnessed to any such violence. The Applicant’s allegations have not been shown to have any substance or any independent support or verification. Here however in considering the best interests of these children, two concerns arise.

The first is the emotional upheaval they experienced when the Applicant chose to abduct them suddenly, as well as what they experienced when the Applicant continued to refuse to follow the previous court order, and the Respondent was required to obtain an order in North Carolina and have it enforced. The Applicant appears to lack insight and to be oblivious as to how this adversely affected the children. There is also the concern that if unrestrained, the Applicant may promote a false memory for the children that they have been harmed by the Respondent when this was not the case.

These are factors which must be considered in assessing the children’s best interests. There is a concern that the lack of insight on the Applicant’s part may impair her ability to care for the children and to meet the children's needs. [ 102 ] It would be in the best interests of the children if their parents were able to cooperate on issues affecting them. The Respondent has conducted himself reasonably in spite of the unsubstantiated accusations which the Applicant has levelled against him.

He has not retaliated in a disparaging manner according to independent accounts from persons who have been close with the Applicant in the past. Concerns about the ability to parent cooperatively arise on the Applicant’s part. The difficulty is in her past history of deciding which court orders she would and would not follow and her pattern of ignoring objective advice in favour of her past practice of “I know best, my will be done”.

Under these circumstances, with the accompanying risk that the children may once again be abducted, a collaborative parenting scheme is not reasonable at this time. [ 103 ] The criminal proceedings commenced against the Applicant also make it difficult to put in place the order that the Applicant is requesting.

She is currently under a court order which prohibits her from contacting the children except during supervised visits. [ 104 ] Section 37 (4) of the Family Law Act allows this court to consider a person's conduct only if it substantially affects one or more of those factors which must be considered in determining what is in the best interests of a child. In the preceding review of those factors, consideration has been given to the parties conduct only insofar as it has affected those factors. [ 105 ] On a review of the foregoing considerations, which this court is directed to consider under

section 37 of the Family Law Act, the evidence supports the contention that both parents are capable of acting as caregivers for the children. Each is able to see that the children’s physical needs for food and shelter are met, notwithstanding that each has limitations on their ability to provide for the children economically. The Respondent is able to provide the children with a great network of support than the Applicant is while they are in this jurisdiction. [ 106 ] The greater concern is the potential for emotional harm coming to the children.

The Respondent is willing to ensure that the children will have an ongoing relationship with their mother, and that they be allowed to love their mother without this being seen to be any form of disloyalty to him. He is not making statements or taking action that asks them to choose sides. What is less certain and less likely is whether the Applicant can and would do likewise. She has demonstrated an unwillingness to follow orders, both by refusing to follow the order prohibiting her from taking the children out of this province and by unilaterally cancelling of views of child report.

She has demonstrated an unwillingness to accept the conclusions of police, doctors, social workers, close friends and family, where those views do not accord with her own. There is also the concern that, while the children are in her care, she will contribute to the potential for the creation of false memories of a traumatic nature for the children.

[ 107 ] On a consideration of the factors determining the best interests of the children, the weight of the evidence supports their remaining in the care of the Respondent. It is in their best interests that the order concerning their future care should make their further abduction as difficult as possible, and enable the Respondent to avail himself of the Amber Alert program in the event that a second abduction occurs. Achieving this will necessitate the removal of the Applicant’s status as guardian of the children under the Family Law Act.

It is an unfortunate step, but regrettably it is one necessitated by Applicant’s prior removal of the children, and her mistaken belief about her ability to decide which orders she will and won’t follow. It is the result of the choices she has made. [ 108 ] In all of the cases cited in which a parent has abducted a child from this province contrary to a court order and has refused to willingly return the child, the parent’s contact with the child thereafter has been ordered to be supervised. There is good reason not to depart from that practice in this case.

This can be reviewed when the criminal charges have been concluded. It would be helpful, in the event of a review, for the Applicant to provide evidence from an independent counsellor or psychologist as to her insight into her past behaviour and as to an assessment of the risk of removal of the children and of other psychological harm to them in the event that the requirement of supervision was removed.

In this regard, it would be wise to select a counsellor or psychologist acceptable to both parties. [ 109 ] Although this may not be readily apparent to the Applicant, this is not a matter of punishment of her for her previous poor choices. The goal of the order is to restore stability and security into the lives of the children and to make them feel safe from being taken far away from the world they know.

They should be made to feel comfortable to love their father and their mother, without either parent making them feel disloyal for loving the other parent, without either parent creating a false impression that the other parent is out to hurt them, and without being afraid of suddenly being whisked away from the lives they know. The order that follow seeks to given them that security.

Order [ 110 ] For the foregoing reasons, it is ordered as follows: Upon the Court being advised that the names and birthdates of each Child are as follows: [Oldest son], born d.o.b., 2004 [Oldest daughter], born d.o.b., 2006 [Youngest son], born d.o.b., 2009 [Youngest daughter], born d.o.b., 2011 THIS COURT ORDERS THAT: 1. This court is satisfied that the Respondent L.K.S. is the guardian of the Children pursuant to Section 39 (1) of the Family Law Act (the “Act”) . 2. Pursuant to Section 51 (1) (

b) of the Act , the status as Guardian of the Children of the Applicant D.F.S. is terminated until further order of this court. 3. Pursuant to Section 40 (3) (

a) of the Act , L.K.S. shall have all of the Parental Responsibilities for the Children set out in

Section 41 of the Act , namely: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) re

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