B.W.R. v. C.S.F. Date:, 2017 BCPC 21

Citation: B.W.R. v. C.S.F. Date: 20170130 2017 BCPC 21 File No: 16080 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.W.R. APPLICANT AND: C.S.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Appearing on their own behalf: B.W.R.

Counsel for the Respondent: Ms. Natalie L. Hebert Place of Hearing: Kamloops , B.C. Dates of Hearing: October 24 to October 27, 2016 Date of Judgment: January 30, 2017 [ 1 ] This is an application brought by B.W.R. on February 2, 2016, who seeks an order for joint guardianship of his two children, D.L.R., born [omitted], and A.W.R., born [omitted]. The children are now 10 years and 9 years of age respectively. B.W.R. also seeks shared parenting time with the children on a week and week about basis.

The mother of the children, C.R., who is also known as C.S.F., is opposed to the application in both aspects. [ 2 ] C.S.F. is 32 years of age and B.W.R. 42. The parties met and began a relationship in mid-2003 when C.S.F. was 19. That relationship ended and C.S.F. entered into a relationship with man to whom she became engaged in 2004. The 2004 engagement was broken off on April 1, 2005. [ 3 ] C.S.F. and B.W.R. resumed their relationship. They eloped almost immediately thereafter and on April 13, 2005 were married.

These events were not well received by C.S.F.’s family and relations between her family and B.W.R. were set on a difficult footing which has persisted. [ 4 ] The parties separated in August, 2010 and were divorced on April 18, 2013. [ 5 ] C.S.F. now resides with the children and her husband, Mr. F., whom she married in 2014. Mr. F. gets on well with the children, and they with him. He has had little contact or communication with B.W.R. [ 6 ] B.W.R. lives by himself and has no interest, he has said, in developing a relationship with any new partner while his children are still young.

He currently has contact on Friday through Sunday on alternating weekends and each Thursday for three hours. Court Orders [ 7 ] The issues of custody and guardianship of the children were dealt with in the Provincial Court under the provisions of the former Family Relations Act , R.S.B.C. 1996, c. 128 ( FRA ). Although duly served, B.W.R. elected to take no

part in the FRA proceedings and so advised C.S.F. by email. B.W.R.’s repeated assertions that he was not aware of those proceedings are not true. [ 8 ] On January 4, 2012, in the absence of B.W.R., C.S.F. was granted an order by the Honourable Judge Walters of this court. Judge Walters awarded C.S.F. sole custody and guardianship of both children. [ 9 ] Judge Walters did not grant B.W.R. custody or guardianship of the children but did provide B.W.R. with reasonable and generous access to the children as the parties may agree.

B.W.R. was also ordered to pay child support to C.S.F. [ 10 ] On June 2, 2016, Judge Marchand made an interim order in this matter regarding parenting and contact time with the children and the conduct of the parties. The children were to reside primarily with C.S.F.

B.W.R. was to have contact Thursdays from 4:30 to 7:00 p.m.; on alternate weekends from Friday at 4:00 p.m. to Sunday at 4:00 p.m. including an additional day where the weekend fell on a statutory holiday; and during seven specified days in the month of August, 2016; that in addition to any other time that the parties might agree. [ 11 ] The order also provided that the children may communicate freely with either parent during the other parent’s parenting or contact time.

The parties were to give one week’s written notice of any intention to remove the children out of Kamloops overnight. [ 12 ] Conduct terms were also ordered. Communication between the parties was mandated to be by text message only and only for the purpose of arranging and exercising parenting or contact time unless in an emergency. This followed a lengthy period of hostile communications on the part of B.W.R. The parties were ordered to put the best interests of the children above their own and communications were to be respectful, etc.

The parties were to avoid questioning the children about time with the other parent beyond simple conversational questions and to avoid discussion of inappropriate, adult or court matters with them, etc. That order has apparently not yet been entered and should be attended to. [ 13 ] In his communications with C.S.F. over the years, B.W.R. has often disparaged court orders.

In one example, taken from emails exhibited, B.W.R. agreed that he wrote C.S.F. in 2012 that “Any order you ever get will never mean anything to me unless it was an agreement between us.” At trial, B.W.R. denied that this statement reflects his current views on court orders and said that he respects all court orders. The record of communications between the parties demonstrates that B.W.R. went to considerable lengths to convince C.S.F. that the contrary was true: that he did not respect court orders.

The Effect of the Family Law Act , s. 251 on the Order of Judge Walters [ 14 ] On March 18, 2013, the Family Law Act , S.B.C. 2011, c.25 ( FLA ) repealed and replaced the FRA . The impact of the FLA on the 2012 order of Judge Walters is governed by the transitional provisions of the FLA . [ 15 ] In particular, s. 251(1) of the FLA provides as follows: Transition — care of and time with children 251

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(

a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or (

b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act .

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access. [ 16 ] By application of FLA s. 251(1)(a), the 2012 FRA order has provided C.S.F. alone with guardianship of the children, as well as parenting time and parental responsibilities for the children under the FLA .

By granting B.W.R. “access to, but not custody or guardianship of a child,” in the words of FLA s. 251(1)(b), the FRA effectively provided B.W.R. with reasonable and generous contact but not parenting time with the children.

As set out in s. 40 of the FLA , “Only a guardian may have parental responsibilities and parenting time with respect to a child.” FLA Requirements to Change Guardianship Orders [ 17 ] Section 215(1) sets out the threshold requirement of a change in circumstances for an application to change, suspend or terminate an order: Changing, suspending or terminating orders generally 215(1) Subject to this Act , a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made. [ 18 ] Applications relating to the appointment of a guardian for children and parenting arrangements are also governed by sections 37 , 38 and 51 of the FLA .

Sections 37 and 38 provide as follows: Best interests of child 37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

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

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

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

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

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

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

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

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

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

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

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Assessing family violence 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence;

(

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [ 19 ] Additionally, s. 1 of the FLA defines “family violence” to include: (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence; I will return to the application of these provisions below. Events Around and After Separation [ 20 ] By August, 2010, the parties were struggling in their relationship. An event arose which precipitated their separation. D.L.R. was then 4 years of age and A.W.R. 3. B.W.R. had taken a job which required him to drive at night and sleep during the day. [ 21 ] On this occasion, C.S.F. attempted to keep the children quiet as B.W.R. slept downstairs. D.L.R. announced that she had to go the bathroom.

She was making sufficient noise that she awoke B.W.R. B.W.R. responded in a temper by grabbing D.L.R. and taking her forcefully down the hall to the bathroom. C.S.F. said that D.L.R.’s feet never touched the stairs as B.W.R. took her to the bathroom. C.S.F. heard a bang and went into the bathroom to see D.L.R. on the toilet, crying, pants still up, bleeding from her nose and with a cut on her ear. Apparently she had struck her head on the bath tub or its fixtures during rough handling by B.W.R. The substance of this is not denied by B.W.R. [ 22 ] For C.S.F., this incident brought matters to a head.

She determined to leave with the children as soon as she could organize her affairs. Her plan was to go to her parents in Abbotsford with the children as she had two infant children and no other options. [ 23 ] C.S.F. gave evidence that shortly before they left Kamloops, she and the children were in the family car, with B.W.R., driving over the Overlanders Bridge. They were discussing the coming separation, she recalled. There was a bus ahead of them which slowed.

C.S.F. gave evidence that B.W.R. said words to the effect that “Maybe it would be easier if I ran us all into the back of the bus.” I accept that B.W.R. said they words and that they amounted to a threat to cause harm to the members of the family. [ 24 ] The physical relationship between the parties continued after separation until the end of 2010 or the beginning of 2011. C.S.F. related two incidents in 2012 when B.W.R. said that he would only give effect to her wishes if she slept with him.

In cross examination, B.W.R. denied this under oath until he was directed to a comment in a vituperative email he sent to C.S.F. on February 4, 2012, wherein he wrote: …I would love to battle in court and play all your bullshit I have on tape play you agreeing to sleep with me to sign the agreement ... (Emphasis added.) [ 25 ] It was then put to B.W.R. again that C.S.F. had been required to sleep with him before he would agree to an arrangement regarding family matters.

B.W.R. answered, “It’s possible, I don’t remember.” [ 26 ] This exchange during cross examination did not enhance B.W.R.’s credibility or reliability as a witness. As a threat to expose C.S.F., it is an example of B.W.R.’s willingness to engage in psychological or emotional abuse as part of a longstanding pattern of coercive and controlling behaviour, as that phrase is used in s. 38(

d) of the Act , in his dealings with C.S.F. His assessment apparently was that the threatened or actual exposure of this arrangement would be to his benefit. It does not suggest that he is able to work cooperatively with C.S.F. or that he is prepared to put the best interests of the children foremost. Mental Health Issues

[ 27 ] After the birth of D.L.R., B.W.R. went through a period of isolation. Although living in the family home with the family, B.W.R. stopped working, spent a lot of time behind closed doors and didn’t engage much with C.S.F. She thought he might be suffering from depression. [ 28 ] Not long after that, C.S.F. described what she referred to as perhaps their first big argument. He swore at her and locked himself in the computer room. She told him she would take D.L.R. and go to her mother’s for the night.

The next morning they spoke by telephone and B.W.R. informed her that he’d packed up half their stuff in the car and that if she wanted to stay together, she was to return home at once. [ 29 ] B.W.R. said that he has since been diagnosed and treated for what he describes as social anxiety disorder and depression. He receives antidepressant medication (CiprA.W.R.) and described his condition in an email to C.S.F. on January 21, 2015 as getting worse every year. He complained about the children being kept from him and that his suffering would continue until death.

Given the tenor of communications between the parties, I have no doubt these remarks were intended to cause fear on the part of C.S.F. and that they did so. The History of the Children’s Care and Child Safety [ 30 ] C.S.F. has been the principal care-giver to the children both before and after separation. In his evidence and in submissions, B.W.R. raised no concerns about C.S.F.’s parenting skills, despite the contrary content of some of his communications exhibited at trial.

He submitted he was ready and willing to co-parent with C.S.F. [ 31 ] C.S.F. expressed concerns about B.W.R.’s care of the children both historically and currently. [ 32 ] When D.L.R. was about four months of age and was as yet unable to sit up by herself, B.W.R. was looking after her while C.S.F. was having a shower. She said she heard two thumps and D.L.R. started screaming. B.W.R. explained to C.S.F. that he had been sitting on the couch playing a game with D.L.R. He would sit her on the couch and let her fall over. It was a game.

However, D.L.R. unexpectedly fell forward and hit her face on the coffee table and then fell to the floor. D.L.R. suffered bruising to her face, cheek and eye as well as a goose-egg on her head. B.W.R. said that D.L.R. did not need to go to the hospital and he discouraged C.S.F. from allowing anyone to see the injuries for some days after the event. C.S.F. acceded to B.W.R.’s wishes. [ 33 ] At the end of December, 2007, A.W.R. was about six weeks old. B.W.R. had A.W.R. in the kitchen sink while cleaning and changing him. C.S.F. was present.

There was a snapping sound, she said, and A.W.R. screamed then and whenever his leg was moved. A.W.R. was taken to the hospital on this occasion and was diagnosed with a fractured femur. The infant was required to remain in traction in the hospital for 2 weeks. [ 34 ] C.S.F. made it clear in her evidence that she has never considered that the injuries to the children set out above were caused maliciously by B.W.R. C.S.F. is of the view that B.W.R. has been rough and careless with the children.

He does not accept advice or direction from her, she said, even when it originates with a doctor. [ 35 ] C.S.F. pointed out incidents where B.W.R. had refused to accept limitations on activity for D.L.R. where she was recovering from athletic injury. More recently, B.W.R. took the children out on his speed boat. They went water-tubing without having a spotter on board. This was admitted by B.W.R. who said by way of excuse that they travelled slowly. [ 36 ] The same boat trip was also eventful as B.W.R. missed a navigation buoy in the river and grounded the boat on a sandbar.

A steering cable was damaged and had to be repaired during the trip. B.W.R. wrote out a detailed statement to this effect and asked both children to sign it with him. The statement was then given to C.S.F. This process was B.W.R.’s answer to a concern that the children expressed that they will be in trouble with their father if they tell their mother what happened to them during their time with him. [ 37 ] B.W.R. considers that C.S.F. is overprotective and overindulgent where the children are concerned. He does not like to be reminded of his role in the injuries to the children.

The history of the care of the children is of course a relevant factor to be considered in assessing the best interests of the children under s. 37(2) of the Act. The Children’s Views [ 38 ] It is apparent that the children have strong attachments to both parents. They are well aware of the outstanding disputes between their parents. They do not want to be caught up in the disagreement between their parents and do not wish to be called upon to decide what their residential arrangements should be or what time with each parent should look like.

They are very aware that their father will not be pleased if they disclose to their mother what they have been doing during their time with him. [ 39 ] C.S.F. described A.W.R. as being fine physically but that he is struggling emotionally in his dealings with her. When he becomes angry with her, he can lose control and lash out by punching, kicking, pulling hair and spitting. He is remorseful after these episodes and he has asked C.S.F. for counselling which she has arranged.

C.S.F. considers that this is a serious issue which needs to be addressed before A.W.R. becomes large enough that he becomes unmanageable. [ 40 ] A s. 211(1)(b) “Views of the Child” report was prepared by Pamela Cripps, a Family Justice Counsellor. In the report Ms. Cripps described D.L.R. as being initially resistant to her interview with Ms. Cripps. D.L.R. had not received advance notice from C.S.F. of the interview, or its purpose, and was left feeling that she had been put on the spot. [ 41 ] As she became more comfortable, Ms.

Cripps said, D.L.R. demonstrated that she was an articulate, pleasant and engaging young girl. She said that she got on well with both parents and with her stepfather. [ 42 ] D.L.R. was aware that her father wanted a week on, week off arrangement with the children. She said she would like that but would also be fine if the arrangement stayed the same. D.L.R. admitted that she had told each parent that she wants what they want because “I don’t want to pick sides or make anyone sad.”

[ 43 ] D.L.R. also expressed that she did not want to be put in the position of choosing or deciding between her parents. She said she was fine with either proposed

schedule as long as it included spending time with both parents and there were no long periods of absence in between. [ 44 ] A.W.R. was described by Ms. Cripps as “a very animated and talkative young guy” who appeared outgoing and happy. He said he got on with all his family members, despite occasional fights with D.L.R. The most difficult thing about his parents, he said, was his mom shouting and his dad getting frustrated. [ 45 ] A.W.R. was aware that his father wanted to have the children on alternating weeks but A.W.R. didn’t know if that would be a good thing.

Once, he said, a long weekend at his dad’s had felt like two weeks. On the other hand, he commented that two days at his dad’s is not enough time. [ 46 ] A.W.R. was aware of a number of times when he had not seen his dad for an extended period of time. Ms. Cripps underlined that both children want to see both parents regularly.

Both want to avoid long absences from either parent and do not want to be put in the position of having to choose which parent should be successful in this action. [ 47 ] Both parents should be aware that parenting time or contact with a child should only be cancelled for good reason and not for longer than necessary. Denial of parenting time or contact is dealt with in sections 61 and 62 of the FLA and is further discussed below. Other Communications Between the Parties [ 48 ] Communications between these parties has been poor for a long time.

The parties submitted in evidence hundreds of pages of emails and some texts which reflect the high conflict relationship which has existed between the parties for years. B.W.R. is the author of most of these writings. His messages are long and his tone is often angry and hectoring. There is sometimes an air of menace to his words. He complains about his access to the children, child support, the courts and court orders, and C.S.F.’s failures in disallowing the children’s access to him.

C.S.F. tends not to respond to the angry communications and not in kind. [ 49 ] C.S.F. referenced a particular example of these communications in her evidence, starting with an email exchange she had with D.L.R. during the course of a visit with B.W.R. on January 15, 2016. It was apparent that D.L.R. was not happy at her father’s home that day. D.L.R. said that things were not going well. She told her mother that she wanted to come home but did not want to cause a fight.

The source of her unhappiness was not identified in the exchange, but it is clear that D.L.R. was not comfortable telling her father that she wished to return home to her mother. [ 50 ] After the visit, C.S.F. spoke to D.L.R. and ascertained that D.L.R. had been concerned about various hurtful comments said to be made by B.W.R. during or about video games, about deaths which occurred during these games, about whining, and about other family members including C.S.F. C.S.F. said in evidence that after D.L.R.’s return home, she assisted D.L.R. to express her concerns reasonably to B.W.R. in an email.

She said that the sentiments expressed were D.L.R.’s alone. [ 51 ] C.S.F. said she also added her own concerns to B.W.R. thereafter, addressing D.L.R.’s comments and adding others of her own. C.S.F. advised B.W.R. that the children needed a break and cancelled the next visit. [ 52 ] B.W.R.’s responses to C.S.F. over the days following were caustic, culminating in a series of text messages sent by him on January 27, 2016, the date of the cancelled next visit. B.W.R. himself now characterizes many of these texts as disturbing.

That description hardly does justice to the blue and intensely hostile invective used by B.W.R. in addressing C.S.F. [ 53 ] In addition to the usual run of course, four-lettered words one might expect to see from someone in a rage, B.W.R. wished the mother of his children a slow, painful and agonizing death.

He told her that he “could never hate another thing more than (her).” Taken together, and given their history, there was plainly a threatening aspect to B.W.R.’s words: “I need to get this anger out before I really lose it,” he wrote C.S.F. [ 54 ] During the August long weekend in 2015, C.S.F. and her husband attended to retrieve the children from B.W.R.’s visit to Nelson. C.S.F., I accept, was not aware of this road trip with the children and had not authorized it.

In Nelson, B.W.R. was in a temper and called C.S.F. the anatomical “C” word in the presence of both his children and his host. [ 55 ] C.S.F. emphasized in her evidence that B.W.R. had never assaulted her. Nonetheless, his aggressive tone, his words, including comments made to the effect that his situation was worsening and his references to death have caused C.S.F. to fear for herself and her children. This is no doubt the effect he has intended.

His conduct in this regard has been persistent, calculated and manipulative. [ 56 ] I am satisfied that this behaviour falls within the definition of family violence found in s. 1 of the FLA , specifically the psychological or emotional abuse of a family member, including intimidation, harassment, coercion or threats. The Positions of the Parties [ 57 ] B.W.R.’s submits that he should be appointed a guardian of his children jointly with C.S.F.

Section 51 of the FLA provides that a court may appoint a person as a child’s guardian where the applicant has provided evidence to the court, in accordance with the Provincial Court (Family) Rules respecting the best interests of the child as described in

section 37 of the FLA . B.W.R. has filed the necessary record checks required by Rule 18.1 of the Provincial Court (Family) Rules . No concerns have arisen as a result of those checks. [ 58 ] B.W.R. said that he has had no issues with C.S.F.’s exercise of her parenting responsibilities with the children but that he has wanted to be more involved with his children. B.W.R. complained that his views on parenting, what activities the children should do, what groups they should join, are not considered by C.S.F. [ 59 ] He also seeks shared parenting time with his children and shared parenting arrangements. As mentioned above, s. 40 of the

FLA sets out that only a guardian may have parental responsibilities and parenting time with respect to a child. [ 60 ] Over the years since separation, C.S.F. has moved homes and communities with the children on several occasions. At times B.W.R. has followed the moves of his children in order to ensure his continued contact with them. At other times he has not and has seen less of the children as a result. B.W.R. expressed concern about further relocations of the children by C.S.F. and the impact this may have on his contact time with the children. C.S.F. has stated that there are currently no plans to relocate with the children. [ 61 ] The legislative scheme created by

Part 4 of the FLA (Care of and Time with Children) provides rights and remedies to a guardian objecting to relocation which is more extensive than those available to a person who has contact time with the children. [ 62 ] For example, pursuant to s. 69 of the FLA , only a guardian may apply for a court order prohibiting the relocation of a child by a relocating guardian. An application for a court order prohibiting relocation is not an option available to a person having contact with a child. [ 63 ] Under FLA s. 67(2)(b), a person having contact with the child may make an application under

section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. [ 64 ] An order declaring B.W.R. to be a joint guardian would increase his ability to have more say in the lives of his children and to apply, in appropriate circumstances, for an order to prevent relocation of the children by C.S.F. [ 65 ] B.W.R. has not been satisfied with C.S.F.’s cancellation of his visits with his children.

Visits have been cancelled by C.S.F., for example, because B.W.R. had not completed the Parenting after Separation program. Other visits were cancelled when C.S.F. understood B.W.R. had informed the children that they would be punished by him if they repeated to their mother what he had told them.

C.S.F.’s understanding is substantially correct. [ 66 ] There was also a cancellation of visits after B.W.R. took the children to Nelson in August, 2015 without C.S.F.’s knowledge or permission and more cancellation of visits following the upset caused to D.L.R. by B.W.R.’s comments to her during the video games, etc. in January, 2016 and the communications which followed. [ 67 ] B.W.R. has told C.S.F. that he regards these suspensions of his visits as malicious and hateful.

These expressions are a recurring theme in his emails to C.S.F. and a view often couched in abusive terms. [ 68 ] B.W.R. agrees that many of his emails to C.S.F. are disturbing but those are a small portion of the total number of emails sent. He explained that over the course of their separation, C.S.F. has used her control of the children to hurt and torment him and that he wrongly chose anger as an outlet to deal with his frustrations. He has acknowledged that his own behaviour has been problematic.

Certainly, if he felt his contact was being improperly denied, he did not pursue avenues available to him under the FLA . [ 69 ]

Section 61 of the FLA allows a person with parenting time or contact with a child to apply for a listed remedy for wrongfully denied parenting time or contact by a guardian.

Section 62 provides circumstances where a denial of parenting time or contact with a child is not wrongful: 62(1) For the purposes of

section 61 [denial of parenting time or contact] , a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61 , the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child. The Threshold Requirement to Change Judge Walter`s Order [ 70 ] Before a court can grant an application to change, suspend or terminate an order, the threshold requirement must be met. A

change in circumstances is required before a court may change, suspend or terminate an existing order. This is set out in s.215(1) of the FLA, which provides that: 215(1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change incircumstances since the order was made. [71] C.S.F. submits that B.W.R. has not established the existence of any material change in circumstances since the making of theJanuary 4, 2012 order of Judge Walters. [72] In Jellis v. Jellis, 2014 BCSC 375 , the Honourable Mr.

Justice Melnick commented that: [25] The threshold question on this trial is whether there has been such a material change in circumstances since the consent order ofSeptember 20, 2010, that the order should now be reviewed and changed as no longer representing what is in the best interests of thechildren. Everyone experiences changes in his or her life. Court orders cannot be lightly set aside or varied for every little change thatlife may bring.

Parties are assumed to know that when they consent to a permanent court order intended to govern their future affairs,that there will inevitably be some changes in their lives as time goes on. The Supreme Court of Canada, whose judgment I must follow,laid down a basic rule for courts to apply when considering when circumstances have changed to such an extent that there must be a newinquiry into what is in the best interests of children in such situations as these. [26] In the case of Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, the Court stated the law to be that: … The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

For that threshold to be met, the judge must be satisfied of (1) a change in the condition,means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects thechild, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order… [Headnote] [73] I consider that C.S.F.’s submission is correct in this regard and that no material change in circumstances affecting the childrenhas been established.

Specifically, I am not satisfied on the evidence before me that (1) a change in the condition, means, needs orcircumstances of the children or in the ability of the parents to meet their needs, (2) which materially affects the children, and (3) whichwas either not foreseen or could not have been reasonably contemplated Judge Walters in 2012. [74] On that basis, B.W.R.’s application fails at the threshold.

However, in the event that I am wrong in this regard and a materialchange has occurred, I will proceed to deal with the application on the merits through the lens of the best interests of the children asrequired by

Part 4, Division 1 of the Act. The Best Interests of the Children [75] Counsel for C.S.F. has submitted that it would not be in the best interests of the children to appoint B.W.R. to be a guardian ofthe children.

B.W.R. takes the position that the best interests of the children require that he plays the greater role in the lives of thechildren that only a guardian can fulfil. [76] Reliance was placed by C.S.F. on the decision in Application to Change Guardianship: Wong and Yeung 2000 BCSC 1536, a decision of Justice Stromberg-Stein, as she then was, in relation to an application under the FRA for a change in guardianshipto a third party for educational purposes.

Section 24(1) of the FRA, then required that “paramount consideration” be given to the bestinterests of the child and to the specific factors enumerated in that subsection.

Section 24 of the FRA has been replaced by s. 37 and s.38 of the FLA. Section 37(1) refers to the best interests of the child as the only consideration for the parties and the court. [77] Counsel for C.S.F. submitted that Wong and Yeung still offers guidance for guardianship applications under the FLA. Atparagraph 21, some applicable legal principles were set out, the first two of which are as follows: 1.

Before a guardianship order will be granted, there must be clear and compelling evidence that, having regard to all the factors setout in s. 24 of the Family Relations Act, it is in the best interests of the child to make such an order. 2. There must be clear and compelling evidence of the ability of the proposed guardian to exercise guardianship rights, powers, andduties, and to provide for the maintenance and support of the children. [78] Reliance was also placed on the comments of Punnet J. in J.W.K. v. E.K., [2014] B.C.J.

No. 2205; 2014 BCSC 1635 at para. 35in the context of an application to terminate guardianship: I note as well that once guardianship is lost, under the FLA it may be difficult to regain. The process for applying for appointment as aguardian under s. 51 is not a simple one, procedurally or legally. [79] Counsel for C.S.F. submits that there is no clear and compelling evidence that B.W.R. has the ability to exercise theresponsibilities of guardianship or parental responsibility or that such an order would be in the best interests of the children.

To thecontrary, C.S.F. submits, the evidence is clear that B.W.R. is unable to put the interests of the children above his own.

B.W.R.’s conductin securing sexual relations with C.S.F. before agreeing to her requests is but one example of this. [80] In a guardianship application, s. 37 of the Act directs that the parties and the court must consider the best interest of the childonly, that in doing so, all of the child’s needs and circumstances must be considered included the listed factors in subsection (2). [81] Based upon the evidence heard, the needs and circumstances of the children including the factors set out in sections 37 and 38of the FLA, I am satisfied that there is no clear and compelling evidence that it would be in the best interests of the children if B.W.R.

were to become their guardian. In my view, B.W.R. has not established that he is able to exercise the responsibilities of a guardian in the best interests of the children and to work responsibly with C.S.F. to ensure the children’s needs are met. [ 82 ] I have also considered the factors set out in s. 38 and in particular the history of B.W.R.’s psychological or emotional abuse of C.S.F. which constitutes family violence within the meaning of the Act .

I am satisfied that this is evidence of a pattern of coercive and controlling behaviour which has impaired B.W.R. in his ability to work cooperatively to care for the children and to see past his own interests to meet their needs.

If B.W.R. were to be granted the authority of guardianship to the children, there is a very real prospect that B.W.R. would use his authority for purposes other than furthering the children`s best interests, as he has done in the past. [ 83 ] Considering the factors set out in sections 37 and 38 of the FLA , including the views of the children, I am also satisfied that continuation of the present contact arrangements as reflected in the order of Judge Marchand is appropriate, reasonable and in the best interests of the children. [ 84 ] The order will go to the following effect: • Upon the Court being advised that the name and birth date of each child is as follows: D.L.R., born [omitted], and A.W.R., born [omitted]; • The Court is satisfied that C.S.F. is the guardian of the children pursuant to s. 251 (1) of the Family Law Act ; • The application of B.W.R. to be named a guardian of the children is refused; • Under s. 40(1) of the Family Law Act , C.S.F. shall have all of the parental responsibilities for the children, which shall include but is not limited to registering the children for counselling or activities, applying for and obtaining passports and travelling with the children, or either of them, across international boundaries without the consent of B.W.R.; • The parties will promptly advise each other in writing of any matters of a significant nature affecting the children including any decision by either party to relocate from the greater Kamloops area. • B.W.R. shall have reasonable contact with the children as follows: o Every Thursday from 4:30 p.m. to 7:00 p.m.; o Alternate weekends from Friday at 4:00 p.m. to Sunday at 4:00 p.m.; o If there is a statutory holiday or professional development day on B.W.R.’s contact weekend or adjacent thereto, that day shall be added to B.W.R.’s contact weekend; o Each party shall have one uninterrupted week with the children (save for telephone calls) in July each year and another such week in August; o The parties will share an equal division of the school holidays at spring break; o The parties will share an equal division of the school holidays at Christmas; o B.W.R. shall not take the children more than 100 km from Kamloops, BC without the prior written agreement of C.S.F.; o On such other dates and times as the parties may agree in writing. • The children may communicate freely with a parent during the other parent’s parenting time or contact; • Under s. 225 of the Family Law Act , the parties will communicate with each other only by text message for the purpose of arranging parenting time or contact except in urgent circumstances; • The parties will (

a) put the best interests of the children before their own interests; (

b) encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent’s partner in a positive and respectful manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children; • The parties will not (

a) question the children about the other parent or time spent with the other parent beyond simple conversational questions; (

b) discuss with the children any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other parent to the children; • The parties will not tell the children or leave them with the impression that they are not to discuss events or time spent with one parent when they are speaking with the other parent; • The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the children concerning family issues or litigation. [ 85 ] B.W.R. will not be required to approve the form of the order. The Honourable Judge S.R. Harrison Provincial Court of British Columbia