J.W. v. J.S., 2018 BCPC 232

Citation: J.W. v. J.S. 2018 BCPC 232 Date: 20180911 File No: 16099 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.W. APPLICANT AND: J.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MUNDSTOCK Counsel for the Applicant: F. Nudel Counsel for the Respondent: J. Tchezganova Place of Hearing: Abbotsford , B.C. Date of Hearing: August 10, 2018 Date of Judgment: September 11, 2018

[ 1 ] J.W. (“J.W.”) filed a Notice of Motion on June 21, 2018 to request that the parenting time for J.S. (“J.S.”) pursuant to the court order dated May 3, 2016 be suspended until a psychological assessment of the child, Z.S.L.S., born [omitted for publication] (“Z.S.”) has been completed. [ 2 ] J.S. filed a Notice of Motion on June 25, 2018 seeking a variety of relief. Counsel for J.S. advised me at the outset of the hearing that J.S. was not proceeding with that application. 1.

Background [ 3 ] J.W. resides in Australia with her spouse, M.I. (“M.I.”), Z.S. and her second child, E. (“E.”) who is roughly 7 months old. M.I. is the father of E. J.S. resides in Maple Ridge, BC, with his parents. In 2016, Judge Solomon heard 2 days of evidence on the issue of whether J.W. should be granted permission to move to Australia with Z.S. On the third day of the trial, May 3, 2016, the parties came to the terms of a lengthy consent order (the “Order”), the relevant terms of which are as follows: 1.

J.W. is at liberty to relocate to Australia with Z.S. until December 15, 2021 at which point she shall relocate with the Z.S. to British Columbia by December 31, 2021; 2. In the event that J.W. separates from M.I. for a period of 90 days or more, she shall forthwith relocate with Z.S. to British Columbia within 90 days; 3. J.W. and J.S. shall share all parental responsibilities with respect to Z.S. pursuant to s.41(

a) through (

l) of the Family Law Act (the “FLA”); 4. J.S. shall have parenting time with Z.S. for a period of ten consecutive weeks twice per year to be defined as follows:

a) November 7, 2016 until January 16, 2017;

b) July 3, 2017 until September 11, 2017;

c) December 18, 2017 until February 26, 2018;

d) In subsequent years J.S. shall have parenting time for ten consecutive weeks in Canadian summer commencing at the end of Z.S.’s second term in the Australian school system; and

e) In subsequent years, J.S. shall have parenting time for a period of ten consecutive weeks in the Canadian winter commencing at the end of Z.S.’s fourth term in the Australian school system; 5. During the non-parenting time, the non-parenting party shall have Skype contact with Z.S. three times per week for a minimum of one hour each time; 6. The parties shall communicate with each other by email on a regular basis and in a respectful manner on issues related to Z.S. and guardianship decisions; 7.

The parties shall jointly engage Robert Colby, a child psychologist, for the purposes of assessing and obtaining information to ease Z.S. through the transition of having two homes and extended time away from the other parent and Robert Colby is at liberty to report to the Court on matters related to Z.S.; and 8. The cost of Robert Colby shall be shared equally between J.W. and J.S. [ 4 ] The Order is a Final Order.

I infer from the terms of the Order that the parties contemplated that the Provincial Court of British Columbia will maintain jurisdiction over Z.S. [ 5 ] J.W. asks that the parenting time for J.S. be suspended until the psychological assessment that she has engaged has been completed in Australia. J.S. asks that I dismiss the application. At the beginning of the proceeding, counsel for J.W. advised the court that should her Notice of Motion be dismissed, J.W. will comply with the Order and she will make suitable arrangements for parenting dates and times with J.S.

For this reason, counsel for J.S. indicated that he did not wish to proceed with the specific terms of relief in his Notice of Motion filed June 25, 2018 and it was adjourned generally. [ 6 ] The relief sought by J.W. in her Notice of Motion is identical to the relief sought in her Application Respecting Existing Orders or Agreements filed June 21, 2018 (the “Application”). The Application was not scheduled for hearing before me. Essentially, J.W. is asking for an interim order at this time and I take it that the Application will be scheduled for hearing at some future date. Accordingly,

section 217 of the FLA applies with respect to the Notice of Motion. 2. Affidavits [ 7 ] J.W. filed two affidavits in support of her motion as did J.S. Affidavits should not contain argument and opinion of the deponents. Affidavits should contain the facts upon which an argument is based. When deposing an affidavit, the facts should be set out in the same manner as if the deponent were giving evidence in open court. An affidavit should not be viewed as an opportunity to present otherwise inadmissible evidence or to present argument. [ 8 ] Counsel for J.W. cited Creber v. Franklin , 1993 CarswellBC 1348 , [1993] B.C.C. Civ. 1459 -03, in support of his position that

the “character letters” attached as exhibits to the affidavit of J.S. sworn August 2, 2018, should not be admitted into evidence. Counsel is correct on that point and the letters exhibited to J.S.’s affidavit are inadmissible. However, the decision is also instructive to the whole of the material before me as stated by Spencer, J.: [19] There are unsworn letters attached to the affidavit that express the opinions of their authors. Save where they may be admissible as expert opinions they are inadmissible. There are adjectival descriptions by one side of the alleged acts or statements of the other.

They are irrelevant. The affidavits should state the facts only, without stooping to add the deponents descriptive opinion of those facts. It should be left to argument to persuade the trier of fact what view he or she should take of them. [ 9 ] Much space in the affidavits before me was taken by J.W. and J.S. giving opinions and argument. The opinions are inadmissible and argument should be left to legal counsel in submissions. The affidavits contained a plethora of hearsay statements. M.I. did not submit affidavit evidence and J.W. sought to introduce his evidence through her affidavits.

J.S.’s parents did not submit affidavit evidence and J.S. sought to introduce their evidence through his own affidavits. I have carefully reviewed the affidavits filed by the parties and I will only rely on contents that are admissible. [ 10 ] J.W. lives 16 hours by car north of Perth, Australia in a mining town. Z.S. started school upon his move to Australia but because children in Australia start school at age 4, he was one year behind his peers when he began school.

The affidavit material reveals that Z.S. attended for parenting time in Canada as scheduled from November, 2016 until January, 2017, July, 2017 until September, 2017 and December, 2017 until February, 2018. There were some minor issues between the parties relating to the

interpretation of the Order (such as the meaning of the shared parental responsibilities and guardianship and the exchange of travel itineraries) but it appears that J.S. did have his allotted parenting time. [ 11 ] J.W. deposes that since Z.S. has had parenting time in Canada he has become “increasingly unhealthy and mentally distressed. It has been distressing to witness as a mother the attempts I have made to communicate with J.S. over our need to work together and improve communication with him but it has all been undermined or denied”.

J.W. has attached to her affidavit a series of email communications between herself and J.S. which are intended, I take it, to prove this statement in her affidavit. I must say at the outset that the email communication attached to J.W.’s affidavit does not establish that communication has been undermined or denied. [ 12 ] J.W. deposes that during the parenting time that ended in February 2018, she experienced what she refers to as “the breaking point”. J.W. deposes that during a Skype call with Z.S. who was in Canada, Z.S. threatened to “kill the baby in my tummy”. At this time J.W. was pregnant with E.

J.W. deposes that this shocked her and “caused me to realize there was something going on with [Z.S.].” [ 13 ] J.W. deposes that following the Skype conversation, she went to Z.S.’s school to meet with Z.S.’s teacher and principal. The reason for the meeting was to discuss the start of the school year for Z.S. J.W. was concerned about Z.S.’s transition into Year 1 because Z.S. would be missing the first month of the new school year (the school year is opposite to the school year in Canada given that the seasons in Australia are opposite to Canada).

During this meeting, J.W. advised the teacher and principal of what Z.S. had said during the Skype call. J.W. deposes that the teacher and the principal then referred her to the Kids Are Kids Therapy & Education Centre Inc. which is a therapy and family support organization provided for Western Australian Country Health Service. [ 14 ] While Z.S. was still in Canada, J.W. and M.I. met with a paediatric clinical psychologist, Lucy Moran, through the Kids Are Kids centre. During this initial meeting, J.W. and M.I. completed what J.W. refers to as an “assessment” of Z.S. and his behaviours.

It is important to note that at this time, Z.S. himself was not assessed. J.W. and M.I. completed a Child Behaviour Checklist where they were asked questions about Z.S.’s behaviours. With this information, Lucy Moran completed a letter which is attached to J.W.’s June 29, 2018 affidavit and is undated. The letter refers to the dates of the intake sessions as February 2 and 16, 2018, both dates when Z.S. was in Canada. The letter is directed to the attention of E.M. I could not find reference in the affidavit material as to the identity of E.M. [ 15 ] The letter sets out J.W.’s description of Z.S.’s two homes.

J.W. states that her home is “consistent and predictable with an emphasis on healthy eating regular bedtime and school routines” while in J.S.’s home they “encourage co-sleeping of [Z.S.] with his grandparents, they assist [Z.S.] with toileting, they allow him to eat ‘junk foods’ and they do not have consistent bedtime.” J.W. reported that she was concerned about Z.S.’s fussiness with food, difficulties with hygiene and that he has not grown since arriving in Australia nearly two years prior. [ 16 ] Under the heading “Presenting Concerns”, Lucy Moran writes the following: [J.W.] reported significant concern about [Z.S.’s] well-being following his second visit to stay with his father. [Z.S.] returned at the start of Term 4 2017.

She reported an increase in incidences of provocative and aggressive behaviours towards his peers at Pre-Primary and towards herself and [M.I]. She explained that when they lived in Canada, she would experience difficulties managing [Z.S.’s] behaviours on a weekly basis when [Z.S.] returned to her from [J.S.’s] care. She commented that each time he has returned from Canada she has found it significantly more challenging to get [Z.S.] back into a healthy routine of eating, sleeping and behavior. She has also reported hearing concerning comments from [Z.S.] (when they speak on Skype) during the last few weeks.

She quoted him as saying “all we say is lies”, “we can’t look after him”, “you can’t control me here in Canada. I don’t have to do what you tell me”, “we are too busy for him and he shouldn’t talk to us.” The various statements quoted by Lucy Moran in this passage are not deposed to by J.W. in her affidavit material. [ 17 ] Lucy Moran concludes the letter by recommending that Z.S. engage in family therapy and sets out a plan upon Z.S.’s return from Canada to attend for a medical check-up and to arrange an independent psychological assessment of Z.S.

Of note is that Lucy Moran states at the conclusion of this letter that “writing court reports is outside the scope” of the Western Australian Country Health Service and she recommends the engagement of a forensic psychologist. [ 18 ] On February 21, 2018, J.W. met with Dr. Anand Deshmukh, a Consultant Paediatrician who prepared a letter that is attached to J.W.’s June 29, 2018 affidavit. Z.S. was still in Canada at this point. The letter states: When [J.W.] was pregnant with [E.] he threatened to kill the baby. He wanted to have a brother as he wanted to fight with him. When

told by [J.S.] that he will have a company and it would be nice for him, he said “he is still alone as he has a sister and not a brother” yesterday on the phone. The reaction from [Z.S.] caused concerns for [J.W.] and hence getting him assessed. [Z.S.] is in Canada with his father now for 10/52 weeks and according to the court order will be Canada twice a year for 10 weeks at a time and would be missing a lot of school. Parents went to court to have a not very good order through Canadian court. [J.W.] is now going to look at hiring a lawyer to get the orders changed and get [Z.S.] more stable schooling. Dr.

Deshmukh ends the letter by requesting to see Z.S. on March 1, 2018. [ 19 ] Once Z.S. returned to Australia on February 28, 2018, J.W. began to engage Z.S. in a series of appointments in an attempt to obtain a full assessment of Z.S. J.W. has attached to her June 29, 2018 affidavit another letter from Dr. Deshmukh dated April 26, 2018 in which he states that there were “red flags to suggest whether [Z.S.] had autism spectrum disorder”. At the date of writing the letter, Dr. Deshmukh had seen Z.S. once upon his return from Canada.

The doctor quotes information given by J.W., M.I. or both as follows: His threatening behaviours towards his step father, very calculated behaviours, threatening him while he is fast a sleep with coming very close to his face and saying “I had a bad dream/nightmare”, also threatening his step sister and father saying that he would kill them with a kitchen knife, would like to cut his sister in pieces and roast her and cut her leg off with a knife and stitch it to her face so she gets a trunk is very scary and very upsetting for the whole family.

I note that nowhere in J.W.’s affidavits does she depose to these facts. There is also no affidavit from M.I. deposing to these facts. [ 20 ] Dr. Deshmukh refers to the assessment of Lucy Moran (the undated letter referred to above) and the Child Behaviour Check List completed by J.W. and MI. Dr. Deshmukh offers the following opinion: “I would strongly recommend [Z.S.] to remain in Australia until all testing and treatment has taken place” [emphasis added]. [ 21 ] J.W. relies upon this opinion when she asks the court to order that J.S.’s parenting time be suspended.

In her affidavit of June 28, 2018, J.W. deposes that “I am seeking that the upcoming parenting time with [J.S.] in Canada in July 2018, be suspended as we need the time to assess exactly what is going on with [Z.S.] and to begin the necessary treatments.” In her affidavit sworn August 9, 2018, J.W. deposes “…right now I am advocating for [Z.S.] and requesting that he remains in Australia until his testing, diagnosis and treatment can take place.” [ 22 ] Dr. Deshmukh referred Z.S. to Dr. Pountney, a clinical psychologist. J.W. deposes that Dr.

Pountney is conducting an assessment of Z.S. to determine if he has autism. In a letter from Dr. Pountney dated August 6, 2018, she states the following: Please be advised that [Z.S.] is currently engaged with Karratha Psychological Services. [Z.S.] attended two (2) initial sessions….At the end of these initial sessions it was determined that a psychological assessment, comprising an intellectual assessment, a behavioural assessment and a social assessment may provide clinical information to best support [Z.S.] when transitioning between his primary residences and within the school environment.

I am in the process of completing the above assessments…. As of the date of the hearing, August 10, 2018, the assessment had not been completed. [ 23 ] J.W. deposes in her June 28, 2018 affidavit that Z.S. has been diagnosed with a sensory processing disorder. In support of that statement, she attaches to her affidavit a copy of a questionnaire that she completed. There is no expert opinion evidence before the court to establish that Z.S. has been diagnosed with a sensory processing disorder.

The lay person opinion of J.W. is inadmissible. [ 24 ] As I understand J.W.’s affidavits, Z.S. is seeing a psychologist, an occupational therapist, a paediatrician, a naturopath practitioner, and a meal time therapist. J.W. deposes that an assessment should be complete by the end of September, 2018 although she is not certain. [ 25 ] J.W. also deposes that in addition to Z.S.’s “mental health problems”, Z.S.’s education is suffering as a result of the parenting time schedule. J.W. then deposes to hearsay evidence from the teacher, Ms.

Smith, who has advised J.W. that Z.’s writing skills are not where they should be and that he will be receiving a “C” in writing for semester 1. J.W. also deposes that J.S. has friends but that J.W. wonders how “real those friendships are. [Z.S.] is demanding, bossy and behaves like a bully.

He tells other children what to do and how to play games; he is the boss, he teases them and as he ages children will not want to play with him.” [ 26 ] J.S. wants parenting time with Z.S. and he proposes that Z.S. can be assessed in Canada and that professionals engaged in Canada can communicate with the professionals in Australia. He deposes that Z.S. was supposed to come to Canada on July 2, 2018 for a period of 10 consecutive weeks. He deposes that he was not aware that J.W. was taking Z.S. for the recent assessments or that J.W. still had concerns about Z.S.’s mental health.

He states that the issues raised by J.W. are not new in the sense that she has raised these concerns in the past, prior to the date of the Order, and that her underlying motivation in bringing the Notice of Motion and the Application is to reduce or cancel his parenting time because it is an inconvenience. [ 27 ] In an email dated May 7, 2018, J.W. instructs J.S. that Z.S. “will not be returning to Canada for visitation.” It is a very brief email. [ 28 ] J.S. deposes that during each of the parenting time blocks that he has had since the date of the Order, Z.S. and J.S. have enjoyed their time together.

Z.S. regularly attends play dates, goes on outings such as to the Zoo, Science World, and the park and has sleep overs with his family and friends. Z.S. attends the day care that J.S.’s mom owns and operates. Z.S. also attends church with J.S. and his extended family. J.S. deposes that Z.S.’s teacher in Australia sends curriculum for the term and that he is also assisted by a BC Certified Teacher as part of a home-schooling curriculum. He further deposes that he is in regular telephone contact with Z.S.’s teacher and no concerns have been brought to his attention.

J.S. has attached to his affidavit sworn August 2, 2018, a copy of Z.S.’s most recent

report card for the January to June 2018 term. For approximately 8 weeks of that term, Z.S. was in Canada. The report card indicates that Z.S. is doing well in school and has “high” and “satisfactory” achievements in all areas. In none of the learning areas is Z.S. said to be “limited” or “very low” in achievement. [ 29 ] J.S. has not seen concerning behavior in Z.S. and J.S. is worried about the number of professionals engaged to assist Z.S. J.S. is concerned that this is too much for Z.S. because he is seeing so many specialists in a short period of time.

Z.S. has to travel as much as 16 hours by car each way to Perth to attend most of these appointments. [ 30 ] With respect to the particular Skype conversation that gave rise to the actions taken by J.W., J.S. deposes to the following in his affidavit sworn August 2, 2018: …both my parents and myself were present during the Skype call that J.W. is talking about, as we are present during all Skype calls, and to date we have never heard Z.S. make any such threats to J.W. or his sister, E. [ 31 ] As I indicated to counsel during the hearing, J.S. cannot depose to what his parents heard.

He can depose to what he heard. 3. The Legal Principles [ 32 ] As this Notice of Motion is an application to suspend the terms of a final order, the focus of the hearing must be on the change in circumstances that has occurred since the making of the Order and the weighing of the hardship to the parties in suspending the Order prior to the hearing of the Application. The applicable

section of the FLA is s.217 which provides that: If an application is made to change, suspend or terminate an order, an interim order for the relief applied for may be made only if the court is satisfied that (

a) a change in circumstances has occurred since the order that is the subject of the application was made, and (

b) the hardship to a party of denying interim relief before the application is heard outweighs the hardship to any party of granting interim relief. [ 33 ] While s. 217 of the FLA does not use the language of a “material change”, in my view the change must be material. Counsel for J.S. relies on the decision of Williamson v. Williamson , 2016 BCCA 87 in which s. 47 of the FLA was interpreted to require a material change in circumstances. That decision involved an application for a final order rather than an interim order.

The decision is equally applicable with respect to the nature of the change required in applications for an interim order. The change in circumstances must be material in order to ensure that the application to change is not, in substance, an appeal of the existing order. The test for material change examines what the parties actually contemplated at the time of the initial order rather than what was known at the time or could be reasonably foreseen ( see Dedes v. Dedes, 2015 BCCA 194 ). [ 34 ] Even where there is a material change in circumstances,

section 217 requires that before an interim order can be made to suspend the terms of a final order, there must be weighing of the hardship caused to the parties in changing or not changing the final order on an interim basis. [ 35 ] I must also consider the provisions of

section 37 of the FLA . [ 36 ] It is important to note that interim orders are intended to maintain the status quo pending a determination of the legal issues at trial where viva voce evidence can be called and credibility can be tested ( see Fitzgibbon v. Fitzgibbon , 2014 BCCA 402 at para. 22 ). As set out in Fawcett v. Read, 2016 BCSC 310 at para. 65 , t he court should proceed cautiously in disturbing the status quo when granting an interim order: In light of my findings in these reasons it is appropriate to maintain the status quo until trial.

In the circumstances of this case, it seems somewhat reckless to order otherwise when the best interests of a child are at stake, when there has been no s. 211 report or viva voce evidence, and no opportunity for cross-examination to test credibility, particularly where there are clear conflicts in the affidavits. 4. Analysis [ 37 ] J.W. states that parenting time must be suspended until the assessment of Z.S. is complete. In argument, counsel for J.W. did not indicate exactly what the material change is but I surmise that the material change is the assessment process itself.

Counsel for J.W. did not argue that the concerns were entirely new rather that Z.S.’s behaviour, in J.W.’s view, has gradually become more concerning. J.W. relies heavily on the letter of Dr. Deshmukh in which he opines that Z.S. should remain in Australia until the testing and treatment has taken place. However, the doctor’s opinion is undermined by the following:

a) the doctor, at the time of writing the letter, had seen Z.S. only once and is a paedeatrician and not a child psychologist;

b) the doctor does not indicate the timeline to complete the assessment and treatment; and

c) the opinion appears to be based on information and facts that are not before the court. [ 38 ] Because the doctor had seen Z.S. only once, it is difficult to reconcile his opinion that will essentially result in Z.S. not being able to travel to his home in Canada for an indefinite period of time. It appears to be based not on Dr. Deshmukh’s own investigations and enquiries of Z.S. but on the information contained in Lucy Moran’s letter and the Child Behaviour Check List. [ 39 ] It is also an opinion based on reports allegedly made by J.W., M.I., or both, regarding concerning statements made by Z.S.

However, that evidence is not before the court. J.W. and M.I. have not deposed that these statements occurred. I do not know when Z.S. is supposed to have made these statements, to whom and in what context. The opinion is without foundation and I therefore find that the opinion of Dr. Deshmukh is inadmissible.

[ 40 ] There are several issues in the affidavit materials that cannot be reconciled. The parties have dramatically different views on the current state of Z.S.’s mental health and behaviour. [ 41 ] J.W. deposes that when she heard the statement from Z.S. on Skype about harming E., she went to the school to meet with the teacher and principal. At that time she deposes that her concern was Z.S. transitioning to the new part of the school for Year 1. Even though that was the reason for the meeting, at some point during that meeting, J.W. reported the statement made by Z.S. on Skype.

This results in the intake meetings with Lucy Moran a short time later. The letter written by Lucy Moran contains no reference to the statement made by Z.S. over Skype. This is surprising. J.W. deposes that it is this statement on Skype that was the “breaking point”. It was a significant statement to J.W. and she deposes that it was that statement that caused her to take action. It could be that Lucy Moran simply did not record the statement in her letter. However, Lucy Moran is a clinical psychologist trained in taking notes and ensuring the accuracy of a clinical profile.

In my view, it is more likely that J.W. didn’t mention the statement made by Z.S. because at that time her concerns related to Z.S.’s education and the upcoming transition home from Canada. [ 42 ] As indicated, J.W. was very worried about Z.S.’s transition to Year 1 and the fact that Z.S. was not performing adequately in English. J.W. deposed to this in her affidavit of June 28, 2018. She stated that she did not yet have Z.S.’s report card. She also reported concerns about his behaviour with his peers. I now have the benefit of reviewing Z.S.’s most recent report card dated June 26, 2018.

The report card reveals that Z.S. had “high” achievement in reading, viewing, speaking and listening. He had “satisfactory” achievement in writing. The teacher’s comments are that Z.S. “is working above the expected standard in English.” The report card reveals that the students are not issued letter grades and so Z.S. would not have been given a “C” as J.W. deposed. Under the heading “Attitude, Behaviour and Effort”, the teacher comments are as follows: [Z.S.] is a positive, energetic and independent member of our class who is able to reflect on his behavior in a mature manner.

He thrives on the opportunity to apply his knowledge in new situations and taking leadership roles to guide and support his peers. [Z.S.] is able to listen to instructions and is able to follow them in correct order with reminders…When working in a paired or group activities [Z.S.] usually works cooperatively with other members of the class…[Z.S.] enjoys playing with a core group of friends during Recess and Lunch time using playing active games or trying to “find treasure.” [ 43 ] When confronted with J.S.’s affidavit in which the report card is attached, J.W.’s response was that she would love to see how well Z.S. would do if he did not have to miss so much school. [ 44 ] In my view, J.W.’s concerns regarding J.S.’s education are exaggerated.

J.W. has described in her affidavits an extremely troubled child with mental health and educational issues. I cannot reconcile J.W.’s description of J.S. with the information contained in the report card dated June 26, 2018. [ 45 ] J.W. allegedly reported to Dr. Deshmukh that Z.S. had not grown since the move to Australia in 2016. However, in email communication with J.S. dated July 21, 2016, J.W. states that Z.S. is “happy, healthy and growing”.

In an email to J.S. dated August 5, 2016, J.W. states that Z.S. “has never been healthier and more active nor has [he] grown so much in such a short time period.” [ 46 ] Some of the concerns raised by J.W. are not new. For example, J.W. has raised concerns in the past about Z.S.’s exposure to what she perceives as violence and Z.S. being behind in learning. In July of 2016, J.W. had communicated with him by email that she was concerned that Z.S. was violent, mentally unwell and behind in his education.

He deposes that these concerns were also put in evidence by J.W. during the trial that took place leading up to the Order. He states that at the time when these concerns were raised in July of 2016, Z.S. was only 4 years old and had not yet attended school. On July 8, 2016, J.W. writes in an email to J.S.: As we are both aware, violence is a major issue with Z.S. As a result, we have removed all violence from his life.

Meaning that Z.S. is not permitted to read, watch, act or play any sort of violence at all…this includes such movies…as kung fu panda or even Aladdin…He is showing improvement in his violent nature but he isn’t yet at the level that we are happy with. We ask for your cooperation… Another thing that needs to be addressed is that it has come to our attention that Z.S. is very far behind in his education.

He does not even know the names of the letters or the alphabet, he cannot write the letters of the alphabet and he does not know the sounds of the letters of the alphabet….Z.S. appears to have a very low level of work ethic. He is extremely lazy and does not want to put any effort into learning anything….I am really worried that he is not going to be ready to go to school full-time in February because he has no intrinsic motivation and no interest in sitting down and learning anything.

He also missed the first year of school in Australia so he is already behind the other children….Starting to learn to read are not the only issue, math is too. He cannot count correctly nor recognize numbers or put them into sequence…. Perhaps on Skype you could try to use your time to work with him and help to teach him something academic….I do not see any strengths with him and this is what worries me. He doesn’t want to really put a lot of effort into riding his bike, or doing crafts, or really anything. He is just lazy.

I think he gets too much handed to him without his actually having to put any effort into anything at all….He seems to be developing into a spoiled little kid who just gets things without having to earn them. I am not really okay with this and I know that he got a lot of new toys and such when we arrived here but from now on Z.S. isn’t getting things handed to him. He is expected and required to work for the things he gets. [ 47 ] The issue of Z.S. making concerning statements is also not new. In a report of Dr. Colby dated January 13, 2017, it appears that J.S. had concerns about statements made by Z.S. Dr.

Colby writes the following: …issues have been raised about [Z.S.] making statements that his mother or M. are mean, and that he states that he is happy if they are sad or unhappy. I point out that all the statements made by a four-and-a-half-year-old child in regards to communication need to be taken in light of the child’s age and the child’s motivation for making such statements. Sometimes they are made in jest. They may be made because the child does not understand the scope of it. Such statements are made by children sometimes that they are pleased they are able to have an effect on the parent.

You cannot assume that a child understands the depths of those statements at his age. [ 48 ] During the hearing, I asked both counsel why the services of Dr. Colby were not sought to deal with the recent transition between homes as required by the Order. Counsel could not offer an explanation.

[ 49 ] The assessment process began as soon as Z.S. returned home at the end of February, 2018 and is still not complete. Of concern to me is the fact that J.W. is not consistent in her affidavits with respect to the relief she is seeking. Her legal counsel has stated that the suspension of the parenting time should be limited to the completion of the assessment. I take that to mean that upon the completion of the assessment, the parenting time should resume.

However, in both of her affidavits, J.W. states that she wants the parenting time to be suspended until the assessment and treatment is completed. [ 50 ] It is not lost on me that by virtue of the court calendar, J.W. has achieved part of what she is requesting. Z.S. has remained in Australia since February 26, 2018 and has missed the 10 week block of parenting time that was supposed to start in July, 2018. The Application and Notice of Motion were not filed until June 21, 2018 even though the opinion of Dr. Deshmukh was provided to J.W. in a letter dated April 24, 2018.

J.W. had formed the view that Z.S. was not coming to Canada when she sent an email to J.S. on May 7, 2018. The parties then scheduled the hearing, based on availability of counsel and the court calendar, for August 10, 2018. [ 51 ] In the intervening months, J.W. chose not to comply with the Order. It is often thought that because an application to change or suspend an order is before the court, the existing court order is somehow stayed. This of course is incorrect. J.W. is under an obligation to comply with the Order until it is changed or suspended. [ 52 ] From the first meeting with Dr.

Deshmukh, J.W. was clear in her mind that the goal was to change the Order. The letter penned by Dr. Deshmukh dated February 21, 2018 states that J.W. is going to get the Order “changed and get Z.S. more stable schooling”. This confirms that J.W.’s primary concern was that Z.S. was missing too much school as a result of the parenting time schedule. As indicated, the issue of missing school and being behind in school is not a new issue. Further, it appears to be a false concern based on Z.S.’s report card dated June 26, 2018. [ 53 ] J.W. cannot state with any certainty when the assessment of Z.S. will be complete.

There is also conflict in J.W.’s affidavit material regarding whether Z.S. is being assessed for autism or to assist with the transitions between two primary homes. I find that it would not be in the best interests of Z.S. to be prevented from going to his home in Canada for an undetermined period of time to allow an assessment to be completed. It may not be feasible for J.S. to arrange for Z.S. to be assessed in Canada. However, the assessment can take place while Z.S. is in Australia and if the assessment is interrupted by the parenting time, the assessment can continue upon his return.

There is no evidence before me to suggest proceeding in this manner would be harmful to Z.S. in any way. Z.S. has a strong relationship with J.S. The history of Z.S.’s care has been that he has been cared for by both his parents. Given Z.S.’s young age, it is important to his development that he have parenting time with both his parents. [ 54 ] The status quo is what has been established by the Order. Z.S. has two homes and lives with his mother for 32 weeks of the year and with his father for 20 weeks of the year. The affidavit evidence of the parties is conflicting on major points.

The merit of J.W.’s position that parenting time should be suspended is best determined at a viva voce hearing where credibility can be tested. [ 55 ] I have also concluded that based on the admissible evidence in the affidavit material before me, J.W. has not established that there is a material change in circumstances. It is also my view that the hardship to J.W. in denying the interim relief does not outweigh the hardship to J.S. in granting the interim relief. The status quo ought to be maintained until the Application can be heard at trial.

The Notice of Motion dated June 21, 2018 is dismissed. [ 56 ] I understand that the parties will communicate with each other about the parenting time

schedule and in fact, I have not been asked to address that issue. I wish to make it clear to J.W. that the Order is a final order and she must comply with the terms. The mere filing of an Application or a Notice of Motion does not relieve her of that obligation. 5.

Summary [ 57 ] In

summary, the Notice of Motion is dismissed on the following grounds:

a) the status quo should not be disturbed by the granting of an interim order to suspend parenting time;

b) the admissible evidence in the affidavit material does not establish that there has been a material change in circumstances since the Order was granted;

c) the hardship to J.W. in denying the interim relief does not outweigh the hardship to J.S. in granting the interim relief; and

d) it is not in the best interests of Z.S. to be denied parenting time with his father for an undetermined period of time. _______________________________ The Honourable Judge K. Mundstock Provincial Court of British Columbia