K.G. v. E.B.V., 2018 BCPC 208

Citation: K.G. v. E.B.V. 2018 BCPC 208 Date: 20180626 File No: 16821 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.G. APPLICANT AND: E.B.V. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: P. Mikolayczyk Counsel for the Respondent: T. Hudson Place of Hearing: Smithers , B.C.

Dates of Hearing: Jaunary 11, February 5, June 14, 2018 Date of Judgment: June 26, 2018 Introduction [ 1 ] Before me is the interim application of E.V. [“Mr. V.”] with respect to his two biological sons with K.G. [“Ms. G.”]. Mr. V. and Ms. G. cohabitated off and on between October 2011 and July 2016. R.B.V. [“R.”], born [omitted for publishing], and M.L.V. [“M.”] born [omitted for publishing], are children of that intermittent relationship. [ 2 ] Since September 2016, Mr. V. and Ms. G. have a parenting arrangement in which they each have parenting time with their eldest son R. on alternating weeks.

In the last year or so, Mr. V. and Ms. G.’s shared parenting regime with respect to R. began to include M. In September 2017, Mr. V. married his current wife, S.V. [“Ms. V.”], who has a son, K.W. [“K.”], who is [omitted for publishing]. Mr. and Ms. V. now have a daughter, K.R.V. [“K.V.”], who will be [omitted for publishing]. [ 3 ] Mr. V. seeks an interim order giving him primary residence of R. and M. reducing Ms. G.’s parenting time to weekends. He bases his application largely upon his inability to effectively communicate and cooperate with Ms. G. in the children’s best interests. Ms.

G. opposes the application and cites his wife’s animus toward her as the reason she and Mr. V. have difficulty co-parenting. [ 4 ] These reasons are lengthy. The parties have made multiple competing allegations, some serious, others which are trivial, speculative or marginally relevant. As there are further applications yet to be heard in this matter, I will address each of these allegations in an effort to preclude them from being recycled in future proceedings and hopefully assist the parties in moving forward.

Issue: [ 5 ] The sole issue before the Court is whether R. and M.’s primary residence should be with Mr. V. on an interim basis. [ 6 ] Although there has been financial information and evidence adduced by both parties, I will not determine the issue of child support at this time. Ms. G. has an outstanding application for retroactive and ongoing child support which is yet to be determined. I will, however, take into consideration the impact of the parties’ financial circumstances and arrangements on their ability to fulfill their parenting responsibilities. History of Proceedings [ 7 ] Mr. V. and Ms.

G. have been before the Court since January 22, 2014, with respect to parenting issues. On January 22, 2014, Ms. G. filed an application to obtain an order in [omitted for publication] Provincial Court with respect to R., then about two and one-half years old. Ms. G. sought an order with respect to guardianship, parenting time, allocation of parental responsibilities and child support. At the time, Ms. G. lived at [omitted for publishing] in [omitted for publication], B.C. and Mr. V. lived at [omitted for publishing] in Prince George, B.C. [ 8 ] On January 30, 2014, Ms.

G. filed a Notice of Motion in which she sought an order giving her sole guardianship and primary residence of R. and Mr. V. specified access every second weekend. In support of the Notice of Motion Ms. G. filed an Affidavit on February 5, 2014. At the time, Ms. G. was [omitted for publication] pregnant with M. [ 9 ] On February 7, 2014, Mr. V. replied to Ms. G.’s January 30, 2014 application. He agreed with her application for child support and counterclaimed for guardianship, parenting time, contact, allocation of parental responsibilities, child support and conduct orders. On February 12, 2014, Mr.

V. filed his own Affidavit. [ 10 ] This matter came before Judge Birnie on February 13, 2014, at a family case conference. Ms. G. was represented by legal counsel, Ms. Olson, and Mr. V. by his current counsel, Mr. Hudson. At the time, Ms. G. was residing in [omitted for publication] and Mr. V., in Prince George, B.C. Judge Birnie ordered by consent: a. Ms. G. and Mr. V. share guardianship of R.; b. Ms. G. and Mr. V. share parenting responsibilities of and parenting time with R. on a week on and a week off basis.

And in this regard: i. the parties exchange R. on Sundays on or before noon in Fraser Lake, B.C.; ii. the parties exchange a communication log about R. when he is in their care that documents R.’s diet, health and daily schedule; iii. in the event either party is unable to exercise their parenting responsibility and parenting time with R., the other party shall have the right to exercise parenting time and parenting responsibility for R. during this period; iv. the party having parenting responsibility of and parenting time with R. shall ensure the other party has access to R. via Facetime at least four times per week; and v. in the event either party is present in the community where the other party is exercising parenting time and parenting responsibility, the party shall have parenting time with R. with 12 hours’ notice to the other party; c.

Mr. V. has an imputed annual income of $42,000 and Ms. G. has an imputed annual income of $19,600.

d. Commencing February 15, 2014 and continuing on the 15 th day of every month thereafter, Mr. V. pay Ms. G. $212 per month in child support for R. This is a set off from Mr. V.’s Child Support Guideline obligation of $383 per month and Ms. G.’s Child Support Guideline obligation of $171 per month. e. The parties exchange their T1 General Tax Return information each year. f. The parties exchange their Form 4 Financial Statements, with attachments by April 1, 2014. [ 11 ] On February 20, 2014, the Ministry of Employment and Assistance filed an application for an order that Mr. V. pay child support to Ms. G. for R.

Ms. G. had applied for social assistance and assigned the Ministry her rights to child support. [ 12 ] On March 25, 2014, Ms. G. filed her Form 4 Financial Statement, indicating she was still living at [omitted for publication] in [omitted for publication], B.C., and in training with the [omitted for publication] to be an on-call client service representative. [ 13 ] On November 28, 2016, Ms. G. filed an application to obtain an order in the [omitted for publication] Provincial Court seeking guardianship and child support for R. and M. She also sought a protection order. At the time Ms.

G. was residing at [omitted for publication] in [omitted for publication], B.C. and Mr. V. in Prince George. [ 14 ] On October 3, 2017, Mr. V. filed an application to obtain an order seeking an allocation of parental responsibilities and child support. At that time, Mr. V. lived at [omitted for publication] in [omitted for publication], B.C. Also on October 3, 2017, Mr. V. filed an Application respecting an existing order or agreement seeking to set aside Judge Birnie’s February 13, 2014 order. [ 15 ] On October 25, 2017, Mr. V. filed a Notice of Motion seeking temporary full custody of the R. and M.

In support of this motion Mr. V. filed an Affidavit on October 25, 2017, in which he states: I am asking to obtain full custody [temporary] for my two boys R. & M. because mother [omitted for publication] was recently kicked out of her residence and refuses to tell me where so she is living and where the boys are. Mother cannot create a stable and healthy environment for my boys at this time. I fear for their safety and well-being. R. and M. have been jumping from house to house in her care without permanent residency.

Mother had been reported to have been drinking while in care of boys. [ 16 ] In his October 25, 2017 Notice of Motion, Mr. V. indicated that Ms. G.’s address was “unknown” in [omitted for publication], B.C. [ 17 ] On October 30, 2017. Ms. G. replied to Mr. V.’s October 3, 2017 application for an order. She agreed with Mr. V.’s application in respect to guardianship, allocation of parental responsibilities and child support. In turn, Ms.

G. sought orders with respect to guardianship, parenting time, allocation of parental responsibilities, ongoing and retroactive child support, a change in or suspension or termination of Judge Birnie’s February 13, 2014 order and conduct orders. [ 18 ] On October 30, 2017, Ms. G. replied to Mr. V.’s October 3, 2017 application to have Judge Birnie’s February 13, 2014 Order set aside. Ms. G. contested its termination but agreed it needed to change as it was no longer being followed.

Moreover, the February 13, 2014 order did not deal with M. who was yet to be born at the time it was made. [ 19 ] On October 31, 2017, Mr. V. and Ms. V filed a joint Affidavit in support of Mr. V.’s October 25, 2017 Notice of Motion to vary Judge Birnie’s February 13, 2014 order: Exhibit 2. [ 20 ] On November 6, 2017, Mr. V. filed the Affidavit of personal service indicating Ms. V. served Ms. G. personally with his October 25, 2017 Affidavit on October 30, 2017. [ 21 ] Mr.

V.’s October 25, 2017 Notice of Motion came on for hearing before Judge Jackson in [omitted for publication] Provincial Court on November 6, 2017 Judge Jackson adjourned the hearing, but made the following interim orders by consent: a. neither party shall possess or consume either alcohol or illicit drugs while having care of R. and M.; and b. in the event either party moves, the moving party shall provide the other party with their new address. [ 22 ] Also on November 6, 2017, Mr. V. opposed Ms G.’s application the issues raised in Mr.

V.’s October 25, 2017 Notice of Motion referred to a family case conference. [ 23 ] On February 5, 2018, Ms. G. filed two Affidavits, one in response to Mr. V.’s October 3, 2017 application with respect to existing orders or agreements and one in response to Mr. and Ms. V.’s October 31, 2017 Affidavit sworn in support of Mr. V.’s October 25, 2017 Notice of Motion: Exhibits 5[a] and 5[b]. [ 24 ] Mr. V.’s October 25, 2017 Notice of Motion came before me for hearing on January 11, 2018, February 5, 2018, and June 14, 2018. The applicant called two witnesses, Mr. V. and Ms.

V. and tendered into evidence the following exhibits: Exhibit 1: An evidence binder enclosing: [a] photographs which Ms. V. took between November 1, 2017 and January 11, 2018, of R.’s skin condition when leaving after his week of parenting time with Mr. V.; [b] photographs which Ms. V. took between November 1, 2017 and January 11, 2018, of R.’s skin condition when arriving at Mr. V.’s home after his week of parenting time with Ms. G.; [c] a text message thread between Mr. V. and Ms. G. on or about November 27, 2017, concerning issues relating to Canada Revenue Agency and

child support; [d] a text message thread between Mr. V. and Ms. G. between November 29, 2017, and December 8, 2017, concerning R.’s participation in the school play, medical treatment for R.’s skin condition and their difficulties communicating; [e] a text message thread between Mr. V. and Ms. G. about R.’s participation in the school play; [f] a text message thread between Ms. G. and Ms. V. concerning Ms. G.’s request for assistance in giving M. medication for his fever; [g] Mr.

V.’s Statement of Earnings from Salem Contracting for the pay period ending August 13, 2017; and [h] financial records from the Royal Bank of Canada showing payments Mr. V. made to Ms. G. between June 15, 2016 and December 22, 2017; Exhibit 2: the joint Affidavit of Mr. V. and Ms. V. sworn October 30, 2017 and filed October 31, 2017 [the “V. Affidavit”]; Exhibit 3: a medical note from Dr. M.E. Yaremco dated January 29, 2018, in which he states: “R. was examined in my office today.

He had a rash consistent with a diagnosis of molluscum contagiosum, a common viral skin infection in young children”; Exhibit 4: an agreement dated September 25, 2017, among Mr. V., Ms. V. and Ms. G. stating: This document is to verify that Mr. V. and Ms. V. share parental time with R. and M. of 50%. The boys reside with Mr. V. and Ms. V. every other week and with their mother Ms. G. on alternate weeks. This is a mutually agreed upon agreement. They switch every week on Monday at 7 pm. They have had this agreement as of September 2016.

All school, medical, and any other life decisions concerning R. or M. will be discussed between all three [3] parties. When [omitted for publication] cannot make alternate arrangements for child care she relies upon [omitted for publication] to watch M. These dates are to be arranged in advance. [omitted for publication] is NOT receiving any monthly child care support payments from [omitted for publication]. Any daycare expenses for the boys will be incurred by [omitted for publication]. Exhibit 6: a DVD containing: [a] a homemade video recording Ms. G. made of Mr.

V. picking up M. at her residence on or about June 11, 2018, at 7:00 p.m.; [b] a video recording Ms. V made of R. on April 2, 2018, at 9:02 p.m.; April 9, 2018, at 6:51 p.m., April 30, 2018 at 7:52 p.m., and on May 7, 2018, at 6:40 p.m. These recordings document R.’s skin condition at the time and his reaction to having cream applied to his body; Exhibit 7: a packet of 30 photographs Ms.

V. took of R. showing his skin condition on February 5, 2018, February 19, 2018, March 5, 2018, March 19, 2018, April 2, 2018 at 9:01 p.m., April 16, 2018, April 27, 2018, April 30, 2018, May 7, 2018, May 15, 2018, and May 28, 2018. These photographs are labeled alternatively, “coming home from moms” or “leaving dads”; and Exhibit 8: a photograph Ms. V. took of M. sitting in his car seat in Ms. V.’s vehicle after leaving the soccer field on or about June 12, 2018. [ 25 ] The respondent called two witnesses, Ms. G. and M.G., and tendered into evidence as Exhibits 5[a] and 5[b], two Affidavits Ms.

G. swore on February 2, 2018 and filed with the Court on February 5, 2018 [respectively, the “G. Affidavit 5[a]” and “G. Affidavit 5[b]”]. [ 26 ] On February 5, 2018, the hearing of Mr. V.’s October 25, 2018 Notice of Motion continued for a second day. [ 27 ] On February 7, 2018, Mr. V. requisitioned the Court to adjourn the family case conference scheduled for February 8, 2018, pending the completion of the hearing of Mr. V.’s October 25, 2017 Notice of Motion. [ 28 ] On March 6, 2018, Ms. G. filed a Notice of Motion for an interim order for child support and a

Section 211 FLA report. This Notice of Motion came before Judge Adams in Smithers Provincial Court on March 29, 2018. [ 29 ] On March 15, 2018, Ms. G. filed a Form 4 Financial Statement with attachments, indicating she earned an annual income of $17,439.66. [ 30 ] On March 29, 2018, Mr. V. filed an Affidavit by Trisha Knol attaching as an exhibit his Royal Bank of Canada payment history showing payments to Ms. G. for child support from August 18, 2017 to March 6, 2018. [ 31 ] On March 29, 2018, Mr. V. filed an Affidavit by David Dickerson attaching as an exhibit Mr.

V.’s Royal Bank of Canada payment history showing $300 transferred to Ms. G. for child support on March 16, 2018. [ 32 ] On March 29, 2018, Judge Adams ordered by consent: [a] a full s. 211 FLA report with respect to the views of R.V. provided it not delay the continuation this hearing; and [b] on an interim without prejudice basis Mr. V. pay to Ms. G. child support for R. and M. in the amount of $202 on the 1 st and 15 th day of each month. [ 33 ] On April 10, 2018, Mr. V. filed his Form 4 Financial Statement with attachments indicating he earned an annual income of $71,058.34. [ 34 ] On April 11, 2018, Mr.

V. requisitioned the adjournment of the June 11, 2018 family case conference pending the completion of this hearing. [ 35 ] On June 14, 2018, the hearing of Mr. V.’s October 25, 2017 Notice of Motion continued for a third day and concluded. Background Facts [ 36 ] From the pleadings, Affidavits and oral testimony, I have gleaned the back ground facts set out below. [ 37 ] Mr. V. is 29 years old and Mr. G. is 25. [ 38 ] Ms. G.’s mother is J.G. and her sister, M.G. M.G. is married to J.R. and they have two sons who are four and one and one-half

years old. Ms. G.’s mother, sister, brother-in-law and nephews reside in [omitted for publication], B.C. Ms. G. and M.G. grew up in [omitted for publication]. [ 39 ] I understand that Mr. V.’s parents also reside in [omitted for publication], B.C. [ 40 ] Mr. V. and Ms. G. became involved in an intimate relationship on or about October 9, 2011, when Ms. G. was 18 and Mr. V., 22. Their relationship, best characterized as stormy, progressed on an intermittent basis until they separated permanently in July 2016. [ 41 ] R. was born on [omitted for publication], and is soon to be six years old. While R. was a baby, Ms.

G. was a “stay-at-home mom”. After she separated from Mr. V., Ms. G. subsequently obtained various low paying jobs in [omitted for publication], B.C. [ 42 ] Ms. G. and Mr. V. separated in mid-January 2014. On February 13, 2014, they entered into a consent order before Judge Birnie. At this time Ms. G. was living in [omitted for publication]. Mr. V. lived in Prince George, B.C. and worked for [omitted for publication] as a welder. [ 43 ] Ms. G. and Mr. V. reconciled and moved to Prince George. During what was fated to be a brief reconciliation, Ms. G. became pregnant with M. [ 44 ] Ms. G. and Mr.

V. separated again and Ms. G. and R. moved in with her parents. Mr. V. returned to Prince George in May 2014 and became a welder. In June 2014, Ms. G. and Mr. V. reconciled again. M. was born on [omitted for publication]. In December 2015, Ms. G. returned to [omitted for publication] and lived with Mr. V.’s parents and Mr. V. remained in Prince George. [ 45 ] In April 2016, Ms. G. and the two boys returned to Prince George with Mr. V. Ms. G. and Mr. V. separated in July 2016, this time, permanently. Ms. G. returned to [omitted for publication] with R. and M.

She leased a house from [omitted for publication] where she lived with the children. At some point she obtained a job a [omitted for publication]. [ 46 ] Mr. V. remained in Prince George and immediately entered into a relationship with his current wife, Ms. V. [ 47 ] When they separated Mr. V. and Ms. G. verbally agreed that Mr. V. would have parenting time with R. and M. every other weekend. They followed this regime between July 2016 and September 2016, with some flexibility. [ 48 ] In September 2016, Mr. V.’s parenting time for R. increased to alternating weeks while M. remained primarily in Ms.

G.’s care. [ 49 ] Mr. V. lived in Prince George with Ms. V. until March 2017. During this time he continued to work as a welder for [omitted for publication]. Ms. V. provided child care for R. and M. when they were in Mr. V.’s care and he was at work. [ 50 ] At some point in late 2016, it became apparent that M. had some developmental delays. The doctors suspected autism spectrum disorder. This diagnosis was confirmed on November 20, 2017 by M.’s paediatrician, Dr. H. [ 51 ] R. suffers from eczema. In the past year or so, he has also contracted another skin disorder which Dr.

Y. diagnosed as molluscum contagiosum and Ms. G. describes as warts. I understand eczema is a chronic skin condition which flares up from time to time causing red itchy rashes; I understand that molluscum contagiosum is a temporal viral infection which causes small wart-like bumps: Exhibit 3. [ 52 ] In March 2017, Mr. V. and Ms. V. moved to [omitted for publication], B.C. with Ms. V.’s son K. At this time Ms. V. was pregnant with their daughter K.V., who was born on [omitted for publication]. Mr.

V. now works as a welder for [omitted for publication] in [omitted for publication], B.C., where he earns about $71,000 per year. [ 53 ] After Mr. and Ms. V. moved to [omitted for publication] in March 2017, M. gradually began to spend more time with Mr. V. and is now on the same alternating week- long parenting time

schedule as R. [ 54 ] In April 2017, Ms. G. received a subsidy to help pay for the costs of daycare. M. and R. attended the [omitted for publication] program in [omitted for publication] while they were in their mother’s care. While at daycare, M. received assistance with his autism from [omitted for publication]. Mr. V. chose not to send M. and R. to daycare during his parenting time because Ms. V. was willing and able to care for his sons while he worked. [ 55 ] As a result of a complaint from persons unknown, Ms. G. became under investigation for claiming a subsidy for the days when M. and R. were in Mr.

V.’s care. For one and one-half months, while the investigation was ongoing, M. and R. were unable to attend the [omitted for publication] daycare. During this hiatus, J.G. provided child care while Ms. G. worked. Eventually Ms. G. was cleared of any wrong-doing, but in the interim she had to pay her mother for child care which was not subsidized. R. and M. returned to the [omitted for publication] program once Ms. G. was cleared of any wrongdoing. They continued to attend that daycare until September 2017. [ 56 ] In the summer of 2017, Ms.

G. found full-time employment as a car detailer for [omitted for publication] in [omitted for publication], B.C., where she continues to works. Ms. G. currently earns minimum wage. [ 57 ] Ms. V. does not work outside the home. On September 25, 2017, Ms. G. entered into an agreement with Mr. V. and Ms. V. acknowledging a shared parenting arrangement with respect to R. and M. The agreement also provided that Ms. V. would occasionally provide child care for M. for Ms. G. when it was her parenting time: See Exhibit 4. [ 58 ] Ms.

G. has had various caregivers for R. and M. when she had to work while they were in her care. From time to time, these caregivers included the [omitted for publication] daycare, Ms. G.’s mother and sister, Ms. V. and Mr. V.’s mother. [ 59 ] Mr. V. paid Ms. G. child support for the two boys as follows: [a] between July 2016 and September 2016: $750 per month; [b] from September 2016 to April 2017: $500 per month; [c] from April 2017 to December 21, 2017: none; [d] on December 22, 2017 and

again on January 19, 2018: $634; [e] on February 28, 2018 and again on March 16, 2018: $300; and [f] from April 1, 2018, onward: $404. [ 60 ] Mr. V. and Ms. G. agreed to share equally the cost of R. and M.’s recreational sports, although this has not always happened. [ 61 ] As of June 14, 2018, the last day of hearing, Ms. G. and Mr. V. have a shared parenting relationship for R. and M. on an alternate week on and week off basis. The boys are transitioned between their two households on Mondays at 7:p.m. When Mr. V. works during his parenting time, Ms. V. cares for R. and M. When Ms.

G. works during her parenting time, R. and M. are cared for by her mother or sister or [omitted for publication] daycare. [ 62 ] R. is six and attends [omitted for publication] elementary school in [omitted for publication], B.C. [ 63 ] On July 14, 2018, Mr. and Ms. V. are moving to a new rental accommodation at [omitted for publication], [omitted for publication], B.C. The residence is owned by Ms. V.’s father. LEGAL FRAMEWORK [ 64 ] As Mr. V. and Ms. G. are R. and M.’s biological parents, they are guardians by application of s. 39 of the Family Law Act which states: 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. [ 65 ] There is an interim order in place with respect to Mr. V. and Ms. G.’s shared guardianship and parenting time of R. imposing a week on week off parenting regime: Judge Birnie’s February 13, 2014 consent order. Although there is no such order with respect to M., the parties parenting arrangement has morphed into the shared parenting arrangement in place for R.

In other words the status quo is a shared parenting regime in which each party has parenting time with R. and M. on alternating weeks. The children are ordinarily transitioned between the G. and V. households at 7 p.m. on Mondays. [ 66 ] The agreement dated September 25, 2017, among Mr. V., Ms. V. and Ms. G. states that Ms. V. shares guardian like rights with respect to R. and M. This is a document which Ms. V. drafted. Ms. G. says she signed this document out of desperation and without legal advice when she found herself without child care or for M. in September 2017. Ms. V. refused to provide Ms.

G. with child care for M. until Ms. G. signed the agreement. Mr. V. had unilaterally stopped paying Ms. G. guideline child support in April 2017 because she received the entire Universal Child Care Benefit from Canada Revenue Agency for both children. Also, Mr. V. refused to contribute to M.’s daycare expense because he had a wife at home to provide child care while he worked. [ 67 ] It is unclear when M. began to spend every second week at the V. residence. Ms. V. indicated that she and Mr.

V. took M. to the emergency ward in [omitted for publication] in the summer of 2017 because at that time he was only in their care on weekends. I gather the parties had transitioned to an equally shared parenting time regime with respect to M. by the time they entered into the September 25, 2017 agreement: see Exhibit 4. [ 68 ]

Section 45 of the FLA states that on an application by a guardian, the Court may allocate parenting time and parental responsibilities provided the child’s guardians are separated.

Section 47 allows the Court to “change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.” The FLA is silent as to the impact of parties reconciling after the pronouncement of a parenting time order. In Johnson v.

Jessel , 2012 BCSC 1055 [CanLII] , Justice Butler considered this question and canvassed a number of Ontario authorities which held that upon reconciliation and resumption of cohabitation an interim family court order is nullified. Justice Butler notes British Columbia Courts have generally dealt with post-order reconciliation as a change of circumstance. [ 69 ] Even in the absence of an enforceable court order or agreement, s. 48 of the FLA operates to preserve informal parenting arrangements that had been in place before the interim orders for specified parenting time. It states: 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements] . [ 70 ] An order with respect to the allocation of parental responsibilities is governed by ss. 215 and 216 of the FLA , which states: 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.

Court may make interim orders 216

(1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection [1] if satisfied that at least one of the following circumstances exists: (

a) a change in circumstances has occurred since the interim order was made; (

b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection [3]; (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [ 71 ] The governing authority on the application of these provisions is B.K. v.

J.B. , 2015 BCSC 1481 [CanLII] , in which the Madam Justice Holmes states: [28] Where a court is asked to exercise the authority under s. 216[3] by varying [or suspending or terminating] a parenting interim order already made, the court can properly start from the assumption that the interim order reflected the child’s best interests insofar as those could be discerned at the time of the previous order. It is for this reason that s. 216[3] and [4] focus the court’s attention on whether there is a change or new evidence since the previous order, and, if there is, on the factors in s. 216[4].

Those factors relate mainly to the timing of the application to vary in relation to the previous interim order and the trial; the purpose of the interim order; and the potential adverse effects on the parties of varying or not varying the interim order. [29] The factors for consideration under s. 216[3] and [4] thus do not expressly include the best interests of the child.

Consistently with the long-standing approach, on interim applications, of protecting the status quo and providing short-term solutions until a closer and more complete examination is possible at trial, they require the court to focus on what, if anything, has changed or emerged since the interim order was made, and to consider whether the new facts or evidence warrant a further change over the short-term.

In the circumstances to which s. 216[3] and [4] apply, a full assessment of the child’s best interests is not usually possible. [30] But although the child’s best interests are not as such among the s. 216[4] factors, they permeate the analysis under s. 216 in the following ways. [31] First, and as I have noted, the interim order sought to be varied will have been made in accordance with the child’s best interests to the extent practicable [through the effect of s. 216[2] and s. 37[1]]. [32] Second, a change in circumstances or new evidence will not be material, or sufficient to engage s. 216[3], unless it relates to the child’s best interests.

This is because the parenting issue in question will ultimately be determined solely on the basis of the child’s best interests. [33] Third, some of the s. 216[4] factors implicitly require some consideration of the child’s best interests, particularly since, as noted above, the order sought to be varied will have been made with the child’s best interests firmly in view.

These factors include: “the change in circumstances or the evidence, or both, referred to in subsection [3]” [s. 216[4][a]]; and “any potential adverse effect, on a party or a child of a party, of either making or declining to make an order . . .” [s. 216[4][e]]. [34] On the

interpretation of s. 216 I have outlined, s. 216[3] creates a threshold for an application to vary an interim order. If there is a material change in circumstances or new evidence of a substantial nature and the threshold is therefore reached, the court will determine the application according to the factors in s. 216[4]. The provisions of s. 216 therefore provide the complete basis and framework for an application to vary an interim order. [ 72 ] In R.R. v.

S.L. , 2016 BCSC 1230 [CanLII] Justice Butler confirmed that when faced with an application to vary or suspend an interim order, the Court will focus on protecting the status quo, unless there is a relevant change in circumstances or new evidence: at para. 67. [ 73 ] It has obviously been a change of circumstances in this case. Since Judge Birnie’s February 13, 2014 order, Mr. V. and Ms. G. reconciled, gave birth to M. and then separated. Mr. V. has moved and re-partnered. In my view these changes of circumstances are sufficient to engage s. 216 [3].

Evidence [74] Mr. V. bears the onus to prove on a balance of probabilities the existing parenting arrangements ought to be changed so Mr. V.has primary residence of R. and M. Mr. V. raised a number of concerns with Ms. G.’s parenting and lifestyle on which he says arematerial to the best interests of the children and supports the interim order he seeks. [75] In order to adjudicate on the issue before me, I must assess what evidence I find reliable and credible. As the Supreme Courtnoted, this exercise is more of an art than a science.

It is particularly daunting when two witnesses’ testimony is diametrically opposedand there is no independent corroborating evidence: R. v. S. [R.D.], [SCC]. [76] As to reliability, all the witnesses who testified in this hearing were reasonably reliable in the sense they had the cognitivecapacity to properly interpret what they heard, saw, and experienced. It goes without saying witnesses cannot reliably testify to eventswhich they did not personally witness. This is why hearsay is presumptively inadmissible.

To be clear, hearsay is an out-of-courtstatement offered to prove the truth of its contents in the absence of a contemporaneous opportunity to cross-examine the declarant. [77] I recognize in family law cases the Court is often asked to admit hearsay evidence of children.

Section 202 states: Court may decide how child's evidence is received 202 In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following: (

a) admit hearsay evidence it considers reliable of a child who is absent; (

b) give any other direction that it considers appropriate concerning the receipt of a child's evidence. [78] Frequently, the Court hears hearsay evidence of children in the form of s. 211 reports. The Court recognizes hearsay evidenceof children adduced by an independent professional witness has certain indicia of reliability which are generally absent from that adducedby an interested party to the litigation. In this case, the witnesses adduced hearsay evidence of R. which I generally found unreliable andtherefor give it very little weight.

Children who are victims of a parental taffy pull in high conflict family litigation quickly learn toappease one parent by disparaging the other. [79] In assessing the credibility of the witnesses who appeared before me in this hearing, I have taken into consideration thefollowing factors: [a] the plausibility of their evidence; [b] any independent supporting or contradicting evidence; [c] the externalconsistency of the evidence; [d] the internal consistency of the evidence; [e] the ”balance” of the evidence, meaning the witnessesapparent willingness to be fair and forthright; and [f] to a lesser extent, the witness’s demeanour while testifying. [80] Mr.

V. justifies a change to the current parenting arrangement on the basis of Ms. G.’s alcohol and drug abuse, her conflict withMs. V. and her refusal to cooperate or communicate with Mr. V. Ms. G. challenges the veracity or import of Mr. V.’s allegations andcounters with concerns of her own. [81] Drugs and alcohol misuse Marijuana [82] Mr. and Ms. V. say on April 16, 2017, Ms. G. placed a small glass jar of marijuana in the cup holder of R.’s car seat with R. inthe seat. This came to Mr. V.’s attention when Ms. G. texted him she was coming to retrieve it: V. Affidavit, para. 1. [83] Ms.

G. says she shares R. and M.’s car seats with Mr. V. When she dropped the children off at his residence earlier that day[April 16, 2017], she forgot to leave him the car seats. Mr. V. texted Ms. G. advising her of this oversight. Ms. G.’s received Mr. V.’stext about the time her sister M.G. was picking up her up. Ms. G. transferred the car seats to M.G.’s truck along with some other itemsshe intended to bring to her sister’s house. One of those items was a small jar of marijuana. To secure it, Ms. G. placed the jar it in thecar seat cup holder.

The marijuana was never near the children while they occupied the car seat. When she dropped off the car seats atthe V. residence, Ms. G. forgot to remove the jar of marijuana in the cup holder. [84] When Ms. G. went to retrieve the jar, Ms. V. was angry and began yelling at her. Ms. G. remarked it wasn’t a big deal, after all,it was only a small amount of marijuana, and in any event, marijuana was practically legal. Ms. G. then alleged Mr. V. had once been adrug dealer. Ms. V. became angry and raised the jar of marijuana above her head as though she was going to throw it at Ms. G. Ms.

V.relented and instead, handed the jar to Ms. G. This incident frightened Ms. G. and she reported it to the police. [85] M.G. testified in the hearing and confirmed she drove Ms. G. to drop off the car seats at the V. residence and the children werenot in the seats at the time Ms. G. placed the jar of marijuana in the cup holder. [86] Mr. V. admitted he used to smoke marijuana years ago but denied having sold drugs. Conclusion on the marijuana incident [87] Although the evidence establishes Ms. G. uses marijuana, it does not establish she had consumed it before driving with thechildren. Neither Mr. nor Ms.

V. saw any child in the car seat while the jar of marijuana was present. Neither noticed any indicia ofrecent consumption when Ms. G. had dropped off R. and M. Ms. G.’s evidence is corroborated by M.G.’s testimony. I find Ms. G.’sexplanation as to how the jar of marijuana ended up in the cup holder of R.’s car seat plausible and I accept her explanation. [88] In his direct examination on January 11, 2018, Mr. V. stated he had no other issues with respect to Ms. G.’s drug use other thanthe jar of marijuana incident set out in paragraph 1 of his October 31, 2017 Affidavit. Alcohol

[ 89 ] Mr. V. is concerned about the amount of alcohol Ms. G. consumes and the impact it has on the children. This concern culminated in Ms. V. making a complaint against Ms. G. to the Ministry of Children & Family Development [“MCFD”]. Particulars of Mr. V.’s concerns are set out in paragraphs 2, 3, 4, 10, 11, 28 and 29 of the V. Affidavit as follows: a. Paragraph 2 : On May 13, 2017, Ms. G. showed up at the V. residence highly emotional, slurring her speech, smelling strongly of liquor, and had an open bottle of wine beside her from which she had been drinking as they talked; a. Paragraph 3: On May 19, 2017 Ms.

G. lost her licence for 90 days for impaired driving; b. Paragraph 4: On August 26, 2017, in the early evening, Ms. G. called R. intoxicated. Mrs. V. hung up on her as it was obvious to her Ms. G. was in no state to talk to the children; c. Paragraph 10: J.G. told either Mr. or Ms. V. that Ms. G. and her brother in law, J.R., got into a drunken argument at a bowling alley; d. Paragraph 11: J.G. told Mr. V. that on October 22, 2017, she kicked Ms. G. out due to her “drunken stupidity.” This was a day before Mr. V. was to pick up R. and M. and they did not know her whereabouts. On October 30, 2017, Mr.

V. stated, “Since then she is of no fixed address and refuses to tell us where she is at with the kids”; e. Paragraph 28 : At times when picking up R. and M. at the start of his parenting week, Mr. V. has observed Ms. G.’s kitchen counter full of wine bottles and 26’ers. He states, “The 26 was half full, the other bottles of wine appeared to be empty. This is a concern for us as R. and M. are in her care and she is obviously drinking to various levels of intoxication despite having care for them”; f. Paragraph 29: J.R. told Mr. and Ms. V. that Ms. G. would throw parties at the house when R. and M. were presence.

Both J.G. and M.G. refused to babysit for her any longer as they did not agree with her alcohol abuse. The end result is she then threw parties at her residence and she was kicked out as it was too disruptive. The kids were also present for this partying. [ 90 ] Ms. G. admits to consuming alcohol. Usually, this is in the company of her family or friends. She acknowledges that in October 2017, Ms. V. complained about her alcohol use to MCFD, which sent social workers investigated the complaint. Ms. G. asserts the social workers, took no protective measures as a result of this complaint, not even a safety plan. Mr.

V. has not argued otherwise. [ 91 ] With respect to Mr. V.’s specific allegations of alcohol abuse, Ms. G. replied: a. In June 2017, she went to speak to Mr. V. and she had a new unopened bottle of wine in the passenger seat of her vehicle; b. She admits that on May 19, 2017 she lost her licence for 90 days for impaired driving. The children were not in her care at the time. She has since taken a safe driver program and has regained her licence; c. She has no recollection of the August 26, 2017 incident in which Ms. V. claims she hung up the phone because Ms. G. was obviously intoxicated; d.

The allegations in paragraph 10 are false. She attended a company bowling league event for [omitted for publication] on October 20, 2017, not October 13, 2017. October 20, 2017 was not a day when she had parenting time with R. and M. and they were not present; e. The allegations in paragraph 11 are also untrue. She was not kicked out of her mother’s house, but left by mutual agreement. She moved to her new residence at [omitted for publication] on October 24, 2017 and advised Mr. V. of her new address on Monday, October 30, 2017. Moreover Mr.

V. has also changed his residence on many occasions and in one instance refused to tell her of his new address; f. The allegations in paragraph 28 are untrue. She does not recall Mr. V. coming into her house to pick up the children. She does not consume alcohol while in the children’s presence; g. She spoke to M.G. and J.R. They said the allegations set out in paragraph 29 of the V. Affidavit are untrue and attached a letter from M.G. dated February 2, 2018. Ms. G. has never been kicked out of her current or her former residences.

She left the C.S. rental house at the expiration of the lease because it was too big and too costly; and h. J.G. and M.G. regularly babysit R. and M. when they are in her care. [ 92 ] Ms. V. testified that: a. during R.’s soccer practices, Ms. G. and her “ex” went to the truck of their vehicle and were drinking something and then returned to the practice; b. Ms. G. was observed drinking at the V. residence; c. Ms. G. admitted being too drunk to drive while at her sister’s home; d. When the V.s picked up M. there were a bunch of bottles of wine on the counter by the sink.

Conclusion on allegations of alcohol abuse [ 93 ] Paragraphs 10, 11 and 29 of the V. Affidavit contain inadmissible hearsay evidence and I give them little to no weight. Moreover, M.G. testified at trial and contradicted the allegations set out in set out in paragraph 29 of the V. Affidavit. Ms. V.’s own evidence does not support a finding J.G. was someone who would confide in her.

[ 94 ] In the first sentence of paragraph 28 of his Affidavit Mr. V. says he regularly observes wine bottles and 26’ers, but the second sentence indicates it was only on one occasion. Ms. V. testified Ms. G. had wine bottles on her counter when “they” picked up M., then admitted in cross-examination she had never been to Ms. G.’s home. She suggests Ms. G. and her “ex” drink at R.’s soccer game, but then says Ms. G. rarely takes R. to soccer: V. Affidavit, para. 27. [ 95 ] I accept Mr. V. has genuine concerns about Ms. G.’s alcohol consumption.

I am not convinced, however, that because he observed empty liquor bottles on Ms. G.’s counter on one occasion, she was “obviously drinking to various levels of intoxication despite having care [of R. and M.].” I don’t believe Ms. V. observed any wine bottles on Ms. G.’s counter since she had never been inside her home. I don’t believe Ms. G. was observed drinking at the V. residence given the paucity of evidence of their socializing together. I find it more likely Ms. V. simply appropriated Mr. V.’s evidence and made it her own. [ 96 ] Although impaired driving is illegal, consuming alcohol is not.

Still, I accept it likely Ms. G. did abuse alcohol from time to time. Nevertheless, the evidence before me does not establish Ms. G. was under the influence of alcohol while driving the children or intoxicated to the point she could not effectively function as a parent while the children were in her care. I find it unlikely that if Mr. or Ms. V. witnessed Ms. G. driving drunk with M. on May 13, 2017, as alleged or they would have alerted the police. In reaching this conclusion, I have considered their animus towards Ms. G. and the efforts they have invested in building a case against her. [ 97 ] Ms.

V. admits to making a complaint to MCFD against Ms. G. I accept Ms. G.’s evidence that social workers came to her home to investigate Ms. V.’s complaint or on about November 1, 2017. There is no evidence before me MCFD took any protective measures as a result of that complaint. [ 98 ] Finally, all of Mr. and Ms. V.’s allegations with respect to Ms. G.’s alcohol consumption predate Judge Jackson’s November 6, 2017 order. There is no evidence Ms. G. has not abided by the terms of that order prohibiting either party from possessing or consuming alcohol or illicit drugs while having care of R. and M.

Moreover, in his direct examination on January 11, 2018, Mr. V. testified he had no further concerns about Ms. G.`s alcohol consumption beyond those set out in his October 31, 2017 Affidavit. Conflict is with Ms. V. [ 99 ] [omitted for publication] is a very small town. Ms. V.’s son K. and R. are close in age and attend the same school and recreational activities. Not surprisingly, Ms. G. and Mr. and Ms. V. encounter one another when they are out and about in the community. For example, K. attends the same school as R. Each day Ms. V. picks up K. after school, at which time she sometimes encounters R. or Ms.

G. or Ms. G.’s mother. At times, these encounters are tense, if not outright hostile. [ 100 ] Ms. V. says on September 12, 2017, while at school, R. returned to her a sweater and coat the V.s had given him: V. Affidavit, para. 5. He did this at his mother’s insistence and Ms. V. found it “extremely embarrassing”. She told R. they were his clothes, however, Ms. G. told Ms. V. she didn’t need their clothing. Ms. G. walked R. to her car in only his T-shirt, although it was only 4 o C. [ 101 ] Ms. G. admits this incident occurred. She says she has experienced problems in sharing the children’s clothing with Mr.

V. because the children return home without them. Ms. G. has had other negative experiences with Ms. V. concerning the children’s clothing. On September 17, 2017, R. was scheduled to participate in a class field trip to the fisheries. Ms. G. had volunteered to help chaperon the class on this outing. Ms. V. had agreed to provide child care for M. so Ms. G. could accompany R. on the bus for this field trip. When Ms. G. arrived at the school and stepped out of her vehicle, Ms. V. came up to her and said R. was supposed to wear winter clothing. Ms. G. did not have any notice of this requirement, and said so.

During this encounter Ms. V. yelled at her, “Why don’t you grow the fuck up and stop fucking twelve-year-olds and start coming to school!” Ms. G. told her this was unnecessary and walked away. Ms. G. says even though it was 14 degrees outside, she had packed R.’s mittens, toque, and winter jacket in his back pack. [ 102 ] Ms. V. left without taking M., so Ms. G. had to forego the bus ride with R. and take herself and M. in her own vehicle. Ms. V. went home and got R. some mitts and put them in his back pack. There were no other winter clothes in the backpack as Ms. G. claimed. R. later thanked Ms.

V. for the mitts because his hands were frozen. [ 103 ] I accept Ms. V.’s evidence that Ms. G. had not provided R. with winter clothing as she alleged. Given she was unaware of this requirement and it was a moderately warm September day, she would have had no reason to do so. [ 104 ] In cross-examination Ms. V. admitted she told Ms. G. she should “stop F’ing 12 year old boys because I find it very inappropriate as to who she is bringing in and sleeping with our children.” [By “our children” I take it she means R. and M.] [ 105 ] Ms. V. and Ms. G. have also ended up in a confrontation at school when Ms.

V. replaced the shoes Ms. G. bought for R. with ones Mr. V. purchased. Ms. G. says she purchased the type of shoes the teacher requested and Mr. V. did not. When Ms. V. switched the shoes, R. was left wearing the wrong type. When R.’s teacher pointed this out, Ms. V. accused Ms. G. of purchasing the wrong shoes. [ 106 ] In paragraphs 6 and 7 of her Affidavit, Ms. V. asserts that on September 29, 2017, she asked R. to “Facetime” her and Mr. V. while he was at his mother’s house. He didn’t do so and the next day when she saw R. at school, Ms. V. asked him why he didn’t Facetime them. R. told Ms.

V. his mother wouldn’t let him. Ms. V. told R. he is allowed to Facetime whenever he wants. She then had R. repeat his response which she video-taped in the presence of teachers and students. Mr. V. later texted Ms. G. asking for Facetime with R., still she refused. In response Ms. G. states it is Mr. and Ms. V. who repeatedly failed to Facetime. [ 107 ] In paragraph 9 of her Affidavit, Ms. V. said she was at the hockey arena on October 2, 2017, with Mr. V. M. was also at the arena, having come with his mother. Ms.

V. thought it inappropriate M. was running about the arena without a winter jacket when the ice temperature was -7.7 C: V. Affidavit, para. 9. [ 108 ] Ms. V. admits she did not ask Ms. G. if she had a jacket for M. “because [Ms. G.] was sitting with her underage friends.” Ms. V. took a picture of M. in his T-shirt and attached it as Exhibit “C” to her Affidavit.

[ 109 ] Ms. G. says M. has tactile issues and doesn’t like to wear a jacket. Moreover, M. was not on the ice but in the bleachers where it was fairly warm. The ice temperature is not indicative of the arena temperature, which varies throughout the complex. Many people, including Ms. G., were not wearing a jacket. [ 110 ] Ms. V. says on October 26, 2017, Ms. G. did not pick up R. at 1:40 p.m. after classes had ended: V. Affidavit, para. 13. Ms. V. waited for one-half hour for Ms. G. to arrive. R.’s teacher tried to reach Ms. G., albeit unsuccessfully. The teacher said she would wait for Ms. G. and told Ms.

V. she could leave. Ms. V. decided to wait anyway. Ms. G. explained she had arranged to pick up R., but had forgotten the class ended earlier that day. The teacher was not upset at Ms. G.’s tardiness as other parents had made the same mistake. [ 111 ] Also on October 26, 2017, R. told Ms. V. his mother instructed him not to talk to her, his dad or K. R. said he didn’t want to stop talking to them and Ms. G. told him he had to listen to her. [ 112 ] Ms. G. says R. saw her crying in the morning of October 26, 2017, as she dropped him off for school. She was upset because the previous day Ms.

V. had made a complaint against her to the Ministry of Child and Family Development. This complaint resulted in two social workers attending at her residence to investigate the complaint. Ms. G. asked R. not to tell his father or Ms. V. that she had been crying. She did not tell him not to stop talking to them. [ 113 ] Ms. G. describes an incident which occurred when she was at R.’s ringette practice with her three-year-old nephew and a friend. As Ms. G. was leaving the arena, Ms. V. called her name. Ms. G. ignored her in an effort to avoid a confrontation. Ms. V. ran in front of Ms.

G. and threw some court documents at her feet announcing, “You’ve been served”: G. Affidavit 5[b], para. 6. [ 114 ] Ms. V. explained she had waited to serve Ms. G. in a public place. She called Ms. G. by name, repeatedly. When Ms. G. refused to acknowledge her, Ms. V. dropped the documents at Ms. G.’s feet and told her “you have been served.” Ms. V. claims she did this on advice she received from the court registry staff regarding service of documents. [ 115 ] Ms. V.’s Affidavit of personal service filed November 6, 2017 in these proceedings, indicate this incident occurred on October 30, 2017. [ 116 ] Ms.

V. is the divisional coordinator for U10 and U16 of the [omitted for publication] soccer league, so she attends all of R. and K.’s soccer practices. Ms. V. says Ms. G. never brings R. to soccer practice when he is in her care, but attends when he is not. The V.s also bring M. to the soccer practice when he is in their care. When Ms. G. arrives, M. gets upset and acts out. This occurred on or about June 11, 2018. When Ms. V. tried to take M. home, he cried and screamed and ran away.

Once he was in the car he settled down: Exhibit 8. [ 117 ] The incident on the soccer field gave rise to a verbal altercation in which Ms. V. said to Ms. G., “I have the life you wanted for 6 years and I have it now.” Ms. G. responded, “I don’t understand why you would say that in this time and place” and Ms. V. said something to the effect it made her feel good. She admitted in cross-examination she made those comments which she intended to be hurtful. She said Ms. G. had called her crazy. Shortly after this altercation, Mr. V. walked up to Ms. G. and asked her why she was there. Ms.

G. replied. “I am here to watch my son play soccer just like any other parent.” [ 118 ] Ms. V. testified while at the [omitted for publication] Legion sometime in November 2017, M.G. told her that her sister Ms. G. was unstable and not taking her breakup well. M.G. said she wouldn’t oppose the V.s having custody of R. and M. I assume the reference to “breakup” refers to Mr. V. and Ms. G.’s relationship. It is unclear to me, however, whether it is Ms. G. or M.G. who would not be opposed to the V.s having custody of R. and M. [ 119 ] In early June 2018, the conflict between Ms. V. and Ms.

G. expanded to include J.G. Ms. G. complained that recently Ms. V. repeatedly brought up at school, in R.’s presence, the V.’s pending move to a new residence. Ms. G. said this happened again when J.G. was picking up R. at school. Ms. V. denies this allegation. She says J.G. made some unprovoked sarcastic comments to her and then shouted loudly across the basketball court to R. that Ms. V. was involved in gang violence and his father, in dealing drugs. Ms. V. met with the school principal who implemented a strategy to avoid these interactions in the future. [ 120 ] Ms. G. says she has tried to talk to Mr.

V. about his wife’s aggression and hostility; however he refuses to engage in any such discussions. Conclusion on conflict between Ms. G. and Ms. V. [ 121 ] With respect to Ms. V.’s conversation with M.G. at the Legion in November 2017, this evidence was never put to M.G. in cross- examination. Ms. V. testified after M.G. had finished her evidence and left the court house. Ms. V. admits she had not previously disclosed this conversation to her legal counsel. [ 122 ] Although I find no fault on Mr. Hudson’s part, Ms.

V.’s evidence about what M.G. said at the Legion is a clear violation of the confrontation rule also known as the rule in Browne v. Dunn. An opposing counsel has a duty to give a witness an opportunity to explain evidence which will be called later to impeach the credibility or testimony of that witness. The confrontation rule is one of fairness - to the witness, the parties and the judge: R. v. Quansah, 2015 ONCA 237 [CanLII] .

It is fair to a witness whose credibility is under attack to be given an opportunity to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted. It is fair to a party whose witness is impeached to have notice of the precise aspects of the contested testimony so that party can decide whether or what confirmatory evidence to call. Finally, it is fair to the trial judge, who, without the rule, would be deprived of information which might show the impeachment to be unfounded and thus compromise the accuracy of the verdict: Quansah , para. 77 . [ 123 ] Even though Mr.

Hudson was not aware of Ms. V.’s evidence of what M.G. said to her at the Legion, M.G. was not afforded an opportunity to respond to Ms. V.’s allegation, and by the afternoon of June 14, 2018, it was impractical to recall her. Accordingly, I give this evidence very little weight. [ 124 ] The evidence I do accept underscores the difficulties Ms. G. and Ms. V. have interacting in a mature and civilized manner. I

understand their animosity arises from the history of Mr. V.’s relationships with both of them. Ms. V. suspects Ms. G. is jealous and seeks to rekindle a relationship with Mr. V. Ms. G. wants to deal exclusively with Mr. V. with respect to parenting R. and M. while Ms. V. would like an equal say in their upbringing. [ 125 ] The legal reality is that it is Mr. V. and Ms. G. who are R. and M.’s parents and legal guardians. I acknowledge Ms. V. often cares for M. and R. during Mr. V.’s parenting time. Ms. G. has even asked Ms. V. to care for M. during her parenting time. There is no suggestion Ms.

V. is not a good child care provider. Nevertheless, Ms. V. cannot appropriate Ms. G.’s parenting rights and responsibilities. Her monitoring Ms. G.’s parenting in the community is intrusive and foments discord. Ms. V.’s comments about Ms. G.’s personal life are contemptuous. [ 126 ] It cannot be pleasant for R. or M. to have to endure these tension-laden encounters between the adults who parent and care for them. In my view, the conflict between Ms. G. and Ms. V. can be diminished through disengagement. Ms. G. and Ms. V. need to keep a respectful distance when they find themselves in the same public space. Mr.

V. needs to accept it is his responsibility to communicate with Ms. G. about issues concerning R. and M. The fact Mr. V. has re-partnered and R. and M. now have two homes does not mean they have two mothers. Problems with cooperation and communication [ 127 ] Mr. V. argues he ought to have primary residence of R. and M. because of Ms. G.’s inability or refusal to cooperate or communicate with him in a consistent or effective manner.

Much of his complaints focus on R. and M.’s medical issues: R. suffers with eczema and mollescum contagiosum and M. has autism spectrum disorder. [ 128 ] When they are in his care, Mr. V. takes R. and M. to Dr. Y. for medical treatment. Dr. Y. is the V.s’ family doctor. When they are in her care, Ms. G. takes R. and M. to Dr. O. for medical treatment. Dr. O. is Ms. G.’s family doctor. [ 129 ] When Ms. G. and Mr. V. lived as a couple in [omitted for publication], Dr. Y. was their family physician. When she moved back to [omitted for publication] with the children after separating from Mr. V., Ms. G. engaged Dr.

O. as their family physician. Ms. G. has no concerns about Dr. Y.’s medical skills, only his availability. Dr. Y. practices in the [omitted for publication] in [omitted for publication] which is a walk-in clinic with limited hours. Because she works full-time, Ms. G. finds it far more convenient to take the children to Dr. O. with whom she can make scheduled appointments. [ 130 ] Ms. G. further explained that when she returned to [omitted for publication], Dr. Y. was not accepting new patients, and she wanted R. and M. to see the same family physician. I find this surprising. If Dr. Y. accepted Ms.

V. and her children as new patients, I am confident he would have accepted M. as well. R.’s medical problems [ 131 ] When R. is in his care, Mr. V. has been treating him with the same prescription medication as Ms. V. uses to manage her own eczema. I gather it is a type of topical steroid cream. As I was provided with no clinical records, it is not clear to me whether R. has his own prescription for this medication or whether he uses Ms. V.’s. [ 132 ] At some point in late 2017 or early 2018, R. contracted a further skin condition which Dr. Y. diagnosed as mollescum contagiosum: Exhibit 3. Mr. V. testified Dr.

Y. advised against applying any medication to remove the mollescum contagiosum lesions as they would disappear naturally in 18 months or so. [ 133 ] Mr. V. has put into evidence numerous photographs and two video recordings which he says document R.’s skin condition when he first arrives at his home after spending his week of parenting time with his mother and after he has spent a week of parenting time with his father: Exhibit 1, Tabs 1 and 2; Exhibits 6 and 7. The photographs labelled “coming home from moms” show R. with patches of inflamed skin and small white and red raised bumps.

Those photographs marked “leaving Dads” show R. with the raised bumps but not the inflamed skin. All the photographs were taken by Ms. V., sometime in the presence of others. [ 134 ] The video-recordings marked Exhibit 7 show the pain R. endures when Mr. V. applies the eczema medication to his inflamed skin. Although the video recordings depict R. in significant pain from his dermatological maladies, Mr. V. did not take R. to the doctor or to the hospital on the recorded occasions. [ 135 ] Mr. V. argues the prescribed cream he applies to R.’s eczema is far more effective than that which Ms. G. uses: V.

Affidavit, para.15. He has tried to persuade Ms. G. to use the same eczema medication as prescribed by Dr. Y., however, she refuses to do so. [ 136 ] Mr. V. says he does not treat R.’s mollescum contagiosum on the advice of Dr. Y. Ms. V. claims Ms. G. burned R.’s skin with a chemical wart remover which was authorized for “doctor use only.” [ 137 ] Mr. and Ms. V. theorize the mollescum contagiosum is a sexually transmitted disease which R. contracted from sleeping in his mother’s bed. Ms. V. claims R. told her that he, M., and Ms. G. all sleep in the same bed, and she doesn’t “know how many partners [Ms.

G.] had in her bed.” The V.s have not adduced one iota of medical evidence in support of this allegation. [ 138 ] Ms. G. says she had eczema growing up and from time-to-time still has flare ups. When young, she treated her eczema with oatmeal baths and topical cream. From her experience eczema can be activated by swimming, laundry detergent, sports equipment, and shared clothing. In addition to medications, it can be controlled through vigilant cleanliness. It is a condition one simply learns to live with. [ 139 ] Ms. G. has taken R. to see Dr. O. about the eczema. She says Dr.

O. prescribed R. with Taro-Mupirocin 2%, to be applied three times per day: G. Affidavit, para. 20. Ms. G. also uses non-prescription medication to treat R.’s eczema. Ms. G. attached as Exhibit A to her Affidavit 5[b], a copy of R. and M.’s appointment slips with Dr. O. Ms. G. uses the prescription and non-prescription medication her family doctor has recommended for R.: G. Affidavit paras. 18 to 20. She has offered Mr. V. this medication which he refuses to accept

and use. [140] Ms. G. acknowledges R.’s eczema does flare up from time-to-time, but maintains that when in her care, R. is not in significantdistress. From what he has told her, Ms. G. queries whether R. bathes as often as he needs to when in Mr. V.’s care. [141] Ms. G. testified Dr. O. never referred to R.’s skin condition as mollescum contagiosum, but rather as “warts” which should be“zapped” with a chemical wart remover. She has taken R. to Dr. O. to have the warts removed in his office. R. was too upset to undergothe procedure and Dr. O. suggested she try it herself at home where R. may be more comfortable.

Ms. G. did as Dr. O. suggested. Asexpected, the “warts” blistered and fell off. She did not “burn” R. as Ms. V. alleges. [142] Ms. G. recognizes it would be beneficial for R. to have only one family physician and has agreed to take him to see Dr. Y. in thefuture. Mr. V. will not take R. to see Dr. O. because he feels Dr. O. has assessed R.’s condition incorrectly Mr. V.’s views in this regardarise from the fact Ms. G. refers to the mollescum contagiosum lesions as warts. Conclusion on R.’s medical issues [143] Mr. V. says Dr. Y. diagnosed R. as having mollescum contagiosum.

He relies on Exhibit 3, which is a note from Dr. Y. datedJanuary 29, 2018. Ms. G. says Dr. O. describes R.’s skin condition as warts. [144] Exhibit 3 was tendered into evidence through Mr. V. in re-examination. His counsel did not seek to have Exhibit 3 admitted as abusiness record pursuant to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. Even if I were to accept Exhibit 3 as an admissible businessrecord, it does not constitute admissible opinion evidence of R.’s medical condition: J.D.G. v.

J.J.V., 2016 BCSC 2389 [CanLII], paras.292 and 293. [145] I accept R. suffers from eczema and some other dermatological condition because this is uncontested. I have no admissibleexpert evidence as to the cause, symptoms, treatment, or prognosis of these conditions. I am not prepared to adjudicate hearsay evidenceof medical opinions. I accept both parties have sought medical treatment for R. Unfortunately, because he sees a different doctordepending on his caregiver, he has not received a consistent treatment. [146] The photographs and videos Mr.

V. tendered in evidence show R. with patches of inflamed skin: Exhibits 1, 6 and 7. Exhibit 6show R. crying and in obvious discomfort when his father tries to apply the eczema cream. I cannot infer from this evidence R. ought tobe treated only with the medication Mr. V. uses. I do, however, conclude from Mr. and Ms. V.’s evidence Ms. G. is understating theimpact of R.’s skin conditions on his health and well-being.

Having said that, I accept her views may be forged from her own experiencethat eczema is a condition that one simply needs to learn to live with. [147] The appropriateness and long term efficacy of the prescription medication Mr. V. uses to treat R.’s eczema is somethingrequiring expert medical opinion. Its superiority is not the only reasonable conclusion to be drawn from the evidence. For example, itmay be an effective treatment in the short-term but problematic in the long-term. Dr. O. may have sound reasons for prescribingsomething different than Dr. Y., if indeed this is what happened.

It is possible that R.’s recurring rash may be the result of inconsistencyrather than the efficacy of one medication over the other. [148] Mr. V.’s counsel submits the dearth of expert evidence arises from the cost of retaining medical experts. Mr. V. and Ms. G. arepersons of modest means who can ill afford the substantial cost of medical experts or procuring expert evidence. I accept this to be thecase. Nevertheless, I cannot determine the most medically beneficial treatment of R.’s skin condition based on the parties’ conflictingviewpoints and hearsay evidence.

Nor can I rely on my own medical opinion gleaned from photographs and video-recordingsunsupported by expert evidence. [149] Although the rules of evidence in family law cases are often applied in a relaxed manner, it is subject to the same rulesapplicable to any other area of civil law: J.D.G. v. J.J.V., para. 294. Recently the B.C. Court of Appeal emphasized the rules of evidenceplay a critical role in protecting procedural fairness for the parties involved: J.P. v. British Columbia [Children and FamilyDevelopment], 2017 BCCA 308 [CanLII], leave to SCC ref’d [SCC]. In J.P, Madam Justice D.

Smith, on behalf ofthe appellate court, reiterated the test established by the Supreme Court of Canada for admissibility of an expert’s opinion as follows: [150] The test for determining the threshold admissibility of an expert’s opinion is set out in R. v. Mohan, [SCC], [1994] 2 S.C.R. 9. To be admissible, opinion evidence must be relevant and necessary; it must not be rendered inadmissible byany other exclusionary rule; and it must be offered by a properly qualified expert.

Expert opinion evidence must also be fair, objectiveand nonpartisan to be admissible: White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 [CanLII] at para 2. If anexpert is not properly qualified and is not neutral, his or her opinion has the potential to “swallow whole the fact-finding function of thecourt”: R. v. Abbey, 2009 ONCA 624 [CanLII] per Doherty J.A.

Opinion evidence that fails to meet these requirements isprejudicial to each party’s right to a fair determination of the issues, lacks probative value and is therefore irrelevant,unnecessary and unhelpful. [emphasis added] [150] What I can conclude from the parties’ conflicting evidence is that R. would likely benefit from having one family physician whocan prescribe a consistent course of treatment. I am heartened by Ms. G.’s testimony she is willing to cooperate with Mr. V. to see thishappens. [151] I regard Mr. and Ms. V.’s speculation that R.’s mollescum contagiosum was the result of Ms.

G.’s sex life as nothing more thanmean-spirited advocacy intended to humiliate her. It has no persuasive value and no place in a court of law. [152] Ms. G. attends to R. and M.’s dental needs and Mr. V. has no complaints about her efforts in this regard. M.’s medical problems [153] The parties agree M. has autism spectrum disorder. Still, neither party tendered into evidence any clinical records, medical

reports, or expert evidence with respect to M.’s medical condition, it’s symptoms, his treatment, or prognosis. [ 154 ] Initially, Ms. G. and Mr. V. thought M. had hearing problems. In the summer of 2017, the V.s took him to the emergency ward in the [omitted for publication]. The attending physician suggested M. may be on the autism spectrum. Ms. V. testified they had to take M. to the emergency ward because they only had him on the weekends and therefore, could not take him to see his regular doctor. [ 155 ] Once she came to terms with the possibility M. was autistic, Ms.

G. made arrangements with the Child Development Centre [“CDC”] to have him tested and diagnosed. Ms. G. began looking into M.’s developmental disorders in the fall of 2016 while Mr. V. still lived in Prince George. On November 20, 2017, Dr. H., confirmed M.’s diagnosis of autism, despite his young age. [ 156 ] Mr. V. complains Ms. G. refused to allow Ms. V. to attend appointments with M.’s medical professionals: V. Affidavit, para. 14. He thought Ms. V.’s attendance important given the amount of time she spends caring for M. Because Ms. G. would not agree to Ms. V. attending these appointments, Mr.

V. refused to go. Ms. G. said she only objected to Ms. V. attending the initial meeting wherein Dr. H. interviewed Ms. G. to obtain her personal medical history. [ 157 ] Mr. V. complains that in the past, Ms. G. refused to tell him the time and place of M.’s appointment until it was too late for him to attend : V. Affidavit, para. 14. She withheld this information to leverage an in-person meeting with Mr. V. to discuss income tax issues. Ms. G. says this happened only on one occasion which is documented in Exhibit 1, Tab 3.

She takes M. to his regularly scheduled speech therapy in Smithers every Monday, which is why she arranged to work Tuesday to Saturday. Ms. G. says Mr. V. is aware or ought to be aware of these weekly appointments. [ 158 ] As the result of Mr. G.’s refusal to cooperate or communicate with Mr. V. about M.’s assessment or treatment, Ms. V. made contact with the CDC and arranged to meet with them independently. The CDC now attends at the V. residence to provide M. with the therapy he requires to address his developmental problems. It is unclear how often these homecare visits occur. [ 159 ] When M. is in Ms.

G.’s care he attends daycare where he is able to access behavioural intervention services provided by [omitted for publication]. These services are intended to improve M.’s learning, communication, and social skills in preparation for kindergarten. These services are also costly, but in Ms. G.’s view, necessary. Mr. V. is not supportive of M. attending daycare because Ms. V. does not work outside the home and can provide child care without additional cost. [ 160 ] The parties acknowledge M. has difficulty transitioning from Ms. G.’s care to Mr. V.’s. Although Ms.

G. encourages him to go with his father, M. becomes very upset at the prospect. He runs away, hides, screams, cries, and generally acts out. Ms. G. tendered into evidence as part of Exhibit 6 a video-recording showing M.’s dramatic reaction when his father came to pick him up at her home on June 11, 2018. [ 161 ] Recently, Ms. G. went to R.’s soccer practice while M. was present, but in Mr. V.’s care. Upon seeing his mother, M. ran up to Ms. G. and clung to her side. When his father tried to retrieve him, M. made a fuss and ran away. Ms.

G. says M. generally reacts negatively to her leaving him with others, the one exception being her sister, M.G. Mr. V. points to the soccer field incident as yet another example of Ms. G.’s unwillingness to cooperate. He believes Ms. G. should stay away from soccer practice when the boys are in his care to avert these scenes with M. [ 162 ] In his Affidavit Mr. V. expressed concern for the impact of Ms. G.’s residential instability on M., given his difficulties to adapt with change: V. Affidavit, para. 19. He states: 19. . . . Now that Ms.

G. is “couch surfing” with M. as a result of being kicked out of her mom’s house, M. is stressed out, having difficulty expressing himself, frequent tantrums, difficulties going to sleep demanding someone sleep with him. and at paragraphs 20 to 23: 20. The CDC was very clear that M. has to have a routine if he is to cope successfully with his autism. In our home we have a set routine from when he gets up to when he goes to bed. He functions well on it. 21. However, when they are at Ms. G.’s, R. advises they go to bed late, and that they all sleep in Ms. G.’s bed. 22. When R. and M. come back from Ms.

G. we definitely seek marked changes in how M. copes until he settles back into our routine. R. also struggles with this lack of

schedule and it is evidence in that he was recently sent home from school because of having a tantrum. 23. We also see behaviours at home in that when R. or M. doesn’t get their way, they both have tantrums as we set appropriate boundaries and guidelines. In contrast R. has told us there are no rules at mom’s house and he can do as he pleases. [ 163 ] Ms. G. denies couch surfing. She has been in her current residence since October 24, 2017, having left her mother’s residence on October 22, 2017. [ 164 ] Ms. G. says the boys have their own beds and are put to bed on schedule. As a result of Ms.

V.’s complaint to MCFD, social workers came to Ms. G.’s home on November 1, 2017, and found it a suitable home and Ms. G., a suitable parent. [ 165 ] Ms. G. denies M. reacted negatively to her move last fall. She says she learned from his doctor and trained staff techniques to assist M. with transitions. [ 166 ] In response to Mr. V.’s assertion R. and M. act out when they move from her house to his, Ms. G. says: 27. . . . every time the Children are returned to my care, I do observe an increase in their tantrums.

I think that it is typical for their age and they are testing their boundaries to see what they can get away with. Our parenting styles are not going to match 100% but I

parent them in a way that I think is appropriate and would hope they are going to do the same as we both have the same goal in mind in upbringing the children. Conclusions on M.’s medical problems [ 167 ] Neither party has adduced any clinical records or reports to assist the Court in understanding M.’s problems and needs. Still, despite the conflicting evidence, I find Ms. G. and Mr. V. are making efforts to address M.’s medical needs. [ 168 ] I accept Ms.

G. may have underwent a brief period of residential instability between October 22, 2017, the date she left her mother’s residence, and October 24, 2017, the date she moved into her present residence at [omitted for publication]. She is now settled with R. and M. in a comfortable and appropriate residence. I note both parties have moved residences more than once in the past few years. I assume they did for good reason. [ 169 ] Mr. V. recognizes M.’s difficulties in expressing himself and coping with change. Nevertheless, for some time he refuse to attend M.’s appointments unless Ms. G. agreed to Ms.

V. attending as well. I am perplexed as to why he thought it better to forego participating in M.’s assessment than doing so in Ms. V.’s absence. I do not find Ms. G.’s refusal to have Ms. V. present during her personal interview with Dr. H. unreasonable. Ms. V.’s animosity toward Ms. G. is palpable and Ms. G. is entitled to her privacy. [ 170 ] It is obvious Ms. G. and Mr. V. need to communicate and cooperate with one another in M.’s best interests. I am troubled Mr. V.’s default position appears to blame Ms. G. for the children’s challenging behaviour and rely on R. to inform him on what is happening in Ms.

G.’s household. I am also troubled Ms. G. has not kept Mr. V. apprised of M.’s appointments in a timely and meaningful way. I am, however, encouraged by her perspective that children sometimes misbehave for their own reasons and co- parenting requires not only cooperation, but also tolerance. [ 171 ] The parties seemed to have developed their own independent lines of communication with M.’s health professionals. Provided they interact with these professionals in good faith and in M.’s best interest, this may be a reasonable strategy.

As I have no documentation from these professionals, I cannot take into consideration their views on the situation. Other cooperation and communication difficulties [ 172 ] Mr. V. complains Ms. G. did not tell him where she was residing when she left her mother’s house on October 22, 2017: V. Affidavit, para. 11. Ms. G. says she moved into her current residence on October 24, 2017, and advised Mr. V. of her whereabouts on October 30, 2017; G. Affidavit, para. 13. She also told the Court her new address on November 6, 2017. Ms. G. points out that when Mr.

V. moved, he refused to provide her with his new address. [ 173 ] There is no allegation of either party having breached Judge Jackson’s November 6, 2017 order that “ in the event either party moves, the moving party shall provide the other party with their new address.” [ 174 ] Mr. V. says Ms. G. enrolled R. in ringette when they had agreed he would be enrolled in hockey: Exhibit 1, Tab 4. Ms. G. said she had planned to enroll R. in hockey until she learned all of his friends were in ringette. Ms

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