S.M.A v. S.J.N., 2022 BCPC 224

Citation: S.M.A v. S.J.N. 2022 BCPC 224 Date: 20220816 File No: 17722 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.M.A. APPLICANT AND: S.J.N. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on her own behalf: S.M.A. Appearing on his own behalf: S.J.N. Place of Hearing: [omitted for publication] , B.C. Dates of Hearing: February 16, 17, July 4, 5, 6, 7, 19, 2022 Date of Judgment: August 16, 2022

INTRODUCTION [ 1 ] S.J.N. and S.M.A. are the biological parents of three children: O., who is [omitted for publication] years old and suffers from autism spectrum disorder; K. age [omitted for publication]; and A. age [omitted for publication]. S.J.N. and S.M.A. separated in June 2017 after a nine-year relationship. Although the parents started out sharing equal parenting time with the Children, S.M.A. unilaterally changed this arrangement in the fall of 2018. Since then, S.J.N. has been advocating for a return to an equal parenting-time regime.

Although this issue has been the subject of numerous court appearances, family case conferences and prolonged discussions, the most parenting time S.J.N. could negotiate was 35%, with S.M.A. having the remainder. This is the first time this matter has gone to trial. [ 2 ] S.J.N. has presented the court with overwhelming positive evidence why he ought to have equal parenting time with the Children. Since the inception of these proceedings on October 17, 2018, S.M.A. was intermittently supportive in principal of an equal parenting-time regime: Exhibit 37.

By the end of trial, S.M.A. not only opposed S.J.N.’s application for increased parenting time, she wanted his existing parenting time reduced and his parenting responsibilities restricted. [ 3 ] S.M.A.’s evidence focused heavily on issues she has with: (

a) her ex-spouse, J.S.; (

b) S.J.N.’s current spouse, J.C.; and (

c) S.M.A.’s teenage daughter from a prior relationship, S.C. S.M.A. wants primary residence of the Children, with S.J.N. having parenting time with O., K., and A. biweekly, from Friday after school to Tuesday after school. In essence, she proposes S.J.N. have parenting time with the Children 29% of the time. Moreover, S.M.A. asks the court to restrict S.J.N.’s parenting time to those occasions when he can exercise it in-person. Specifically, S.M.A. does not want the Children left in J.C.’s care. ISSUES [ 4 ] The parties agree they are both guardians of the Children, O., K., and A. The contentious issues before the court include: (

a) the allocation of parental responsibilities; (

b) the allocation of parenting time; (

c) conduct orders; (

d) ongoing child support; and (

e) special and extraordinary expenses. EVIDENCE AT TRIAL S.J.N. [ 5 ] Over the course of this seven-day trial, I heard oral evidence from six witnesses. In S.J.N.’s case, I heard from: a. The Applicant S.J.N., who testified on his own behalf; b. D.N., the father to S.J.N., who attested to: S.J.N.’s competency as a loving, nurturing parent; J.C.’s competency as a loving nurturing stepparent and caregiver; S.M.A.’s competency as a “good mom;” and c. R.C., who is J.C.’s father, strongly endorsed J.C.’s and S.J.N.’s parenting skills.

He testified that he and his wife A.C. were devoted to S.J.N.’s Children as though they were their own biological grandchildren. [ 6 ] I also had the benefit of the following supportive affidavit evidence which S.J.N. had filed on December 17, 2021: a. The affidavit of J.M.L. filed December 17, 2021, who is a certified life coach, a mother of three and a friend of J.C. (CEIS 36); b. The affidavit of J.C., filed December 17, 2021, S.J.N.’s intimate partner since the summer of 2018 (CEIS 37); and c.

The affidavit of T.J.M., filed December 17, 2021, a child support worker in the employ of the [omitted for publication] and District Child Development Centre (CEIS 38). [ 7 ] S.J.N. filed the following Form 4 Financial Statements over the course of these proceedings: a. On December 5, 2018, S.J.N. filed a Form 4 Financial Statement (CEIS 5) in which he reports he lives at [omitted for publication], BC. He is employed as an electrician for [omitted for publication] earning a total income of $78,557.45. He spent $959.80 on union dues, giving him a Guideline income of $77,597.65.

S.J.N. claims expenses of $75,748.97 per year. His attached Canada Revenue Agency (“CRA”) documents indicate S.J.N. earned: $78,557.45 in 2017, and $45,670.01 from [omitted for publication] in 2016. b. On April 23, 2019, S.J.N. filed a Form 4 Financial Statement (CEIS 12), in which he reports he lives at [omitted for publication], BC. He is employed as an electrician for [omitted for publication], earning a total Income of $88,522.60. He paid $1,002.60 for union dues giving him a Guideline income of $87,120.02. He claims expenses of $91,529.09 per year.

His attached CRA documents indicate S.J.N. earned: $78,557 in 2017; $60,872.01 from all sources in 2016. His year-to-date earnings were $17,126.81 as of April 16, 2019. c. On March 17, 2020, S.J.N. filed a Form 4 Financial Statement (CEIS 22), in which he reports he lives at [omitted for publication], BC. He is employed as an electrician for [omitted for publication], earning a total income of $83,033. He paid $919.65 for union dues giving him a Guideline income of $82,114.69. He claims expenses of $93,072.25 per year.

His attached CRA documents indicate S.J.N. earned from his employment with [omitted for publication]: (a) $78,557.45 in 2017; (b) $87,107.88 in 2018; and (c) $83,033.74 in 2019. His Statement of Earnings indicated S.J.N.’s year-to-date income as of March 14, 2021, totalled $12,446.30. d. On July 27, 2021, S.J.N. filed a Form 4 Financial Statement (CEIS 26), in which he reports he lives at [omitted for publication], BC. He is employed as an electrician for [omitted for publication], earning a total income of $78,984.31. He claims expenses of $4,271 monthly and $51,254 yearly.

His attached CRA documents indicate S.J.N. earned $78,984.31 in 2020. S.J.N.’s year-to-date earnings totalled $43,566.70 as of July 17, 2021.

e. On January 17, 2022, S.J.N. filed a Form 4 Financial Statement (CEIS 39), in which he reports he lives at [omitted for publication], BC. He is employed as an electrician working for [omitted for publication] earning a Guideline Income of $82,812.93. He claims expenses of $4,311 monthly or $51,732 yearly. S.J.N. attached CRA documents indicating he earned $78,984.31 from all sources in 2020, and $76,328 in 2019.

In his January 26, 2022, S.J.N. attached his 2018 Notice of Reassessment indicating he earned $81,403 in the 2018 taxation year, and $78,984 in the 2020 taxation year: affidavit of S.J.N. filed January 26, 2022 (CEIS 41). He also attached his Statement of Earnings indicating his year-to-date as of December 18, 2021, totalled $79,947.72. f. On June 22, 2022, S.J.N. filed a Form 4 Financial Statement (CEIS 39), in which he reports he lives at [omitted for publication], BC. He is employed as an electrician working for [omitted for publication], earning a Guideline income of $89,655.

He claims expenses of $4,707 monthly or $56,484 yearly. S.J.N. attached CRA documents indicating he earned: (a) $89,655 in 2021; (b) $78,984.31 from all sources in 2020; (c) $76,328 in 2019. In his January 26, 2022, he attached his 2018 Notice of Reassessment indicating he earned $81,403 in the 2018 taxation year, and $78,984 in the 2020 taxation year. S.J.N. also attached a copy of his Statement of Earnings showing his year-to-date salary as of July 16, 2022, is $44,968.91, inclusive of overtime.

Extrapolating this amount to December 31, 2022, S.J.N.’s 2022 income will be $90,683.16 ($44,968.91÷ 181 days x 365 = $90,683.16). S.M.A. [ 8 ] In S.M.A.’s case, I heard from: a. The Respondent S.M.A., who testified on her own behalf; b. L.A., S.M.A.’s mother, who testified to S.M.A.’s competency as a loving, nurturing parent; and c. M.C., a social worker and close friend of S.M.A., who testified as to events she witnessed and S.M.A.’s competency as a loving, nurturing parent. [ 9 ] S.M.A. also filed Form 4 Financial Statements and their attachments: a.

On January 22, 2019, S.M.A. filed a Form 4 Financial Statement (CEIS 7) in which she reports she lives at [omitted for publication], BC, and is employed as a [omitted for publication]. She declares a Guideline income of $74,806 ($76,775 - $1,969 union dues = $74,806), and expenses totalling $131,662. Her attached CRA documentation indicates S.M.A. earned a total income of: (a) $75,521 in 2015; (b) $60,929 in 2016; (c) $90,802 in 2017. Her attached Statement of Earnings show S.M.A.’s year-to date earnings as of December 22, 2018, totalled $106,428. b.

On August 24, 2021, S.M.A. filed a Form 4 Financial Statement (CEIS 28), in which she reports she lives at [omitted for publication], BC, and employed with [omitted for publication]. She declared a Guideline income of $94,048 and expenses totalling $9,088 monthly or $106,056 annually.She anticipated her 2021 income to be $109,000. Her attached CRA documentation indicates S.M.A. earned an annual income of: (a) $107,502 in 2018; (b) $101,207 in 2019; and (c) $94,048 in 2020. Her Statement of Earnings from [omitted for publication] indicates S.M.A.’s year-to date earnings as of August 5, 2021, totalled $43,602. c.

On May 26, 2022, S.M.A. filed a Form 4 Financial Statement (CEIS 46) wherein she declares income for child support purposes of $51,600, and expenses of $8,031 monthly or $96,484 annually. Her attached CRA documents indicate S.M.A.’s: (

a) total income for 2021 was $119,704.98 (

b) total income for 2020 was $94,048; and (

c) total income for 2019 was $101,207. In 2021, S.M.A. also received: (a) $16,805.16 as the Canada Child Benefit; (b) $13,715 as a non-refundable tax credit for O. because of his disability; and (c) $13,808 as a non-refundable tax credit for S.C.. S.M.A.’s year-to-date earnings from [omitted for publication] as of May 12, 2022, totalled $41,925; extrapolating her 2022 year-to-date income from [omitted for publication], S.M.A.’s 2022 annual income would be approximately $115,929 per year ($41,925 ÷ 132 x 365 = 115,928.97). Exhibits [ 10 ] I received into evidence 40 exhibits.

S.J.N. tendered Exhibits 1, 2, 3, 6, 34 and 40, and S.M.A. tendered the remainder. The exhibits include: 1. A 30-page booklet of photographs of S.J.N., J.C. and the Children engaged in various activities and outings over the years; 2. A

schedule of Parent in Attendance between January 31, 2018, to February 17, 2022, setting out the dates various meetings with the Children’s teachers, coaches, health care practitioners (doctors, dentists, optometrist), special events, and the parent or parents who attended these events; 3.

Fifty-six pages of text messages between S.J.N. and S.M.A. at various times: pp. 111-132;138; 141; 143;145-146;148; 150; 152; 244- 248; 159; 175-177;186; 191-192; 200; 203; 209-210; 214-216; 218-219; 222-223; 236; unnumbered email exchange between S.M.A. and S.J.N. dated September 7, 2019; unnumbered email from S.M.A. to S.J.N. on March 17, 2020; 4. Twenty-seven pages of text messages (in colour) said to be exchanged between J.C. and S.C. on April 17, 2021; 5. Nine pages of text messages said to have been exchanged between J.C. and S.C. on January 3, 2022; 6.

Three pages of undated text messages S.M.A. says were sent to her from S.J.N. shortly after their separation; 7. Nine pages of text messages between S.J.N. and daycare provider M.P. in August and September 2021; 8. Sixteen of S.M.A.’s Certificates of Accomplishments, including her Bachelor of Bachelor of Social Work from the [omitted for publication] in [omitted for publication] and her Masters of Social Work degree from the [omitted for publication] in [omitted for publication];

9. Messages exchanged on or about November 21, 2021, between S.M.A. and S.J.N. concerning travel arrangements and transitioning the Children for Christmas 2021; 10. Emails between S.M.A. and S.J.N. arranging parenting time when S.M.A. went to Las Vegas, September 16-19, 2021; 11. Text messages dated April 25, 2021, between S.M.A. and S.J.N. concerning S.M.A. picking up O. on her return from Cherry Creek, Kamloops, BC, with a horse trailer; 12. Thirty coloured pages of text and documents S.M.A. sent to S.J.N. and J.C., concerning J.S., including: a.

A text message April 21, 2021, asking S.J.N. and J.C. to prohibit J.S. from contacting the Children; b. A Protection Order , ex parte , between K.R. (J.S.’s ex-partner), and J.S., dated August 1, 2017, in [omitted for publication] Provincial Court File 17015. This order prohibits J.S. being within 50 metres of the residence of K.R. without her prior written permission. By default it was enforced for one year; c. Interim order of Judge Galbraith made August 1, 2017, with respect to parenting-time arrangements and conduct orders in the Family Law Act matter of J.S. v.

K.R. and their children G.T.S., born [omitted for publication] and M.H.S., born [omitted for publication]. The children’s primary residence was with K.R.; d. Final order of Judge Brecknell made April 22, 2021, with respect to parenting-time arrangements and conduct orders in the Family Law Act matter of J.S. v. K.R. and their children G.T.S., born [omitted for publication], and M.H.S., born [omitted for publication]; e. An exchange of messages between J.S. and B.E. over Facebook in September 2021, over his communications with S.M.A.; f.

Facebook messages from March 2021 exchanged among J.S., L.A., R.G., wherein J.S. asserts R.G. stole a dog from S.M.A., and R.G. and L.A. assert it was J.S. who stole the dog from S.M.A.; and g. Messages from J.S. to S.M.A. consigned to her junk mail sent March 16, 18, 19, 20, 31, 2021; April 11, 2021. 13. Forty-seven colour screen shots from a cell phone showing undated text messages said to have been exchanged between S.C. and J.C.; 14. An email attaching

Schedule 5 from S.M.A.’s Notice of Family Claim filed in the BC Supreme Court on April 26, 2021, against J.S.; 15. An email in April 2021 between L.L.F. and S.M.A. concerning S.M.A. being late to pick up O.; 16. An email dated September 9, 2021, with a picture of A. riding Lucky, her new pony; 17. An email from S.M.A. to S.J.N. dated December 19, 2021, embedding emails exchanged between the two parties on August 23 and 24, 2021, concerning issues with S.J.N. communicating with M.P., the childcare provider, and O.’s “Walmart shoes;” 18.

An email from S.M.A. to S.J.N. dated December 19, 2021, embedding emails exchanged between the two parties on September 27 and 28, 2021, concerning parenting arrangements and transitioning the Children between households; 19. An email from S.M.A. to S.J.N. dated December 19, 2021, embedding emails exchanged between the two parties on October 1, 2021, concerning S.M.A.’s relationship with R.G. and S.M.A. sleeping with R.G. in a trailer while the Children were present; 20.

Emails exchanged between S.M.A. and S.J.N. on October 16, 2021, concerning S.C. leaving home to live with P.H. and her father K.B., and her biological father B.C.; 21. Emails exchanged between S.M.A. and B.C. about S.C. dropping out of school dated June 28 and 19, 2021, (around the time of S.C.’s sixteenth birthday); 22. A screenshot of persons who were blocked on S.C.’s phone, which includes S.M.A., her father K.A., and S.M.A.’s friend J.B.; 23. A screenshot of text messages S.M.A. sent to S.C. on November 20, 2021; 24. A screenshot of a text messages L.A. sent to S.C. while she was living away from home; 25.

A text message exchanged between S.M.A. and M.K., the principal of [omitted for publication] Secondary School, which S.C. attended prior to dropping out and running off with P.H. 26. Text messages exchanged between S.M.A. and a social worker from Prince George in April 2021, embedding blocked messages S.M.A. received from J.S. and a discussion of S.C. residing with her paternal grandmother T.C.; 27. Text message exchanged between S.M.A. and a counsellor, Mandy Rowe, from ReWild Counselling in Prince George, who S.M.A. hired to provide counselling services to S.C.; 28.

Email exchanged between S.M.A. and D.B. on February 29, 2020, attaching O.’s report card and comments on O.’s performance with [omitted for publication]; 29. A.’s report card from [omitted for publication] Elementary School for Kindergarten, for the period from [omitted for publication]; 30. K.’s report card from [omitted for publication] Elementary School for Grade 3, for the period from [omitted for publication];

31. O.’s Psychological Assessment Report dated March 18, 2019, from the Okanagan Ability Centre, attaching the Northern HealthAssessment Autism Diagnostic Assessment Psychological Report dated October 2, 2014; 32. Correspondence from the [omitted for publication];dated March 10, 2022, approving S.M.A. as a mental health service provider[omitted for publication], together with a letter from the [omitted for publication]; approving S.M.A.to provide counselling services toeligible claimants under the Crime Victim Assistance Program; 33.

Email exchange on March 11, 2022, concerning B.S.’s complaints to [omitted for publication] against S.M.A. on April 9, 2021. Inthe email exchange on March 11, 2022, A.W. advised S.M.A. that B.S., the mother of J.S., was now banned from [omitted forpublication], together with an email exchange on March 14, 2022, between S.M.A. and the [omitted for publication] regarding issueswith B.S. and J.S. and B.S.’s complaints against S.M.A. made to the [omitted for publication]; 34.

Email exchanged between S.M.A. and S.J.N. on August 6, 2019, in which S.M.A. advised S.J.N. his number was blocked anddemanded S.J.N. not text her, or book K. a doctor’s appointment; 35. Text messages exchanged between S.M.A. and S.J.N. concerning reimbursing M.P. for O. charging gaming to M.P.’s credit card; 36. Text messages exchanged between S.M.A. and S.J.N. on December 30 and 31, 2021, concerning S.J.N.’s and J.C.’s communicationswith S.C.; 37. Text messages between S.J.N. and S.M.A. on January 25 and 26, 2022, discussing a 50/50 parenting arrangement; 38.

Text message dated April 5, 2021, from J.S., sent to various people, including B.E. and S.M.A.; 39. Text messages exchanged between S.M.A. and S.J.N. about S.M.A.’s separation from J.S.; and 40. Excerpt from S.J.N.’s Telus bill for May 9, 2021, (page 5 of 10) showing charges between April 13, 2021, to April 19, 2021, and thenumber of times S.J.N. called S.M.A. on the evening of April 17, 2021. Court record [11] I also had the benefit of the court record, which included all 51 documents filed in the Court Electronic Information System(“CEIS”) and the record of the 20 court appearances made to date.

Section 211 Report (Full) [12] On October 30, 2019, Family Justice Counsellor (“FJC”) Nancy Callan filed a Full Views of the Child Report (CEIS 18) withrespect to O. who was then [omitted for publication] years old, K. then [omitted for publication], and A. who was [omitted forpublication]. S.C. would have been [omitted for publication] years old.

FJC Callan interviewed: S.M.A.; S.J.N.; O.; K.; A.; S.C.; L.N.;J.S.; [omitted for publication] ([omitted for publication] Elementary School principal); [omitted for publication] (teacher); [omitted forpublication] ([omitted for publication] Childcare Centre preschool teacher); L.L.F. (babysitter); Dr. Monica McKay (paediatrician). PROCEDURAL AND EVIDENTIARY ISSUES [13] The Family Law Act mandates a holistic approach to resolving family disputes with an emphasis on resolution.

Section 199provides the court with some guidelines. It states: Conduct of proceeding 199(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to (

i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between theparties. [14] A trial judge can consider only evidence that is relevant, material, and admissible. Hearsay is an out-of-court statement tenderedfor the truth of its contents. A hearsay statement is presumptively inadmissible unless the person adducing it proves it necessary andreliable: R. v. Khelawon, 2006 SCC 57.

One of the ways the Family Law Act has relaxed the traditional rules of evidence is to give thecourt discretion, having regard to the best interests of the child, to admit hearsay evidence it considers reliable of a child who is absent: s.202 of the Family Law Act. This is a protective measure which recognizes the potential psychological harm which may result from achild testifying in an acrimonious family law proceeding. In T.A.O. v. D.J.M, 2021 BCSC 1690 , Justice Shergill comments: [23] The FLA does not preclude a child from testifying in court, nor does it require a child to testify.

Section 202 simply grants this courtthe discretion to receive hearsay evidence regarding statements made by children, so long as the evidence is deemed reliable. This

provision is designed to protect a child from the potential psychological harm which may result from testifying in a family law proceeding involving one or both of the child’s parents. This is an important and laudable goal, and in my view, the participation of children in family disputes should be discouraged rather than encouraged.

However, where there are serious concerns about credibility, and the child is old enough, mature enough, and willing to testify, it may be preferable in some cases to receive the child’s testimony directly rather than relying on hearsay statements. [ 15 ] In this case, none of the Children testified. Instead, I received a considerable amount of hearsay evidence from a wide variety of sources of varying degrees of reliability. The hearsay evidence found in the medical assessments, reports, school reports, and s. 211 report are trustworthy sources upon which I can generally rely.

The hearsay evidence adduced in the oral testimony of a witness requires greater scrutiny.

The same can be said of hearsay evidence contained in emails and text messages. [ 16 ] Some of the evidence adduced from witnesses was inadmissible for various reasons, including: a. it had no probative value on the issues I have to decide; b. it was privileged, such as the private and confidential discussions which take place during family case conferences or settlement negotiations; c. it constituted double hearsay, meaning hearsay based on hearsay; d. it was mere rumour or speculation or conjecture; e. it was argument not evidence; f. it was a conclusory statement unsupported by admissible facts; g. it violated the rule against oath-helping in that it is a prior consistent self-serving statement.

The fact that the witness said things out- of-court previously that are consistent with the statements they made under oath during the trial does not constitute corroboration of their own evidence. Repetition of the same statement over and over again does not render the statement any more likely to be true; h. it was the type of opinion evidence requiring an expert witness who the court has properly qualified.

In this case, the court had not qualified any witness to give an expert opinion; and i. it was proffered, not under oath or affirmation, but in submissions after the evidentiary portion of the trial had concluded. [ 17 ] A trial judge cannot take inadmissible information into account and simply deal with them as matters of weight. Evidence that is not admissible is not evidence that is weighed by the court. [ 18 ] As the parties were self-represented, in the spirit of s. 199 of the Family Law Act , I decided not to belabour the proceedings with multiple evidentiary rulings.

Instead, I sifted out the admissible evidence from the inadmissible evidence, which at times proved daunting. This is particularly true of hearsay evidence, which may not be admissible for the truth of its contents, but admissible under the narrative exception of the hearsay rule. Narrative evidence is sometimes considered necessary to c ontextualize relevant evidence for the purpose of making that evidence intelligible or sensible. ASSESSING RELIABILITY AND CREDIBILITY [ 19 ] In this case, I heard three witnesses for each party.

As the trial judge, I must assess the reliability and credibility of those witnesses. This is a highly contextual, fact-specific exercise. I can believe none, part, or all of a witness' evidence and may attach different weight to different parts of a witness' evidence . [ 20 ] Reliability and credibility are not the same. Reliability involves the accuracy of the witness’ testimony. It engages consideration of the witness’ ability to observe, recall and recount. Credibility, on the other hand, concerns the witness’ veracity – to speak the truth as the witness believes it to be.

Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [ 21 ] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’ evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent (

f) the witness’ demeanour while testifying, meaning not so much what is said but how it is said. [ 22 ] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is credible may nevertheless be unreliable. [ 23 ] This is a family law proceeding where all the parties and their witnesses have a dynamic relationship. I am acutely aware that after I rendered my decision, S.J.N. and S.M.A. will have to return to co-parent their Children in whatever parenting arrangement I order.

Hence, I will assess credibility only where it is necessary. [ 24 ] I can say that generally: a. Where a witness provided impressionistic oral evidence as to the contents of a written communication which differs from the actual communication marked as an exhibit, I accept the exhibit as the more accurate of the two; b. Where a party tendered into evidence a written communication, be it by text message, email or social media that was unopposed, yet not authenticated by the actual sender or recipient, I gave this evidence less weight than those communications which had been properly authenticated;

c. I have given less weight to text messages which appear to have been cherry-picked from a more fulsome discussion, with the result that I cannot properly contextualize their content; d. Where a witness or party has made conclusory statements for which there is scanty supporting evidence, I have given these statements little if any weight. [ 25 ] In reaching my decision, I have considered all the evidence, which was voluminous. I do not intend to parse the evidence microscopically into categories of what I find reliable, or credible, or inadmissible, or of little weight.

I have typically focused on the evidence I accepted. If I have not mentioned a piece of evidence, it is because I did not find it admissible or helpful for one or more of the reasons cited above. BACKGROUND FACTS [ 26 ] S.J.N. was born on [omitted for publication], and raised in [omitted for publication]. He is now [omitted for publication] years old. S.M.A. was born on [omitted for publication], and raised in the Kootenays, but her parents were raised in [omitted for publication]. S.M.A. is now [omitted for publication] years old. S.J.N. is a journeyman electrician in the employ of [omitted for publication].

S.M.A. is a social worker and clinical counsellor employed with [omitted for publication] as the [omitted for publication] . [ 27 ] S.J.N. and S.M.A. met in 2008 at a basketball game in Prince George. S.J.N. was [omitted for publication] years old and S.M.A. was [omitted for publication]. S.M.A. was living in Prince George while pursuing her post-secondary studies in sociology and psychology at [omitted for publication]. S.M.A. had a townhouse in [omitted for publication] in Prince George. Shortly after they met, S.J.N. moved into S.M.A.’s townhouse to reside with her.

They then purchased a house on [omitted for publication] in Prince George. At that time, S.J.N. had completed his post-secondary education at [omitted for publication] and became a certified aircraft engineer. [ 28 ] S.J.N. and S.M.A. relocated to [omitted for publication] where they both had extended family. They married on [omitted for publication]. They are the biological parents of the three Children, namely: a. O. born [omitted for publication] b. K. born [omitted for publication]; and c. A. born [omitted for publication] [ 29 ] S.M.A. is also the biological mother of S.C., born [omitted for publication].

S.C.’s biological father is B.C. S.C. was [omitted for publication] years old when S.M.A. and S.J.N. began cohabitating. For the next nine or ten years, S.J.N. lived with S.M.A. and took on the role of S.C.’s stepfather. [ 30 ] In these Reasons for Judgment I will refer to O., K., and A. collectively as “the Children,” and I will refer to S.C. as “S.C.” [ 31 ] Because the Children were so much younger than S.C., S.M.A. and S.J.N. affectionally refer to them as “the littles.” [ 32 ] On December 20, 2006, S.M.A. appeared before Judge Weatherly in Prince George Provincial Court.

She sought and obtained an order that she have sole custody and guardianship of S.C., born [omitted for publication]. Her biological father, B.C., was ordered to pay child support to S.M.A. for S.C. in the amount of $501 per month commencing November 15, 2006. At that time, S.M.A. appeared in court self-represented and B.C. did not appear in person, or by counsel or agent.

On June 20, 2007, S.M.A. and B.C. attended before Judge Hoy and spoke to a consent order, varying B.C.’s access to S.C. to include a two-week period every two months commencing October 1, 2007, and such other access as agreed upon between the parties. [ 33 ] S.M.A.completed her Bachelor of Social Work in May 2010 and began working for [omitted for publication] . S.J.N. and S.M.A. continued to live and work in Prince George until June 9, 2012, when they married and relocated to [omitted for publication], BC.

At this point, O. was approximately [omitted for publication] old. [ 34 ] For the first four months after moving to [omitted for publication], S.J.N. and S.M.A. resided with S.J.N.’s parents, D.N. and L.N. D.N. and L.N. resided in a large custom-built home on 15 acres at [omitted for publication] [ 35 ] S.J.N. decided to change his trade and apprenticed as an electrician with his father’s company, [omitted for publication] . In October 2012, S.J.N. and S.M.A. purchased [omitted for publication]. The [omitted for publication] residence sat on a four-acre lot which had a corral for horses.

S.J.N. continued working for [omitted for publication] for over a year, after which he went to work for [omitted for publication], his current employer. Typically, S.J.N. worked 35 to 40 hours each week, from 8:00 a.m. to 4:30 p.m. [ 36 ] S.M.A. was employed fulltime as a social worker for [omitted for publication]; however, she took a year maternity leave after K. was born [omitted for publication] and another year after A. was born [omitted for publication.] [ 37 ] In his initial year of employment with [omitted for publication], S.J.N. occasionally worked on projects in other communities.

When S.M.A. was working with [omitted for publication], she sometimes worked considerable overtime. While working at [omitted for publication], S.M.A. earned significantly more money than S.J.N. [ 38 ] S.J.N. and S.M.A. separated in June 2017. Although separated, S.J.N. and S.M.A. continued to reside in the same residence with the Children and S.C. This arrangement broke down when S.M.A. formed an intimate relationship with J.S. in early 2018. [ 39 ] J.S. had a previous relationship with K.R. and had two children of his own. He was a welder in the employ of [omitted for publication].

J.S.’s job took him out of town for six to eight weeks at a time. When S.M.A. and J.S. began cohabitating, J.S.’s daughter G. would have been [omitted for publication] years old and his son M. would have been [omitted for publication]. J.S. had parenting time with his children. I have no information as to how J.S.’s children interacted with the Children. S.M.A. moved out of the home on

[omitted for publication] in March 2018. Initially, she and the Children lived with S.M.A.’s maternal grandmother, who had a two- bedroom apartment in [omitted for publication]. On April 30, 2018, S.M.A. moved with the Children into J.S.’s one-bedroom basement apartment in [omitted for publication]. [ 40 ] S.J.N. and S.M.A. sold their residence on [omitted for publication] on May 15, 2018. S.J.N. moved into his parents’ home at [omitted for publication.] [ 41 ] S.J.N. met his current partner J.C. in March 2008. J.C. is [omitted for publication] years old and has no children of her own.

When she lived in [omitted for publication], J.C. worked for [omitted for publication]. In May 2018, J.C. moved from [omitted for publication] to Kelowna, where she worked for [omitted for publication], a marketing business. O. met J.C. on the Canada Day long weekend in July 2018; K. and A. met J.C. in August 2018 at S.J.N.’s nephew’s birthday party. S.C. met J.C. in Christmas 2018. [ 42 ] J.C. was also a friend and long-term acquaintance of J.S. and his former spouse, K.R.

In May 2018, J.C. moved from [omitted for publication] to Kelowna. [ 43 ] Initially, S.J.N. and S.M.A. shared equal parenting time with the Children. While the parents were at work, the Children attended [omitted for publication]. O. attended [omitted for publication.] [ 44 ] On or about July 17, 2018, J.S. purchased a large home in the [omitted for publication], which became S.M.A. and J.S.’s family home. S.M.A. testified this had once been J.C.’s residence.

After selling this house, J.C. purchased a much smaller house on [omitted for publication]. [ 45 ] In the fall of 2018, S.M.A. unilaterally changed the parenting arrangement by seizing the majority of the parenting time with O., K., and A. [ 46 ] In October 2019, J.C. moved back to [omitted for publication] from Kelowna. S.J.N. was still living at [omitted for publication]. [ 47 ] S.J.N. continued to live at his parents’ home with the Children.

In April 2020, with the assistance of their respective fathers, J.C. and S.J.N. began renovating the [omitted for publication] residence, to make it comfortable for both the adults and the Children. It was a modest home, but the costs of upkeep were low. S.J.N. and J.C. preferred to keep their bills low so they could afford activities outside the home. In September 2020, S.J.N. and J.C. moved into the [omitted for publication] residence. [ 48 ] In 2020, S.M.A. separated from J.S.

At the beginning of September 2020, she moved with the Children out of the [omitted for publication] residence to a house on [omitted for publication] that she rented from her friend and coworker M.C. S.M.A. filed a Notice of Change of Address with the Court Registry on October 4, 2021, indicating her address as of September 5, 2020, was [omitted for publication]. [ 49 ] In 2020, S.M.A. began spending time with R.G., a man she met after she had separated from S.J.N. S.M.A. and R.G.’s friendship morphed into an intimate relationship. R.G. has three adult daughters from a previous relationship.

In 2022, S.M.A. purchased Mr. G. Senior’s 50% interest in R.G.’s 4,000 acre ranch at [omitted for publication]. It is about a ten-minute drive from [omitted for publication], BC. Although she often stayed at the [omitted for publication] in 2021-2022 with and without the Children, S.M.A. did not move there until the Spring of 2022. [ 50 ] In early 2021, S.J.N. and S.M.A.’s co-parenting relationship deteriorated as a result of a number of incidents relating to the breakdown of S.M.A.’s relationships with J.S. and with her daughter, S.C. I will discuss these incidents later in these Reasons for Judgment.

PROCEDURAL [ 51 ] On October 17, 2018, S.M.A. filed an Application to Obtain a Family Law Order (CEIS 1) with the [omitted for publication] Court Registry seeking an order that: a. S.M.A. and S.J.N. are the joint guardians of O., K., and A.; b. S.M.A. have parenting time with O., K., and A. for five consecutive days a week; c. S.J.N. have parenting time with O., K., and A. two consecutive days of the week; d. S.M.A. and S.J.N. attend the Children’s recreational activities, regardless of which party is exercising parenting time; and e.

S.J.N. pay S.M.A. child support for the three Children plus one-half of the cost of the Children’s fulltime daycare expenses. [ 52 ] In her October 17, 2018 application, S.M.A. makes no mention of S.C. With respect to the three Children, S.M.A. states: Currently there is no consistent schedule; we attempted a 50/50 arrangement from August 20 th , 2018 to September 24, 2018.

Since this date, the children have been with me 20/25 days. [ 53 ] On November 7, 2018, S.J.N. filed a Reply and Counterclaim in court file [omitted for publication](CEIS 3) seeking equal parenting time with his biological Children: O., K., and A. Once again, no mention is made of S.C. Although S.C. had lived with S.J.N. and S.M.A. until their separation, S.J.N. was not S.C.’s legal guardian. [ 54 ] On December 12, 2018, S.M.A. and S.J.N. appeared self-represented before Judge Galbraith.

At this time, Judge Galbraith made an interim order (CEIS 6) by consent that S.M.A. and S.J.N. are the guardians of the Children, O., K., and A. under s.39(1) of the Family Law Act. At this first appearance, S.J.N. argued that he and S.M.A. ought to have equal parenting time with O., K., and A. He has never

wavered from this quest. [ 55 ] S.J.N. and S.M.A. appeared in court self-represented on January 23, 2019, before Judge Docolas. At that time, the parties’ reciprocal applications (CEIS 1 and 3) were adjourned to February 27, 2019. [ 56 ] On February 27, 2019, the matter came before Judge P. Whyte. S.M.A. appeared represented by Ms. Patricia Schmidt and S.J.N. appeared self-represented.

Judge Whyte ordered on an interim without prejudice basis that (CEIS 10, 11): a. [S.J.N.] have interim parenting time with [K.] and [A.] three weekends per month, from Friday after daycare or school to Sunday at 4:00 p.m., and such other time as the parties agree in writing; b. [S.J.N.] have interim reasonable parenting time with [O.] as the parties agree in writing; c. [S.J.N.] pay [S.M.A.] child support for [O.], [K.], and [A.] in the amount of $1,100 per month commencing March 1, 2019; d. [S.J.N.] and [S.M.A.] will each pay one-half of [O.], [K.], and [A.’s] daycare and after school care directly to the daycare provider; e.

From January 1, 2019, to February 28, 2019, [S.J.N.] and [S.M.A.] are each responsible for one-half of the behavioural interventionist costs for services provided to [O.]; f. Commencing March 1, 2019, [S.J.N.] and [S.M.A.] will each pay one-half of the behavioural interventionist costs for services provided to [O.] directly to the service provider; and g. A family justice counsellor prepare a s. 211 Views of the Child report. [ 57 ] Judge Whyte’s February 27, 2019, Order makes no mention of S.C. [ 58 ] On April 30, 2019, the family law matter came before Judge Galbraith for a Family Case Conference.

S.M.A. appeared represented by Ms. Patricia Schmidt and S.J.N. was self-represented. At that time, Judge Galbraith ordered by consent: a. A Family Justice Counsellor will prepare a full

Section 211 report to assess parenting time and parental responsibilities; b. [S.J.N.] will have interim parenting time with [K.], and [A.]: i. every second weekend commencing May 10, 2019 from Friday at 5:00 p.m. until Monday morning at 8:30 a.m. with the drop off at school or daycare or to [S.M.A.]; and ii. such other times as agreed upon between the parties in writing; c. any alterations to previously scheduled parenting time or additional parenting time requests will be on 48 hours notice; and d. [S.J.N.] will not enter [S.M.A.’s] residence uninvited. [ 59 ] As was the case with the February 27, 2019, Order, the April 30, 2019 Order makes no mention of S.C. [ 60 ] On June 12, 2019, this family matter came before Judge Malfair for a subsequent appearance.

S.M.A. appeared represented by Ms. Patricia Schmidt and S.J.N. was self-represented.

Judge Malfair made an interim without prejudice order (CEIS 13) that: a. [S.J.N.] is found to be a resident of British Columbia and is imputed to have a gross annual income of $ 80,000; and b. [S.J.N.] will pay to [S.M.A.] child support in the amount of $1,624 per month commencing June 1 2019, by way of bi-weekly payments of $749.53 each. [ 61 ] Judge Malfair’s June 12, 2019, child support order pertains only to O., K., and A.; there is no mention of S.C. [ 62 ] On August 6, 2019, S.J.N. filed an Application Respecting Existing Orders or Agreements (CEIS 14) seeking a variation of Judge Galbraith’s April 30, 2019, Order, to increase parenting time with O., K., and A. from Friday to Monday, to Friday to Thursday.

S.J.N. states: My parenting time with our kids has been drastically cut shorter and shorter over the last two years despite constant attempts to see our kids more and I fear it’s affecting their long term attachment. [ 63 ] On August 27, 2019, S.M.A. filed a Reply and Counterclaim (CEIS 15) in which she opposed S.J.N.’s request for increased parenting time and a variation of the April 30, 2019 Order.

She states: The children’s behaviour has stabilized. [S.J.N.’s] application conflicts with the Children’s best interests, the current order has provided stability, routine and has given the Children predictability in scheduling. [O.’s] care team is not in support of changes. [ 64 ] In her August 27, 2019, Reply and Counterclaim, S.M.A. also counterclaimed for retroactive child support to October 1, 2018, for O., K., and A. [ 65 ] Neither S.J.N. nor S.M.A.’s August 2019 pleadings mention S.C. [ 66 ] At the time they filed the August 2019 pleadings, S.M.A. resided at [omitted for publication], and S.J.N. lived at [omitted for publication].

[ 67 ] S.J.N. and S.M.A. appeared in court on their August 2019 reciprocating applications (CEIS 14, 15) on October 9, 2019, and the matter was adjourned to December 10, 2019. [ 68 ] In her October 30, 2019, s. 211 Report, FJC Callan concluded: a. “. . . the parties each appear to have the capacity to make decisions as a united front and in the best interests of the Children. The Children benefit from the loving attention of both parents.

While a full week away from either parent may be too much for any of the Children at their young age, efforts should be made to maximize time with each parent. . . .”; b. [S.J.N.] and [S.M.A.] “both present as dedicated conscientious parents”; c. [S.C.] no longer wishes parenting time with [S.J.N.]; d. [O.’s] special needs and difficulty with transitions add a layer of complexity to decision-making around parenting time; e. [S.M.A.] favours the Children having one primary home and [S.J.N.] believes they need equal parenting time; f.

The school reports that fewer transitions and more consistency appear to make a difference for [O.]; g. [O.] would prefer to spend the same time with each parent, ideally four days with each; and h. [K.] likes the

schedule as it is because she prefers to spend a little more time with her mother. [ 69 ] S.J.N.’s and S.M.A.’s reciprocating applications (CEIS 14 and 15) came before Judge McDermick on December 10, 2019, for a Family Case Conference. S.J.N. and S.M.A. appeared self-represented.

At that time, Judge McDermick made an interim order by consent (CEIS 19) with respect to O., K., and A., that: a. [S.J.N.] will have parenting time with the Children on alternating weekends from Thursdays at 5:00 p.m. to Tuesdays at 8:30 a.m. commencing December 19, 2019. [S.J.N.] will arrange the pick up and drop off of the Children; b. [S.J.N.] shall have parenting time with [O.] every other Wednesday from 5:00 p.m. to 8:30 a.m. commencing December 11, 2019. [S.J.N.] will arrange the pick up and drop off of [O.]; c. [S.J.N.] shall have parenting time with [K.] every other Wednesday from 5:00 p.m. to 8:30 a.m. commencing December 18, 2019. [S.J.N.] will arrange the pick up and drop off of [K.]; and d. [S.J.N.] shall have additional parenting time with [A.] as agreed between the parties. [ 70 ] Judge McDermick’s December 10, 2019, Order makes no mention of S.C. [ 71 ] S.J.N. and S.M.A.’s reciprocating applications (CEIS 14 and 15) came before Judge Galbraith on February 25, 2020, for a further Family Case Conference.

Both parties appeared self-represented. At that time, Judge Galbraith ordered (CEIS 20) by consent, inter alia : a. [S.J.N.] will have parenting time with [K.] on every other Thursday at 5:00 p.m. through to Tuesday at 5:00 p.m.; and b. [S.J.N.] will have parenting time with [O.] at times agreed between the guardians.

The guardians’ expectation is that [S.J.N.] will have parenting time from every other Thursday at 5:00 p.m. through Monday at 8:00 a.m. [ 72 ] Judge Galbraith’s February 25, 2020, Order makes no mention of S.C. [ 73 ] S.J.N. and S.M.A.’s August 7 and 27, 2019, applications were scheduled for trial on May 19, 2020 (CEIS 23). On March 18, 2020, the BC government issued Ministerial Order No. M073 by which it declared a state of emergency under s. 9 of the Emergency Program Act , R.S.B.C., 1996, c. 111 arising from the COVID-19 pandemic.

On March 19, 2020, Chief Judge Gillespie suspended regular operations of the Provincial Court of British Columbia at all of its locations to protect the health and safety of court users and to help contain the spread of COVID-19 . Chief Judge Gillespie announced the adjournment of all non-urgent family law trials (See CEIS 73). [ 74 ] On May 19, 2020, S.J.N. and S.M.A. appeared in court self-represented for another Family Case Conference. At that time, Judge Leven made the following interim orders by consent (CEIS: 24): a. Under s. 224(1)(

b) of the Family Law Act , [S.J.N.] and [S.M.A.] will enroll in mediation to address the issues of parenting time, parental responsibilities, retroactive and perspective child support and special and extraordinary expenses. Both parties will provide confirmation of attendance at mediation to the court prior to September 9, 2020; b. The mediation service will be as agreed upon between the parties with fees to be paid as agreed upon between the parties; and c.

The matter was adjourned to September 9, 2020, for a subsequent appearance. [ 75 ] On September 9, 2020, S.J.N. and S.M.A. attended court self-represented for a subsequent appearance. They advised the court they had been in contact with the mediator but no mediation had been scheduled. S.M.A. informed the court they wanted to pursue a resolution of their issues outside the court process and adjourned S.J.N.’s August 6, 2019, Application and S.M.A.’s August 27, 2019, Reply and Counterclaim generally. [ 76 ] On July 27, 2021, S.J.N. filed an Application About a Family Law Matter (CEIS 25).

At this time, S.J.N. lived at [omitted for publication] and S.M.A. lived at [omitted for publication]. S.J.N. sought the following orders:

a. the parties will make all major decisions jointly; b. the parties will share equal parenting time from Friday at 5 p.m. to Friday at 5 p.m.; c. the parties will communicate by text message and email; d. the accessing party will be responsible for picking up the Children for his or her parenting time; and e. the parent who is not exercising parenting time will be entitled to contact the Children at the other parent’s home. [ 77 ] On August 24, 2021, S.M.A. filed a Reply and Counterclaim (CEIS 29).

At this time, S.M.A. was living at [omitted for publication], and S.M.A. was living with her biological father B.C. on [omitted for publication] on the outskirts of [omitted for publication]. S.M.A. opposed S.J.N.’s application and sought an order in the event the parties could not agree on a matter relating to O.’s care, then she would make the decision.

S.M.A. opposed S.J.N.’s application for equal parenting time on the bases: a. they cannot communicate effectively on critical matters on the Children’s care; b. the Children had already been impacted by parental conflict; c. it was “not consistent with the views of the child”; and d. it did not address the current emotional needs or provide a “pathway to support [the] children “with what they have experienced.” [ 78 ] S.M.A. counterclaimed for an order that parenting time for O. be flexible and left to her discretion and that the parties have one- to-one parenting time for all three Children with both parents. [ 79 ] S.M.A. also counterclaimed for a “parenting plan” from S.J.N. with respect to S.C. and child support for S.C.

At this time, S.J.N. and S.M.A. had been separated for four years. S.J.N. was not S.C.’s guardian. He had no formalized parenting time nor contact time with S.C. and had never been ordered to pay S.M.A. child support for S.C. and had not done so. [ 80 ] S.J.N.’s July 27, 2021, Application and S.M.A.’s August 24, 2021 Reply and Counterclaim came before me for a Family Management Conference (CEIS 25, 29, 30, 31) on October 13, 2021. In response to S.M.A.’s assertion a shared parenting arrangement was not consistent with the views of the Children, I proposed an updated s. 211 report.

Since FJC Callan’s October 30, 2019 s. 211 report, S.M.A. had separated from J.S., S.C. was living her father B.C., and S.J.N. and J.C. began living together in the [omitted for publication]. [ 81 ]

Section 211 of the Family Law Act allows an independent assessor to assess the needs of the child, the views of the child, and the ability and willingness of a party to a family law dispute to satisfy the needs of a child. A s. 211 report has an evaluative aspect to it in that it is designed to allow a qualified professional to make an assessment of the views of the child, amongst other things. [ 82 ] S.J.N. supported an updated 211 report; S.M.A. did not agree because she believed the Children were being “coached.” Ultimately, S.J.N. and S.M.A. agreed the matter should proceed to trial and I referred their reciprocating applications (CEIS 25 and 29) to the Judicial Case Manger to

schedule a two-day trial and a pretrial conference 30 days in advance of the first day of trial. I also made some administative orders to prepare the parties for trial, including an order that by December 17, 2021, the (

a) the parties exchange all relevant documents on which they intend to rely at trial; (

b) exchange witness lists and will say statements; and before the Pre-trial conference,(

c) file updated financial statements (CEIS 33). [ 83 ] On October 14, 2021, the Judicial Case Manager scheduled a two-day trial on February 16 and 17, 2022, with a pretrial confrence on January 12, 2022 (CEIS 35). [ 84 ] On December 17, 2021, S.J.N. filed affidavits in support of his application from J.M.L. (CEIS 36), J.C. (CEIS 37), and T.J.M. (CEIS 38).

I have reviewed and considered these affidavits with the caveat that none of the affiants attended trial or were otherwise cross-examined on their affidavits. [ 85 ] On January 12, 2022, S.J.N.’s and S.M.A.’s reciprocating applications (CEIS 25 and 29) came before Judge Galbraith for a Pretrial Conference. Both parties were self-represented. Judge Galbraith referred the matter to the Judicial Case Manager to

schedule a further three days of trial in addition to the two days set for February 16 and 17, 2022. [ 86 ] On January 26, 2022, S.J.N. and S.M.A.’s reciprocating 2021 applications (CEIS 25 and 29) came before Judge Galbraith for a further pretrial conference. Both parties were self-represented. Judge Galbraith made a number of disclosure orders to prepare them for trial. [ 87 ] On February 16, and 17, 2022, S.J.N. and S.M.A.’s reciprocating applications (CEIS 25 and 29) came before me for trial.

Both parties were self-repesented. [ 88 ] On May 27, 2022, S.J.N. and S.M.A. attended a one-hour Family Case Conference. The matter did not resolve and I adjourned S.J.N. and S.M.A.’s reciprocating applications (CEIS 25 and 29) to a further four days of trial on July 4, 5, 6, 7, 2022. The parties attended trial on those days self-represented.

At its conclusion on July 7, 2022, I referred the matter to the Judicial Case Manager for a one-hour continuation for submissions. [ 89 ] At the conclusion of the trial on July 7, 2022, I directed the parties to communicate with each other to arrange additional summer parenting time for S.J.N. On July 26, 2022, S.J.N. filed an affidavit asking for interim parenting time from August 19, 2022 to August 21, 2022. He withdrew this application on August 16, 2022. [ 90 ] Also, at the conclusion of the trial on July 7, 2022, I reserved my decision. This is my decision and Reasons for Judgment.

LEGISLATIVE FRAMEWORK Parenting Arrangements [91] The overarching consideration in determining issues of guardianship, parenting responsibilities and parenting time is the bestinterests of the child. The relevant statutory provisions are set out in s. 37 of the Family Law Act which states: Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, theparties and the court must consider the best interests of the child only.

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

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

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

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

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

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

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

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

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

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

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

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

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out insubsection (2), and only to the extent that it affects that factor. [92] In analyzing the child’s best interests, the court should consider all of the factors under s. 37, but such factors are non-exhaustive:Pozzobon v. Pozzobon, 2013 BCSC 1226 , at para. 30. GUARDIANSHIP [93] S.J.N. and S.M.A. are presumptively guardians under s. 39 of the Family Law Act, which states: Parents are generally guardians 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.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that aparent is not the child’s guardian. [94] There is no dispute that both S.M.A. and S.J.N. should continue as guardians to O., K., and A. [95] The Family Law Act empowers the court to make orders allocating parental responsibilities. I have set out the relevant sectionsbelow for ease of reference: Parenting arrangements 40

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parentalresponsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable orinappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (

a) one or more guardians only, or

(

b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed: (

a) that parental responsibilities should be allocated equally among guardians; (

b) that parenting time should be shared equally among guardians; (

c) that decisions among guardians should be made separately or together. Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

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

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

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

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

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

f) subject to

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

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

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

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. . . . Exercise of parental responsibilities 43

(1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child .

(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in

section 41 (a), (c), (d), (

f) to (

j) or (l) [parental responsibilities] , the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child , one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so. . . . Orders respecting parenting arrangements 45

(1) On application by a guardian, a court may make an order respecting one or more of the following: (

a) the allocation of parental responsibilities; (

b) parenting time; (

c) the implementation of an order made under this Division; (

d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child .

(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section.

ANALYSIS [ 96 ]

Section 37 of the Family Law Act sets out an analytical framework for the court to determine what parenting arrangements are in the child’s best interests. I have considered the s. 37 factors in the circumstances of this case as they apply to O., K., and A. [ 97 ] S.M.A. stated she wanted some consideration for S.C. who “has not been included in terms of parenting time arrangements.” S.M.A. is S.C.’s sole guardian and custodial parent. S.J.N. is neither S.C.’s biological father nor primary caregiver.

Only a guardian is entitled to exercise parental responsibilities and parenting time, therefore, S.J.N. is not in a position to seek these parenting rights with respect to S.C. [ 98 ] Given S.C. is [omitted for publication] years old, S.J.N. is content with S.C. deciding for herself if and when she would like to visit him. Almost three years ago, in the s. 211 report, S.C. was firm she did not want parenting time with S.J.N. At trial, S.M.A. testified that S.C. does not want to see S.J.N. or his partner J.C. S.J.N. is not seeking guardianship of, or parenting time, or court-ordered contact, with S.C.

Conversely, S.M.A. cannot compel S.J.N. to apply for guardianship, parenting time and parenting responsibilities for his former stepchild. Hence, my decision with respect to parenting arrangements relates only to O., K., and A. Best interests of O., K., and A. (collectively, the “Children”) Section 37(1)(a): the child’s health and emotional well-being A. [ 99 ] A. is [omitted for publication], and is physically, mentally and emotionally healthy. Last school year, A. attended kindergarten at [omitted for publication]: Exhibit 29. S.M.A. says A. may have dyslexia and ADHD.

Her teacher, [omitted for publication] , ranked A. “proficient” in all areas of learning. This means that A. demonstrated complete understanding of the concepts and competencies relevant to the expected learning and works independently. In September 2022, A. will be entering Grade [omitted for publication]. S.J.N. describes A. as rambunctious, very social and very funny – quite the entertainer. L.A. describes A. as being in her own world – “a wild child.” A. was involved in gymnastics until it shut down due to the pandemic. S.J.N. expects A. will return to this activity.

A. also has taken an interest in riding and in September 2021, S.M.A. purchased her a pony named Lucky: Exhibit 16. Although A. enjoys riding, she is not yet ready to compete in rodeo events. [ 100 ] I conclude that A. is an intelligent, active and happy-go-lucky little girl. K. [ 101 ] K. is now [omitted for publication] years old. She is also healthy - physically, mentally and emotionally. S.J.N. describes K. as independent, precise, organized, and not as rambunctious as O. or A.

S.M.A. says K. “internalizes a lot of stuff.” K. attends [omitted for publication], where she is enrolled in the French Immersion Program: Exhibit 30. In September 2022, K. will be entering Grade [omitted for publication] . K. excels academically and socially. She has many friends and is popular with her classmates. Her teacher, [omitted for publication] , describes K. as a leader in math and “a great role model when it comes to work habits and self-regulation.” [ 102 ] K. also used to be active in gymnastics. S.J.N., who is a former hockey player, coached K. for a season in hockey.

K. also loves to dance and make videos with her friends. [ 103 ] S.M.A. has had a life-long interest in horses. While in their mother’s care, the Children and S.C. have been immersed in the “horse culture.” S.M.A.’s new partner R.G. is an active participant in rodeo activites and competitions. K.shares her mother’s love of horses and interest in riding. This year, K. has taken up barrel racing and now participates in the Children’s rodeo events. O. [ 104 ] Although physically healthy, O. began to exhibit difficulties with self-regulation, behaviour and sensory processing.

When he was a month shy of his [omitted for publication] birthday, O. was assessed by the Northern Health Assessment Network for Autism. The assessment team determined that O. did not meet the diagnostic criteria for Autism Spectrum Disorder (“ASD”), but he did present with Social Pragmatic Communication Disorder. O. presented as a “highly dysregulated child, who is impulsive and becomes over stimulated, and a high risk for ADHD.” O. had significant difficulty using verbal and nonverbal communication for social use.

Although he demonstrated executive system dysfunction, O. was found otherwise cognitively age appropriate. [ 105 ] On [omitted for publication] , when O. was [omitted for publication] old, Dr. Andrea Welder, a registered psychologist, assessed O. for ASD: Exhibit 31.

She states: [O.] demonstrates qualitative impairment challenges in areas of social communication and social interaction consistent with this diagnosis as well as all encompassing areas of interest, perseverative and rigid thinking patterns, a propensity towards the literal, concrete and factual rather than the imaginative and pretend aspects of play, as well as longstanding and severe sensory processing issues rendering him unable to cope at school and other community settings. In addition, there appear to be some repetitive patterns of speech and motor mannerisms. . . .

Despite areas of concern, [O.] presents as a boy with many areas of strength as well. He is a bright, inquisitive individual who demonstrates strong construction capabilities and many age appropriate (or higher) comprehension and memory abilities. [ 106 ] S.M.A. and S.J.N. removed O. from school because of his aggression and dysregulation. For the first three years of his schooling, O. was repeatedly sent home. Most of his time at school was spent managing behaviours so O. fell far behind his classmates.

M.C. testified that O. was triggered by the word “no,” but S.M.A. had developed techniques to calm him down. [ 107 ] O. is now in Grade [omitted for publication] and home schooled through [omitted for publication] an accredited independent

school based in [omitted for publication] BC. For two hours each day, O.attends the [omitted for publication], run by [omitted for publication]. [Omitted for publication] is a behaviour interventionist agency for persons with ASD. The agency supervises O.’s home schooling. O. ordinarily attends at [omitted for publication] Monday to Friday for two hours per session, 10:00 a.m. to 12:00 p.m. or 12:00 p.m. to 2:00 p.m. [ 108 ] Once O. was diagnosed with ASD, S.J.N. and S.M.A. were able to secure O. designation funding from the Ministry of Education for O.

They were able to connect O. with [omitted for publication] and use the $14,000 funding to pay tuition for O. to participate in a home-schooling program through [omitted for publication]. O. will continue to attend [omitted for publication] in 2022-2023, who will supervise him attending online schooling with [omitted for publication]. [ 109 ] O. is very intelligent and high functioning. He is very spatially aware, hyper-focused and exhibits exceptional talent in engineering. O. has a developing interest in science. He also enjoys games and Lego.

O. has difficulty engaging in sports, such as soccer, which over-stimulate him. O. can be outgoing and chatty when he wants to be, particularly when he is talking about things that fascinate him. S.J.N. says O. has matured and is becoming increasingly independent now. He can make his own lunch and help with dinner. [ 110 ] I gather O.’s early difficulties appear to be abating, despite a recent incident which I will refer to later. S.J.N. says that O. has learned a lot over the last couple of years on how to regulate himself and leave those situations which overstimulate him.

In fact, his 2021-2022 report card from [omitted for publication] states , “O. has made amazing progress this year”: Exhibit 28. S.J.N. would like to explore enrolling O. in a non-team sport, such as karate or kung fu, which would not present the same risks of overstimulating O. that are present in team sports. S.M.A. says that O. does not like rodeos, but he does like camping and fishing. S.M.A. testified: [O.] has changed; he has learned to deal with his anger, deal with life in general. Whereas he used to have a hard time with change, [O.] likes it there [the ranch]. He likes the quietness of the ranch.

He doesn’t get angry, I can talk and have a conversation with him, and he actually understands what I am saying. He kids with me; he doesn’t get mad. Indigenous heritage [ 111 ] S.M.A. says O., K. and A. are of Anishinaabeg ( Ojibwe) from S.J.N.’s side of the family and Cree descent from S.M.A.’s side. I understand they are not status members of any specific First Nations community. S.M.A. has introduced them to the culture of the Indigenous people in the [omitted for publication] area.

Maximum contact [ 112 ] The Courts have held that an important consideration under the “health and emotional well-being” factor of the s. 37(2) analysis is the “maximum contact principle.” It was generally accepted the maximum contact with both parents is consistent and harmonious with promoting the Children’s emotional well-being in s. 37(2)(

a) of the Family Law Act : K.L.G. v. D.J.T. , 2013 BCSC 1684 , at para. 104 . [ 113 ] Recently, the Supreme Court of Canada has stated that the “ maximum contact principle” is better conceptualized as the “ parenting time factor.” This means that the best interests of the child remain the sole determinant of parenting arrangements, and that a fulsome and child-centric analysis is required to determine how much parenting time with each parent will fulfil this goal: Barendregt v.

Grebliunas , 2022 SCC 22 at 131-135. [ 114 ] As S.J.N. and S.M.A. reside in the same community and work regular hours, maximizing the Children’s contact with each parent ought to be relatively easy to facilitate. This is predicated to some extent on the parent’s willingness to communicate and cooperate in the Children’s best interests. Section 37(2)(b): the child’s views if appropriate to consider them [ 115 ] I have the benefit of a full

Section 211 Report authored by FJC Callan, filed October 30, 2019, in [omitted for publication] Provincial Court. On October 13, 2021, at a Family Management Conference, S.M.A. voiced her opposition to any increase in S.J.N.’s parenting time. I suggested an updated s. 211 report given S.M.A.’s concerns that S.J.N. and J.C. were “coaching” the Children. At trial, S.M.A. did not recall that discussion but agreed she would not have been in support of an updated Views of the Child report because of her concerns around coaching.

S.M.A. argued that a “Views of the Child report is compromised where children have received coaching or had extensive conversation.” [ 116 ] In reponse to S.M.A.’s concerns, S.J.N. rightly points out that Family Justice Counsellors are highly skilled at interviewing children. Moreover, I find S.M.A.’s position in this regard difficult to reconcile with her assertion an equal parenting time regime is “not consistent with the views of the Children”: CEIS 29.

S.M.A.’s assertions that S.J.N. and J.C. have coached and alienated the Children against her, are antithetical to her assertions these same Children do not want to have parenting time with their father. [ 117 ] FJC Callan’s s. 211 report, although helpful, is dated. Still, there is no compelling evidence to suggest that as of 2022, O., K., or A. would be opposed to having equal parenting time with both parents. Having said that, I accept that O. finds it difficult to transition from S.M.A.’s residence to S.J.N.’s residence and vice versa . Because of his ASD, O. finds transitions difficult.

Predictability is very important to him. [ 118 ] I give little weight to M.C.’s impressionistic evidence that K.’s behaviour on one or two occasions suggested K. may not be enthusiastic about going to her father’s home. Much of M.C.’s evidence was inadmissible oath-helping or coloured by her loyalty to S.M.A. M.C. admitted she has never seen S.J.N. with the Children since he separated from S.M.A., which was over five years ago.

I prefer L.A.’s evidence that it was only O. who once said he didn’t want to go to his father’s residence, but she also acknowledges that O. had “a hard time with change.” I accept that there are times when O. is in his fathers care that he is reluctant to transition to his mother’s home.

Section 37(2)(c): the nature and strength of the relationships between the child and significant persons in the child's life [ 119 ] I accept that the Children love and are strongly bonded to both S.J.N. and S.M.A. They are also firmly bonded with their half- sister S.C. and their stepmother J.C. On the paternal side, I accept the Children have a close relationship with their paternal grandparents D.N. and L.N., and their paternal Aunt K.N.

I also accept the Children are close to J.C.’s parents R.C., A.C. and J.C.’s brother, her niece and nephew. [ 120 ] On the maternal side, the Children are firmly bonded to their maternal grandmother S.A. I accept they also have a close relationship with their Aunt A., Uncle E. and cousins. They have developed friendships with the Children of S.M.A.’s friends, such as M.C.’s son L. and M.P.’s son J. [ 121 ] With some exceptions, most of the Children’s extended family live in the [omitted for publication] area and they have regular contact with their extended family.

In the last few years, L.N. had lived on Vancouver Island, but has recently moved. Still, the Children kept in contact with her by telephone at both S.N.’s home and S.M.A.’s home. [ 122 ] I conclude the Children have a healthy and enduring relationship with several members of their paternal and maternal extended families. Section 37(2)(d): the history of the child’s care [ 123 ] The Children were in the care of both parents until early 2018, when S.M.A. moved out of the family home to live with J.S.

S.M.A. and S.J.N. regularly worked fulltime, although S.M.A. took a year maternity leave with the birth of K. and again with the birth of A. When both parents were away working, the Children were generally cared for by third-party caregivers and sometimes by the grandparents. S.J.N. lived at [omitted for publication] from May 2018 until September 2020, when he and J.C. moved into the [omitted for publication] residence. I recognize that L.N. was an important presence in the Children’s early years. [ 124 ] In the past, the Children attended [omitted for publication], where L.L.F. was an employee.

L.L.F. left [omitted for publication] and began caring for the Children in her own home. S.M.A. said L.L.F. knew the Children very well. They used to call her “Mama [omitted for publication]” and then when she left the Daycare Centre, home. [ 125 ] In May 2021, M.P. began caring for O. while the parents were working and O. was not at [omitted for publication]. M.P. also provided childcare for K. and A. during the spring and summer school breaks. M.P.’s son J. is a close friend to O. S.M.A. says that J. is also “neurodivergent.” Because they are friends, O. often has sleepovers with J.

For example, O. stayed with M.P. and J. in September 2021 when S.M.A. went to Fort St. John to pick up A.’s pony. [ 126 ] As J.C. is on medical leave and currently at home, she cares for the Children during S.J.N.’s parenting time when he is at work. Initially, S.M.A. supported J.C.’s role as a stepparent to the Children. In a partial message sent on April 21, 2021, S.M.A. sent a text to S.J.N. and J.C. in which she states: . . . I’ll start with if I’m hearing something I’ll bring it to you – and I hope vice versa so we can keep an honest space for our relationship.

The kids love you, I love how much they love you and I feel a sense of ease in it, and always have. Kids need so much love. Thanks [J.C.] :) [ 127 ] The evidence of S.M.A., S.J.N. and M.C. indicates that J.S. was also an important presence in the Children’s life.

S.M.A. described J.S. as “very charming and fun” who could be “good with children, when not drinking.” M.C. testified the Children were “really connected” with J.S. and he “spent so much time developing a relationship with all four children.” He was playful with the little girls and able to have a “ton of fun” with O. and manage his behavioural issues. [ 128 ] Between February and June 2020, during the onslaught of the COVID-19 pandemic, J.S. provided childcare for S.M.A. while she worked: Exhibit 39.

S.M.A. ended his childcare duties when unbeknownst to J.S., O. wandered away from the house and became tangled in a swing set at a nearby park. O. was rescued by two men from the fire department. S.M.A. testified that when she decided to leave J.S., it was “tricky to navigate because the Children did have a connection with J.S. He was a big part of their life.” [ 129 ] S.M.A. presumes the default position is that she is entitled to the majority of the parenting time and S.J.N. has to prove otherwise. I disagree. This is a trial for a final order, not an interim proceeding where the status quo has prominence.

I accept that it was never S.J.N.’s intention for the current unequal parenting regime to carry on as long as it has. The orders he consented to are “interim without prejudice” orders meaning they are without prejudice to the arguments and positions the parties will ultimately marshal at trial. Nevertheless, with every concession, S.J.N. helped reinforce the status quo giving S.M.A. the majority of the parenting time. Notwithstanding the orders were made “without prejudice,” I cannot and do not ignore the fact that fact the Children’s primary residence for almost four years was with their mother.

Section 37(1)(e): the child's need for stability, given the child's age and stage of development [ 130 ] O., K., and A. are young and their need for stability is an important factor in their wellbeing. S.J.N. and S.M.A. were very young when they began cohabitating. As S.M.A. testified, despite their differences, they made a significant effort to save their marriage. Their Children were still very young when S.J.N. and S.M.A. separated.

Recognizing the inherent destabilizing impact of parental separation, it is noteworthy the Children were not uprooted from their community or separated from their school, friends or loved ones. T

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