SRW v. KML, 2021 BCPC 160

Citation: SRW v. KML 2021 BCPC 160 Date: 20210623 File No: 1853912 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: SRW APPLICANT AND: KML RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing for the Applicant: No appearance Counsel for the Respondent: A. Oliver Dunbar Place of Hearing: Prince George , B.C. Appearing for the Applicant: No appearance Dates of Hearing: March 15, 16, 17, 18, 29, April 1, May 25, 2021 Date of Final Submissions: June 15, 2021

Date of Judgment: June 23, 2021 [ 1 ] KML and SRW are the biological parents of a daughter, five-year-old AAW. Although they were together when she was born, KML and SRW have been separated most of AAW’s life. They have a shared-custody arrangement with AAW but do not co-parent. Sadly, their relationship is fraught with tension and strife. The current parenting arrangements are not viable given AAW’s young age and KML’s and SRW’s inability to communicate, cooperate, or support the other.

Each blames the other for the discord; however, this does not mean they are equally at fault for its endurance. [ 2 ] This matter came before me for a multi-day trial commencing March 15, 2021. Both parents sought primary parenting time with AAW. KML based her application on what she describes as SRW’s controlling, combative and psychologically abusive behaviours. She says she fears him and is unable to parent with him. SRW based his application on what he describes as KML’s unstable lifestyle and dependence on and involvement with “unstable, irresponsible, or controlling and abusive men”.

The trial took seven days. SRW did not attend on any one of those days, just as he did not attend at any one of the five pre-trial conferences. ISSUES [ 3 ] The issues before the court are as follows: a. Should this court order grant KML a protection order? b. What parenting arrangement is in AAW’s best interests? [ 4 ] The matters scheduled before me for the March 15 to 18, 2021 assize included: 1. SRW’s Application to Obtain an Order filed June 5, 2018: court electronic information system (“CEIS”) Document 1; 2. SRW’s Notice of Motion filed April 5, 2019: CEIS Document 25; 3.

KML’s Amended Reply and Counterclaim filed on August 27, 2019 (CEIS Document 48), amending her June 20, 2018 Reply and Counterclaim (CEIS Document 4); 4. SRW’s Reply and Counterclaim filed August 30, 2019: CEIS Document 49; and 5. SRW’s Notice of Motion filed October 16, 2020: CEIS Document 56. [ 5 ] SRW indicated on all his pleadings, motions and affidavits his address for delivery was [omitted for publication] Crescent, Prince George, BC, [omitted for publication]. This address did not change over the years.

KML confirmed that to the best of her knowledge, SRW still lived at that address, which is his mother’s residence. This is the address to which the court registry sent the notices of hearings or conferences. None of the notices have been returned to the court registry undelivered. SRW indicated on his pleadings his email address was [omitted for publication]@gmail.com. This is the email address the court registry used to communicate with SRW and this is the email he used to communicate with the court registry and Ms. Oliver Dunbar: see Exhibits 6 and 7.

I am satisfied SRW knew or ought to have known about the trial dates. The Registrar paged SRW at the beginning of each court appearance without response. I concluded SRW had chosen not to attend the trial and proceeded with KML’s amended Reply and Counterclaim filed August 27, 2019: CEIS Document 48. BACKGROUND FACTS [ 6 ] KML is 30 years old, born on [omitted for publication],1991, and SRW is 31, born on [omitted for publication], 1989. They both reside in Prince George, British Columbia. KML has lived in Prince George since she was 2½ years old.

They both have extended family who live in the area and elsewhere in the Province. [ 7 ] KML and SRW are the biological parents of AAW, born [omitted for publication], 2015, (“AAW”) now five years old. [ 8 ] KML and SRW began living together in a marriage-like relationship in the summer of 2014, when she was 23 years old and he was 25 years old. They separated on November 3, 2016; eight days shy of AAW’s first birthday. [ 9 ] Initially, KML and SRW rented their own residence at [omitted for publication] Street, Prince George, BC.

When KML learned she was pregnant in March 2015, they moved in and lived with SAN (SRW’s mother) at [omitted for publication] Crescent, Prince George, BC. KML and SRW remained living with SAN until they separated on November 3, 2016. [ 10 ] When she separated from SRW, KML had not yet completed high school and did not have a driver’s licence. When KML and SRW met, KML was working full time for the [omitted for publication]. KML fell ill with costochondritis (inflammation of the cartilage that connects the ribs to the breastbone ) and went on medical leave in December 2014.

The [omitted for publication] went bankrupt and closed down in 2015, shortly after KML went on leave: CEIS Document 19, p. 2, para. 3. Post-separation, KML embarked on a “life plan” to change her circumstances and largely succeeded in this quest: CEIS Document 15; Exhibits 2 and 3. [ 11 ] Although he had only a Grade 10 education, SRW was generally employed. When he separated from KML, SRW was working at [omitted for publication] Brewery. Since that time, he has worked for [omitted for publication] Brewing, [omitted for publication] and [omitted for publication] Corporation [in the Okanagan].

With the assistance of Work BC and Community Futures, SRW started his own business which underwent several incarnations: CEIS Document 19. In 2019, SRW offered various agricultural, landscape and property- maintenance services: CEIS Document 50, para. 39. PARENTING ARRANGEMENTS

[ 12 ] Since KML and SRW separated, they have had more-or-less shared parenting time with AAW. Approximately ten days after they separated, KML and SRW began sharing parenting time with AAW on a two-day rotation. This changed in March 2017 when AAW began residing with KML from Monday morning to Friday morning (four days) per week and with SRW from Friday morning to Monday morning (three days). In August 2017, AAW’s parenting-time

schedule changed again when SRW and KML shared parenting time with AAW equally on a weekly rotation. This

schedule remained in place until August 2018. [ 13 ] In early 2018, KML notified SRW of her plans to relocate with AAW to work and pursue post-secondary education at Thompson Rivers University in Kamloops, BC. SRW commenced these family law proceedings on June 5, 2018, in an effort to prevent KML from relocating AAW from Prince George. On June 21, 2018, Regional Administrative Judge (“RAJ”) Brecknell made an interim order prohibiting KML from relocating AAW from Prince George without SRW’s written consent or a court order: CEIS Document 7.

As a result of RAJ Brecknell’s order of June 21, 2018, KML never did relocate from Prince George, although it took a further six months before she completely abandoned her plans to do so. Ironically, it was SRW who actually relocated, albeit temporarily. [ 14 ] In September 2018, SRW accepted employment in [omitted for publication] in BC’s Okanagan: CEIS Document 14. To facilitate his relocation, SRW and KML agreed to share parenting time with AAW on a bi-weekly rotation. This parenting-time regime was not fully implemented until SRW returned to live and work in Prince George in mid-November 2019.

While SRW worked in the Okanagan for 3½ months, from September to mid-November 2018, AAW spent the majority of her parenting time with KML. [ 15 ] SRW and KML now share parenting time with AAW on a biweekly basis, although this

schedule was not always strictly followed. Specifically, in March 2019, SRW unilaterally withheld AAW from KML until the court intervened and ordered him to adhere to the established bi-weekly parenting schedule. [ 16 ] KML’s and SRW’s shared parenting arrangement is discordant. Since these proceedings commenced in June 2018, SRW and KML have filed multiple pleadings, motions and affidavits. There have been over 39 court appearances and 13 court orders.

In addition to his pleadings filed on June 5, 2018 and August 30, 2019, SRW has filed three Notices of Motion (June 5, 2018, April 5, 2019, and October 16, 2019), 12 affidavits on the triable issues and ten affidavits of personal service. KML has filed pleadings on June 20, 2018 and August 27, 2019, two Notices of Motion (July 26, 2018 and March 18, 2019), seven affidavits on the substantive issues and four affidavits of personal service. [ 17 ] This matter has been scheduled for trial four times: May 28 and 29, 2019; September 16 and 17, 2019; June 15 to 18, 2020; and March 15 to 18, 2021.

It proceeded to trial in 2021 on March 15, 16, 17, 18, 29, April 1 and May 25. I received final submissions from Ms. Oliver Dunbar on June 15, 2021. SRW did not attend court on any of the 2021 trial dates, nor did he attend any of the pre-trial conferences held on August 20, 2020, December 11, 2020, January 22, 2021, February 4, 2021, or February 25, 2021. SRW last attended court in person on December 17, 2019.

The court was satisfied that SRW was duly notified of the pre-trial conference and trial dates and that he effectively withdrew from the proceedings. [ 18 ] On March 15, 2021, in light of SRW’s non-attendance at trial, I struck his pleadings and motions filed as CEIS Documents 1, 25, 49 and 56. The trial proceeded on KML’s amended Counterclaim filed August 27, 2019: CEIS Document 48.

Nevertheless, at the court’s request, KML responded fully to the substantive affidavits SRW filed in court with respect to this matter, both on his own behalf and on behalf of SA: CEIS Documents 19, 26, 27, 30, 34, 36, 44, 46, 50, 54, 55, and 59. [ 19 ] At trial I heard the viva voce evidence of KML and her partner KDB.

I also accepted into evidence the following exhibits: Exhibit 1: White binder containing documents tabbed from 1 to 22, containing court-filed documents; Exhibit 2: Correspondence dated December 13, 2018, from Joanne Shaw, M.Sc., CPHR Teacher/Academic Advisor Centre for Learning Alternatives, School District No. 57 (Prince George), attaching a photocopy of KML’s adult dogwood grade 12 diploma; Exhibit 3: Correspondence dated December 13, 2018, from [omitted for publication] confirming an employment opportunity for KML at its facility in Surrey; Exhibit 4: A photocopy of KML’s Class 7 BC driver’s licence; Exhibit 5: KML’s life plan dated February 2018; Exhibit 6 : Two emails from SRW to Ms.

A. Oliver Dunbar, sent December 23 and 25, 2019, and Ms. Oliver Dunbar’s reply sent December 27, 2019; Exhibit 7: Two emails from SRW to Ms. A.

Oliver Dunbar, sent December 24, 2020, at 8:43 a.m. and 1:42 p.m.; Exhibit 8 : Eighteen pages of text messages exchanged between SRW and KML between May 11, 2020, and February 18, 2021; Exhibit 9 : Four pages of photographs posted to KDB’s social media account on March 17, November 12, January 13 (years not indicated) and October 19, 2019; Exhibit 10: Six pages of text messages exchanged between SRW and KML between Tuesday, December 22, 2020, and Wednesday, December 30, 2020; Exhibit 11: Transcript of Exhibit A to SRW’s affidavit filed April 5, 2019 (CEIS Document 26) – voicemail message left by KML on SRW’s telephone in June 2018; and Exhibit 12: Transcript of Exhibit A to SRW’s affidavit filed August 12, 2019 (CEIS Document 46) – a conversation between KDB and SRW on August 11, 2019.

[20] I have reviewed the entirety of the court file, which includes those documents set out in Appendix One to these reasons forjudgment. In this appendix I have indicated: (

a) the date the document was filed in the Prince George Provincial Court Registry; (

b) theassigned court electronic information system number; (

c) a description of the document; and occasionally my brief notation. I alsoreviewed transcripts of the interim hearings before Judge Malfair on April 4, 2019, and Judge Mengering on April 26, 2019, and June 21,2019: CEIS Documents 70, 71 and 7. At the conclusion of the trial, Ms. Oliver Dunbar provided the court with extensive oral and writtensubmissions: CEIS Document 77. CREDIBILITY AND RELIABILITY [21] As the trial judge, I am required to assess the credibility and reliability of the witnesses who testify evidence at trial: Faryna v.Chorney, (BCCA); Bradshaw v.

Stenner, 2010 BCSC 1398, para. 186, aff’d 2012 BCCA 296, leave to appeal refused,[2012] SCCA No. 392. [22] Reliability and credibility are not the same. Reliability involves the accuracy of the witness’ testimony. It engages considerationof the witness’ ability to observe, recall and recount the events about which they are giving evidence. Credibility, on the other hand,concerns the veracity of a witness. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honestmistakes. [23] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’ evidence; (

b) any independentsupporting 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. I can believenone, part, or all of a witness' evidence and may attach different weight to different parts of a witness' evidence: R. v. D.R., (SCC). [24] Neither SRW nor SAN testified at trial or made themselves available for cross-examination. I have only their affidavits filed incourt, the last of which was on December 16, 2019. Because of SRW’s non-participation, none of the evidence before the court at trialwas subject to cross-examination.

Having said that, those witnesses who did attend and testify at trial were questioned extensively abouttheir evidence by counsel and the court. They also responded fully to SRW’s and SAN’s affidavits filed in these proceedings. In fact,much trial time was taken up with KML responding to those affidavits. [25] It is a gross understatement to say SRW and KML perceive and interpret events very differently. KML identified at trialstatements contained in SRW’s and SAN’s affidavits she says are exaggerated, embellished, or fabricated.

Fortunately, there is nopressing need for the court to reconcile all of SRW’s and KML’s diametrically opposing versions of events, many of which pre-date theirseparation or the commencement of these proceedings. However, these historical conflicts provide the court insight into KML’s andSRW’s difficulties in co-parenting AAW. [26] As is often the case with self-represented litigants, SRW’s and SAN’s affidavits are laced with objectionable content. Anaffidavit is a written statement made on oath or affirmation, containing relevant facts personally known to the affiant. They must notcontain (

a) double hearsay (hearsay based on hearsay); (

b) unidentified hearsay or unidentified witnesses; (

c) inadmissible opinion;(

d) irrelevance; (

e) adjectival descriptions; (

f) subjective descriptions of reaction; (

g) opinions regarding motives; (

h) oath-helping; (i)argument; or (

j) bald conclusory statements: (See: K.L.C. v. J.C., 2000 BCSC 798, para. 9; Kennedy v. Kennedy, 2006 BCSC 190, paras.3-5; R. v. Santhosh, 2016 ONCA 731). I have generally ignored the inadmissible portions of the affidavits filed in these proceedings. [27] I found KML and KDB to be reliable and credible witnesses. KML attended at and testified on every day of trial. I found herevidence plausible, consistent, and generally corroborated by documents or other witnesses. For the most part, KML was fair, responsiveand forthright. She candidly admitted when her knowledge was limited and qualified her answers.

There was nothing about her attitudeor demeanour that detracted from her credibility. I also found KDB to be a credible witness on whose evidence I could generally rely. LEGISLATIVE FRAMEWORK [28] 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. [29] 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 [30] KML and SRW 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. [31] 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 withoutlimiting 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 andlocation; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is anIndigenous 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 treatmentsfor 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 ormore 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, besupervised 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 [32] Parenting time is the right of the child: J.B.D.K. v. T.A.B., 2017 BCSC 1186 , aff’d in King v. Borserio, 2018 BCCA 308. The court must make parenting-time orders that are in the child’s best interests.

Section 37 of the Family Law Act sets out ananalytical framework for the court to determine what is in the child’s best interests. I have considered the s. 37 factors in thecircumstances of this case as follows: a. the child’s health and emotional well-being [33] I understand that AAW is a happy, active little girl with a diverse range of interests. Although she has suffered some minor healthissues in the past, AAW is ordinarily physically, emotionally and psychologically healthy.

The court was not provided with any medicalreports or clinical records from practitioners to suggest otherwise. [34] In their affidavits, SRW and SAN have described AAW as having suffered from difficult bowel movements: CEIS Documents19, p. 3, para. 5; 54, paras. 5-6. AAW’s doctor recommended a non-prescription stool softener, which SRW administered to AAW whenshe was in his care. KML also administered the stool softener, but graduated to a treatment regime that included diet and behaviouralmodification.

AAW no longer suffers from this condition: CEIS Document 19, Exhibit D. [35] SRW says he sought medical help for AAW because she exhibited signs of laboured breathing. He was concerned becauseasthma runs in his family. SRW states in his October 16, 2019 affidavit, AAW was “prescribed an inhaler as preliminary measures incase of an asthmatic episode but no diagnosis has been made due to her age”: CEIS Document 55.

KML says that AAW is not asthmaticand has never used the emergency inhaler. [36] In his October 16, 2019 affidavit (CEIS Document 55, para. 12), SRW references these fairly innocuous medical issues as deeplyconcerning evidence that KML lacks compassion, awareness and understanding of AAW’s health and well-being. It is these types ofconclusory comments which cultivate KML’s fear that if at some point AAW were to suffer a serious medical issue, KML would be

unable to discuss it with SRW in a constructive manner. For example: a. On March 15, 2020, (at 9:06 a.m.) KML texted SRW advising him she did not want AAW attending certain public activities due tothe COVID-19 pandemic: Exhibit 8, p. 6. SRW responded: Yea cause everyones freaking out and you are playing into it too, regardless you are breaking court order right now, unless you arecalling to facilitate contact with [AAW]. Please follow orders and requests and contact me via your lawyer. Im her father and im nothiding away for 2 weeks even if it is cancelled. b.

In December 2020, KDB’s father and step-mother, (DS and AS) tested positive for COVID-19 not long after they had stopped by theKDB/KML residence for a brief visit with AOB: Exhibit 10. KML contacted the Northern Health Authority (“NHA”). Staff of NHAadvised KML they would not administer a COVID-19 test unless she or other members of her household exhibited COVID-19symptoms. On December 22, 2020, KML notified SRW of the situation, as he was seeking some parenting time with AAW on ChristmasDay. SRW demanded she and other members of her household be “tested”, despite NHA’s instructions to the contrary.

SRW used theincident as an opportunity to lecture, interrogate and castigate KML. Eventually, she blocked his text messages. SRW then sent a lengthyemail to Ms. Oliver Dunbar at 8:43 a.m. and then another at 1:42 p.m. on Christmas Eve denouncing KML and partner, KDB: Exhibits 7and 10. b. the child’s views if appropriate to consider them [37] AAW is only five years old and thus it would not be appropriate to consider her views on the matters before the court: F.K.L. v.D.M.A.T, 2020 BCSC 1296 , para. 72, citing K.W. v. L.H., 2018 BCCA 204, para. 113.

Justice Gomery states in F.K.L.: 72 … Such a child lacks sufficient experience of the world to be able to understand how things might be different, judgment, and theemotional resources to be able to choose among her parent’s competing desires and proposals. [38] Moreover, the court does not have the benefit of any independent report by a family justice counsellor trained in interviewingchildren. I note in Fox v. Fox, 2018 BCCA 359, at paras. 21-23, the B.C.

Court of Appeal held that in determining which of the parentsshould have final decision-making is a point on which the views of the child can have little weight. [39] KML says SRW inappropriately engages AAW in adult issues. For example, on March 22, 2018, at 1:53 p.m., SRW sent KML atext asking her to tell AAW he missed her a lot and would like to see her as soon as he could. He states, “She should know that I tried tosee her today but you wouldn’t let me. Please tell her so that she isn’t confused”. KML responded, “I will tell her you love and miss herbecause that’s what she needs to know as a 2 year old.

Everything else is between you and I”. [40] In various affidavits SRW filed in these proceedings, the affiant (be it SRW or his mother) tendered statements they attribute toAAW.

Section 202 of the Family Law Act gives the court the discretion, having regard to the best interests of the child, to admit hearsayevidence it considers reliable of a child who is absent. In addition, the court may admit hearsay statements of a child under the principledexception to the hearsay rule if they are necessary and reliable. [41] A child as young as AAW rarely testifies in a family law proceeding. The Supreme Court of Canada recognizes that it might betraumatic for and harmful to a child to testify in court. For this reason, hearsay statements of their evidence is necessary.

The necessityprerequisite is easily met in family law proceedings; however, the reliability requirement is not. In D.A.M. v. D.M.T., 2013 BCSC 359,Justice Fisher (as she then was) explained: [24] Reliability for the purpose of admissibility, or threshold reliability, is aimed at identifying circumstances where the inability to testthe hearsay evidence is sufficiently overcome to justify receiving it as an exception to the general exclusionary rule.

This requirementmay be met by showing that sufficient trust can be put in the truth and accuracy of the statement because of the way in which it cameabout, or by showing that in the circumstances the judge will be able to sufficiently assess its worth. The presence of corroborating orconflicting evidence may also be considered: see R. v. Khan; R. v. Khelawon, 2006 SCC 57 . . . [42] In P.V. v. D.B., 2007 BCSC 237, at paras. 18 and 19, Justice Russell cited the indicia of reliability of a child’s hearsay statementsin a family law proceeding espoused in R.(S.F.) v.

R.(E.C.), (BC SC): [18] In this case, the child did not testify and, therefore, the admission of her hearsay evidence is necessary in order to fully consider thequestion of her best interests. The bigger issue is the reliability of these statements. A list of the indicia of reliability of a child’s hearsaystatements was given by Dillon J. in S.F.R. v. E.C.R., supra at para. 43: The indicia of reliability have been established in R. v. Khan, supra, and in the cases that have applied R. v. Khan.

They include: timingof the statement; demeanour of the child; personality of the child; intelligence and understanding of the child; absence of motive of childto fabricate; absence of motive or bias of the person who reports the child's statement; spontaneity; statement in response to non-leadingquestions; absence of suggestion, manipulation, coaching, undue influence or improper influence; corroboration by real evidence;consistency over time; and statement not equally consistent with another hypothesis or alternative explanation … [citations omitted]. [19] It is now also clear that other supporting or contrary evidence may also be considered in evaluating the reliability ofa hearsay statement: see the recent decision of the Supreme Court of Canada in R. v.

Khelawon, 2006 SCC 57 at [paras.] 92-100. [43] KML doubts that AAW actually said many of the statements SRW attributed to her. In considering those factors identified inP.V. v. D.B., I am not persuaded SRW’s or SAN’s hearsay evidence as to what AAW may have said outside the courtroom is reliable. Isay this because their affidavits reveal a significant enmity towards KML and were filed in support of SRW’s application for primarycare of AAW. I am not persuaded AAW actually said the words attributed to her or if so, whether they were the result of coaching andsuggestion.

I note in his affidavit filed October 16, 2019, SRW describes AAW’s responses as simply “mhm” to highly leadingquestions: CEIS Document 55.

c. the nature and strength of the relationships between the child and significant persons in the child's life [ 44 ] The evidence before me indicates AAW loves and is strongly bonded to both her parents, her step-parent, half-sister and various members of her extended family. Specifically, I am satisfied AAW has a close and loving relationship with KML, KDB, her baby sister AOB (born [omitted for publication], 2020), and is bonded with KML’s father and step-mother and KDB’s mother, father and step- mother. I accept that AAW is tightly integrated into KML’s and KDB’s circle of friends and loved ones.

I also accept AAW has a close relationship with SRW and SAN and AAW’s paternal aunt and cousins who reside in Mackenzie, BC. [ 45 ] SRW reacted malevolently to KML establishing a relationship with KDB, a man he did not know and had never met. Almost immediately upon learning of KDB’s relationship with KML, SRW embarked on a campaign to vilify them. SRW began denying and threatening to deny KML parenting time with AAW. He abandoned his original application for a shared parenting arrangement and sought one where AAW would live primarily with him (and his mother). He offered KML supervised parenting time.

KML believes from AAW’s comments and behaviours that SRW is attempting to indoctrinate their daughter with negative feelings about her and KDB. Rather than abating with the passage of time, SRW’s hostility towards KML and KDB has intensified. KML’s views are substantiated by SRW’s and SAN’s affidavits filed October 16, 2019: CEIS Documents 54 and 55. In his affidavit SRW states: I recall a previous time, though I cannot recall the date, AAW arrived visibly upset and shaken from something after [the] switch over with KML.

It took nearly an hour or two for her to come to her own again and I asked her if it was because of something at home. She nodded “mhm”. I asked her if it had to do with KDB, She said “mhm”. I asked if KDB yells at momma. She nodded “mhm.” I did not record or report this as I was trying not to involve my child’s words in this as much as possible and did not want to proverbially ‘stir-the- pot’ anymore at the time. As this issue seems to be growing and affecting her more, I feel that what she says and her emotions regarding her home life at KDBs with her mother are something to be taken into serious consideration.

Upon arriving back to my house on October 6, 2019, AAW has continued the dialogue regarding missing me, missing her pets, and missing this house when she has to go back to her mother. While I do understand these are the words of a very young child of 4 years old, she readily expresses a desire to stay here and she does acknowledge, by herself without question, that she would miss her mother but states that she does not want to return to her and KDB. [ 46 ] KML points out that in the fall of 2019, AAW was a three-year-old little girl who spent two consecutive weeks without seeing both her parents.

AAW cares and loves both her mother and her father and understandably misses the one who is absent. [ 47 ] KML worries that in SRW’s home, AAW is not free to express her true feelings or sentiments about her loved ones, which hinders her emotional development. KML testified that AAW says she is not allowed to talk about AOB to her grandmother SAN. AAW also said her father told her she could not tell KDB she loves him or call him “dad”.

Also, SRW’s affidavit filed December 16, 2019, suggests AAW has been encouraged to say negative things about KML’s new partner KDB and their friend SWH: CEIS Document #55. [ 48 ] I accept as true KML’s evidence as to AAW’s recent behaviours indicating SRW is attempting to coerce AAW into feeling unsafe or uneasy in her mother’s home. d. the history of the child’s care [ 49 ] AAW has always been in the care of both parents. KML has not worked outside the home since AAW’s birth and rarely has others care for her while exercising parenting time.

While in her mother’s care, AAW resides with her mother, step-father and younger sister at [omitted for publication] Street in Prince George, BC, which is a three-bedroom house with a fenced yard. [ 50 ] SRW resides and exercises parenting time at his mother’s residence at [omitted for publication] Crescent, Prince George, BC. I gather SRW’s mother SAN also cares for AAW when SRW is exercising parenting time. [ 51 ] In the past, SRW has taken the position he was entitled to unilaterally change the parenting-time schedule. For example: a.

In the fall of 2018 when SRW temporarily relocated to [the Okanagan] to work, he (and his mother) were of the view that if SRW had to work, then KML ought to assume his child care responsibilities for AAW during his parenting time. During this period, KML and SRW had a two-week parenting time rotation with AAW: CEIS Document 19, p. 8, para. 3.

In their respective affidavits, SRW and SAN both condemn KML for taking vacation on Vancouver Island in October 2018 (without AAW) during SRW’s parenting time, thus making herself unavailable to provide backup child care should SRW be called in to work: CEIS Document 36, paras. 32-35; b. On January 21, 2019, SRW threatened to withhold AAW from KML.

He sent KML a text message at 9:26 a.m. and again at 9:28 a.m., in which he states: you haven’t answered me in days regarding anything to do with [AAW]. youre being irresponsible. invasion of your privacy …. its posted on a public forum [KML] . . . . its posted on social media [laughing emoji] but nice try. youre just going to cycle another man into [AAW’s] life so you can use himfor your own emotions. [AAW]will not be part of it. so we need to see you focus on yourself and your life before affecting her with more of your decisions and poor relationships. im concerned for [AAW], you care about yourself being happy. (CEIS Document 22, Exhibit A). c.

On March 17, 2019, SRW withheld AAW for KML’s two-week parenting-time rotation because he did not approve of her relationship with KDB. Because of his unwanted intrusion into her personal life, KML refused to disclose to SRW her new address until they attended court on April 4, 2019. The court was provided with the following thread of text messages sent between KML and SRW on March 17, 2019:

Time Sender Recipient Message 8:34 a.m. KML SRW I’ll be at [omitted for publication] for 930 to pick [AAW] up. 8:36 SRW KML i explained to you last time that because I am unaware of where [AAW] is living and the state of it, I cannot, for security and safety reasons, let her go with you 8:37 KML SRW I’m not playing games with my daughter and neither are you. I’ve had it with your control. 8: [?] SRW KML feel free to contact the police if you wish. I have a court order against you currently stating you cannot leave pg. … d.

In the April 4, 2019 hearing before Judge Malfair, SRW said he denied KML parenting time because she moved and would not tell him where she moved to or with whom she was living. SRW represented to the court that he had offered KML time with AAW and that he had a “record of offering her time and she has not made any attempts to contact me”. KML advised the court that what SRW offered her was “supervised access” to AAW. SRW responded, “I know. I’ve offered you other things as well”: CEIS Document 71, Transcript April 4, 2019 hearing; e.

On April 21, 2019, after KML had transitioned AAW into SRW’s care, SRW texted KML indicating he did not approve of her new partner (KDB) and intended to keep AAW in his care. He also cut off all telephone contact between KML and AAW: CEIS Document 74. His text messages setting out his intention are appended to KML’s affidavit of May 14, 2019, and reproduced below: CEIS Document 38. SRW made this declaration despite Judge Malfair having told him on April 4, 2019, he had no right to deny or restrict KML’s parenting time without a court order; and f.

On May 17, 2020, SRW texted KML, chastising her for permitting AAW to have a sleep over with SWH’s children (who were in AAW’s “COVID-19 bubble”). He states: … “Also if theres a health concern regarding your social practices currently, she [AAW] wont be returning and i will be speaking to someone regarding that”: Exhibit 8. [ 52 ] KML accuses SRW of using her parenting time as a means to control and dominate her. He does not consider the harmful impact of unilaterally denying parenting time on AAW. e. the child's need for stability [ 53 ] As a five-year-old child, there is no doubt AAW needs stability.

I glean from the evidence before me that at various times in the past, both KML and SRW have experienced instability in various aspects of their lives. This episodic instability is only relevant if it negatively impacts on AAW’s health or well-being. [ 54 ] Since separating from SRW on November 3, 2016, KML has had two intimate relationships, one with SSH and the other with her current spouse KDB. KML dated SSH from the end of April 2017 until December 2018. SSH is an arborist and firefighter who lives and works out of town. KML introduced AAW to SSH approximately six months after they began dating.

Together, they took AAW swimming and SSH taught AAW how to ski. While they were dating, both KML and SSH contacted SRW on a few occasions and suggested a meeting. SRW rudely declined the invitation. [ 55 ] KML and SSH never cohabitated. They had a long-distance relationship that had little prospect for permanency. In December 2018, they agreed to go their separate ways. SSH was never AAW’s step-father and she did not refer to him as such.

KML attributes SRW’s repeated references to SSH as AAW’s “apparent step-father” as SRW’s attempt to mischaracterize the relationship for his own purposes: CEIS Document 26, para. 11; CEIS Document 50, para. 21. [ 56 ] KML was friends with KDB for nine years before their relationship became intimate in January 2019. KDB was also a close friend of KML’s best friend KPE. KPE has known KDB for over 20 years and describes him as “a very stand up, honest, supportive person” who has shown “nothing but love and compassion” toward KML and AAW: CEIS Document 29. KML and KDB have been in a relationship for 2½ years.

They have an eight-month-old daughter, AOB, who is AAW’s half-sister. KML is a stay-at-home mother caring for AOB and AAW. KDB is 31 years old. He was born and raised in Prince George. For the past six years he has worked full time for the same employer as an overhead door installer. [ 57 ] KML has been steadfast in her desire to be a stay-at-home mother of her young children.

SRW states in his affidavit filed August 30, 2019, “When we were together [KML] would constantly tell me she just wanted to be a stay-at-home mom and that raising a family was what she wanted to do”: CEIS Document 50, para. 12. [ 58 ] In the past, KML has suffered some residential instability, although this is no longer the case. Immediately after separating from SRW, KML lived with family friends DN and SG for about 6½ months and then with RH for about 1½ months. AAW would have been between 1 and 1½ years old.

In June 2017, KML moved into her own apartment at [omitted for publication] Crescent in Prince George, BC, where she lived alone with AAW until early 2019. KML was forced to move from this residence when she could no longer afford the rent after losing the majority of the federal child care benefit (“CCB”) –which is sometimes referred to as the “Child Tax Benefit”– she had previously received. [ 59 ] Having little time and few options, KML moved with AAW into KDB’s residence at [omitted for publication] Road, Prince George, BC.

This was a three-bedroom home on three acres of land situated three-to-four kilometres east of downtown Prince George. KDB, KML, AAW and their two dogs were the sole occupants of that residence. KML and KDB had to relocate on October 15, 2019,

when their landlord sold the residence. They moved into a three-bedroom suite at [omitted for publication] Avenue, Prince George, BC. This separate suite was contained within a five-bedroom house owned by SWH. AAW had her own bedroom. KML, KDB and AAW lived at the [omitted for publication] Avenue residence for ten months.

In August 2020, when KML was eight months pregnant with AOB, they moved into their current three-bedroom home at [omitted for publication] Street, Prince George, BC. [ 60 ] In September 2020, AAW began attending kindergarten at [omitted for publication] Elementary school at [omitted for publication] Avenue, Prince George, BC, [omitted for publication] , which is a 20-minute drive from KML’s home at [omitted for publication] Street. This school is one of SRW’s choosing because it is in close proximity to his residence. SRW enrolled AAW in [omitted for publication] Elementary without KML’s consent.

When KML protested that the school was a considerable driving distance from her home, SRW responded, “that is your problem [KML]”. [ 61 ] As indicated previously, SRW resides with his mother SAN at her home at [omitted for publication] Crescent, Prince George, BC. As a result of his mother’s largesse, SRW has enjoyed stable accommodations over the years. However, SRW has suffered instability in his employment and intimate relationships. KML states that post-separation, SRW has admitted to having five intimate partners, who she describes as his “girlfriends”.

She had asked SRW if she could meet his new partners because they interacted with AAW. In some instances AAW spent the night at their homes when in her father’s care. As most of these relationships were short-lived, KML never did get an opportunity to meet most of these women. [ 62 ] SRW’s fifth and current partner is a woman named R. (last name unknown). KML met and introduced herself to R. She understands SRW and R. began dating in December 2020, and R. moved into [omitted for publication] Crescent sometime in January 2021. Two weeks after they first met, AAW began referring to R. as her step-mother.

I gather R. was the person SRW references as his “significant other” in an email entered as Exhibit 7 in these proceedings. KML has no issue with R. and hopes she will be a positive presence in AAW’s life. [ 63 ] KML says she was always amenable to SRW re-partnering, hoping it would divert his fixation from her private life. Unfortunately, SRW’s text message sent February 18, 2021, and email dated June 11, 2021, indicate otherwise: Exhibit 8; CEIS 78.

Even so, KML believes it is in AAW’s best interests for her to establish an amical relationship with R. because KML has no relationship with SRW. [ 64 ] As a result of SRW’s failure or refusal to participate in the trial and his dysfunctional relationship with KML, the court has virtually no first-hand information about SRW’s current personal circumstances beyond his home address. I do not have sufficient evidence to determine if AAW’s parents’ instability in respect of their residences, employment, relationships, or mental or emotional health have had any significant impact on AAW.

It seems to me if AAW’s life is in turmoil, it is turmoil caused by her parents’ turbulent relationship. f. the ability of each parent to exercise their parenting responsibilities [ 65 ] KML does not work outside the home. At SRW’s insistence, she sought work when AAW was three-months-old and still nursing. KML was unsuccessful in that job search and has not yet returned to work. KML supports AAW with monies she receives from government benefits. She also has the financial and emotional support of her new spouse KDB.

Despite her modest means, KML has arranged her affairs so she can take care of AAW’s necessaries of life and provide her with a few luxuries. In her affidavit filed April 24, 2019, KPE attests to KML’s competency as a mother and homemaker: CEIS Document 29. [ 66 ] When he stopped participating in these proceedings, SRW was a self-employed gardener/landscaper. He also received money from Canada Revenue Agency in the form of the CCB.

I gather SRW continues to live with his mother and she helps support him and provides childcare for AAW. [ 67 ] Neither KML nor KDB suffer from any significant physical or mental infirmities. They do not use drugs and neither consumes alcohol when KML is exercising parenting time with AAW. As KML has been pregnant with or nursing AOB for the past 18 months or so, she has abstained from consuming alcohol. Although KML had some medical issues years ago, those are now in the past. She is a healthy, active young mother of two children.

I am satisfied KML is able to exercise her parental responsibilities for AAW. [ 68 ] In his affidavit filed February 6, 2019, SRW suggested that while they were a couple, both he and KML suffered from depression: CEIS Document 19. He says after AAW was born, KML also suffered from “panic confusion and anxiety”. KML disputes these allegations. She says no medical practitioner has ever diagnosed her as suffering from depression.

KML says if she appeared depressed while living with SRW, it was situational; if she appeared anxious, it was because she was an exhausted first-time young mother in need of familial support. KML says the emotional or psychological angst she experienced while living with SRW dissipated with the dissolution of their relationship. [ 69 ] Much of the evidence of SRW’s personal circumstances is dated. In his affidavit filed February 6, 2019, SRW states that he was in a “deep depression” for roughly half of his relationship with KML: CEIS Document 19, p. 6, para. 12.

He agrees he went on stress leave from his position from [omitted for publication] Brewery, but blames it on KML. He says she called him at work pressuring him to “come home to help her with AAW, housework, our dogs, etc., as she claimed she could not do it herself”: CEIS Documents 26 and 50. KML believes SRW was diagnosed with and medicated for depression shortly after AAW was born. [ 70 ] KML acknowledges that after AAW was born, she did call SRW for support while he was at work. She called no more than two or three times per week and the calls lasted between three-to-five minutes. KML was a brand new mother.

She did not “demand, scream, yell or cry” that SRW come home. She knew he had to work and they needed his income. KML said when she did call SRW, it provided little solace as much of their conversation devolved into him complaining to her about his job. [ 71 ] In his email sent on January 22, 2021, to the court registry, SRW states he has “a cognitive processing issue in which … makes it more difficult for [him] to communicate effectively over the phone…”: CEIS Document 75.

It is not apparent to me whether SRW’s cognitive-processing disability would have any impact on his ability to fulfil his parenting responsibilities for AAW.

[ 72 ] In her April 24, 2019 affidavit, KPE commented on SRW’s home reeking of marijuana: CEIS Document 29. In his response, SRW acknowledges growing and using marijuana and holding a federal licence for access to cannabis for medical purposes (“ACMPR”): CEIS Documents 29 and 50. [ 73 ] Also in his affidavit filed August 30, 2019, SRW suggests he suffers from post-traumatic stress disorder as a result of his encounter with the police on November 3, 2016.

He states at para. 5: … I tried explaining to him [the police officer] I was currently coming off of an SSRI antidepressant that was not working and had been negatively affecting my mood and I didn’t want mental illness to cause another brutality statistics. He laughed at me and pushed me into the waiting police pick-up truck and just left me there for roughly 2 hours. This has caused a form of what I am lead to believe is PTSD or some other stress related disorder, hence needing at least a few days to recover.

KML dismisses SRW’s version of his arrest on November 3, 2016, as hyperbolic rhetoric. [ 74 ] I glean from the conflicting evidence, SRW does suffer some mental or emotional instability and he does use prescription medication, alcohol and marijuana. I can reach no conclusion as to the nature or degree of his mental disorder or his alcohol or drug use. In this respect, I am unable to properly assess SRW’s ongoing ability to fulfil his parenting responsibilities. [ 75 ] KML is of the view that when AAW is in SRW’s care, it is SAN who is AAW’s primary caregiver.

KML points to SAN’s affidavit filed May 14, 2019, wherein she described her efforts to arrange day-care for AAW during SRW’s parenting time because KML was out of town: CEIS Document 36. There have been at least two occasions when AAW’s school has called KML to come and pick up AAW during SRW’s parenting time. The administrator advised KML they were unable to reach SAN. KML queries why the school would be contacting SAN rather than SRW. KML says she often feels as though she is co-parenting AAW with SAN. [ 76 ] SRW denies he is unable to care for AAW without his mother’s assistance.

He says SAN works full time at [omitted for publication]. She is also a yoga teacher, actively engaged socially and has other obligations and hobbies. He states that his mother’s “availability within recent years has always been somewhat scarce depending on the week and/or highly variable or quickly changing”: CEIS Document 50.

SRW reiterates (at para. 38) that SAN has her own life, job and career, and takes several trips for weeks at a time during which he is AAW’s sole caregiver while exercising his parenting time. [ 77 ] An important parental responsibility is to support the right of the child to have a meaningful relationship with the other parent where possible. This requires the parents to afford each other some degree of mutual support and respect. KML does not suggest AAW should not have a relationship with her father. KML agrees AAW loves her father and her paternal grandmother.

Still, KML finds co- parenting with SRW virtually impossible given his animus toward her. KML was forced to implement measures to shield herself against SRW’s onslaught of demands, invectives and condemnations. She has blocked his access to her telephone at all times except during his one-hour court-ordered telephone parenting time with AAW. SRW forays into KML’s personal life, which began when they separated in November 2016, persist. He has made scurrilous attacks on KML and people close to her – people he has never met.

KML despairs at the possibility of engaging SRW in productive discussions concerning AAW’s best interests. In her view, SRW never misses an opportunity to confront her with what he perceives as her shortcomings. She cannot approach SRW with any issues concerning AAW without risking rebuke. Upon considering the evidence before the court, I cannot say KML’s fears in this respect are without foundation. g. the impact of any family violence [ 78 ] Both KML and SRW claimed to have suffered family violence at the hands of the other.

The Family Law Act provides an expansive and non-exhaustive list of what constitutes "family violence" . It includes such behaviours as physical, emotional, psychological abuse, threats, intimidation, physical assaults, stalking, harassment, unreasonable restrictions on a family member's personal autonomy. In the case of a child, it includes direct or indirect exposure to family violence. [ 79 ]

Section 38 of the Family Law Act requires the court to consider the various factors when assessing family violence for the purposes of s. 37(2)(g).

Those are as follows: 38. … a. the nature and seriousness of the family violence; b. how recently the family violence occurred; c. the frequency of the family violence; d. whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; e. whether the family violence was directed toward the child; f. whether the child was exposed to family violence that was not directed toward the child; g. the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence; h. any steps the person responsible for the family violence has taken to prevent further family violence from occurring; and i. any other relevant matter.

HISTORY OF FAMILY VIOLENCE [ 80 ] KML and SRW each claim to have experienced family violence pre-separation. In his affidavit filed February 6, 2019, SRW

describes KML as having head-butted him: CEIS Document 19, p. 6, para. 7. KML agrees this occurred, but on one occasion only when they both had been drinking prior to her becoming pregnant with AAW. They were living on [omitted for publication] Street at the time. She says SRW grabbed her by her arm and began shaking her while leaning into her, screaming at her and spitting in her face. KML head-butted SRW to get him off of and away from her. SRW also claims that when she drank to excess, KML became “enraged, extremely verbally abusive and quite violent and extremely threatening” towards him.

KML denies drinking to such a state and in any event, she did not drink alcohol when pregnant with or caring for AAW. She testified the person SRW describes is himself. She claims SRW has a volatile temper and while angry, has thrown cooking pots and drinking mugs at her, fortunately without connecting. She says that when she was pregnant with AAW, SRW threw a chair at her and either punched or kicked a hole in the kitchen wall. [ 81 ] More concerning to KML was SRW’s dangerous driving when upset or angry.

SRW admits to a “couple of incidents” that occurred when he was driving where he threatened to harm himself and KML “in retaliation to KML screaming at him”: CEIS Document 19, p. 6, paras. 12-13. KML testified that one of these incidents occurred when they were still living at [omitted for publication] Street and she was pregnant with AAW and another after AAW was born and in her car seat in the vehicle. KML does not share SRW’s vision of himself as a calm and contemplative person: CEIS Document 19, p. 6, paras. 8 and 9. [ 82 ] KML and SRW separated permanently on November 3, 2016.

On that date, they became embroiled in an argument when SRW refused to stop his internet surfing and join KML and AAW for breakfast. SRW became angry and indicated his intention to take AAW away in his vehicle. He placed AAW in her car seat and started the vehicle. KML called the police who attended the residence. They removed SRW from the home and placed him in the back of the police vehicle to defuse the situation. SRW was not charged or arrested for any offence. KML never suggested SRW assaulted her. She was concerned about SRW's propensity for reckless driving when angry or upset.

A victim service worker escorted KML and AAW to her Grandfather’s [omitted for publication] residence for a couple of hours. KML then took AAW to DN and SG’s residence, where they lived for the next 6½ months. [ 83 ] KML’s and SRW’s reciprocating allegations of having suffered verbal, physical, emotional, or psychological abuse never went beyond complaints to the police. I gather the police never embarked on any ongoing investigations and did not advance any charges to Crown Counsel.

Still, KML’s and SRW’s conflicting versions of the same event affords the court some insight into their difficulties in co-parenting AAW. KML’S ALLEGATIONS OF FAMILY VIOLENCE [ 84 ] KML submits SRW uses AAW in “his arsenal of psychological warfare” and that such conduct constitutes family violence. He alludes to “AAW’s best interests” as justification for sending KML intimidating and harassing messages. KML tendered text messages sent on or about June 4, 2018, in which SRW accuses her of using drugs and staying with coke dealers, demanding she tell him the truth and stop using drugs: CEIS Document 9, Exhibit A.

KML testified she does not drink or use drugs nor does she have inappropriate people in her life. Eventually, she called the police for assistance in stopping this type of harassment. [ 85 ] In his affidavit filed February 16, 2019, SRW admits that he “contacted KML about some people she was hanging out with whom I knew to be involved in drugs and asked her not to hang out with them as it was dangerous for AAW”: CEIS Document 19, p. 4, para. 3. SRW does not state who these people were or how he “knew” they were involved in drugs. [ 86 ] KML accuses SRW of stalking and harassing her.

In her affidavit filed March 19, 2019, KML references a plethora of text messages she received from SRW since December 13, 2018, which she considered abusive, both in volume and content: CEIS Document 22. These text messages include: (

a) Seven messages sent on December 13, 2018, calling her names, saying she does not care about AAW; (

b) Five messages on December 14, 2018, accusing her of hiding things; (

c) A message on January 1, 2019, asking her for information for his court document; (

d) A message on January 13, 2019, (

i) accusing KML of keeping her apartment at [omitted for publication] Crescent, but living elsewhere, and (ii) telling her to “come clean”; (

e) A message on January 21, 2019, telling KML he is keeping AAW because KML started seeing someone new [KDB] and notifying KML that AAW is not allowed to be around KDB; (

f) Ten messages on February 2, 2019, telling KML he wants to talk to her about AAW and disagreeing to her suggestion to change the parenting-time

schedule [KML wanted to change the day for transitioning AAW between households from Monday to Sunday]; (

g) A message on February 3, 2019, (

i) asking why AAW knew KDB “already”; (ii) telling KML that KDB was a bad role model; and (iii) sending KML screenshots of KDB’s Instagram account; (

h) On February 5, 2019, a message saying AAW tells him a lot and that she knows KDB’s dogs’ names; (

i) Ten messages on February 6, 2019, saying he wanted to serve KML with papers himself and would sit outside her apartment; (

j) A message on February 17, 2019 (

i) asking KML if KDB hits her because she had a scratch on her face; (ii) telling KML she “looks rough”; (iii) accusing KML she had been partying; and (iv) telling KML he knows what she has been up to; (

k) Messages on March 3, 2019, after taking AAW, (

i) saying AAW won’t be around KDB; (ii) calling KML a bitch; (iii) accusing KML of not loving AAW because KML had forgotten her stuffy; (iv) accusing KDB of having something to hide because KML told SRW he was not welcome at their house; and (

v) telling KML she was not welcome at his mother’s residence; (

l) Messages sent on March 17, 2019, (

i) telling KML he was keeping AAW because KML refused to provide him with her new address

at [omitted for publication] Road; (ii) telling KML that KDB probably had guns and other dangerous things around; (iii) saying he was concerned for AAW’s safety; (iv) declaring AAW will not be living with KML and KDB; (

v) offering KML “scheduled, supervised visits” with AAW; (vi) stating he had been talking to KML’s mother (with whom she had no contact in three years); (vii) telling KML he had been talking to old friends of hers; and (viii) pronouncing KML has a serious problem; and (

m) Eight messages saying KML did not care about AAW because she does not respond to his messages. [ 87 ] KPE, who is KML’s close friend, filed an affidavit attesting to having been in KML’s company and personally observed KML being “repeatedly and continually harassed by SRW through text messages”: CEIS Document 29. [ 88 ] On December 23, 2020, SRW sent KML eight text messages between 12:17 p.m. and 12:23 p.m. On Christmas Eve, SRW sent two emails to Ms.

Oliver Dunbar denouncing KML (and KDB) on a host of issues, then demanding an answer within “48 hours”: Exhibit 7. [ 89 ] KML says SRW trolls the internet searching for discrediting information about her, her family, her friends and her partner. For example: a. SRW appended to his affidavit filed February 6, 2019, printouts from British Columbia Court Services Online showing that between 1997 and 2008, SD and TV (KML’s father and step-mother) had involvement in the criminal justice system: CEIS Document 19, Exhibit B.

KML says her father and step-mother left their criminal lifestyle behind in 2008, long before she met SRW and four years before she reconnected with her father at age 22; b. SRW attaches as an exhibit to his affidavit filed February 6, 2019, various photographs of unknown date from B.’s social media account. B. is KML’s paternal half-sister. These photographs depict B. smoking what appears to be a marijuana bong, or consuming alcohol: CEIS Document 19, Exhibit F.

SRW’s “concerns” about [B.’s] lifestyle is surprising given he worked for a brewery and a marijuana producer, smokes marijuana and uses or did use alcohol: CEIS Document 29. In any event, KML advised SRW a month before he filed this affidavit that she was no longer relocating from Prince George to the Okanagan, where B. resides: CEIS Document 19, Exhibit D; c. SRW appends to his February 6, 2019 affidavit a screenshot he sent to SSH of KML with KDB. Having refused to meet SSH while he was in a relationship with KML, SRW then contacted him after SSH and KML separated.

SRW asked SSH if he was the person in the photograph. SSH responded, “No, that’s my ex. Why do you ask?” SRW goes on to state: ahh [KML] has been ignoring anything to do with her daughter for days. wont respond to me regarding her. was shown this and was wondering if that was you or just her next person to use. as shes been ignoring since just before this was posted. thanks. … clearly does not have her daughters best interests in mind. SSH responded: [SRW], you’re a fucking idiot! Leave that girl alone! You are the most narcissistic, manipulative and controlling piece of shit I’ve EVER encountered!

When it comes down to it, I still have her back over yours any day … d. At the April 4, 2019 hearing, SRW represented to Judge Malfair that he had undertaken searches on “social media and a few public forums” and KML is proposing AAW “live in an environment with people that are not good for her well-being. There is potential weapons and other things involved in that environment and location, among other things, that are not healthy for … the upbringing of my daughter”; e. SRW appends as an exhibit to his April 5, 2019 affidavit, photographs posted on KDB’s Instagram account in 2017 and early 2018.

The photographs depict KDB holding various firearms. In one photograph KDB is holding his 12-gauge shotgun and in another, a firearm belonging to his father. KDB has no criminal record, is gainfully employed and does not engage in any criminal activity. He has a valid Firearms Possession and Acquisition Licence. He does not own or possess restricted weapons and has no restricted firearms licence. He does not hunt. He possesses firearms for recreational target shooting. Nevertheless, SRW has gained access to these photographs from KDB’s then unsecured social media account.

SRW has tendered them to suggest to the court that KDB is a dangerous individual who promotes gun violence; f. On December 24, 2020, at 8:43 a.m., SRW sent an email to Ms. Oliver Dunbar making reference to pictures KDB had posted online since 2019, “in regards to his pistol grip shotguns, assault style weapons, etc., that he so kindly likes to brandish publically … ”: Exhibit 7; g. On December 24, 2020, at 1:42 p.m., SRW sent an email to Ms. Oliver Dunbar in which he attached four screenshots from SWH’s social media account depicting (

i) KDB and SWH playfully defending a tower of toilet paper with shotguns; (ii) a photograph of KDB’s 12-gauge shotgun; (iii) KDB, SWH, KML and others at a gun range target shooting, and (iv) KML target shooting at the range. SRW states in his email to Ms. Oliver Dunbar: Here is a few of some recent photos of your client and her partner that you continue to work with and support. These, and others, will be submitted as character references in relation to this case, as this is the public image and lifestyle that your clients continue to promote.

It is apparent that you are aware of what is going on in their household, as well as the types of people you are defending in court through this case. … (Exhibit 7) h. Although KML blocked SRW’s access to her social media accounts, she cannot for example prevent him from accessing the biography attached to her Instagram account. When she has made changes to her biography, SRW has noticed and commented on the

changes so quickly, KML worries he is constantly monitoring her online activity; i. SRW frequently creates new accounts to thwart KML’s attempts to block his access to her social media accounts. Most recently, on June 11, 2021, SRW sent Ms. Oliver Dunbar an email (CEIS 78) at 12:51 p.m. in which he stated, in part: . . . It should also be noted that if your client wants to maintain the image that she is a good role model and mother for her children, [KML] and [KDB] should stop posting public pictures of [KML], scantily clad and in suggestive poses.

I can download those images in question and submit them as well, as part of her character profile. Im sure you are aware that these will not look good against your case. Not to mention the countless “bong shots” [KML] chooses to post online of her smoking cannabis, not conducive to being a positive role model and living a healthy lifestyle raising two kids. … [ 90 ] KML says she posted a photograph of herself wearing a swimsuit to her Instagram account the morning of June 11, 2021. She believes SRW’s comment about her being “scantily clad” is in reference to this posting.

KML has testified her Instagram account is not “public” and can only be viewed by persons to whom she grants permission. SRW is not a person she has authorized to view her Instagram account. I assume the exception to these security measures is the Instagram account holder’s publically accessible biography. [ 91 ] KML has become so skittish about SRW’s cyber stalking, whenever something untoward has occurred with her electronic communications, she fears he is behind it.

For example, recently, all of KML’s text messages to and from her legal counsel for the past two years suddenly and inexplicably disappeared from her cellular phone. She never deleted these messages and they were the only messages lost. She has an uneasy feeling that SRW is somehow responsible. [ 92 ] KML says SRW “investigates” people with whom she associates and then makes false allegations as to their being engaged in criminal activity. One such victim was KML’s sister-in-law A. SRW accused A. of being a drug dealer, to which KML took great exception: Exhibit 11; CEIS Document 26.

Also, SRW has tracked down KML’s estranged biological mother, who SRW had never met, to mine her for information about KML. [ 93 ] KML believes SRW conducts surveillance of her home. On May 11, 2020, SRW sent KML a text at 6:02 p.m. in which he states: there was a bunch of vehicles at your place the other day. Hope you are following social distancing guidelines with her (Exhibit 8, p. 1.) [ 94 ] At that time, KML lived at [omitted for publication] Avenue, Prince George, BC. SRW had no reason to be at her residence or in her neighbourhood.

Moreover, the vehicles to which he referred were parked on the street in front of her residence. They belonged to persons living in or visiting a nearby multiplex with inadequate parking. KML had no visitors in her home. [ 95 ] On December 22, 2020, at 12:19 p.m., SRW sent KML a text message in which he states: I assume [KDB] leaves you at home and you have nothing better to do. And you havent been self isolating, [KDB] regularly leaves the house. And i assume you do too … (Exhibit 8, p. 13) [ 96 ] SRW sends KML messages criticizing her parenting, partner and lifestyle.

He makes bald allegations based on false assumptions then admonishes KML for misconduct of his own invention. KML’s concerns are corroborated to some extent by SRW’s own admissions. For example, in his April 5, 2019 affidavit, SRW states: In June of 2018, I questioned [KML] regarding people she had been hanging out with, as I was concerned for [AAW’s] safety and well being. [ 97 ] Exhibit 8 is text messages exchanged between SRW and KML from May 11, 2020 to February 18, 2021, inclusive. In his messages, SRW lectures, berates and derides KML on various issues.

He accused her of lying, breaching court orders, adorning AAW with perfume, showing AAW nude photographs, failing to bathe AAW and allowing her friends to scare and abuse AAW. [ 98 ] KML says SRW misuses and abuses legal processes as a means to control and harass her. For example: a. SRW made false or exaggerated complaints to the RCMP that KDB had assaulted or threatened him: CEIS Documents 34 and 46; b. Feigning concern for KML and AAW’s safety, SRW contacted the police after his encounter with KDB on May 7, 2019; c. SRW made a bogus complaint to the police about KML and KDB’s friend and landlord SWH.

On May 22, 2020, at 5:17 p.m., SRW sent a text to KML saying: Im not going to allow our daughter to be scared and abused by the people you choose to be around. The police have been notified. There’s an interview tomorrow. d. On May 24, 2020, SRW sent KML text messages advising her he reported SWH to the police for saying “mean things” to AAW. He claimed police were going to interview AAW the following day. The police did not interview AAW or SWH or KML about this incident. KML heard nothing further about the issue. Nevertheless, KML did speak to SWH about the matter.

SWH died in January 2021; he was the father of three young children, a family-oriented man and close friend to KDB. SWH and his children had a positive relationship with AAW. SWH even allowed AAW to “paint his nails”. SWH was baffled and hurt by the suggestion he was “mean” to AAW. Still, he did not react to it. KML views this as another instance of SRW fomenting conflict and disharmony for no discernible reason; e.

Feigning concern for KML’s and AAW’s well-being, SRW contacted, or had someone contact, the Ministry of Children and Family Development (“MCFD”) asking they assist KML with food, shelter, clothing and safety for AAW: CEIS Document 9, paras. 10 and 11, Exhibit C and D. Again, feigning concern for KML’s and AAW’s personal safety, SRW contacted the MCFD after his encounter with KDB on May 7, 2019: CEIS Document 34; f. SRW contacted Canada Revenue Agency with respect to the CCB, resulting in KML’s CCB being reduced from $596 per month to

$149 per month for two years. As a consequence, KML could no longer afford her apartment at [omitted for publication] Crescent, Prince George, BC. At the time, SRW was residing with his mother, who provided him with accommodation, groceries and child care; g. SRW makes unsubstantiated defamatory allegations in documents filed with the court based on snippets of information he patched together from social media. For example, SRW states in his April 5, 2019 affidavit: 14.

Between [KDB] and [KML’s] social media, Instagram accounts, we can see a lifestyle that is not appropriate for raising young children, promoting guns, weapons and a reckless and careless lifestyle. Some of these weapons seem to be modified or are definitely not used or needed for hunting, as I have been told by people who do hunt. There are also many photos prompting a, and I quote, “ride or die” lifestyle filled with alcohol, partying , and guns. This is the current situation that [KML] is trying to raise our daughter in. h.

Based on dated photographs he recovered prowling KDB’s Instagram account, SRW represented to Judge Mengering at the April 26, 2019 hearing that KDB, “promotes himself as a very violent person”, who is unsafe for AAW or any three-year-old to be around. In his August 30, 2019 affidavit, SRW suggested to the court that KML is lying about KDB being non-violent, as he has “promoted himself online as being a seemingly violent and destructive person”: CEIS Document 50, para.23. The first time SRW met KDB was on May 7, 2019. KDB owns a 12-gauge shotgun and a 22-calibre rifle for which he is properly licenced.

KDB uses these firearms for target shooting: Exhibit 9; i. SRW seizes every opportunity to cast KML in the worst possible light. In his February 16, 2019 affidavit (p. 5, para. 9), and August 30, 2019 affidavit, (para. 9) SRW suggests to the court that there was something untoward about KML taking a vacation and not providing him with particulars of her itinerary, who she was going with or where she was going. AAW was in SRW’s care and KML was reachable at all times by cell phone; j.

SRW provides false and misleading information to the court about KML’s personal circumstances, suggesting she is homeless, itinerate, unstable, narcissistic, dependent on and exploitive of men to care for her. He asserts KML has lived with numerous roommates and introduced AAW to multiple partners. In fact, KML has had two intimate relationships since separating from SRW and has lived only with her current spouse KDB; k.

SRW purports to diagnose KML with various ailments, conditions and behaviour she has never experienced, including blackouts, memory loss, amnesia, confusion, uncontrollable or unrestrained emotions, panic, anxiety, personality disorders, depression; l. SRW misled the court by claiming that KML does not share AAW’s belongings and that everything AAW needs when she is in SRW’s care is “purchased by us for her, not KML”: CEIS Document 50. I assume “us” refers to SRW and SAN.

This is contradicted by SRW’s emails of December 2020 in which he asks KML to drop off AAW’s winter clothing and boots, clothing items KML had purchased for AAW: Exhibit 8; m. SRW submitted to the court the fact that KML stopped dating SSH in December 2018 and started a relationship with KDB in January, as a “clear sign of [KML’s] codependency, unhealthy tumultuous relationships, and a reliance on other people, specifically men, to provide a seemingly stable life for AAW”: CEIS Document 50, para. 21; n.

SRW suggested to the court that KML was lying about living at [omitted for publication] Crescent, a false allegation unsupported by one scintilla of evidence; o. SRW suggested to the court that KML was lying about knowing KDB for nine years in 2019: CEIS Document 50, para. 22; p. In an effort to cast KML as an inadequate parent, SRW falsely states in his April 5, 2019 affidavit, KML does not drive and has no vehicle.

Exhibit 4 indicates KML was issued a BC driver’s licence on [omitted for publication], 2018, and there is no time KML was unable to exercise parenting time or fulfill her parenting responsibilities for want of transportation. Moreover, a copy of KML’s driver’s licence was appended to her affidavit filed December 19, 2018, which was personally served on SRW on December 21, 2018: CEIS Document 14 and16; q. SRW has made repeated threats to engage the courts or other authorities if KML did not do his bidding.

Although he did not always follow through with these threats, they were intended to intimidate, harass and control KML; r. SRW even misrepresents to the court as to what had occurred in an earlier proceeding. For example, in his affidavit filed August 30, 2019, SRW made a number of inaccurate statements of what had occurred at the April 4, 2019 hearing: CEIS Document 50. Specifically: i. At para. 23, SRW claims to have stated to the court, “I was unsure that he [KDB] didn’t have a criminal history and have some reason to believe he may”. SRW made no such statement.

He deposes that KML had spoken and lied on record that there “were no guns around”. KML made no such statement. SRW goes on to say in that same paragraph that KML was later made aware that KDB holds a restricted firearms licence as well as owns “restric

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