C.D.S. v. S.O., 2021 BCPC 158

Citation: C.D.S. v. S.O. 2021 BCPC 158 Date: 20210616 File No: 1854136 Registry: Vanderhoof IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.D.S. APPLICANT AND: S.O. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Applicant: J. Rrempel Counsel for the Respondent: P. Mikolayczyk Place of Hearing: Vanderhoof , B.C. Dates of Hearing: May 4, 5, 19, 2021 Date of Judgment: June 16, 2021

INTRODUCTION [ 1 ] This is an application by S.O. for unsupervised parenting time with the parties’ son, L.R.O., born [omitted for publication]. Pursuant to the interim order of Judge Mengering pronounced July 14, 2020, S.O. currently has interim supervised parenting time Sundays from 12:30 to 7:30, Wednesdays 3:00 to 7:30, and further reasonable parenting time upon 24 hours’ notice. His parenting time is to be supervised by D.H.

S.O. says the supervision arrangement is onerous and limits the activities he can do with his son during his parenting time, and is not necessary. [ 2 ] S.O. ultimately seeks the majority of parenting time with L.R.O. and filed his counterclaim to that effect in August 2018. The matter was set for a three day trial commencing today but C.D.S. sought an adjournment on the basis that she just retained new counsel, so the matter proceeded as an interim application by S.O. for unsupervised parenting time.

As of the date of this decision new trial dates have yet to be set. [ 3 ] C.D.S. says S.O.’s parenting time ought to remain supervised as he is an abusive and neglectful parent who will allow L.R.O. to be exposed to risk of harm if unsupervised. ISSUES [ 4 ] The issues I must decide is on what basis I may vary or replace the existing interim consent order for parenting time, and whether unsupervised parenting time would be in the best interests of the child.

For the reasons set out below, I am of the view that it is in L.R.O.’s best interests to have specified unsupervised overnight parenting time with his father pending trial. Issue #1: Varying the Current Interim Order [ 5 ] C.D.S. argues the Court ought not to change the existing parenting time regime because the current order for supervised parenting time was not made “without prejudice” and S.O. has failed to show a change in circumstances.

She says the operative order on the issue of supervision is an earlier order of Judge Keyes pronounced November 6, 2019, which provides for some supervised parenting time up to December 25, 2019, and adds that S.O. will have “further reasonable parenting time as agreed to between the parties.” Judge Keyes’ order is an interim order made by consent, but does not state on its face that it is made “without prejudice.” The matters were not concluded at that time, but were set for a further Family Case Conference in two to three months. [ 6 ] I do not agree S.O. needs to prove a “change in circumstances” to vary the parenting time regime.

The parenting time order of Judge Keyes was superseded and replaced by the “without prejudice” order of Judge Mengering on July 28, 2020. Judge Mengering’s Order is not derivative of Judge Keyes’ interim order. It was an entirely new interim order for parenting time made pursuant to an entirely new application made by S.O.

There is a direct conflict between Judge Keyes’ order, which provides that S.O. shall have supervised parenting time “as agreed to between the parties”; and Judge Mengering’s order, which provides S.O. may have supervised parenting time on specified dates and on 24 hours’ notice without requiring C.D.S.’s agreement. Given the inconsistency with respect to the requirement of S.O.’s agreement, both Orders cannot be in effect at the same time. [ 7 ] Judge Mengering’s order necessarily replaces Judge Keyes’ order with respect to parenting time.

As Judge Mengering’s order was made without prejudice, there is no need to show a change in circumstances. [ 8 ] Even if S.O. were required to show a change in circumstances, I would find that the 18 month passage of time since the order of Judge Keyes was made and the increased maturity of the child constitutes a change in circumstances. L.R.O. was a 3-year-old pre- schooler at the time Judge Keyes’ order was made, he is now a 5-year-old school age child. [ 9 ] I may reconsider the issue of interim parenting time in this application.

Issue #2: What interim parenting arrangements are in the best interest of the child? [ 10 ] The parties’ evidence was adduced both through viva voce testimony and their affidavits which have been filed in this proceeding to date. I have generally disregarded letters attached to the parties’ respective affidavits and statements communicated to them from third parties as hearsay, except for letters or documents from government authorities which I found to be trustworthy and reliable. [ 11 ] The parties commenced a relationship in 2015 and separated July 19, 2018.

S.O. had two children from a prior relationship: M.O. (now age 19), and N.O. (now around age 12). C.D.S. also had two teenage sons from a prior relationship, D. and E. When C.D.S. and S.O. first started cohabiting C.D.S. was pregnant with L.R.O. but did not have custody of her sons because they had been removed by the Director for the Ministry of Child and Family Development. [ 12 ] After seven to eight months of living with S.O., C.D.S.’s older children were returned to her under a supervision order. L.R.O. was born [omitted for publication].

C.D.S.’s care of L.R.O. and her other children continued to be supervised by the Director for 10 months after L.R.O. was born. [ 13 ] After the parties separated, L.R.O., M.O., and C.D.S.’s sons went to live with her while N.O. remained with S.O. [ 14 ] S.O. filed his counterclaim for parenting time on August 27, 2018. That counterclaim was set for trial April 2, 2019, but had to be adjourned due to S.O.’s counsel’s illness.

A review of the Court record shows that after April 2, 2019, the parties’ originating applications for parenting time were not scheduled for hearing, rather, a number of trial dates and Family Case Conferences were set for numerous Notices of Motion filed in the proceeding. This matter finally came before me on May 4, 2021, for a three day trial to deal with parenting time, however, C.D.S. sought an adjournment because she had retained new counsel. [ 15 ] Prior interim orders requiring S.O.’s parenting time to be supervised were made by consent, not following a hearing on the facts.

There has never been any finding that S.O.’s poses a risk to L.R.O. such that his parenting time needs to be supervised. S.O. says he onlyagreed to supervision orders in the past because that was the only way C.D.S. would allow him to see L.R.O. while this matter slowlymade its way to trial. [16] Parents are presumed to be capable of exercising their parental responsibilities without the need for supervision. Supervisionorders outside of the child protection context are, and should be, rarely imposed.

Supervision should only be ordered in “exceptionalcircumstances” because of the material impact that has on the parent-child relationship. Madam Justice Griffin reviewed the law onsupervised parenting in F.K. v. M.K., 2010 BCSC 563 , 2010 B.C.S.C. 563: [145] Numerous legal authorities have commented on the appropriate considerations for imposing terms of supervision on a parent’saccess. [146] In K.M.E. v. D.M.Z. [1996] B.C.J.

No. 464 (S.C.), Quijano J. stated at para. 21: ...Although previous authorities have held that, as a rule, supervised access ought not to be employed as a long-term access arrangement,this is not a firm rule as the court must always be concerned to achieve a result that is in the best interest of the child, and therefore eachcase will turn on its own facts. [147] In V.S.J. v.

L.J.G., (ON SC), [2004] O.T.C. 460 (S.C.J.), the court found that an order for supervised access,like termination of access, requires evidence of exceptional circumstances as it is just one small step away from a complete terminationof the parent-child relationship: at para. 1. At paragraph 135, the court set out factors most commonly considered by the courts interminating access: 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. SeeM.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v.

O'Laughlin, [2000] N.S.J. No.210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707. 2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/orpresents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.);Abdo v. Abdo (1993), (NS CA), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.See Tremblay v.

Tremblay (1987), (AB QB), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct). 4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk,supra. 5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra. 6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra;Dixon v. Hinsley, supra; Pavao v.

Pavao, [2000] O.J. No. 1010 (Sup.Ct.). [148] At paragraph 137, the court in V.S.J. v. L.J.G. found that those factors listed above would also be relevant to a consideration ofsupervised access.

The court also stated: ...It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/childrelationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; createa bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, theimpact upon children. [149] At paragraph 143 of V.S.J. v.

L.J.G, the court stated that when terminating or restricting access, it is necessary for the court toweigh and balance numerous factors in the context of the child’s best interests including: 1. The maximum contact principle; 2. The right of a child to know and have a relationship with each parent; 3. A limitation of a consideration of parental conduct to that conduct which impacts on the child; 4. The risk of harm: emotional, physical and sexual; 5. The nature of the relationship between the parents and its impact on the child; 6.

The nature of the relationship and attachment between the access parent and the child; and, 7. The commitment of the access parent to the child. [17] These principles were also affirmed by Judge Woods in L.A.M.G. v. C.S., 2014 BCPC 172 , 2014 B.C.P.C. 172. [18] S.O. is a member of the [omitted for publication] First Nation and is actively engaged with his indigenous cultural heritage andactivities. C.D.S. is not indigenous.

S.O.’s parents, L.R.O.’s grandparents, live in the [omitted for publication] First Nation lands andS.O., N.O. and L.R.O. spend a significant amount of time with their father at their grandparents’ residence. This has evolved, in part,

because D.H. has a relationship with the grandparents and it is convenient for her to supervise S.O.’s parenting time at that location. [ 19 ] D.H. is older and has physical limitations. This prevents S.O. from spending time with L.R.O. in the bush teaching and sharing traditional practices during his parenting time. He wishes to take L.R.O. hunting, fishing, berry picking, and generally spending time in the forest. S.O.’s ability to have additional parenting time with L.R.O. is also limited by D.H.’s availability.

D.H. confirmed S.O. has asked her to supervise on additional days but she has not been available. [ 20 ] During the hearing there was vague reference to S.O. being involved with the Director for MCFD. C.D.S. testified that MCFD might want to intervene if S.O. were given unsupervised visits, but produced no evidence to confirm that belief.

In direct examination C.D.S. implied a threat of removal, testifying that social workers told her they were “uncomfortable” with S.O. having unsupervised visits and that if he were awarded such visits, she should contact them and they would “look into it.” However, in cross-examination C.D.S. admitted all the social workers told her was to “let them know” what the Court ultimately ordered. There was no threat to remove L.R.O. if S.O. were given unsupervised access. [ 21 ] Both C.D.S. and S.O. have a history of prior involvement with MCFD preceding L.R.O.’s birth.

S.O. says his involvement was as a co-parent and spouse in circumstances where the mother of his two older sons engaged in alcohol abuse and violence. The Ministry had no direct concerns about him. There is no evidence his older sons were ever removed from his care. S.O. has no criminal record or substance abuse history. [ 22 ] C.D.S. has a history of drug abuse and mental health issues which ultimately led to the removal of E. and D. from her care. The boys were returned to C.D.S.’s care under supervision after she started living with S.O.

C.D.S. was under the supervision of the Director for years until they closed their file September 15, 2016. [ 23 ] The file closure letter attached to S.O.’s affidavit confirms C.D.S. is on the methadone program and has been diagnosed with bi- polar disorder, suicidal ideation, generalized anxiety disorder, and borderline personality traits. She started using heroin and cocaine between the ages of 19-22.

Of note, that same closure letter refers to S.O. in a positive light, stating he is “home and doing a lot of outdoor activities with the children.” [ 24 ] After separation from S.O., MCFD investigated a further child protection complaint against C.D.S. It was alleged that during an argument C.D.S. punched E., who in turn broke a window and left.

C.D.S. minimized this event, volunteering that MCFD “soon closed their file” and vaguely describing the incident as “things were said that should not have been said and I took my frustrations out on my son which was wrong.” [ 25 ] When L.R.O. was born the parties were living together in [omitted for publication]. C.D.S. valiantly worked two jobs to support the family. She worked full time Monday to Friday and worked at the [omitted for publication] two to three nights a week in the evenings. S.O. was not steadily employed, which was a source of conflict between the parties.

As a result, S.O. assumed the role of primary caregiver for L.R.O. while C.D.S. worked. [ 26 ] At some point L.R.O. was placed in day care. The details of that care were not adduced in evidence, such as whether it was full time or part time. C.D.S. claims she put L.R.O. in day care because S.O. was an incompetent parent, while S.O. says L.R.O. was put in day care so he had more availability to work. Both parents would drop off and pick up L.R.O. from day care. [ 27 ] S.O. alleges C.D.S. still consumes and sells marijuana and provides it to E., which C.D.S. denies.

S.O. says when they were still together, C.D.S. told her sons it was fine to smoke marijuana outside, which he did not approve. S.O. says E. has behavioural and legal issues and is not a safe person to be living with L.R.O. C.D.S. does not contest that E. is currently involved with the criminal justice system. [ 28 ] In his affidavit filed June 4, 2020, S.O. complains that C.D.S. has obstructed his attempts to spend time with L.R.O.

On January 23, 2020, following several requests for parenting time which were refused, C.D.S. presented S.O. with a “proposal letter” in which she offered to give S.O. some supervised access to L.R.O. if he signed over all his parental rights to C.D.S., and gave her “full and sole custody.” S.O. refused to sign and C.D.S. curtailed his parenting time to the point S.O. made the emergency application which led to the order of Judge Mengering. [ 29 ] C.D.S. says S.O. never asked for any parenting time with L.R.O. and she did not refuse it.

She suggests she was always open and cooperative with facilitating supervised parenting time for S.O. through L.C. or D.H. She says it was S.O. who was not diligent in arranging his parenting time. [ 30 ] C.D.S.’s testimony in this regard is contradicted by text messages adduced in evidence in the parties’ affidavits. Judge Keyes’ order provided that S.O.’s parenting time would be supervised by L.C. However, the order also provided that S.O. could have such further supervised parenting time as agreed between the parties.

It became difficult for S.O. to arrange for L.C. to supervise because she had limited availability and charged a fee. Accordingly, S.O. repeatedly proposed D.H. supervise his parenting time as an alternative. C.D.S. would never agree to D.H. acting as a supervisor, insisting Judge Keyes’ order only allowed for L.C. to supervise, which it did not.

C.D.S. had no reasonable basis for refusing S.O. parenting time supervised by D.H., who she admittedly perceived to be an appropriate supervisor and “good guidance for L.R.O.” [ 31 ] The texts show on numerous occasions S.O. asked for parenting time but C.D.S. said he could only see L.R.O. if he arranged for the paid supervisor (L.C.) to supervise, even where D.H. offered to supervise for free. C.D.S.’s rigid insistence on L.C. as the only possible supervisor, “as per the interim order”, was used as a means to limit parenting time between S.O. and L.R.O.

In one text exchange, S.O. asked if L.R.O. could come to his 84 year old mother’s house for her birthday party, and stated that D.H. could be present to supervise because L.C. was not available. In response, C.D.S. sarcastically repeated the text “is L.C. going to be there?” [ 32 ] In text messages C.D.S. repeatedly stated that her new partner was now L.R.O.’s Dad and complained about S.O. not providing financial support. She suggested S.O. should have to pay for a supervisor as some kind of demonstration of his dedication to L.R.O.

Of note, none of the affidavits attached communications in which C.D.S. complained of a specific safety issue or suggested she felt L.R.O.

would be unsafe in S.O.’s care, other than one comment that “we have a supervised visitor for the safety of my son.” [ 33 ] It appears that much of S.O.’s ability to spend time with L.R.O. was limited to attending L.R.O.’s hockey practices. The texts do show S.O. was sometimes absent or late to these practices, which impacted his parenting time. [ 34 ] I found C.D.S.’s communications with S.O. to be controlling and obstructive. I question whether C.D.S. would facilitate consistent parenting time between L.R.O. and S.O. in the absence of a court order requiring her to do so.

In one text she says “see you in court lol.” [ 35 ] C.D.S. claims in her affidavit that during their relationship S.O. was “physically and mentally abusive with the children while she was at work.” She also claims S.O. subjected her to verbal and physical abuse. She testified S.O. shoved her against a wall when she was 7 months’ pregnant with L.R.O. Another time he grabbed her arm when L.R.O. was an infant after she confronted him about not changing L.R.O.’s diapers enough. [ 36 ] C.D.S. was under MCFD supervision for years before meeting S.O.

C.D.S. and her children continued to be under MCFD supervision for a further 18 months after C.D.S. moved in with S.O. This necessarily included the time frame when C.D.S. says S.O. assaulted her and was “mentally and physically abusing the children.” There is no evidence MCFD had child protection concerns regarding S.O. during this time and MCFD was sufficiently satisfied of the children’s safety they closed their file. I infer from the MCFD letter that C.D.S. did not report, and MCFD did not observe, any abusive or neglectful conduct by S.O.

C.D.S. continued to allow S.O. to parent the children unsupervised until separation. I put little weight on her evidence in this regard. [ 37 ] C.D.S.’s position is that supervision is necessary because when L.R.O. was an infant S.O. neglected him. She says he would fail to change his diapers regularly, causing L.R.O. to suffer from persistent severe skin rashes. He did not feed L.R.O. properly. He once left L.R.O. in a car seat sleeping when it was hot outside. L.R.O. once drank gasoline from a coke can when S.O. was not watching. She alleges S.O. was physically abusive to his oldest son, M.O.

There is no evidence S.O. has been abusive to L.R.O. or his middle son, N.O. [ 38 ] C.D.S.’s and M.O.’s evidence about L.R.O. being poorly fed and left in dirty diapers by S.O., leading to severe skin rashes, was not reflected in the MCFD reports created at the time L.R.O.’s care was being supervised. The MCFD closing letter of September 15, 2016, does not identify any concerns raised by social workers or C.D.S. that S.O. was neglecting then 10-month-old L.R.O.

In fact, L.R.O. was reported by social workers to be “gaining weight and looking very healthy.” [ 39 ] S.O.’s oldest son, M.O., testified on behalf of C.D.S. He currently lives with C.D.S. and says S.O. was physically abusive to him. S.O. says M.O.’s evidence was fabricated and he is aligned with C.D.S. because she furnishes him with marijuana. [ 40 ] M.O. testified that S.O. physically disciplined him as a child by hitting him with a belt, slapping him, and on one occasion, hitting him with a stick. He says these assaults stopped when he was 11 or 12.

S.O. denies striking M.O., and says it was S.O. who was physical with the children during the relationship. He points to S.O.’s altercation with E. after separation as evidence of her predilection to use physical force. [ 41 ] I have concerns about the reliability of some of M.O.’s testimony, which was coloured by the animus he clearly feels against his father. They have not spoken in some time although S.O. has made ongoing efforts to reconcile with his son. M.O. attributes his estrangement from his father to the physical abuse he alleges his father committed, however, sibling jealousy also features prominently.

M.O. feels his father always favoured N.O., bought more gifts for N.O. and generally gave N.O. more love and attention than him. [ 42 ] During his testimony M.O. was defensive and eager to portray his father in a negative light, for example: • During cross-examination counsel for S.O. produced a letter M.O. had written in support of C.D.S. in this proceeding. In the letter M.O. expresses his support and praise for C.D.S. and criticizes S.O. as an abusive parent.

Immediately upon S.O.’s counsel handing M.O. the letter and asking if he wrote it, M.O. defensively responded that S.O. had “forced him to write it.” Counsel asked “who forced you?” and M.O. said it was S.O. S.O., in the courtroom, uttered that was “untrue” and M.O. defiantly responded “yes you did” and continued to assert that S.O. had forced him to write it. M.O. did not resile from that position until he read the letter and realized his obvious error.

Once M.O. reviewed the paragraph where he attested to writing the letter on his own without any persuasion from C.D.S., M.O. said he pretty much wrote it on his own because he “didn’t trust” S.O.; • In cross-examination M.O. was asked if he had cognitive issues, which he declined to answer.

When asked in follow-up what kind of education he had at school, he defensively answered “I did not get much help because [S.O.] was always sleeping or whatever;” • When asked if there was a lot of yelling in the home between C.D.S. and S.O., M.O. agreed, but was quick to attribute the blame to S.O., saying “the only reason was because he was not doing much stuff, not supporting her, just eating and caring for himself;” • M.O. testified that S.O. would drive around with a loaded firearm under the seat of the truck he sat on, which frightened him.

When asked for details as to how he knew S.O. was transporting the firearm “loaded,” M.O. again responded with negative commentary without explanation, saying “I never trusted him around any firearms;” • When it was put to him that S.O. had a valid license to possess firearms, M.O. responded by speculating that S.O. possessed an illegal firearm.

M.O. purported to base that allegation on the fact that he personally has never seen another firearm resembling S.O.’s, despite having no personal expertise or affinity for firearms to support that belief; • M.O. testified that S.O. “forced” him to go to the [omitted for publication] and steal a bundle of cable from the salvage yard.

When it was suggested to him that it is not “stealing” to salvage waste, M.O. at first agreed, but then added if S.O. was “smart” he would get a job and make money to pay for his truck, and not steal from a junkyard; • M.O. complained that when he was 14 S.O. gave him a saw and asked him to clear some brush, despite not being trained on how to safely operate the saw. When it was put to M.O. he in fact was not hurt using the saw, M.O. avoided the question by complaining

that he got a stick in the eye in the course of clearing brush. When asked if the injury was of such substance he had to go to the hospital, M.O. admitted he did not, but added commentary that S.O. “did not seem to care that much;” • When it was put to M.O. that L.R.O. has never been hurt while visiting S.O. at L.R.O.’s grandparents, M.O. said that was only because he (M.O.) was always watching L.R.O. At the same time, M.O. said he does not go to his grandparents’ residence very much because he does not want to see S.O.

In short, M.O. attributed L.R.O.’s safety to his watchful eye, while at the same time admitting was not even there most of the time [ 43 ] M.O. says when he was 16 or 17, he was hanging out in a trailer on the property with C.D.S.’s oldest son, E. He says S.O. came and threw E. to the ground then locked the boys out of the house when it was winter and they had no coats on.

M.O. says he got into the house through a window, then unlocked the door. [ 44 ] S.O. says the incident in the trailer involved M.O. and E. smoking marijuana on the property when they knew they were not allowed, not only because of their age but because of MCFD’s rules for the family. He verbally berated the boys and returned to the house. He did not lock anyone out - they all came in through the doors. [ 45 ] Whatever happened that day, I do not find this incident particularly instructive when assessing whether S.O.’s parenting time with L.R.O. ought to be supervised.

There is a substantial difference between confronting older teenagers about using drugs on the property and dealing with benign disciplinary issues concerning a 5-year-old child. [ 46 ] M.O. alleged S.O. would drive on bumpy roads with a loaded firearm under the seat which made him uncomfortable. S.O. agrees he would take a firearm hunting or when they were going into the bush for protection, but denies he ever transported it loaded. I prefer S.O.’s evidence on this point. The firearm needed a clip to be loaded which he kept on his person, not in the gun.

When asked how he knew the gun was loaded, M.O. said “I remember seeing him load it and stuff, sometimes he loaded it in case we see a bear.” He provided no details of when he saw the firearm being loaded. In cross-examination he admitted S.O. often carried the clip in his backpack. When it was put to M.O. that he does not really remember if the gun was loaded or not, he qualified “it is still a firearm.” [ 47 ] M.O. testified S.O. had forced him and E. to go to the [omitted for publication] junkyard to “steal” cable. He did not explain how he was “forced.” S.O. denies he stole cable or forced M.O.’s attendance.

I accept S.O.’s testimony that he used to work at the [omitted for publication], he knew the cable was discarded waste and the mine had buried it in the ground of the junkyard with no intention of re- using it. S.O. agrees [omitted for publication] would have considered him trespasser, but asserts his view is that the cable was abandoned. [ 48 ] Regardless of whether S.O. had any colour of right to take the cable, this incident has little bearing on whether his parenting time ought to be supervised.

This incident hardly supports an inference that S.O. engages in criminal conduct which would endanger L.R.O. [ 49 ] M.O. testified that S.O. “made” him do some brushwork when he was 14 or 15 years old and was given a “swing saw” to clear brush he was not trained to operate, which made him feel unsafe. S.O. testified M.O. was given a brush saw, not a swing saw, and he was shown how to use it and supervised. I do not consider it unusual or unsafe for a teenager to use a brush saw to do chores.

This event is not relevant in assessing whether S.O. poses a risk to L.R.O. if not supervised. [ 50 ] M.O. testified his father has called him names in the past, like “stupid-ass loser” or “loser”. Without needing to resolve this conflict in the evidence, there is no suggestion S.O. has ever been verbally abusive to N.O. or L.R.O. [ 51 ] M.O. testified that when L.R.O. was an infant he did not trust S.O. to look after L.R.O. properly so he, M.O., actually assumed the role of primary caregiver. M.O. would have been between 13-15 years old.

M.O. testified he would look after L.R.O. “mostly all day” and “4 hours or more maybe.” M.O. says he would change L.R.O.’s diapers and make him food, get him a bottle. He says S.O. was “always not in the house.” [ 52 ] M.O.’s evidence in this regard appeared exaggerated. It is hard to reconcile that S.O. was the atrocious caregiver M.O. attested to, yet none of this was being reported to or observed by MCFD who was supervising the family. During this time C.D.S. was continuing to go to work every day leaving L.R.O. in S.O.’s charge, even after she was allegedly informed by M.O. about S.O.’s poor parenting.

M.O. was a school-age teenager. He was not around “mostly all day” to care for L.R.O. I find it unlikely that a teenage boy who admittedly liked to play video games was, at the same time, assuming the role of primary caregiver to a toddler.

Further, while at this hearing M.O. asserted he would voluntarily look after L.R.O. every day because he did not trust S.O. to care for him, in the support letter he wrote for C.D.S., M.O. complained that S.O. would often “make” him and N.O. watch L.R.O. when S.O. needed to go into town. [ 53 ] M.O. says due to S.O.’s neglect L.R.O. once drank gasoline from a coke can as a toddler. He says S.O. then did nothing about it. I note this incident occurred during the same time period M.O. claimed he was always watching L.R.O. because S.O. was so untrustworthy.

The reason there was a pop can with gas residue out in the yard in reach of L.R.O. was because the older teen boys had left it there after using firecrackers. I prefer S.O.’s evidence that he was caring for L.R.O., there was only a drop or so of gasoline in the can, he called the poison control centre and followed their instructions, and L.R.O. was ultimately fine. [ 54 ] On the one hand C.D.S. alleges S.O. was a neglectful caregiver for L.R.O. who put him at risk, yet she continued to leave L.R.O. in S.O.’s primary care during the relationship.

To explain her conduct, C.D.S. says she put L.R.O. in day care because she did not have confidence in S.O. However, C.D.S. stated L.R.O. has been in the day care for 3 years now, from which I deduce that L.R.O. was not placed in daycare until he was around 2-2.5 years old. Prior to that he was in S.O.’s care. C.D.S. qualified the “only reason she left L.R.O. at the house was because the older boys would text me,” however, the older boys all attended school and were not home during the school day. [ 55 ] Other incidents relied on by C.D.S. as evidence of why supervision is necessary are not compelling.

N.O. once cut his finger at age 9 trying to cut an apple for a snack. C.D.S. suggests N.O. should not have been allowed to cut an apple at age 9. Many 9 year olds routinely use a knife and fork to cut and eat their food. She also attested to S.O. once leaving L.R.O. in a car seat during a soccer game in the summer when it was hot outside. This is a more concerning incident, but given L.R.O.’s current age, it is conduct unlikely to be

repeated. [ 56 ] C.D.S. also points to a recent incident involving L.R.O. playing in a body of water while in his father’s care. This event was recounted by D.H., who did not see the event, but saw L.R.O.’s wet clothes and heard S.O.’s father saying something with a raised voice while everyone was outside. The evidence of S.O., who was present, was that he was outside playing with L.R.O. at the grandfather’s house. There is a very large puddle that forms in the yard during the spring melt. It is not a pond or permanent water feature. It is not deep.

L.R.O. was playing in this puddle while S.O. was standing within 15 feet. L.R.O. was throwing sticks for the dog, wading in and bending over in the water, with the result that water poured over his boots and his pants got wet. S.O.’s father called out at one point because L.R.O. was getting so wet, but S.O. was not concerned because he had a change of clothes for L.R.O. who was having fun. When L.R.O. came inside, they changed his clothes. [ 57 ] I do not find this incident reflects parental neglect by S.O. It is healthy and beneficial for children to play outside and explore their environment.

They should be permitted to get wet, get dirty, and play robustly. L.R.O. was not at risk of drowning in a large puddle. He had a change of clothes. His father was within feet of him the whole time. There is no evidence L.R.O. was at any point of risk of harm. D.H. hearing Mr. O. Sr. yelling is not evidence of risk, as opposed to alarm that the child was getting soaked. D.H.’s main complaint seemed to be that S.O. let L.R.O. get all wet.

I do not find this incident justifies S.O.’s parenting time be supervised. [ 58 ] It is possible S.O. may not have been diligent in changing L.R.O.’s diapers when he was an infant and L.R.O. suffered diaper rashes as a result. However, caring for an infant or toddler is much different then caring for a school age child. A parent who was not impeccably attentive to an infant’s needs does not necessarily pose a risk to a child who is toilet trained, mobile, talks, and can grab their own snack and drinks out of the fridge. A school age child is much more independent and requires a much lower level of attention.

Again, at the time L.R.O. was an infant with much greater needs, C.D.S. did not require S.O.’s care be supervised. Now that L.R.O. is more mature and independent the risk concerns are even lower. [ 59 ] D.H., the current supervisor, provided evidence of her observations in the hearing. It was clear D.H.’s loyalty lay with S.O.’s parents, for whom she provides extensive home support. Most of S.O.’s parenting time is exercised at the hockey arena or at his parents’ house which D.H. usually frequents.

When asked about S.O.’s parenting skills, D.H. was very critical of S.O. for not enforcing L.R.O.’s good manners in the company of his grandparents. This is not a safety concern. D.H. was also very critical that S.O. did not force L.R.O. to spend more time with and attention to his grandparents during S.O.’s parenting time.

She complained about how L.R.O. would only talk to his father at the start of visits and that it took time for L.R.O. to warm up to his grandparents and interact with them. [ 60 ] When asked about times she felt S.O. was not parenting carefully, D.H. said there were times she wanted to take L.R.O. and walk away and end the visit.

When asked for examples, she again complained that L.R.O. was giving all his attention to S.O. during his parenting time and that S.O. should be forcing L.R.O. to spend those visits interacting with his grandparents, because L.R.O.’s exclusive interaction with his father was upsetting to the grandparents. I note S.O. only gets 10 hours of parenting time a week.

D.H. admitted she was offering her time to supervise for L.R.O. and “for L.R.O.’s grandparents.” I perceived D.H. to be an advocate of L.R.O.’s grandparents and her evidence must be assessed in that context. [ 61 ] D.H. attested to L.R.O. and S.O. having a loving relationship, but also testified that sometimes L.R.O. did not want to go to his grandparents’ house for S.O.’s parenting time. She also testified that S.O. or his extended family sometimes made critical comments about C.D.S.’s level of control over parenting time, which she discouraged.

It is not unusual for children to not always want to go to visit a parent during a prescheduled time. It is not prima facie indicative of a safety concern. Negative commentary about C.D.S. should first be addressed through the imposition of conduct orders and other tools before resorting to the extreme measure of supervision. [ 62 ] D.H. expressed concern that S.O. might not be diligent in enforcing a bedtime for L.R.O. or feeding him healthy food during an overnight visit.

She did not provide any evidence about her basis for that belief, given she has never observed S.O. put L.R.O. to bed, and most of the time meals were being prepared for the whole family (including the grandparents), and often by N.O. who likes to cook. [ 63 ] D.H. acknowledged she has never seen S.O. under the influence of drugs or alcohol during his parenting time and he has never acted abusively towards L.R.O. L.R.O. has never been injured in S.O.’s care.

She described S.O.’s interaction with L.R.O. as “calm and quiet.” D.H. also confirmed that S.O. regularly exercised his scheduled supervised parenting time and rarely missed visits with L.R.O. [ 64 ] At the end of the day, there is no evidence L.R.O. was ever injured or subjected to abuse while in S.O.’s care. There is no evidence N.O. has ever been neglected or abused in his father’s care. The totality of the evidence does not raise concerns about L.R.O. potentially being unsafe or at risk of harm in his father’s care. CONCLUSION [ 65 ] My paramount consideration is the best interests of L.R.O.

I find L.R.O. benefits from having a close relationship with S.O. who engages L.R.O. in pursuits that nurture his physical and cultural development. L.R.O. has a right to have a relationship with his father. L.R.O. also benefits from spending time with his older brother N.O. and his grandparents. It is in L.R.O.’s best interests to have meaningful, specified parenting time with his father that is not fettered by the imposition of supervisory conditions that are unnecessary. After hearing all of the evidence I find no valid child protection or safety issues warranting the supervision of S.O.’s parenting time.

To the extent he sometimes says negative things about C.D.S., this can be adequately addressed in a conduct order. [ 66 ] S.O. would like to have parenting time with L.R.O. on weekends. He is pursuing a job working on a pipeline and would have weekends off. In my view it is appropriate he have weekend parenting time with a single overnight to begin at this stage, with L.R.O. having one weekend a month with C.D.S. so L.R.O. also has the opportunity to engage in weekend activities with his mother.

It is also beneficial for S.O. to have some weekday overnight parenting times with L.R.O. to maintain regular contact, given L.R.O.’s young age, and to allow S.O. to assume more involvement and responsibility for L.R.O. during school days. [ 67 ] As this as an interim order, it is made based on the limited evidence I have heard in this interim hearing. The parties’ parenting time with L.R.O. will be more thoroughly reviewed by the trial judge once this matter proceeds to trial.

[ 68 ] I make the following interim orders: 1. Upon the court being advised that the name and birth date of each child is as follows: L.R.O. born [omitted for publication] (the “Child”). 2. S.O. shall have unsupervised overnight parenting time with the Child as follows: • From Saturday at 10 am to Sunday at 6 pm on the first, second and third weekends of every month commencing Friday, July 2, 2021; and • From Wednesday at 2:30 p.m. to Thursday at 8:30 a.m. on the second and fourth Wednesday of every month, commencing June 23, 2021. 3.

If S.O.’s employment conflicts with the parenting time specified in this order, he may apply to vary these dates or times on 5 days’ notice to C.D.S. 4. S.O. shall have such other further parenting time as maybe agreed between the guardians. 5. S.O. will be responsible for picking up the child at the start of his parenting time and C.D.S. will be responsible for picking up the child at the start of her parenting time. Exchanges shall occur at each guardian’s residence or the Child’s school unless another location is agreed to between the guardians. 6.

The parties shall not: • question the child about the other parent or time spent with the other parent beyond simple conversational questions; • discuss with the child any inappropriate adult, court or legal matters; or • blame, criticize or disparage the other parent to the child. 7. The parties shall encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the child concerning family issues or litigation. _____________________________ The Honourable Judge C. Malfair Provincial Court Judge