T.W. v. C.L., 2019 BCPC 352

Citation: T.W. v. C.L. 2019 BCPC 352 Date: 20191107 File No: 19202 Registry: Dawson Creek (Chetwynd) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.W. APPLICANT AND: C.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G LEVEN

Appearing on their own behalf: T.W. Counsel for the Respondent: B. Hastings Place of Hearing: Dawson Creek , B.C. Date of Hearing: January 9-11, June 12-14, August 23, and September 6, 2019 Date of Judgment: November 7, 2019 INTRODUCTION [ 1 ] M.L.L. was born on [omitted for publication]. T.W. (the Mother) and C.L. (the Father) are her biological parents. M.L.L. was born of a short-term relationship and has never resided with her biological parents in a family unit.

All three are members of the [omitted for publication] First Nation located in [omitted for publication] British Columbia. [ 2 ] From birth until November 19, 2015, M.L.L. primarily resided with and was cared for by the Mother. During most of those years, C.L. exercised parenting time and paid child support. [ 3 ] On November 19, 2015, the parties entered into a consent order for equal parenting time on an alternating weekly basis. [ 4 ] Subsequently, on March 10, 2016, the parties entered into a further consent order that C.L.'s obligation to pay child support was terminated as of November 22, 2015.

That same order said “child support shall not be payable by either party after November 22, 2015.” [ 5 ] Following an unfortunate event involving M.L.L., the parenting arrangement was changed after an application brought by C.L. The hearing of that application occurred on August 26 and 29, 2016. [ 6 ] On August 29, 2016, an interim consent order was granted placing M.L.L. in the primary care of C.L. with parenting time to T.W. from 2:30 pm to 7:00 pm, Monday through Friday and every other weekend.

This order required T.W. to provide C.L. with a written itinerary of where M.L.L. would be during her weekend parenting time. The order also specified that that only T.W. pick up and drop off M.L.L. and that M.L.L. not be left with any other person during her parenting time with T.W. [ 7 ] The order was varied once again by consent on December 7, 2017. The varied order incorporated the terms of the August 29, 2016 order but added a clause for holiday parenting time and a right of first refusal if either parent was not available for their parenting time.

The varied order also added a restriction preventing T.W. from applying for a further variation until the expected trial date on June 13, 2018, unless she established a material change in circumstances. This arrangement for M.L.L.'s care has persisted until now. [ 8 ] The August 29, 2016, and December 7, 2017, orders were silent on child support and T.W. has not paid any child support to C.L. since M.L.L. was placed in his primary care. ISSUES [ 9 ] T.W. seeks equal parental responsibilities with a 50/50 week on week off shared parenting arrangement.

She is opposed to any child support orders either retroactive or prospective. [ 10 ] C.L. seeks sole parental responsibilities with reasonable parenting time to T.W. He suggests that reasonable parenting time with T.W. begin with every other weekend and wishes to be at liberty to determine what is “reasonable” for any additional time. He concedes that there should be some spring break, winter break, and summer break parenting time but, again, wishes to determine what is “reasonable”. He seeks that all of the terms of the December 7, 2017 order not related to parenting time be made final.

He also seeks a non-removal order restricting T.W. from taking M.L.L. more than 100 km from the [omitted for publication] First Nation. He seeks a respectful communication order as well as an order preventing either party from consuming drugs or alcohol during or for twelve hours before their parenting time. He also seeks drug testing for T.W. and a police assistance clause should T.W. wrongfully withhold M.L.L. from him. He seeks child support payments both prospective and retroactive to September 1, 2016, as well as an ongoing annual obligation to exchange financial documents.

Finally, he seeks an order for special and extraordinary expenses. THE EVIDENCE [ 11 ] This case primarily involves an assessment in what is in M.L.L.'s best interests. This assessment requires a careful consideration of a number of factors under

section 37 of the Family Law Act . I will therefore provide a detailed

summary of the evidence. [ 12 ] C.L. testified and called five witnesses: C.G., L.G., L.M., T.B., and T.L. [ 13 ] T.W. testified and called and called four witnesses: A.W., K.W., V.A., and M.W. [ 14 ] Twenty-eight paper exhibits were filed during the course of the trial and were referred to extensively during direct and cross- examination. [ 15 ] The court also had the benefit of two

Section 211 reports prepared in the proceedings. The first one was a “views of the child” report prepared by Karen Fenton and submitted to the Court on August 23, 2016. The second was a “full”

Section 211 report prepared by Erica McCuaig and submitted to the court on December 19, 2017. Ms. McCuaig also attended via videoconference and testified as a neutral party in her capacity as a Family Justice Counsellor.

Summary of Evidence C.L. [ 16 ] C.L. testified that he is born in [omitted for publication] and that he has resided in [omitted for publication] for over thirty-five

years. He resides on the East [omitted for publication] Reserve along with his wife T.L., son M.L.2, and M.L.L. He has been married to T.L. since 2011 but says he has known T.L. since the early 90s. He is employed at the [omitted for publication] store in [omitted for publication] and also earns some additional income by cutting firewood, making ice, and as a musician. [ 17 ] C.L. testified that he is a member of the D family of the [omitted for publication] First Nation and identifies his ancestors as a mixture of Dene, Cree, Scottish, and Norwegian.

He describes his family's way of life as “a way of life, not a religion but it is a way of life”. He says his family was untouched by the residential school system because his great-grandmother “did not let the children go”. [ 18 ] He testified that his great-grandmother passed away when he was twenty-three years old and that his grandmother is now the matriarch of the family. The family practices many traditions including smudging, sweats, drumming, and singing, as well as food gathering activities like hunting and fishing.

He, like his father and brother, is a pipe holders and he has been given a traditional pipe which he described as a tool used to communicate with the Creator. He expects to take over other responsibilities regarding his culture and to be responsible for passing his knowledge of cultural matters on to his children. [ 19 ] C.L. testified that after M.L.L. was born, he was uncertain she was his child until it was confirmed through a DNA test. He described his relationship with T.W. as an “odd situation” because when T.W. got pregnant, he was dating her cousin.

He says he initially removed himself from the situation “until things settled down”. He left the community for approximately one year and moved to [omitted for publication] approximately 125km away. He said he returned to the [omitted for publication] community on August 1, 2011, because he wanted to go home and wanted a relationship with M.L.L. [ 20 ] C.L. testified that he believed T.W. placed some “strange restrictions” on his contact with M.L.L. when M.L.L. was young.

He testified that even after court orders were in place and after M.L.L. got older, T.W. often prevented him from having consistent visits with M.L.L. He testified that he was denied visits even after a court order was in place and had limited contact with M.L.L. between May and August 2013. He further claims that T.W. prevented him from seeing M.L.L. in February and March 2015 because he believed T.W. had left town with M.L.L. to take employment without notifying him. [ 21 ] C.L. testified that he did not believe that M.L.L. was safe in T.W.'s care.

He described an incident in July 2016 where he said M.L.L. was left alone with caregivers who M.L.L. did not know while T.W. attended a rodeo dance in the HL Area (approximately 200km away). The caregivers were a man and a woman who became intoxicated and had an altercation during which the man hit the woman with a baseball bat. M.L.L. said she was afraid and told C.L. that T.W. did not come home until the next morning. [ 22 ] He testified about a second incident which he believed happened on July 17, 2016, where M.L.L. was sexually assaulted.

He testified that on the day in question he was camping, and M.L.L. was left at the home of T.W.'s sister, L.W. L.W.'s common-law husband L.H., sexually assaulted M.L.L. by holding her down and rubbing her vagina over her clothing. C.L. picked M.L.L. up from L.W.'s house on a quad that day but was not advised of the sexual assault until many days later.

He said he first found out about the sexual assault from T.W.'s daughter A.W. and that only eventually, did T.W. advise him that the sexual assault happened. [ 23 ] C.L. testified that since the order of August 29, 2016, placing M.L.L. in his primary care, T.W.'s compliance with that order has been inconsistent. He said that precise pickup and drop-off times were not complied with at times. He testified about numerous incidents where T.W. dropped M.L.L. off after 7:00 pm and therefore in breach of the court order.

He also alleges the M.L.L. was left with alternate caregivers and that the requirement for written weekend itineraries were sometimes not followed. [ 24 ] C.L. testified that in March 2017, the community was shocked by a double murder suicide in which T.W.’s sister L.W., L.W.’s daughter, and L.W.'s new boyfriend were all killed by the boyfriend in L.W.'s home. A dispute arose between C.L. and T.W. because he would not let M.L.L. go to the celebration of life.

C.L. testified that it was part of his culture that young people do not see bodies and that L.H.'s daughter was a victim and he believed L.H. might be at the celebration of life. [ 25 ] C.L. testified that T.W. moved into L.W.'s home after the murder suicide. He testified that he thought it was inappropriate that M.L.L.'s mother had moved into and made M.L.L. stay in a home where she was sexually assaulted and where her cousin and aunt were killed. [ 26 ] C.L. also testified that T.W. had made M.L.L. visit or stay at a woman’s shelter in which T.W. worked and resided for approximately one year.

He says he believed this to be another poor decision by T.W. which potentially placed M.L.L. at risk from aggressors who might pursue residents to the shelter. After leaving that woman’s shelter, T.W. returned to L.W.'s house where as far as C.L. knows, she continues to reside. [ 27 ] C.L. testified that since M.L.L. was born he knew T.W. to have moved frequently. The moves were to a number of communities including [omitted for publication (30km away)], Prince George, [omitted for publication (130km away)], and to at least three different residences in the [omitted for publication] area.

C.L. suggests that these numerous moves are indicative of a transient lifestyle and not in M.L.L.'s best interests. [ 28 ] C.L. testified that he is seeking child support from T.W. and identified a letter by his lawyer dated August 24, 2017 (marked as Exhibit 19) advising T.W.'s former counsel that a claim was being brought against T.W. for retroactive child support since August 29, 2016. [ 29 ] C.L. testified that he was able to provide a stable home for M.L.L.

He testified that he believed T.W. was completely unstable without a permanent residence and that M.L.L.'s stability would be in danger if the parenting status quo were changed. He testified that: “things are getting better for her”; “M.L.L. is getting more confident and starting to stand up to T.W.”; and, “I want her to live a good life and be a good contributing member of society”. [ 30 ] C.L. was cross-examined by T.W.

She questioned C.L. about their early relationship and suggested to C.L. was not overly interested in in T.W. or M.L.L. during the pregnancy and after M.L.L. was first born. [ 31 ] It was suggested that C.L. provided incorrect financial statements when the matter was first in court. C.L. denied this

suggestion. [ 32 ] T.W. asked C.L. questions about L.H. and C.L. agreed that he had known L.H. and worked with him for five or six years. She asked C.L. whether he considered L.H. a friend and he answered “not really.” She asked C.L. if he was surprised that L.H. molested M.L.L. to which C.L. replied “Well, yeah”. She asked C.L. whether he felt “it was right that M.L.L. was removed [from her care] because of the incident [with L.H.]”. She asked, “If we were together, would you think M.L.L. should be removed from our care”? C.L. responded, “I don't know how to answer that”.

T.W. asked C.L., “When you found out about M.L.L. being molested did you contact my daughter A.W. first?” C.L. responded, “Yes…, I was expecting to get a call from you”. [ 33 ] C.L. was not questioned about most of the specific incidents to which he referred in his direct examination.

T.W. provided some explanations for her conduct during her own evidence but I note that there were almost no challenges in her cross examination of C.L. to C.L.'s criticism of her parenting decisions. [ 34 ] Considering that T.W. represented herself in these proceedings and cannot be held to the same standard as someone with legal training, I allowed C.L. to be recalled to give some evidence in redirect examination after T.W. testified and called other witnesses. [ 35 ] During his redirect examination he was asked by Mr. Hastings whether T.W. is a good mom.

His response was “She has the potential to be a great mom, but she makes poor decisions consistently”. T.B. [ 36 ] T.B. testified for C.L. C.L. is her nephew. She testified that she has a Master’s degree in social work and teaches the Cree language at a kindergarten and grade 1 level on a part-time basis for the [omitted for publication] First Nation. She testified that she looked after T.W.'s children, A.W. and C in 2007 and 2008, when A.W. was approximately sixteen and C was approximately thirteen years old.

She testified that it was her belief that there was no heat or lights on in T.W.'s home and that T.W. was heavily using crack cocaine. She said A.W. and C stayed with her from December 2007 to August 2008 when she became unwell and was unable to look after them anymore. [ 37 ] T.B. testified about the cultural traditions of the D family. She confirmed much of the information provided by C.L. She testified that C.L. has been chosen to be a pipe holder and is in an apprenticeship for that title.

She testified about the cultural importance of the sweat lodge, of drumming and singing, of Tee Pee teachings and of a New Year's feast in which the D family and L family participate. She spoke of the importance of smudging and a giveaway ceremony which occurred when people passed away. [ 38 ] She was asked how C.L. was with children. She responded no matter who it is, he is really respectful. She said C.L. makes you feel like you are a real person and pays attention to people and children. “He talks to them like human beings… He is nice and giving and makes people feel validated”.

In response to a question in cross-examination she said “You couldn't ask for a better father than C.L.” [ 39 ] In cross-examination, T.W. suggested to T.B. that there had been only one day where her house was without power in 2007 or 2008. T.B. readily admitted that she had received this information from her son “J” and also that her son had advised her of T.W.'s cocaine addiction. J was not called to give evidence. [ 40 ] I found T.B. to be an articulate, sincere, and honest witness.

T.L. [ 41 ] T.L. testified that she is C.L.'s wife and that she resides together with her son M.L.2, C.L., and M.L.L. [ 42 ] T.L. testified about HL Rodeo incident and that M.L.L. had told her that T.W. went to a dance and left her with a male and female caregiver. The male hit the female with a baseball bat. T.L. believed this to be an example of unsafe parenting. [ 43 ] T.L. was asked what she considered to be important for children. She replied that stability, affection, no alcohol or drugs around, and proper meals are important.

She confirmed that C.L. does not do drugs, smoke or drink having quit drinking years ago and smoking about one year ago. T.L. described the activities that that the family engaged in as outdoor things - walking, quadding, berry picking, fishing, hunting, and ski-dooing. She described Sundays as their day for family time. [ 44 ] She testified that both M.L.2 and M.L.L. were required to do chores which included cleaning their rooms and dealing with the garbage and the dishwasher. She testified that there is no physical discipline of the children. She also says that “education is very important in our household”.

She said M.L.L. was interested in figure skating, ballet, dance, and piano, as well as cooking, arts and crafts and baking. [ 45 ] T.L. testified that she has had conflicts with T.W. She said T.W. “always calls me down” and “tells me she will take me to court”. She testified that she has a close relationship with M.L.L. and that M.L.L. calls her “mom”. She described an incident at a hockey tournament in 2013 where M.L.L. had said “Hi Mommy” to her in the presence of T.W. She testified that T.W. told M.L.L. “Don't call her mom, she is not your mom”.

She testified that T.W. then told T.L., “Don't let her call you that, you are not her mom”. This was in the presence of M.L.L. and caused M.L.L. to cry. [ 46 ] T.L. also testified that T.W. treats T.L.’s son M.L.2 badly. She testified that T.W. blocks M.L.L. from M.L.2 and has told M.L.2 not to be on her property. She testified that T.W. tells M.L.L. that M.L.2 is not her brother and this upsets M.L.L. I note that no specific examples of such incidents were described. [ 47 ] In cross-examination by T.W., T.W. referred T.L. to a step-wise interview completed by a social worker with M.L.L. on September 9, 2016.

The transcript of this interview was one of the documents marked as Exhibit 5. T.W. pointed out to T.L. that during this interview, M.L.L., who was then six years old, advised the social worker that she did not like that “Dad is mean” and “[T.L.] is a ‘gossiper’ and ‘doesn't tell things that are true’”. M.L.L. also told the social worker that she wants to live with mom and that her dad's

actions make her feel like a “split banana”. It was pointed out that M.L.L. had described the HL Rodeo as “fun”. This interview was conducted after the alleged HL Rodeo incident with the baseball bat. [ 48 ] T.W. questioned T.L. about her stated closeness with M.L.L. T.W. suggested that M.L.L. did not share the molestation incident involving L.H. with her. T.L.'s response was that M.L.L. was afraid to discuss this incident with her because T.W. would be mad at M.L.L. if she did. [ 49 ] T.W. asked C.L. about what she meant by “unsafe parenting”.

T.L.'s responded that T.W. leaves M.L.L. with numerous people she does not know, exposes her to alcohol and drugs, and gets upset when M.L.L. voices her concerns. She said “there seems to be a lot of manipulation”. T.W. then asked T.L., “Have you discussed these concerns with me”? T.L.'s response was “No, you are very difficult to talk to”. [ 50 ] T.W. also directed T.L. to a document dated October 3, 2016, produced by child protection worker Marilyn Roth. This document also forms a part of Exhibit 5.

That document confirmed that an investigation was completed regarding concerns that M.L.L. was in need of protection. That document states “Based on the results of my investigation M.L.L. is not in need of protection as reported”. L.M. [ 51 ] The next witness for C.L. was L.M. She said she has a certificate in the aboriginal human service worker program and has resided in [omitted for publication] for twenty years and in [omitted for publication] for twenty-five years. She describes herself as a full- time mother to six children.

She says she was elected to Band Council for the [omitted for publication] First Nation on two occasions once in 2004 and once in 2014. She said both times she was elected were in by-elections to replace T.W. on Band Council. She says both she and T.W. are members of the N family. [ 52 ] She testified that she has known T.W. all her life and that “we were close growing up”. She said she separated herself from T.W. because “T.W. drew family members into our conflicts”.

She said she also separated herself from T.W. because she didn't agree with her lifestyle and specifically that T.W. used drugs in the past. [ 53 ] She says she has observed C.L. and T.L.’s family in the community and that C.L. and T.L. have a good home. She said they are good parents and both M.L.L. and M.L.2 have excellent attendance records at school. She says C.L. and T.L. treat both children as if they were their own. [ 54 ] She testified that she was involved with band housing. She said that T.W. had been given a new home on reserve and was expected to pay rent.

She said there are ten new homes on the reserve and there was a zero tolerance for rent not being paid on those new homes. She testified that T.W. did not pay the required rent and that after one year the band evicted her for not paying her rent. She said that during part of the time T.W. was not paying her rent, she was on Band Council and there was no financial reason why she couldn't have been paying rent. [ 55 ] She was asked whether M.L.L. would be better off with C.L. and T.L. or with T.W.

She said “I think M.L.L. would be better off with C.L. and T.L.”. [ 56 ] In cross-examination, it was suggested by T.W. that it was the election and election results that caused strife between the two of them. L.M. testified that “our conflicts were usually after I was elected into counsel… You got mad at me and turned family members against me for whatever reason.” [ 57 ] T.W. asked L.M. about her relationship with T.W.’s sister, L.W. L.M. admitted that she was close to L.W. and left her own daughter to be babysat there for up to four days a week.

She admitted that she had no concerns about her daughter's safety in that home or thought that L.H. created a safety risk at that time. L.G. [ 58 ] L.G. testified that C.L. is her nephew. She further testified that she had extensive experience working with T.W. together on Band Council. She said Band Council consisted of a chief and four Council members and that the work environment included approximately sixty employees. [ 59 ] She described T.W. as a “good public speaker”, a “good politician” and someone who can “manipulate things”.

She described some controversies involving T.W. in the work environment including that T.W. had apparently “breached confidentiality” and used a business visa for personal expenses. She said she found T.W. difficult to work with in that she considered T.W. a bully. She stated that T.W. “kicked chairs in the office” and “flipped me a bird in the community”. She said “I wanted the bullying to stop… and I filed a harassment suit against her with council”. [ 60 ] She also testified that on one occasion she went for a walk with M.L.L.

M.L.L. then saw a truck and had a scared look on her face commenting “that's my mom”. On another occasion, T.W. apparently told her “don't pretend you are my friend” and drove away in an aggressive manner spitting rocks at L.G. with her vehicle. L.G. said she had two young grand children with her and filed a police report because of the incident. [ 61 ] She testified that T.W.'s daughter, A.W., stayed with her family when A.W. was 13 or 14 “all of the time”.

L.G. testified “M.L.L. is at a sensitive age… I hope C.L. can take care of her”. [ 62 ] In cross-examination, T.W. asked L.G. if she was nervous and scared of her why L.G. still came around her. L.G. responded, “I did at work” … “You scared me - you got your five months off so we wouldn't have to interact”. L.G. was asked what became of the police investigation and she said nothing came of the investigation because it happened on reserve. She was asked what became of the harassment suit and she said “Nobody did anything, I think they told you to take time off”. It was suggested by T.W. that T.W. took

doctor ordered stress leave to which L.G. answered “Yes”. [ 63 ] In redirect examination, L.G. was asked about the new housing policy regarding zero tolerance for unpaid rent in the 10 new housing units. L.G. answered that the new housing policy was discussed by Band Council and that at the time, T.W. had agreed with that policy. C.G. [ 64 ] C.G., C.L.'s younger sister, testified for C.L. She testified that she is married and has four children and works at [omitted for publication] store as a bookkeeper.

She was asked whether C.L. drinks or smokes and she said “No, he used to.” [ 65 ] She was asked about an altercation with T.W. in May 2013. She described an incident at [omitted for publication] Elementary in which T.L.'s son, M.L.2, was trying to play with M.L.L. T.W. intervened to prevent M.L.L. from playing with M.L.2. She said she told T.W. to let the children play together. She said T.W. became confrontational and told her that C.L. was not abiding by a court order in that he had somebody else pick M.L.L. up.

C.G. said this conversation was uncomfortable in that “she physically blocked me two times and did not allow me to move away”. She said during the five minute conversation “I felt like I was bullied in the schoolyard - it was embarrassing”. [ 66 ] She described a second incident around Easter of 2014 where she said C.L. was going to a sweat and had asked her to drop M.L.L. at T.W.'s home.

When she took M.L.L. to the door, she said T.W. appeared angry and asked “where is C.L.?” She said T.W. started to yell at her and told her to her that she was ridiculous and that her family was ridiculous and ordered her off the property. [ 67 ] She testified that she believed T.L. and C.L. would be the best caregivers for M.L.L. [ 68 ] In cross-examination, she was asked whether she knew that there was a court order requiring C.L. to pick up and drop M.L.L. off. She answered that she did not know about that court order.

T.W. also asked her whether there was any yelling at the [omitted for publication] Elementary event and she answered “No, I said you seemed upset”. T.W. [ 69 ] T.W. gave a history of her relationship with C.L. She said about three years prior to M.L.L. being born, she was having a relationship with C.L., became pregnant and had a miscarriage. At the time of the miscarriage, she said the two of them had talked about having another baby. She agreed that M.L.L. was conceived at C.L.'s brother's wedding and that she had wanted to have another baby.

She testified that she did not expect a relationship with C.L. but hoped he would be supportive. She said during her pregnancy, C.L. seemed distant although they continued to have a relationship through the pregnancy. Close to the delivery date, C.L. stated he wished to have a blood test because he was unsure whether the baby was his. [ 70 ] The blood test came back confirming that C.L. was the father. After this, C.L. seemed interested in visiting M.L.L. and T.W. says she and C.L. spent some time together.

She said “it seemed like we moved into the couple thing, I was not interested in marriage”. [ 71 ] She recalls seeing a Facebook post where C.L. had posted that he was “in a relationship”. She said she thought that meant a relationship with her until he told her he had met someone else. She said “I was shocked, confused and upset”… “He wanted to introduce me to T.L.… I was not ready for that”. After this, she says C.L. kept himself away for a time but that she never kept M.L.L. from him.

She said he gave her money for M.L.L. from time to time. [ 72 ] She says she commenced court proceedings and an initial order was granted on March 9, 2011, for joint custody, joint guardianship, liberal and generous access to C.L. and that he pay interim child support of $500 per month. She testified that C.L. had filed a financial statement claiming to make $77,144.53 from his employment. In the March 9, 2011 order, C.L. was ordered to provide his personal income tax returns and a copy of his tax

summary for the 2010 taxation year. [ 73 ] When those documents were provided, they proved C.L. had a total income of about $120,000 from his employment. A further interim order was granted on September 21, 2011 requiring C.L. to pay support in the amount of $1,052 per month. T.W. said when this larger support amount was ordered, C.L. became angry and distant. She said both A.W. and K.W. were fired from [omitted for publication] the very next day.

She said “it seemed like the whole family then changed their demeanour towards us”. [ 74 ] She said things continued over the next 2 to 3 years and at times when C.L. “didn't come to see [M.L.L.] I was happy to have her”. She said around December 2015 she advised C.L. that she wished to move to Williams Lake and that C.L. did not seem concerned. She said she got a job with the Red Cross and was absent for about three months. She says during this time she came back from Williams Lake so C.L. could see M.L.L.

She said that during this time, M.L.L. missed some school but still excelled. [ 75 ] She acknowledged that the band was evicting people for not paying rent in 2016 and that she was evicted because she did not pay her rent. She said she did this out of principle because many people were not paying rent. At the time of the eviction, she was living and working in [omitted for publication (130 km away)] as a First Nations Advisor. She stayed and worked in [omitted for publication] for approximately one year.

During that time, C.L. continued to have parenting time with M.L.L. [ 76 ] She said she agreed to 50/50 parenting time with C.L. at a family case conference on November 19, 2015. She had M.L.L. on a one week on one week off

schedule until August 29, 2016. [ 77 ] She described the incident involving L.H. She had dropped M.L.L. off for C.L.'s parenting time with her sister L.W. C.L. was unavailable and M.L.L. wanted to go to Auntie L.W.'s. She said L.W.'s car was in the driveway, she saw L.H. in the window and waved to him. She told M.L.L. that she would see her in a week. [ 78 ] When she picked M.L.L. up, a week later after C.L.'s parenting time, M.L.L. told her “uncle L.H. touched me” and indicated by gesture that it was in the crotch area. T.W. testified that she asked M.L.L. whether she wanted her to tell her dad and M.L.L. said “No”.

[ 79 ] T.W. says she immediately spoke with her sister L.W. who evicted L.H. from the house later that night. T.W. testified that she subsequently became aware of rumours that L.H. may have done similar things in the past and told L.W. that “we need to charge him, this needs to stop”. She said she was not aware of these rumours prior to the incident. [ 80 ] She said she did not tell C.L. because she wanted to get the investigation over with and make sure that it was real.

She said when he heard about it, “he was hostile”. [ 81 ] The consent court order of August 29, 2016 followed in which M.L.L. was placed in the primary care of C.L. with parenting time to T.W. [ 82 ] T.W. testified that she had recently heard that the RCMP would not be charging L.H. because there is not enough evidence. She said “I question was it truly molestation?” “I believe her in my heart…I reported it and she got taken away from me”. [ 83 ] T.W. testified that she believed a difficult time followed for M.L.L. after the August 29, 2016, court order.

She said C.L. would not let her see M.L.L. at Easter time the subsequent year or on Mother's Day this past year. [ 84 ] She testified that she tried to get M.L.L. into some counselling sessions and that C.L. had stopped the counselling sessions for three different counsellors. She was told by the counsellors that C.L. could stop the sessions because he has primary care of M.L.L. [ 85 ] She testified that she is feeling ostracized from M.L.L.'s life and that M.L.L. has missed many important community events since being placed primarily in C.L.'s care.

She said after C.L. was ordered to pay the thousand dollars a month, he became angry and treated her with disdain. She said “There has been conflict and drama ever since.” [ 86 ] T.W. testified about her understanding of the HL Rodeo incident. She said she had never heard from M.L.L. about a baseball bat only that the babysitters were mean and arguing. She had told M.L.L. “okay you won't have to stay there again”. [ 87 ] She disagreed with the contents of the latest

Section 211 report. She stated that when she was read the report over the phone, she was shocked that M.L.L. had said she was mean, yells, and did not provide good meals. She said she feels words were put in M.L.L.'s mouth and that in the week prior to the report, C.L. said “I was trying to brainwash her and I never got her”. She said “this worked the other way around, I thought she [M.L.L.] is afraid”. [ 88 ] T.W. testified “I want my kids to see their dad. If she wants to stay with dad, there is no problem.

All the absences from me, allows a stronger bond with the other parents.” She testified that she feels strongly that a child belongs with their mom. She said she believes M.L.L. is being bullied in the father and stepmother’s care and has developed an ability to lie to satisfy her stepmother. [ 89 ] T.W. said that she told M.L.L. that court is on this week. She believes M.L.L. needs to know what is happening in court and that she is old enough to understand. M.L.L. has told her that she is scared. T.W. said that she trusts the court but that it is a hard system.

She said she wished their community could help but “we’re not there yet”. [ 90 ] In cross-examination, she testified that she is employed by the [omitted for publication] First Nation and currently receives a biweekly salary of $2,500. She admitted that works on reserve and does not pay taxes on that income. C.L.'s counsel suggested that she did not comply with several court orders requiring her to provide an updated financial statement. Emails marked as Exhibit 25 show that Mr. Hastings requested that she provide all required attachments to a financial statement by C.L.'s counsel.

Her response to this line of questioning was that she thought she had done everything to comply with the orders. In any event, C.L. seems prepared to accept her testimony that she earns a salary of $2,500 biweekly at her current position. [ 91 ] T.W. confirmed that she had never paid child support for M.L.L. to C.L. [ 92 ] T.W. was asked whether she attended church and whether she was Christian. She responded that she doesn't attend church regularly but that she has Christian and First Nations spiritual values. [ 93 ] She was asked whether she buys M.L.L. clothes and cuts her hair.

She confirmed that she goes shopping with M.L.L. and buys her brand name clothing. She said long hair is important in their culture and recalls a time where C.L. had shaved M.L.L.'s head because she allegedly had lice. She testified that she always checks M.L.L.’s hair for lice and never saw lice. M.L.L. told her she didn't think she had lice. She said “I just wish they would ask me if it's okay”. [ 94 ] She was asked when her addiction problem was. She stated that it was in 2006 and 2007 before M.L.L. was born and acknowledged that “it was kind of bad”.

She stated that she was using crack cocaine on almost a daily basis while she was working in seismic camps for a period of three months. She said she stopped prior to becoming pregnant and that the pregnancy helped her stay clean. [ 95 ] She acknowledged that she has lived in a variety of residences recently. Those included her sister L.W.’s, the safe house, back to L.W.'s, and in a residence in [omitted for publication (130km away)].

She stated she was currently looking at a two bedroom basement suite to rent in [omitted for publication (30km away)]. [ 96 ] T.W. was cross-examined about numerous incidents where is it alleged that she denied parenting time to C.L. For example it was put to her that she denied allowing M.L.L. to be picked up by C.L.'s mother and dropped off by C.L.’s sister C.G. T.W. agreed saying that the order in existence at the time required C.L. to pick up and drop off the Child.

Clause 3 in the September 21, 2011, order which persisted until the order of December 23, 2015 in fact says “C.L. shall pick up and drop off the Child”. She admitted there were times where she had other plans with M.L.L. but stated that “90% of the time” she made M.L.L. available to C.L. [ 97 ] It was suggested that during her move to Prince George to work for the Red Cross, she ignored emails from C.L. about M.L.L.'s well-being and would not let him see M.L.L. T.W. claimed not to have received two emails sent to her by C.L. dated February 23 and February 27, 2015.

These emails were produced as well as another email dated April 1, 2015 where T.W. accepted a child support

payment at the same email address. These emails were collectively filed as Exhibit 3. [ 98 ] It was suggested that that she denied parenting time to C.L. when it suited her. She stated she tried to make the visits happen and travelled three times from Prince George to make visits happen. [ 99 ] She was shown student records for M.L.L.'s attendance in February and March 2015 at [omitted for publication] School and for [omitted for publication] Elementary in [omitted for publication (130km away)] from March to June 2015. These records were entered when C.L. testified.

Those records showed a number of absences from school. On January 9, 2019 when the student records were entered as Exhibit 4, T.W. objected to these records saying they were unreliable and misleading because they reflected a time when M.L.L. had been moved out of a particular school or commenced in a new school. [ 100 ] I allowed those records to be entered as an exhibit but I consider them for the January to June 2015 time period only. They show, and T.W. admits, that M.L.L. missed some school during this time.

If allegations are being made that M.L.L. missed a lot of school typically while in T.W.'s care, I would have expected to have seen records spanning longer and different periods of time. [ 101 ] T.W. admitted that she was evicted for non-payment of rent from her house in [omitted for publication]. She also admitted that she was working and receiving $1,052 monthly in child support at the time. She testified that she received the eviction notice through her son when she was in Prince George. She said she did not pay her rent out of principle because 90% of people didn't pay rent.

She said she was removed from the [omitted for publication] house by bailiffs in January 2016, while she was living in [omitted for publication (130km away)]. [ 102 ] T.W. was cross-examined about the baseball bat incident in HL Rodeo. She agreed that she had left two individuals to babysit M.L.L. while she went to a rodeo dance. She denied that M.L.L. had told her anything about a baseball bat. A step-wise interview conducted with M.L.L. by a social worker on September 9, 2016, was shown to her. This document is found in Exhibit 5.

M.L.L. had told the social worker during the interview that the incident involved a baseball bat. She also advised the social worker that she had told her mom what happened in the morning. [ 103 ] T.W. was asked if she still went to HL and she answered that she did because she had friends and family there. [ 104 ] She was cross-examined about the incident with L.H. She testified that as far as she knew, L.H. did not have substance abuse issues because he'd gone to treatment and been clean and sober.

She also said she believed her sister L.W. was there at the time and that she did not know at the time that L.H. was alleged to have abused other children or that he had a criminal record. [ 105 ] She was asked when she told C.L. about the incident and she admitted that it wasn't until the following Tuesday. She admitted denying C.L. contact with M.L.L. and that she had left M.L.L. with a babysitter in [omitted for publication (130km away)].

It was put to her that she wouldn't let C.L. see M.L.L. at this time and she agreed because was afraid “he would take her from me”. [ 106 ] It was suggested to her that she had enrolled M.L.L. with two separate counsellors without C.L.'s consent. She agreed that she had done so. [ 107 ] She was cross-examined on what was referred to as the “picture day incident”. It was suggested that on or about November 6, 2016, she had told M.L.L. to tell a counsellor Sara that she wanted to kill herself. T.W. acknowledged this incident and said M.L.L. had told her daughter A.W. “she just wanted to die”.

She said she then spoke with M.L.L. and M.L.L. told her “I just want to die”. She said she told M.L.L. to tell her counsellor this out of concern for M.L.L. [ 108 ] Two recordings previously entered as exhibits 9 and 10 were put to her. Exhibit 9 was a transcript of a conversation between C.L. and M.L.L. recorded by C.L. or somebody on his behalf. In that recording M.L.L. apparently said “my mommy's telling me to tell Sara that I want to kill myself”.

Exhibit 10 is a transcription of a recording between T.W. and C.L. where C.L. is asking T.W. to return M.L.L. to him for his parenting time and T.W. is refusing to do so. T.W. agreed that she kept M.L.L. overnight and that A.W. took her to school the next day. T.W. did not disagree with the suggestion that M.L.L. appeared at school the next day with temporary tattoos and looking dishevelled. [ 109 ] C.L.’s theory is that T.W. was manipulating M.L.L. so she could deny C.L.'s parenting time.

In his re-direct examination, he stated “my impression, T.W. just told her to say that so she could gain advantage”. [ 110 ] T.W. testified that she was greatly concerned for M.L.L. and that she had told M.L.L. to tell her counsellor Sara how she was feeling because M.L.L. had made statements that she wanted to die. T.W. testified that she had contacted the RCMP and wanted M.L.L. to stay with her that evening because M.L.L. was distraught. [ 111 ] I do not find the recording marked as exhibit 9 particularly helpful.

It confirms that M.L.L. says the Mother is telling her to tell the counsellor she wishes to kill herself but does not contain much inquiry of M.L.L. about surrounding details. [ 112 ] Exhibit 10 contains an apparently untrue statement by T.W. to C.L. that the September 19 order is cancelled. There is no order dated September 19 and what is presumably being referred to is the order of August 29, 2016. [ 113 ] I consider the evidence of both parties and the exhibits and I also consider the evidence of A.W. who testified that M.L.L. had indeed made such a statement to her.

I have considered A.W.'s evidence carefully and consider it credible for reasons to be articulated below. [ 114 ] I accept that M.L.L. told A.W. that she wanted to die and that this was not just an incident of trying to deny parenting time. If C.L.’s theory were true, I would have expected a different message in the transcript marked as Exhibit 10. I did not have the benefit of hearing the voice recording but Exhibit 10 appears more like T.W. was pleading for a late return of M.L.L. rather than an absolute denial of parenting time.

Furthermore, there is no evidence before me suggesting C.L. was denied contact with M.L.L. beyond November 6, 2016.

[ 115 ] T.W. was cross-examined about the March 17, 2017, double murder-suicide. She confirmed that she wished for M.L.L. to attend her aunt's celebration of life but that M.L.L. did not attend because C.L. did not allow it. She was asked whether it was against tradition to have children around dead bodies. She agreed that it was against some tradition but not against her family's tradition. She was asked whether L.H. was there and she confirmed that he was because the funeral service was also for his daughter.

She was asked whether she had told M.L.L. how her aunt and cousin had died and she said she told M.L.L. they were shot. [ 116 ] T.W. was asked about the itineraries she was required to provide for the weekend parenting time as required by the August 29 and December 7, 2017, orders. She was shown the itineraries which were marked collectively as Exhibit 11 and agreed that on July 13, 2018 one of the itineraries appeared in M.L.L.'s handwriting. She testified that she had M.L.L. handwrite the itinerary with her instructions.

It was put to her that in a pre-trial conference on October 18, 2018, she agreed that her itineraries “can be more clear”. A transcript of those proceedings was marked as Exhibit 12. [ 117 ] She was also cross-examined about an incident in October 2017 when she went to HL Rodeo with M.L.L. She recalled it as an incident where there was difficulty with “Faith's baby”.

She was asked what she did there on Friday night and she said she was sleeping upstairs when M.L.L. thought she had left the house. [ 118 ] She was cross-examined about a number of Facebook posts referred to in an affidavit of C.L. filed on August 24, 2016 were it was suggested to her that she had been drinking.

She admitted to recognizing some of the posts but not others and denied that she was ever intoxicated with M.L.L. in her care. [ 119 ] She was referred to another affidavit filed by C.L. on December 5, 2017, where commencing at page 13, C.L. alleges that she committed numerous breaches of court orders and denied him parenting time. She denied some of the incidents but readily admitted to others. For example, paragraph eighty-two in that affidavit describes fifteen incidents where T.W. dropped M.L.L. off late between May 1 and August 1, 2017. She said “for sure, sometimes I run late and I tried to phone him.

Even now, M.L.L. gets so anxious about being late. My mom told M.L.L. don't worry baby…why not just phone me, that's typical of him…” [ 120 ] She admitted to using her band Council Visa card for personal expenses but said she thought she had permission to use that card provided she pay it back. She said she did pay back everything personal for which she used the card. [ 121 ] She was asked about the circumstances surrounding her removal from Band Council. She admitted she was removed and said one removal was mainly for a breach of confidentiality over a large sum of money the band owed.

She said she was in a moral conflict, spoke about it publicly and was removed because of it. She said that a few months later she received a letter with a long list of transgressions and said that “not all of them were true”. [ 122 ] She admitted that M.L.L. calls T.L. mom saying “yes, she calls her mom because she has to”. [ 123 ] She was cross-examined about caregivers that M.L.L. had been left with and she admitted that M.L.L. had been cared for by C.W., J.S. and D.A. and a person named C2.

It was suggested to her that she was in a relationship with J.S. [ 124 ] An email was shown to her which C.L. had apparently sent her on February 18, 2019. In that email C.L. describes what he believed to be unsafe circumstances for M.L.L. at T.W.'s home and advised that he would be withholding her until things changed. This email was marked as Exhibit 28. She denied ever seeing the email before and denied any ongoing relationship with J.S. She said she was in a relationship with him more than twenty years ago and had recently fired him from his position with the band due to too many absences.

She said J.S. left [omitted for publication] and returned to HL. [ 125 ] She was asked about a smudging ceremony that occurred at L.W.'s house and about who had done it. She acknowledged that a cleansing ceremony had been done for the house after the murder suicide by somebody from Grand Prairie and people from Nanaimo. She considered the house clean and safe to live in. A.W. [ 126 ] A.W. testified for T.W. She testified that she was raised by T.W. and her partner K until she was eight or nine years old. She said she felt like she had the best childhood and felt like she never needed anything.

She testified that she was always doing sports and was heavily involved in the community with youth conferences and leadership conferences. She said T.W. was involved as her volleyball coach, soccer coach, and drove her to Prince George for volleyball. She also said that the children went to many activities that T.W. was involved in. [ 127 ] A.W. said she always received good meals growing up. She was asked by T.W. about T.W.'s drinking and drugging.

A.W. responded that T.W. was “good when I was younger”. “In my teenage years you did some drugs then when you were pregnant with M.L.L. you cleaned up”. [ 128 ] She was asked what she knew of the people that typically babysat M.L.L. A.W. responded that it was herself and mostly other family members who had also babysat A.W. when she was growing up. A.W. said the babysitters that she had were safe. [ 129 ] A.W. said T.W. was a supportive mother who taught her how to be independent and that it was important to stick by one another.

A.W. says she is going to university now and says T.W. pushed her and wanted her to do her best. She said T.W.'s good values helped her. She said T.W. provided her with financial support when she needed it. [ 130 ] A.W. said she has a close relationship with M.L.L. and believes T.W. provides her with a good home. A.W. recalls a time when M.L.L. had told her she wanted to kill herself and that M.L.L. had said she did not want to go back to her dad's.

She was not challenged on this point in cross examination. [ 131 ] In terms of M.L.L.'s schooling, A.W. said T.W. was very strict on M.L.L.'s attendance and that M.L.L. had received awards at school. A.W. also said T.W. had taught M.L.L. to read at age 3.

[ 132 ] T.W. asked A.W. “do you sense [M.L.L.] wants to come home to us’. A.W. responded that she did not know but says M.L.L. is sad to leave when A.W. is there. [ 133 ] T.W. asked A.W. about T.W.'s drinking pattern. A.W. testified that T.W. drinks occasionally and when she does it is usually at a celebration. She was asked whether she ever did drugs or alcohol when M.L.L. was in her care and A.W. said she did not. [ 134 ] A.W. was asked about the incident with L.H. She described receiving the news as a “horrible thing” and that it was a “traumatic time”. As she was saying this, A.W. became emotional in court.

A.W. said K said that L.H. had touched her as well and that L.H.’s behaviours were discussed amongst the family at the time. T.W. asked her “did I know about this”, A.W. did not give a direct answer. A.W. said that as far as she knew, L.H. was not charged as a result of the incident. [ 135 ] A.W. was asked what contact C.L. had with M.L.L. when she was growing up. A.W. said C.L. tried to get involved when M.L.L. was two or three. She said there were many times when he would send other people to pick M.L.L. up contrary to the existing court order which required C.L. to pick M.L.L. up.

She said T.W. was frustrated when other people appeared for C.L. to pick up M.L.L. [ 136 ] In cross-examination, she agreed that she is close with M.L.L. and that she spent a lot of time with M.L.L. when T.W. was on trips. She stated “it takes a community to raise a child … when you're a single mom you got to do what you got to do, right”. [ 137 ] She was asked about the incident when M.L.L. said she wanted to die. She said M.L.L. was six at the time and in between having to figure things out.

She said M.L.L. was in the “throes of despair then [and] now it's not so much”. [ 138 ] She admitted that, in her teenage years, when the mother had a drug addiction, she moved in with T.B. for four to six months and that her brother C also lived there. She admitted that she knew the mother to have been addicted to crack. [ 139 ] She said M.L.L. told her C.L. does not allow her to go to church and that this upsets M.L.L. [ 140 ] I found A.W. to be an articulate and honest witness. I felt she gave her evidence impartially and with M.L.L.'s best interests in mind.

K.W. [ 141 ] K.W. testified that she is T.W.'s niece and that L.W. who died in the double murder suicide was her mother. She testified that she now resides with T.W. She said she was at T.W.'s house on a daily basis when M.L.L. was young and confirmed that she A.W. and T.W.'s mother were frequent caregivers. She said T.W. provided a good home. She said the family participated in activities such as berry picking, mushroom picking, pemmican days, aboriginal days, and sports days. [ 142 ] She testified that T.W. drank and did drugs in the past but at this point she does not drinks often or a lot.

She said T.W. doesn't drink or do drugs when M.L.L. is in her care. [ 143 ] She recalled the sexual abuse incident with L.H. and recalls that T.W. wanted L.H. charged. She said L.H. had been in the family for sixteen years and that it was very traumatic. “It crushed my mother; it impacted our family”. She said that L.H. was evicted from the mother's home and kicked off the reserve. He moved to [omitted for publication (125km away)] the next day. [ 144 ] She was asked how she felt about the mother's house after what happened there.

She said that a healing ceremony had happened in the home and that from her perspective, the mother had raised them in a warm home. She felt M.L.L. was terrified at first to live in the home but with time, she came around and she feels it is safe for M.L.L. to live there now. [ 145 ] K.W. was asked whether she noticed any behavioural difficulties being displayed by M.L.L. since she was primarily with the father. She responded that M.L.L. has developed a spoiled attitude and plays both parents.

It was her opinion that M.L.L. does not have structure with C.L. [ 146 ] In cross-examination, K.W. confirmed that she now owns the house formerly owned by her mother and that T.W. currently lives there. V.A. [ 147 ] V.A. testified for T.W. She testified that she had known the W family for twenty years and gotten to know T.W. personally in the last 10 to 15 years. She testified that she rented from T.W. for 6 to 7 months and that she has never seen T.W. drinking or doing drugs. [ 148 ] She testified that she was employed as a family support worker for the [omitted for publication] First Nation from 2005 to 2009.

She described T.W. as an “awesome mom” who had a clean house and provided good meals. She said there was love and laughter in the home. She said she never saw T.W. lose her patience with M.L.L. and that she never saw T.W. yell at her or spank her. She said M.L.L. was always well dressed. She said T.W. is a good speaker and is well respected. [ 149 ] She was asked about the incident with L.H. She said she was shocked when she heard about it and shocked when she heard that M.L.L. was taken away from T.W. because of it. She said she was concerned that a child was taken away from a parent who reported abuse.

She said she feels this sends the wrong message to the community, “if we report, the child may get taken away”. [ 150 ] V.A. said it was common in the community for families to attend funerals with their children. She said she has witnessed Cree songs being sung in T.W.'s home. [ 151 ] In cross-examination V.A. confirmed that she is currently working as a preschool teacher and does outreach work as a family support worker on weekends.

[ 152 ] She was questioned why she thought M.L.L. was taken away from T.W. She was asked if she knew that C.L. and T.W. had 50- 50 parenting time before the incident. She said she was not aware of the details of the parenting time. She said she understood that the courts took M.L.L. from T.W. and placed her with her dad. M.W. [ 153 ] M.W. testified for T.W. She is T.W.’s mother. She was born in 1947 and was raised in Moberly Lake and at her father’s nearby trap line.

She described the five main families that make up the [omitted for publication] First Nation as the D2, G, D, N, and C families. [ 154 ] M.W. testified that T.W. was elected to council several times and she felt T.W. did a good job as band counsellor. She also helps out in the community at community functions. She described T.W. as a loving and supportive mother who looks after her children the best she can. [ 155 ] She said the L family was related to the M family who were from [omitted for publication], Alberta.

Her grandmother told her that “there will be people coming from the east that’s going to show you all kinds of things”. She said “we as Cree Indians, Dane-zaa, never believed in that”. She said she does not believe in sweat lodges or in pipe smoking. She said she believes in the Bible and the earth. [ 156 ] She was asked by T.W. whether she knew T.W. to drink or do drugs. Her response was “T.W., how would I know that?

I have heard of you doing that.” [ 157 ] She said she considers it a corruption when parents of a child are not together and that by moving a child from one home to another that you “don't settle a child's mind”. She was asked what she thought M.L.L.'s feelings were about living with her dad. She said “I recall this one day, we had her and we were travelling to go home and we were a little bit late, ten minutes late to go up the [omitted for publication] hill to go home. She was asking you, Mom, what time is it?

Mom what time is it? every few minutes… I'm worried my daddy is going to get mad at me”. [ 158 ] She testified she was shocked that the M.L.L. had to go through a blood test at a young age. “I said why you have to poke needles in her now? … I was angry… To think my baby has to have a blood test because the father is not sure he's the father of that little girl… A man has to know for sure where he sleeps with who and what he does.” [ 159 ] She was asked whether she had tried to connect with C.L. and she said “every time I see him, he’s looking the other way”.

She said “I even threatened him one time… even if I get ten years or twenty years I will fight for my granddaughter.” [ 160 ] In cross-examination, she said two of her daughters, L.W. and A.N. were killed by their husbands. [ 161 ] She said she is a Christian and that she spoils M.L.L. saying “she has me twisted around her little finger”. [ 162 ] She said she felt her granddaughter M.L.L. is being kept from her. She said grandparents are important and that children are raised by grandparents as well. It was suggested to her that T.W. has M.L.L. for a significant time and that M.W. could see her then.

She said she did not like the current

schedule and that she would like to see M.L.L. more.

Section 211 Family Law Act Views of the Child Report (the “Fenton Report”) [ 163 ] On March 10, 2016, this court ordered a Views of the Child Report. That report was prepared by Family Justice Counsellor Karen Fenton and submitted on August 23, 2016. That report was prepared when M.L.L. was six years old and about nine months after the November 19, 2015 order where the parties had agreed to equal parenting time on an alternating weekly basis. The following are excerpts from the report: M.L.L. says she is happiest when she is with the Mother as they do lots of fun things together.

She likes to play games, do crafts and go to community events with the Mother. They go to [omitted for publication] Lake, [omitted for publication] Lake, shopping, lunches out and do hair and makeup together. M.L.L. has been to a powwow with the Mother in [omitted for publication], BC. The Father likes to go fishing, which isn't as much fun and he rarely plays with her. She states her stepmother T.L. is not that fun. “T.L. is nice but mom is nicer”. M.L.L. is not sure T.L. always tells the truth as she has been told no one is allowed to drink alcohol around her, but T.L. drinks when she is with them.

T.L. and the Father also smoke cigarettes which she does not like. M.L.L. shares a bedroom with her eleven-year-old stepbrother M.L.2 when she is with the Father, but states it feels like it is just his room. She prefers to sleep with a parent. The Mother has a one-bedroom apartment in [omitted for publication (130km away)] so she always gets to sleep with the Mother. M.L.L. noted the Mother does not worry when she is with the Father, but the Father is constantly telling her she is not safe with the Mother as he is scared the Mother will leave her with other babysitters.

M.L.L. did not make any disclosure about the alleged sexual interference and was not asked any direct questions about the individuals involved. She talked about the Father getting mad when she wants to talk to the Mother when she is with him, but says the Mother is okay with her calling the Father. M.L.L. was adamant about wanting to be with the Mother every day and visit with the Father.

She was proud to tell me she lost a tooth and got five dollars at the Father's house and T.L. is planning to take her to a secondhand store to buy baby clothes for her dolls, but wishes she was with the Mother at the camp she went to as she knows she would be painting, picking berries and having a lot of fun.

Section 211 Family Law Act Report (the “McCuaig Report”) [ 164 ] A full

Section 211 report was ordered by Judge Bowry on August 29, 2016. It was prepared by Family Justice Counsellor Erica McCuaig and submitted on December 19, 2017. Whereas the Fenton Report is four pages in length and addressed only the views of the child, the McCuaig Report is nine pages in length and according to the report, was based on the criteria set out in

section 37 of the Family Law Act (FLA) , regarding the best interests of the child.

[ 165 ] Ms. McCuaig interviewed T.W., C.L. and M.L.L. in [omitted for publication (130km away)] on November 9, 2017. She conducted a home visit between M.L.L. and T.W. on November 9, 2017 in [omitted for publication] and between M.L.L. and C.L. on November 10, 2017 in [omitted for publication]. The following is excerpted from the report: In an interview with a social worker in September 2016 M.L.L. indicated that she wished to live with her mom. She called her dad “mean” because he would not let her call her mom which made her feel like a “split banana”.

In the interview with myself on November 2017 M.L.L. indicated that she wants to live with her dad and step-mom as her mom leaves her to go drinking, asks her to lie, and was attempting to coach her for this report. M.L.L. seems conflicted and feels the need to take sides depending on which parent she is with at the time. The MCFD noted that M.L.L. could benefit from a program such as Caught In The Middle so that she would not feel the need to choose sides. … M.L.L. describes her dad's home as being a house with three bedrooms. She has her own bedroom.

There is an addition under renovation that is their living room. They have a big kitchen. She has an iPad and her brother M.L.2 has his own phone. They have five TVs and a dog named M. M.L.L. likes her dad's home as it is fun, they go camping every summer, ice fishing, quadding, sledding, and for sleepovers to grandma N's. M.L.L. has her own dirt bike, trampoline, pool, and she likes to go skating. On Sunday nights they have family game night or watch movies together. M.L.L. also enjoys going to her grandmother's store and pretending she is working in a spa.

M.L.L. indicates she cries “every night because I'm scared of T.W.”. M.L.L. says she is worried T.W. is going to attend her school. She explains T.W. did not want M.L.L. to tell me about T.W. lying to her and saying she was just going to the store [when they were in HL]. “She went to her friend’s house to drink and didn't come home until the middle of the night.” M.L.L. says she gets along “really good” with her dad and “really good” with her step-mom. The best part about her dad is he takes her skating, to town, and used to tow her and M.L.2 with the ski doo.

There was nothing negative she could think to say about neither her dad nor anything she would change about him. It is usually her step-mom and dad to help M.L.L. best with her problems and worries. It is her step mom and dad to take her to the doctor and the dentist. She and M.L.2 walked to the bus stop and the school bus drives them to school. M.L.L. says she feels closer with her step-mom and dad as they “make me happy. They say I'm strong, smart; they love me and they say they love me.

They are good parents.” The rules in her step mom and dad's home are to clean off your boots before coming inside the house; shake off ski pants and jacket; if our clothes are wet, put them on a chair by the fireplace. If M.L.L. breaks a rule or misbehaves her parents will say, “Remember to put…” They do not get mad. M.L.L. describes the Mother's home as a house that was her Auntie L.W.'s. She says she is scared of it because her Auntie L.W. and cousin were murdered there; M.L.L. cannot sleep in this house because she is scared.

M.L.L. indicates she was supposed to go with her mom on the weekend but did not want to as T.W. was going to take M.L.L. to HL and “she would leave me to go drink.” M.L.L. does enjoy being with Bailey, the dog, and Cloud, a “rude” Siamese kitten. She does not like it when her mom tells her what to say. “She told me what to say to you but I'm not going to say what she wants because this is my chance to say what I want.” Sometimes she and her mom go to town and have supper but sometimes “she just naps.” In the summer they go to the lake and sometimes they go shopping together for fun.

M.L.L. says she and her mom get along “kind of good and sometimes she gets mad at me.” The best part about her mom is when she takes M.L.L. shopping. The worst is when T.W. yells at her, tells her what to say, and “the way she talks about my [step] mom and dad; and she lies to me too.” M.L.L. does not like it when T.W. lies by saying she is going to the store when she is going drinking or when she says her step-mom and dad are bad parents.

M.L.L. also explains that T.W. said her dad touched her private parts but “she lied; it didn't happen.” If there was one thing she could change about T.W. it would be that she be nice, not yell and “stop lying about mom and dad to me.” The rules in T.W.'s home are not to make a mess and to feed the pets. If M.L.L. breaks a rule or misbehaves T.W. gets mad and says, “Do it now!” M.L.L. says her dad and mom do not get along because her mom would not let M.L.L. see her dad. “My Auntie L.W. when she was alive, raised me so T.W. hid me from my dad.

My dad told me because my mom wouldn't let me see him.” M.L.L. indicates she is not wishing to see T.W. right now because she is scared T.W. will get mad and ask why she did not come with her on the weekend. She was fearful T.W. would come to her school and coach M.L.L. to “say this-say this.” M.L.L. continues, “I want to see T.W. only if I want to. I would let mom and dad know and they would set it up.” M.L.L. does not like that her mom takes naps when she has parenting time. M.L.L. indicates her mom asked questions about her dad.

Questions such as: “Is your dad or T.W. mean to you?” M.L.L. feels obligated to say “kind of because I don't want to get her mad. She would get mad because she thinks I want to live with her but I want to live with my [step] mom and dad.” M.L.L. feels sad as she does not wish T.W. to know everything. Her mom and dad do not ask M.L.L. as many questions. Sometimes they will ask her what they did on the weekend or did your mom do anything with you? M.L.L. explains she feels good when they ask her these kinds of questions as they are not hard to answer.

M.L.L. says T.W. says bad things about her [step] mom and dad which cause her to feel sad. She says her dad does not say bad things about her mom. M.L.L. likes living with her [step] mom and dad and says it is fun. She and M.L.2 often sled and play outside together. Her friend Trinity comes by and they laugh, joke and make up a game where they are spies. She says once she is living with her [step] mom and dad she is going to get into something like hockey, dance and music.

One thing T.W. could do to make things easier for M.L.L. would be not to take naps and “have more fun with me.” There is nothing her dad could do to make things easier as “it's pretty fun there.” She is not worried about getting into trouble with her [step] mom and dad because “they don't yell except at M.L.2 when he stuck on video games.” She would like the judge to know that she wishes to live with her [step] mom and dad because “I really like it there; I am really happy there.” … T.W. presents as a mother who is vivacious and wishes to capture all the things that life has to offer.

She likes to travel, be on teams, and be surrounded by friends and family. She is attempting to take an eight year old girl with her on this journey. Unfortunately, some of the choices T.W. has made with regards to caregivers have diminished M.L.L.'s confidence in the Mother and her ability to care for her.

… C.L. presents as a calm and even mannered family man. He lives and works amongst his family and his wishing to build a cabin for them on their family farm. C.L. and T.W. live their lives differently. T.W. is more nomadic and carefree and C.L. is a rooted family man. T.W. attends a Christian Church and C.L. follows his Native ancestral beliefs. Between them is a lovely, bright and intelligent girl who is caught in the middle of their two worlds and ways of experiencing life. Erica McCuaig [ 166 ] Erica McCuaig attended by videoconference and as a neutral party and was asked questions by both parties. [ 167 ] T.W. asked Ms. McCuaig to clarify what a full

Section 211 report meant and why Ms. McCuaig had not interviewed her older son C, A.W., and the Mother. Ms. McCuaig testified that normally in a full report, both parents and the child are interviewed and then it is within her discretion whether to interview others. Ms. McCuaig said she had an opportunity to observe M.L.L. with C, A.W., and her grandmother and felt that was sufficient for the purposes of her report. [ 168 ] T.W. suggested to Ms. McCuaig that she had not reviewed the first views of the child report. Ms.

McCuaig said she could not remember if she had reviewed that report. [ 169 ] T.W. also suggested that T.W. was not able to have contact with M.L.L. the week prior to the meetings due to a concern that T.W. was going to try to coach M.L.L. To this suggestion Ms. McCuaig responded “I do recall M.L.L. mentioning that you had tried to coach her and that she did not wish to see you during that time because of that.” [ 170 ] T.W. suggested to Ms. McCuaig that Ms. McCuaig had told M.L.L. not to discuss anything with T.W. prior to the home visit. Ms. McCuaig disagreed with this suggestion.

ANALYSIS Parental Responsibilities and Parenting Time [ 171 ] T.W. seeks equal parental responsibilities with a 50/50 week on week off shared parenting arrangement. C.L. seeks sole parental responsibilities with parenting time to T.W. every other weekend with some additional reasonable parenting time. He wishes to be in a position to determine what is reasonable. [ 172 ]

Section 37 of the FLA : 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties 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 the following: (

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, parenting time 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 the child 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 care for 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, including whether 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 in subsection (2), and only to the extent that it affects that factor. [ 173 ] Before me, I have two very conflicting theories about what is in M.L.L.’s best interests.

[ 174 ] On the one hand, I have T.W.'s side of things. She claims to have raised M.L.L. practically on her own for the first six years of M.L.L.'s life. She believes C.L. became difficult after he was ordered to pay $1,052 per month in child support for M.L.L. in 2011. She claims he was relatively uninvolved in M.L.L.'s life until she agreed to an order at a family case conference on November 19, 2015 allowing equal parenting time with C.L. There was a

Section 211 “views of the child report” submitted on August 23, 2016, which showed that M.L.L. had a clear preference to reside with and be looked after by T.W. T.W. says that due to an incident involving a sexual assault on M.L.L. in July 2016, she agreed on an interim without prejudice basis that M.L.L. could remain in the care of C.L. until further court order or agreement between the parties.

She believed that order would be temporary in nature and that it would not take as long as it did to have the matter resolved in court. [ 175 ] T.W. believes that her relationship with M.L.L. has been eroded by C.L. since M.L.L. has been in his primary care. T.W. believes that she was denied contact with M.L.L. for a week prior to the second

Section 211 report and that M.L.L. was influenced or coached by C.L. to tell the report writer she now wishes to reside with C.L. She believes she is a good mother, believes she should share parental responsibilities for M.L.L. and have parenting time with her 50% of the time. She does not agree that there should be any restrictive conditions on her parenting time. [ 176 ] C.L. on the other hand, says that T.W. has the potential to be a good parent but has made many poor decisions that are not in M.L.L.'s best interests and that have placed M.L.L. at risk.

He brought an application that M.L.L. be placed in his primary care on March 5, 2015. In that application he stated that there was no stability in M.L.L.'s life; that she had been taken away from her community; and, that he was afraid for her emotional and cultural development. He stated he was being denied parenting time and was concerned for M.L.L.’s physical safety while in T.W.'s care. He points to a number of poor decisions he feels T.W. has made both before and after his initial application that are not in M.L.L.’s best interests and that have placed M.L.L. in jeopardy.

He believes that he should have all of the parental responsibilities and that T.W. should have limited parenting time subject to a number of conditions for M.L.L.'s protection. [ 177 ] Before me, I have the evidence of eleven witnesses, whose opinions are deeply divided in support of either T.W. or C.L. I also have two

Section 211 reports where M.L.L. expressed her wishes to reside with T.W. in one and with C.L. in the other. Within the [omitted for publication] community, there are different families, family histories, spiritual beliefs, cultural practices, values and biases which became highly evident during the course of the trial. [ 178 ] T.W. advised that she considers the court a “hard system” and that issues involving M.L.L.'s care should ideally be dealt with within the community but that unfortunately, the community is not yet equipped to deal with such matters.

As an outsider, I must be careful to apply a broad lens to all of the various factors at play in the community in which M.L.L. is a member. I will attempt to do so while applying the various factors listed under

section 37 of the FLA to what I consider to be in M.L.L.’s best interests. M.L.L.’s Health and Emotional Well-Being [ 179 ] After carefully considering all of the evidence, I am unable to find that either parent fails to look after M.L.L.'s physical health. M.L.L. was exclusively in the care of T.W. for the first six years of her life and there is no suggestion that her physical health was not being well looked after. I also find that C.L. has done a remarkable job of caring for M.L.L. since she was placed in his care. [ 180 ] Emotional well-being is a much broader concept than physical health.

C.L. cites T.W.'s instability as an overriding factor affecting M.L.L.'s emotional well-being. There is ample evidence that T.W. has resided in various residences and communities and that M.L.L. has moved frequently while in T.W.’s care. This has resulted in M.L.L. missing school and being denied contact with the Father. I accept that such things have occurred. [ 181 ] On the other hand, I consider that T.W. has been a single mother since M.L.L.'s birth and has sought and maintained various employment positions.

There is no suggestion that she has not supported M.L.L. financially to the best of her ability and I find that she has always done so. I also find that “she did what she had to do” as a single mother. [ 182 ] C.L. says M.L.L.'s emotional well-being has been affected by being exposed to violence or placed at risk of being exposed to violence. The most concerning incidents are the sexual assault and HL Rodeo incidents. [ 183 ] After considering all of the evidence on the sexual assault incident, I do not place any blame for this incident with T.W.

The clear evidence was that L.W. had frequently cared for M.L.L. and other children in the community and was a trusted caregiver. While there was some indication that L.H. had a criminal history and a history of substance abuse, I accept T.W.'s evidence that she believed he had succeeded in dealing with substance abuse issues. I also accept her evidence that she did not feel he was a danger to M.L.L.

The evidence is clear that C.L. was equally surprised by L.H.'s actions and had known him for a number of years. [ 184 ] C.L. was concerned that T.W. did not tell him about the incident immediately and that this would indirectly have a negative emotional impact on M.L.L. T.W. testified that she did not do so because M.L.L. had told her not to. I accept T.W.'s evidence on this point. Had M.L.L. wished for C.L. to know, she would likely hav

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