D.J.S. v. M.W.K., 2021 BCPC 254

Citation: D.J.S. v. M.W.K. 2021 BCPC 254 Date: 20211026 File No: 22294 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.J.S. APPLICANT AND: M.W.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing in person: D.J.S. Counsel for the Respondent: M. A. Matthews Place of Hearing: Fernie , B.C. Dates of Hearing: October 20-21, 2021 Date of Judgment: October 26, 2021 Introduction [ 1 ] The Applicant D.J.S. and the Respondent M.W.K. are the parents of a 10 year-old boy named K.M.K., who was born on [omitted for publication]. K.M.K. was born when the parties were living together, but at a time when the end of their relationship seemed inevitable.

At the time the Respondent was struggling with an addiction to prescription painkiller medication and the parties separated in December of 2011 when K.M.K. was still a baby. [ 2 ] For almost all of K.M.K.’s life, the Applicant was responsible for raising and caring for K.M.K. For the first four years of his life or so, the Respondent struggled with his addiction, attempting a number of treatment programs, suffering several relapses, and he was absent from his son’s life.

More recently the Respondent has achieved a period of abstinence from the use of prescription medications, and is in the process of weaning himself off of other substances, finding help from the local recovery community as well as from his church and from health care professionals. He has been willing to resume the responsibility of fatherhood for K.M.K., while also demonstrating a reasonable appreciation for why this will take some time. [ 3 ] These parties are atypical of many litigants seen in family court.

They are respectful of one another, credit one another for being good parents, and each demonstrates a distaste for conflict. They would likely not be in family court were it not for one problem. The Respondent has obtained orders from this court setting out his parenting time with K.M.K., but the Applicant refuses to follow those orders. [ 4 ] The parties have different points of view for why the court orders for parenting time are not being followed. The Applicant says she is not following the orders because K.M.K. doesn’t want to see his father.

There is some support for her position, primarily in a Views of the Child Report prepared in March of 2019. The Respondent believes that the Applicant is poisoning the mind of the child against him, because of resentment for his past actions and his previous absence from his child’s life. The Applicant resents this suggestion. Counsel for the Respondent submits that the Applicant is giving the child too much power and is abdicating her responsibility as a parent.

Counsel says that the Applicant should require K.M.K. to spend time with the Respondent, in the same way that she would not let him be absent from school simply because he doesn’t feel like going. The Applicant feels this to be an unfair characterization of her parenting. [ 5 ] The Respondent cannot understand how the Applicant can simply ignore an Order of this Court without any consequence. He points out that if he was to ignore the order for payment of child support, he would face drastic consequences, which might include jail.

Yet he feels that the Applicant can thumb her nose at the previous court orders with impunity. However unlike others in his position might be expected to do, he is not seeking a drastic remedy such as a change of the child’s primary residence or police enforcement of his parenting time. He understands and appreciates that these would not be in the child’s best interests. [ 6 ] What makes this more difficult is that there is no suggestion that any harm comes to the child when the Respondent exercises his parenting time.

The Applicant acknowledges that the Respondent is not abusive towards the child in any way (other than in wanting his parenting time) and the evidence from all independent parties is that the Respondent is very good with K.M.K. and that K.M.K. seems to enjoy his time with the Respondent. [ 7 ] The Respondent asks for his existing court ordered parenting time. The Applicant wants that parenting time to be suspended until another Views of the Child Report is prepared and K.M.K. expresses the desire to spend time with the Respondent. Following is a

summary of the evidence presented at trial, the applicable law, and the reasons for making the order that will follow.

Summary of Evidence [ 8 ] The Applicant and the Respondent lived together from May of 2010 to December of 2011. (Their evidence differed somewhat on dates, though the Applicant seemed to be the better historian in that respect, and several times the Respondent conceded that this was the case.) The Respondent was born and raised in the Fernie/Sparwood area and has lived here all of his life. He has worked as a heavy duty mechanic, but prior to the parties’ cohabitation, he was in a car accident in 2006 that left him with a severe back injury.

In a story often heard in this Court, the Respondent, who had previously not displayed any sort of drug problem, became addicted to opiates, mainly prescription painkillers such as OxyContin, Percocet and Tylenol-3. [ 9 ] Both of the parties agree that the Respondent’s addiction became quite severe and torpedoed any chance of a happy family life. The Respondent wasn’t present for K.M.K.’s birth, and his attendance at the hospital on that day was brief.

The parties have differing accounts of how involved the Respondent was in the early life of his child, and given the state of his addiction, it is likely that the Applicant’s recollection of that time is more accurate and that the Respondent was very little help when it came to child care. [ 10 ] The parties’ relationship ended in December of 2011, when the Respondent acted violently towards the Applicant. She says that he slapped her when she was holding the child and later pushed her down.

He only recalls pushing her, but once again it is more likely that her recall of the incident is more accurate, given the Respondent’s head space at the time. That’s not to suggest that the Respondent minimizes the significance of his addiction. To the contrary, he readily admits that his addiction cost him a failed relationship, loss of a job and it cost him the opportunity to be there for his young child. The Applicant still remembers the Respondent crashing her car and having it impounded for two months.

The passage of time has not erased many painful memories for her. [ 11 ] The Respondent testified that immediately after the separation he would see K.M.K. once or twice a week at his parents’ home and he describes the Applicant as being fair about letting him see the child. The Applicant recalls that some of these visits took place at

the Ministry of Children and Family Development office before they were moved to his parents’ home.

The Applicant says that during this time the bond between father and son was lost. [ 12 ] On January 25, 2012 the Applicant filed an Application with this Court for an order giving her what was then termed as custody of K.M.K., as well as for an order for guardianship, child support according to the Federal Child Support Guidelines , and for a restraining order prohibiting the Respondent from harassing or interfering with her or K.M.K. [ 13 ] On April 3, 2012, an order was made by the Honourable Judge Webb of this Court recognizing the Applicant as K.M.K.’s sole custodian.

She and the Respondent were ordered to be joint guardians of the child, with the Applicant being K.M.K.’s primary caregiver and having the deciding vote on any disagreements about parental responsibilities. The Respondent’s parenting time was to be supervised by one of his parents and was to be exercised in a clean and sober condition.

The Respondent was also ordered to pay child support in the amount of $400 per month based on a guideline income of $43,200 even though the Respondent was not likely earning that much money at the time. [ 14 ] The Respondent left Fernie for the lower mainland of British Columbia where, in his words, he attended “a few treatment centres” and had “three or four slips.” The Applicant suggested that the Respondent left in 2013 and that he stayed there for three or four years, returning in March of 2017. [ 15 ] The Respondent continued to struggle with his addiction for the next few years and was largely absent from his son’s life.

In 2016, he appears to have turned the corner and become abstinent from the uses of prescription painkillers. He was using marijuana and also had a prescription for methadone. He also began seeing a counsellor, one that he continues to see at least once a month, and also sees a psychiatrist, who has prescribed him medication for anxiety and depression. The Respondent has also rebuilt his relationship with his parents. [ 16 ] The Respondent attends 12 step meetings but does not have a sponsor.

His use of marihuana and methadone prevents him from claiming sobriety as that term is used in those programs. (The use of any mood altering substance would not meet that definition of sobriety.) But the Respondent is working towards that goal. He testified that he has not used marijuana for at least three months and he is gradually weaning himself off of methadone, having reduced his dosage from 18 ml. down to 12.

He also says that he has passed all of the drug tests required before his methadone can be dispensed. [ 17 ] The Respondent admits to the occasional use of alcohol, something that the Applicant says his family encourages and enables. The Respondent’s evidence did not match that of his mother with respect to his most recent alcohol consumption, but both believe that alcohol is not a problem for the Respondent. The Applicant disagrees and this is part of her fear about the risk of relapse.

In this regard, there is some merit to the Applicant’s concern. [ 18 ] Twelve step programs such as those that the Respondent is attending operate on the premise that it is not the substance that causes the problem, such that when an individual stops using, the problem goes away. It is the individual who is the problem, and the substance is an imperfect solution to the problem. This is perhaps best illustrated by the adage that “you can sober up a drunken horse thief, but you still have a horse thief.” It isn’t the case that a person becomes flawed because of the addiction.

The flaws are present and exacerbated by the addiction. It is only when the root of the flaws are addressed that the individual can recover. Replacing one mood altering substance (such as prescription painkillers) with another (such as alcohol) often leads to a return to the previous behaviours.

This is why twelve step programs and other recovery programs call for abstinence from all mood altering substances in order to claim sobriety, and why their focus is not just about stopping the use of the substance, but also on addressing character defects such as resentments, fears, dishonesty or self-pity, and on making meaningful amends to those who have been hurt by the person in recovery. In this way the “sober horse thief” also abandons his past behaviour of horse theft. [ 19 ] The Respondent deserves credit for the changes he has made in his life from when he was active in his addiction to where he is now.

The Applicant also acknowledges this. The Respondent would be wise however to listen to the Applicant’s concern about the risk posed by ongoing alcohol use, even if he feels he has this “under control.” The jails of this province are filled with too many people who once thought the same thing.

The wisest course of action for the Respondent would be to strongly follow what those in his 12 step programs are trying to impart on him about the value of real sobriety (abstaining from all mood altering substances) and working on the problems within himself that led to his seeing addiction to painkillers as a solution. [ 20 ] This digression is not meant to imply that the Respondent is not ready or able to play a meaningful

part in his son’s life. He has made many strides in his recovery to this point in time. In August of 2016, the Respondent first brought two Applications to this court. One was for more parenting time with K.M.K. than what Judge Webb had ordered. The other was for relief from the arrears of child support that he was owing. In that Application, he said that he had not earned the amount of income that the child support order was based since 2012, and that he is only source of income was a disability benefit. He was still in a recovery centre at the time he made that Application.

The Applicant filed a Reply to each application, opposing more parenting tome for the Respondent as well as any reduction in child support or any cancellation of arrears. [ 21 ] The Respondent returned in 2017 and on March 6 of that year, the Honourable Judge Doerksen of this Court made an Order retroactively reducing the amount of monthly child support payable by the Respondent to $50 per month from October of 2016 to September of 2017.

Commencing in October of 2017, the monthly support payment was increased to $213 per month, based on an imputed income of $25,000 per annum and enforcement of arrears was suspended for a year. In a separate order, Judge Doerksen also ordered that the Respondent was to have parenting time with the child for at least two hours per week, supervised by one of his parents or another supervisor approved of by the Applicant. [ 22 ] Following Judge Doerksen’s order, the Respondent had visits with the child at his parents’ home.

By agreement this was later changed to the home of B.E. and S.E., friends that the Respondent knew from his church. The Applicant says that the child would act out after these visits, but the Respondent finds this hard to believe because K.M.K. was always in a happy mood during the visits. [ 23 ] In cross-examination, the Respondent was asked how many times he had moved since returning to Fernie. He initially said that he had moved three times, though he went on to list six different places he had lived beginning with his parents’ home and ending with

his current residence. The Respondent was also asked about a roommate that he briefly had and about allegations that the roommate may have sexually abused children. The Respondent said that he did not believe this to be the case, because, although the roommate has been charged with this offence, he was not convicted, equating acquittal with innocence, something that is not always the case. [ 24 ] On January 16, 2018, the Respondent brought an Application for increased parenting time, asking for parenting time with K.M.K. at least three times per week and that an overnight visit be included.

In response to this, an Order was made by the Honourable Judge Shaw of this Court on April 26, 2018, that the Respondent was to have parenting time with K.M.K. twice a week for two hours each visit, and that the parties were also to take the child to dinner together every second Friday and that the Respondent would have parenting time with K.M.K. following the dinner. [ 25 ] On November 26, 2018 the Respondent brought another Application for parenting time with K.M.K. three times per week, in which he claimed that the Applicant was not following Judge Shaw’s Order.

The parties agreed to a Consent Order on January 10, 2019, made by the Honourable Judge Sheard of this Court. Judge Sheard ordered that the Applicant was to drop K.M.K. off at the home of the paternal grandparents at 5:30 p.m. every Tuesday and Saturday, and on every second Friday.

The Order went on to state as follows: “If, despite the [Applicant]’s best efforts, the Child is unwilling to see the Father, the Mother will immediately have a meeting at a neutral location between herself, the [Respondent] and the Child to discuss the issue and the Child’s concerns.” [ 26 ] Judge Sheard also ordered that the Applicant was to bring the child to counselling sessions at the Fernie Women’s Resource Centre and that both parties were to contact the counsellor to

schedule these appointments. Judge Sheard also ordered the preparation of a Views of the Child Report pursuant to

section 211 of the Family Law Act . [ 27 ] There is a divergence in the evidence as to how the visits between the Respondent and K.M.K. went following Judge Sheard’s order. The Respondent says that the visits went very well, especially after the Applicant was no longer present. The Applicant says that K.M.K. did not want to go on the visits and that he would throw severe tantrums before and after them. She says that she would get bruised by K.M.K. when she was trying to calm the child down by holding him. She says that she did not show the bruises to anyone.

The Applicant described the tantrums as ones in which K.M.K. would yell, throw objects, kick and scream. She says “he hits me, punches me and screams it out.” She said that she deals with the tantrums by hugging the child until he calmed down or tired himself out. She says that no one else saw these tantrums because she would tell the child about the pending visit early enough for them to have completed before she left to take him to the visits. [ 28 ] It is clear that there were occasions when K.M.K. did not want to get out of his mother’s car to begin the visits and had to be coaxed.

The best independent evidence of how these visits went comes from S.E., a member of the Respondent’s church. She agreed to host the visits and kept notes of many of them, much as a visit supervisor might do. She testified that she made these notes shortly after each visit.

The notes maintain a consistent theme, one of the child being initially reluctant to attend the visits and of having to be coaxed out of his mother’s vehicle, only to later enjoy himself at the actual visit. [ 29 ] For example, S.E. describes a visit on January 3, 2019 in which K.M.K. was quiet at first, but later became quite talkative and happy. On another visit on February 12, 2019, S.E. had to help the Respondent to coax the child out of the car by offering him dessert. Her report goes on to describe the child as being “happy and felt comfortable” and she provided some photographs of the child.

On the next visit on February 16, 2019, K.M.K. once again had to be coaxed out of his mother’s vehicle with S.E., only to later have a very happy visit. This pattern of reluctance to begin the visits continued for the next two visits, and on the February 24, 2019 visit, K.M.K. asked if he could stay longer and the Applicant agreed.

Two days later, on February 26, 2019, the visit report describes the child as running out of the car to hug the Respondent’s legs, and describes him as “happy and excited.” S.E. also says that on this visit, K.M.K. called the Respondent “dad” and added that this was the first time she had heard him do this. [ 30 ] On March 1, 2019, the Applicant arrived at S.E.’s home before the Respondent did. This visit report indicates that the Applicant had harsh words with S.E., telling her that it was not her “place to be involved” and saying something about court that S.E. did not understand, nor wanted to get involved in.

Once again K.M.K. was reluctant to get out of his mother’s car, but after he did, he seemed to have fun on the visit. When asked about this in cross-examination, the Applicants said “I was stressed” referring to having to deal with the child’s temper tantrums. [ 31 ] K.M.K. was interviewed by Family Justice Counsellor Lisa Bury on March 5, 2019, during the period when the visits at the E.s’ home took place. The report was submitted the following day. K.M.K. was eight years old at the time, and he is described in the report as a “shy and reserved child.” Prior to the interview, the Applicant had told Ms.

Bury that K.M.K. was “consistent in expressing he does not wish to see spend time with his dad.” When he was given the opportunity to speak for himself, K.M.K. echoed what his mother had said. It appears that the Family Justice Counsellor viewed this with some suspicion. Her report states: K.M.K. was open to sharing he is struggling with the current arrangement for visiting with his dad. He stated a number of times to me that he does not wish to spend time with his dad. K.M.K. was able to articulate that he does not trust his dad and feels he lies a lot.

When asked to provide an example, K.M.K. stated, “I told him I did not want to see him anymore and he (dad) said ‘I don’t believe you.’” K.M.K. added that his dad said this to him in a mean way that made him feel uncomfortable. The main lie K.M.K. feels his dad is telling him is that his dad states he won’t force K.M.K. to visit, yet it keeps happening. K.M.K. was limited in his ability to provide examples of why he wants the visits to stop, but he could relay that seeing his dad is causing him stress.

He stated before and during visits “I feel so much stress it hurts my chest.” I enquired if he ever felt scared with his dad and he responded “no.” When I asked if he ever felt unsafe with his dad he stated “no.” [ 32 ] K.M.K. told the report writer that he felt bad about seeing his mother having to deal with the stress of family court litigation.

When the report writer asked him if he had one wish for his mother, what it would be, he replied “that she doesn’t have to deal with stress anymore.” When the report writer asked what he though was causing his mother’s stress, he replied “all of this stuff and me not wanting to see my dad.” He went on in the report to describe the Applicant as “the person he can always count on.” His mind was closed when it came to considering ways to make the visits more comfortable. He stated “there is nothing he (the Respondent) can do to change, plus I don’t think he can change.”

[ 33 ] It was four days after this interview, according to a visit report from S.E. on March 9, 2019, that K.M.K. once again was reluctant to get out of his mother’s car and made some comment about the Respondent trying to force him to go on the visits.

K.M.K. never did get out of the car that day and according to the visit report, “it was terribly confusing and sad, because we could see as he stared out the window that he wanted to come.” Another visit was scheduled for March 12, 2019, and once again K.M.K. would not get out of his mother’s car. [ 34 ] The Applicant maintains that she is encouraging K.M.K. to have a relationship with the Respondent and that she is not doing anything to discourage him from seeing the Respondent or make him feel bad about seeing the Respondent.

The visit reports and the description of K.M.K.’s behaviour before and during the visits appear inconsistent with this. It is unclear why K.M.K. does not want to visit with the Respondent when the reports of the actual visits are positive and when he appears to have fun during the visits. It is also unclear why, when the Applicant drops the child off at the visits, she does not encourage him to go with the Respondent. This is inconsistent with her statement that she wants the two of them to have a relationship. Her hostility towards S.E. is also difficult to comprehend.

It might be different if the visits were somehow harmful to the child, but no one, including the Applicant herself, is suggesting that anything bad is happening to the child during the visits. [ 35 ] In cross-examination, the Applicant was reminded of Judge Sheard’s order that required the Applicant to use her “best efforts” to facilitate visits between K.M.K. and the Respondent. When asked about what “best efforts” she had made, she replied that she had got the child into the car and driven him to the visits.

She went on to state that she doesn’t think it is wrong to give K.M.K. the choice of deciding whether or not he should go, nor to let him overhear discussions about court matters. [ 36 ] S.E. also testified about the Respondent being active in a support group for persons in recovery at the church called Celebrate Recovery.

She testified that from what she had seen, the Respondent was working on maintaining his recovery and that she had not seen anything suggestion of him relapsing. [ 37 ] The Respondent’s mother, S.K., also testified that she had not seen anything to suggest that the Respondent has had any sort of relapse and that if she ever did see anything to suggest otherwise, she would inform the Applicant. She described the Respondent as a good parent, saying that he was attentive to his child. She was critical of her son for giving K.M.K. sweets on one occasion, and that was her only criticism of him.

She said that she would not have any concerns about K.M.K. having overnight visits with the Respondent. The Respondent’s mother agreed with the Applicant’s suggestion that the two of them hadn’t always gotten along until recently when they had seemed to “turn things around.” Later in her own evidence, the Applicant said that K.M.K. loves his paternal grandparents and “adores his grandpa.” [ 38 ] The Applicant testified that another reason that she was not facilitating visits between the Respondent and K.M.K. was because she had received a text message from the Respondent to stop the visits.

At the time that she gave this testimony she did not have the text message, but said that she would bring the message the next day. The text message was produced the following day and on a review of it, it appears that the Applicant is being disingenuous when she says that the Respondent told her to end the visit. The Applicant did not present any context to the text messaging, and the message itself does not purport to say what the Applicant initially represented it to say. In the text message the Respondent does not say that he no longer wishes to see the child.

The message, dated March 16, 2019 at 11:08 a.m., reads as follows: “As much as it hurts, I don’t think you should bring K.M.K. It’s not okay for him to be yelling at me but you sit there and think it’s funny. It’s more appropriate to let the courts deal with this than me battling to find out what’s been said to K.M.K. that’s upset him so much and turned him against me.” [ 39 ] The message does not out exactly what the Respondent does not want K.M.K. brought to.

The Respondent was not given the opportunity to address this in cross-examination, and he alleges that this is taken out of context and refers to something completely different, that it is about not bringing K.M.K. to one of the meetings that Judge Shaw had ordered. On the evidence presented, it is not clear on what reasonable basis the Applicant could interpret this text message as the Respondent telling her that he did not want to see the child any more.

At the very least, if she somehow came to this conclusion, one would reasonably expect her to have contacted the Respondent to seek clarity or to discuss the matter further if it was genuinely her intention to want the child to have a positive relationship with the Respondent. [ 40 ] The Applicant acknowledged in cross-examination that it is possible that K.M.K. is picking up on her stress and wants to please her by being hostile towards the Respondent, though she maintains that she encourages the child to see the Respondent, doing so by telling K.M.K. that the Respondent “is trying.” [ 41 ] Another Order of this Court was made on May 30, 2019 by the Honourable Judge Gill, who ordered that the parties were to “fully cooperate in jointly scheduling counselling sessions at the Fernie Women’s Resource Centre” that would eventually include the parties themselves.

The Respondent testified that he tried to arrange this counselling but says that he was told that the Applicant did not return calls from the counsellor. The Applicant denied this on cross-examination, though she agrees that she was not proactive in making this counselling happen. She also admits that she took no action in complying with Judge Sheard’s order for counselling until October of 2019, nine months after that order was made. The Applicant was asked about what counsellors the child is seeing.

She said that he sees a counsellor at his school once per month and is also able to speak with the Vice-Principal at his school whenever he likes. [ 42 ] K.M.K. attends school in Fernie. He is in Grade 5. The Respondent testified that he has tried to get information about K.M.K. from the school, but he has been told that he is not on the school’s list to receive information. The Applicant claims to know nothing about this and says that as far as she knows, there is nothing preventing the Respondent from getting information about the child from the school, other than confidential information from his counsellors.

She does not provide the Respondent with the child’s progress reports or with his school pictures, though she does give pictures to the Respondent’s parents. [ 43 ] The Respondent lives in a two bedroom apartment that is located a few blocks from the Applicant’s home. He has lived there for about half a year. He briefly had a roommate, but now he lives alone, though he would like to find another roommate to help cut expenses. His home is also close to K.M.K.’s school. In spite of the issues that give rise to his disability, the Respondent testified that he

is actively seeking employment of any kind, but that he has chosen to be up front with potential employers about his past problems with addiction and he believes that this makes them reluctant to hire him. His back injury prevents him from returning to work as a mechanic. [ 44 ] At the time of this hearing, the Respondent testified that he had not seen K.M.K. since the past August, although this was due in part to his being in hospital in September. That visit took place at his parents’ home.

The Respondent says that the Applicant will generally permit him to see K.M.K. only when he is making his child support payments. The Applicant resents the suggestion that she is trading off visits for child support. The Respondent recalls that his previous visits were in March and in June of this year, and that when the pandemic began in March of 2020, he would only see the child once every three months on average, despite his requests for more time with the child.

On cross-examination, the Respondent testified that he “now remembered” that he did see the child twice in July of this year also, but he went on to add that these were very brief visits. [ 45 ] The Applicant was critical of the Respondent for telling the child that he would drop by to see him at times, but would then fail to show up.

When the Applicant suggested specific times that this had happened, the Respondent said “I don’t recall.” In cross- examination the Respondent’s counsel reminded the Applicant that she had promised to let him take the child to Victoria for a family wedding, and she had agreed, only to later withdraw this permission just before the wedding. The Applicant agreed that she had done so, but said that this was because it was what the child wanted. [ 46 ] The Respondent says that the visits he has had with the child go well and that K.M.K. is affectionate towards him when the Applicant is not present.

He describes a difference in the child’s behaviour depending on whether or not the Applicant is there, as if the child feels afraid of having the Applicant see him show love for the Respondent. The Respondent says that K.M.K. only calls him dad when the Applicant is not there and he believes that the Applicant is discouraging K.M.K. from wanting to have a relationship with his father. For example, the Respondent recalled an incident at the Applicant’s home when he told K.M.K. that the Applicant wanted the child to have a good relationship with his father.

The Respondent says that K.M.K. then looked to the Applicant to verify the statement, but that she refused to say anything and only gave the child a puzzled look.

The Applicant agrees that she did not say anything supportive at the time, but says that she did so because she did not see herself as a part of their conversation. [ 47 ] The Respondent also talked about an incident in which the child was writing his name on the sidewalk with chalk, and then suddenly crossed out his father’s surname, stating “that’s not gonna be my last name for long” and that he would soon be changing his surname to that of his mother.

The Applicant agreed that she had some discussion with the child about potentially changing his last name, but says that it was the child who initiated this after noticing that his surname was spelled differently from hers.

She agrees that the subject of changing the child’s last name was not something she has ever discussed with the Respondent. [ 48 ] The Respondent testified that the Applicant had told him that the child “doesn’t really need you, he has enough positive role models in his life.’ The Applicant has a different recollection of this conversation and denies saying that the child does not need the Respondent.

She does acknowledge pointing out to the Respondent that the child does have a number of other positive role models in his life. [ 49 ] The Respondent says that he does not wish to argue or fight with the Applicant and says that they have a civil relationship. He says that he has not been more assertive with the Applicant because he detests conflict, stating, “I don’t like conflict and I don’t want to make things worse.” He added that he believes that the Applicant is a “great” mother to K.M.K.

The Applicant was more begrudging in her assessment of the Respondent, telling him in cross-examination, “I’ve never said you’re not a good parent, I know you try.” [ 50 ] The Applicant describes K.M.K. as an intelligent and empathetic child. She was asked about why she discusses court matters with the child and said that it was because K.M.K. himself had asked her, and that he had told her that he wanted to testify in court. She said that he became curious about these proceedings when she had left a court document out in the open that he had discovered.

She said that he had another tantrum on the night before this hearing because he knew that his mother was going to court. [ 51 ] In cross-examination, the Applicant was questioned about whether she was showing poor judgement by leaving the decision about whether or not K.M.K. should see the Respondent up to the child. When Respondent’s counsel asked if she would let the child eat candy for supper if that was his wish, the Applicant replied that if the child had a bad day, she would let him have a chocolate bar for supper.

She was then asked if he didn’t want to go to school for no good reason, would she make him, and she replied “it’s the law.” Counsel then addressed the inconsistency between this answer and the Applicant’s refusal to follow the existing court order, but the Applicant was unable to explain this distinction. Position of the Parties [ 52 ] Counsel for the Respondent believes that the Applicant has deliberately poisoned the child’s mind against her client, and is concerned about this, given the child’s age. She notes that as the child gets older, it will become more and more difficult to undo this damage.

The child’s expressed dislike of his father is irrational, given that there are no safety concerns, no allegations of abusive behaviour toward the child on the part of the Respondent, and none of the other factors from which a child might be expected to have formed such a hostile attitude towards a parent. She says that the only rational explanation for the child’s inflexible and unhealthy attitude is because it has been groomed by the Applicant, either deliberately, or out of sympathy and loyalty. Counsel asserts that this is unhealthy and is clearly not in the child’s best interests.

She argues that the law is clear that it is in a child’s best interests to have maximum contact with both parents unless there is a valid reason for restricting such contact. No valid reason is present here. [ 53 ] Counsel notes that while the views of the child are one factor to be taken into account in determining what is in a child’s best interests, it is only one factor. In this case counsel argues that the child’s views are not genuine ones, but have been skewed and manipulated by the Applicant and it is therefore not in the child’s best interests to give effect to those views.

She asks for an order that will restore the Respondent’s court ordered parenting time and to attach to the order meaningful terms to enforce that parenting time if the Applicant continues to refuse to follow Orders of this Court. [ 54 ] The Applicant views this case as one of “he said/she said,” a difference of perception of events. She says “just because the other person didn’t see it, that doesn’t mean it didn’t happen.” She argues that deference should be given to the views that K.M.K. has expressed to the Family Justice Counsellor.

She argues that if, at age 11, the child will be entrusted to be a baby-sitter it follows that his

views should matter. The Applicant states that she perceives the Respondent’s arguments as his refusal to value the views of the child.The Applicant asks for another Views of the Child Report to be prepared. [55] The Applicant is also concerned about the risk of relapse on the part of the Respondent, stating that “addicts can slip at anytime.” She denies living in the past, and says that this is a real present danger to the child. She argues that the real issue is the child’strust of the Respondent, something she is unable to control, despite her encouragement.

She asks for an order that while the Views of theChild Report is being prepared, the Respondent’s parenting time with K.M.K. be restricted to times when K.M.K. wants that contact tooccur. Applicable Law 1. Best Interests of the Child [56] Where parental arrangements are in dispute, as they are in this case,

Section 37 of the Family Law Act, requires a court to makesuch orders based only on a consideration of what is in a child’s best interests. It is not what is best for the parents, but what is best forthe child.

Orders concerning children must be child-centric, that is, they must consider things from the point of view of the child’s well-being. [57] To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including thefollowing: -the child's health and emotional well-being; -the child's views, unless it would be inappropriate to consider them; -the nature and strength of the relationships between the child and significant persons in the child's life; -the history of the child's care; -the child's need for stability, given the child's age and stage of development; -the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parentingtime or contact with the child, to exercise his or her responsibilities; -the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the childor another family member; -whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care forthe child and meet the child's needs; -the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; and -any civil or criminal proceeding relevant to the child's safety, security or well-being. [58] For an order to be in the best interests of a child, this Court must consider how best to protect the child's physical, psychologicaland emotional safety, security and well-being.

Section 37 goes on to state that the court making the order may consider a person'sconduct only if it substantially affects one of the factors listed above. 2. Views of the Child [59] The views of the child are one of the ten listed factors that a court must consider in determining what is in a child’s best interests.The British Columbia Supreme Court has said, in L.C.T. v. R.K., 2018 BCSC 1016 , 2018 B.C.S.C. 1016, that the weight thatshould be given to a child’s views should be in accordance with the child’s age and maturity level.

This includes the child’s ability tounderstand and assess the implications of a particular matter. I would note in this case that K.M.K. was 8 years old at the time his viewswere canvassed and that he is described as shy and reserved. The Applicant acknowledges that she has discusses court proceedings withhim and K.M.K. himself told the report writer that “he was aware that he was meeting with her to share how he felt about visits with hisdad.” [60]

Section 37 states that a child’s views are not a factor in determining what is in that child’s best interests when it would beinappropriate to consider them. Examples of this might be when a child is very young, when a child has been coached or told what to say,or when those views have been unfairly influenced or biased. 3. The Principle of Maximum Contact [61] The Divorce Act requires a court to “give effect to the principle that a child of the marriage should have as much contact witheach spouse as is consistent with the best interests of the child”.

This is not a factor listed in the Family Law Act in deciding what is in achild’s best interests. The principle of maximum contact is not expressly mentioned in

section 37, though this is not to say that theprinciple in only applicable in cases of divorce. The Divorce Act calls for consideration of this principle only to the extent that it is“consistent with the best interests of the child”. The Family Law Act requires that a court must consider the best interests of the childwhen making orders. It also requires a court to consider the nature and strength of the child’s relationship with each guardian, as well aseach guardian’s ability to exercise his or her responsibilities in deciding what is in a child’s best interests. These two frameworks are notinconsistent.

They each lead to the conclusion that maximum contact is desirable when it is in a child’s best interests, and should not begiven effect when it is not.

[62] Some may misread the principle of maximum contact as being a parent’s “right”. The Family Law Act shifts the focus fromparents’ rights to their responsibilities, correctly so in my view. In this paradigm, it is the child who has the “rights” and the parent whohas the responsibilities. [63] The principle of maximum contact is rooted in the notion that children are entitled to have a loving relationship with both or theirparents unless there is good reason for them not to.

Children should not be placed in the position where they are made to feel thatshowing love for one parent is somehow being disloyal to the other parents. Parents who act in ways that make their children feel thisway are generally not acting in that child’s best interests. 4. Parental Alienation and Estrangement [64] In Williamson v. Williamson, 2016 BCCA 87 , 2016 B.C.C.A. 87, the British Columbia Court of Appeal set out the lawconcerning parental alienation, a term that has been used in the context of separation cases to describe a breakdown in the relationshipbetween a child and one of the separated parents.

Sometimes alienation occurs as an unfortunate side-effect of the breakdown of arelationship, while other times it can occur because of deliberate actions on the part of a parent.

Parental alienation is often suspected incases where, as in this case, a child demonstrates a refusal to want to have a relationship with one parent without any rational reason.When this occurs, it is generally unhealthy for a child and not in that child’s best interests because it manifests as poor emotional well-being. [65] Parental alienation is different from estrangement, which occurs when there is some rational reason for the child not wanting tosee the parent. For example the parent may be abusive, or may be behaving in a manner that makes the child feel unsafe.

The burden ofproof of parental alienation is on the party alleging it, and the allegation should be supported by admissible expert evidence. 5. Enforcement of Court Orders [66] In this case a major complaint made by the Respondent is that there have been previous orders for him to have parenting timewith K.M.K., but that the Applicant has ignored these and thumbed her nose at them. At the same time he is mindful of the fact thatsometimes the enforcement of the order can be more harmful than the refusal to follow it.

For example, he is not seeking policeenforcement of these orders (a remedy available under section 231 (4) of the Family Law Act) at this time, because he is sensitive to thetrauma K.M.K. might feel if he is removed from his mother’s home by a police officer. Nor is he seeking a change in the child’spermanent residence, conceding that he takes no issue with the Applicant’s ability as a parent. [67] The Family Law Act lists a number of available options when this court finds that it is satisfied that a guardian has wrongfullybeen denied parenting time.

These options are listed in section 61(2) of the Act as follows: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services orprograms; (

c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (

d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of thedenial, including travel expenses, lost wages and child care expenses; (

e) require that the transfer of the child from one party to another be supervised by another person named in the order; (

f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (

i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

g) require the guardian to pay (

i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000. [68] If the Court makes an order for counselling, family dispute resolution, specified services or programs or for a supervisor for thetransfer of the child, the court may allocate the cost of this among the parties, or require one party alone to pay that cost.

Analysis [69] The evidence in this case leads to the conclusion that K.M.K.’s expressed reluctance to spend parenting time with the Respondentdoes not appear to be based on any ostensible rational foundation. This is not to say that the reason for his reluctance is not real to him. Itis clear however that it is not based on any concern for his safety, or that harm will come to him if the order for parenting time isenforced. The child is unable to articulate valid reasons for not wanting the visits to take place despite being at an age where he isintelligent and able to express himself.

It also appears that when the parenting time actually occurs, the child has a good time and enjoyshimself. It is unclear why the child has formed what appears to be a fixed and inflexible view that the Respondent is incapable ofpositive change. [70] The evidence also supports the conclusion that the Applicant bears some responsibility for the child’s expressed opposition toseeing the Respondent, even though she insists that this is not the case. She testified that when they are alone she encourages the child tohave a relationship with his father. Her words do not appear to match her actions.

Examples of this can be found in the following:

1. Her unilateral decision not to follow the Court Orders for parenting time, justifying this on a text message that does not appear to say what she claims it says. 2. Her refusal to discuss the text message with the Respondent to clarify her understanding of it, and if correct in her

interpretation, to dissuade him from giving up future parenting time. 3. Her lack of diligence in setting up counselling appointments as ordered by Judge Sheard and Judge Gill. 4. Her inaction in encouraging the child to participate in parenting time with the Respondent at those times that the child was reluctant to get out of the car. 5. Her hostility to S.E. for facilitating the Respondent’s parenting time. 6. Her pattern of engaging in discussions about court matters with the child and in the presence of the child. 7.

Her opinion that by driving the child to the visits, that was meeting the terms of Judge Sheard’s order for her to use her “best efforts” to facilitate the parenting time visits. 8. Her general opinion that there is nothing wrong with placing the responsibility on the shoulders of an eight to ten year old child for deciding whether or not it is best for him to have a relationship with the Respondent. 9. Her practice of giving the child’s school pictures to his grandparents but not to the Respondent. 10.

Her leading the Respondent to believe that he could take the child to a family wedding in Victoria, only to withdraw that permission at the last minute. 11. Her unwillingness to present a united front with the Respondent to the child about her wanting him to see the Respondent. 12. The child’s statement to the Family Justice Counsellor that his reluctance to see the Respondent is based on seeing his mother’s reaction and her stress. [ 71 ] This is not intended to vilify the Applicant or to portray her as the wrongful party to these proceedings and the Respondent should not reach that conclusion.

The actions of the Applicant are likely motivated out of a sincere desire to protect her child against the backdrop of recollections of an unhappy past. All of us can sometimes be mistaken when we believe we are doing the right thing, and at those times we need objective persons to tell us how we are actually behaving and to call us out on it. The Applicant may legitimately believe that she is acting in K.M.K.’s best interests by placing this responsibility on his young shoulders and by requiring him to figure out why a relationship with a father who is healthy in recovery might be good for him.

An objective consideration of what is in the child’s best interests leads to a different conclusion. [ 72 ] Applying the evidence in this case to a consideration of what is in the child’s best interests, the following observations are made: (

a) The child's health and emotional well-being: As was stated earlier, it is not healthy for a child to develop a strong dislike for one parent where there is no rational basis for that to happen. This is what is occurring in this case, and it is in K.M.K.’s best interests to put a halt to that now and to encourage him to have a positive relationship with both of his parents. The message needs to be sent to him that it is okay for him to love both of his parents and that loving one parent does not mean that he is being disloyal to the other.

If the status quo is allowed to continue and if this isn’t corrected now, there is a real risk that he will grow up to be bitter, resentful and angry, and that he will carry these traits into his relationships as an adult. (

b) The child's views: Clearly K.M.K. has expressed the view, when he was eight years old, that he did not want to see his father. The parties are confident that his views remain the same. His views have been heard and the appropriateness of those views must be considered. The evidence is clear that they do not appear to be rooted in any risk of harm and may have been unfairly supported. No effort appears to have been made by the Applicant to change his mind or explore where he may be mistaken in thinking this. While this is far from a case parental alienation, it is also not a case where any effort has been made to challenge those views or to show him why they may be erroneous. (

c) The nature and strength of the relationships between the child and significant persons in the child's life: K.M.K. clearly has a stronger tie to the Applicant than to the Respondent, rightly so. She was there for him when the Respondent was not and she has done the bulk of what I refer to as the “heavy lifting” in raising this child. It is important for the Respondent to recognize and appreciate this. K.M.K. is clearly aware of this. It is also important to recognize the importance of his having an extensive support network of people who love and care for him.

This includes not only his grandparents, but also the Good Samaritans in the community like Mr. and S.E. who made an effort to provide K.M.K. with a safe place where he could be happy and enjoy himself, in spite of the stress he has experienced from being at the center of parental conflict. (

d) The history of the child's care: Once again it is clear that the Applicant has shouldered almost all of the responsibility for raising K.M.K. It is important for the Respondent to remember this and to understand where the Applicant is coming from, and to be supportive of her, even at times when good feelings may not be reciprocated. If the Respondent is sincere about his recovery program, he will learn much from it about how one makes amends for his past and cleans up the wreckage of that past. (

e) The child's need for stability, given the child's age and stage of development: In this case no drastic changes are proposed for K.M.K. such as shared parenting or a change to his living situation. Here, what is asked for is for him to spend a modest amount of time getting to know his father, something than can be accomplished without major changes taking place and something which will aid in his growth and development as a person. (

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: As long as the Respondent is diligent about his recovery program and makes a genuine effort at practicing those principles, he will be capable of being a good parent. On the other hand, if he is only kicking the tires on recovery, doing the least amount to get by, and if he feels that things are good enough as they are, he is in for a rude awakening. His future as a parent will depend on the choices he makes and the strength of his recovery program. As for the Applicant, the evidence leaves no doubt about her ability to be a good parent. (

g) The impact of any family violence on the child's safety, security or well-being: K.M.K. is fortunate that any family violence he may have witnessed occurred before he had the ability to retain a memory of it. The parties seem to want to avoid conflict and as long as the Respondent maintains his recovery, this is unlikely to be a consideration into parenting decisions. (

h) 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: K.M.K.’s parents are atypical of many family litigants in that they are capable of recognizing some of the good in one another and of complimenting the other. Each acknowledged that the other was a good parent in their testimony. To use their words, they are “generally on the same page” when it comes to major parenting decisions.

One problem appears to be an unwillingness on the part of the Applicant to involve the Respondent in such things as the child’s school, his extra-curricular activities, or in participating in family counselling. Perhaps she feels that he hasn’t yet earned this privilege following his absence from the child’s life. It is unlikely that a court order calling for cooperation would be shown any greater deference by the Applicant than many of the previous orders, and special provision will likely be required in an order for the Respondent to take an active interest in his son’s life. [ 73 ] In

summary, it follows that it is in K.M.K.’s best interests that the Respondent be allowed to have meaningful parenting time with the child. It is in his best interests that this occur, whether or not the Applicant believes this to be the case. The Respondent should not be impeded in finding out how the child is doing in school or his other activities. K.M.K. may initially resent having to spend time with his father, particularly while he maintains the belief that he is the one making this decision. [ 74 ] Professional counselling may be required to undo the past damage.

The Respondent will be permitted to enrol himself and the child in family counselling to explore the reasons for the child’s stress in spending time with him. The Applicant should be invited to participate, though participation on her part will be voluntary. Counselling is sometimes seen as a one-size-fits-all solution to a multitude of problems, often with unrealistic expectations. On the other hand, Fernie appears to be a community filled with kind people willing to help families in distress and there is reason for hope that it may be beneficial in this case.

If, as the Applicant claims, K.M.K. wants his voice to be heard, a compassionate counsellor may be the ideal person to hear it. [ 75 ] The Applicant has asked for an updated Views of the Child Report. I agree with Counsel for the Respondent that this would be an unnecessary expenditure of the resources of the Family Justice Counsellor better saved for someone else waiting in the cue. It is likely that the child’s views have not changed and that no meaningful assessment of them should occur until the order now being made has a chance to take effect. The parties have also asked for a review of this order.

I will put in place a mechanism for review, however the review will not be automatic unless it seems that the visits aren’t taking place and stronger enforcement is necessary or for some other valid reason. Order [ 76 ] For the foregoing reasons, the following order is now made: 1) Upon the court being advised that the name and birth date of each child is as follows: K.M.K., born on [omitted for publication]. 2) The court is satisfied that the Applicant D.J.S. and the Respondent M.W.K. are the guardians of the child under s.39 (1) of the Family Law Act . 3) Pursuant to s. 40 (3) (

a) of the Family Law Act D.J.S. will have all of the parental responsibilities for the child as set out in s. 41 of the Family Law Act , provided that both D.J.S. and M.W.K. will have the right to obtain information concerning the child directly from third parties, including, but not limited to, teachers, counsellors, medical professionals and third party caregivers, and including the right to attend the child’s school functions or to attend parent-teacher interviews. 4) M.W.K. may also arrange for and enrol the child in family counselling without the consent of D.J.S., for the purpose of exploring the reasons for any reluctance or unwillingness on the part of the child to have parenting time with M.W.K. and for the rehabilitation of the their relationship.

D.J.S. may participate in such counselling at her option.

If there is a cost for such counselling the parties may agree to share that cost, but if they do not agree to do so, M.W.K. may pay that cost and set off the amount paid by him against any arrears of child support which may be owing by him (but not any child support falling due), in recognition that the cost of such counselling is a valid child care expense. 5) M.W.K. will have parenting time with the child every Tuesday and Saturday from 5:30 p.m. (for a minimum of two hours on Tuesday and a minimum of three hours on Saturday) commencing on Saturday October 30, 2021, and on every second Friday from 5:30 p.m. (for a minimum of two hours) commencing on Friday, November 5, 2021, or at such other times as agreed between the parties and recorded in writing or by text message or email. 6) M.W.K. shall pick the child up from the child’s home for the start of the visit and return the child at the end of the visit.

For the first three weeks that this order is in place, M.W.K. shall be accompanied by either C.W., S.K., S.E. or another third party approved of by D.J.S. when picking up the child. 7) M.W.K. shall have parenting time with the child either on Christmas Eve or Christmas Day from 3:00 p.m. to 6:00 p.m. D.J.S. shall inform M.W.K. which of these two options she chooses for his parenting time by December 1, 2021, failing which, M.W.K. shall choose which of these two options he chooses by informing D.J.S. by December 5, 2021.

The parties may, by mutual agreement select an alternate time for M.W.K.’s Christmas parenting time provided that they have recorded their agreement in writing or by text message or email.

8) In the event that M.W.K. is denied parenting time as set out under this order, such parenting time shall be made up at a time selected by M.W.K. If parenting time is denied on two or more occasions, M.W.K. may ask the Judicial Case Manager to

schedule a Family Management Conference at the earliest opportunity and apply for the following relief: (

a) An order under section 231 (4) of the Family Law Act for police enforcement of his parenting time; (

b) An order transferring some or all of the parental responsibilities solely to himself; (

c) An order that D.J.S. be fined pursuant to section 61 (2) (

g) of the Family Law Act; (

d) An order that D.J.S. be punished for contempt of court; or (

e) Any other remedy available at law. 9) M.W.K.’s parenting time shall be exercised at times when he is free from the consumption or possession of alcohol or drugs other than those now prescribed to him or over-the-counter medication.

He shall immediately inform D.J.S. of any relapse in his use of prescription painkiller medication, or illegal controlled substances and shall also immediately notify her of any medication that is prescribed for him other than those disclosed during his testimony at the trial of this matter. 10) Either party may apply to review this order after January 31, 2022, (or sooner if either party alleges a breach of this order for denial of parenting time or for a relapse by M.W.K. or if an independent counsellor is of the opinion that enforcement of the order is harmful to the child.) ______________________________________ K.D.

Skilnick Provincial Court Judge