A.C. v. A.T., 2021 BCPC 269

Citation: A.C. v. A.T. 2021 BCPC 269 Date: 20211105 File No: [Omitted for publication] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.C. APPLICANT AND: D.C a.k.a. A.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Applicant: D. Smith Appearing on their own behalf: A. T. Place of Hearing: Prince George , B.C. Dates of Hearing: March 15, April 8, June 2, and August 31, 2021 Date of Judgment: November 5, 2021

INTRODUCTION [ 1 ] This is a difficult case where the Court is called upon to assess issues of parenting time and guardianship for a mother who is devoted to her children, but whose mental illness impedes her ability to safely exercise her parental responsibilities. A.T. seeks more parenting time with her children, ideally unsupervised, but otherwise supervised by A.C.

A.C. seeks to remove A.T.’s guardianship and require any contact between her and the children to be supervised by a professional third party. [ 2 ] The issues I must decide are whether A.T. ought to be removed as the children’s guardian and to determine parenting arrangements in their best interests. A.C. also seeks an order pursuant to s. 221 of the Family Law Act (“ FLA ”) requiring A.T. to obtain leave of the Court before making any further court applications. BACKGROUND [ 3 ] Evidence was adduced by way of viva voce testimony and the numerous affidavits filed in this proceeding.

A.C. and D.T. were married in 2012. They have two children, C.C., born [omitted for publication] and V.C., born [omitted for publication]. Both parents worked after C.C.’s birth. A.T. was a real estate agent and A.C. is a painter. Child care was provided by both parents with the assistance of paid caregivers. A.T. took maternity leave prior to V.C.’s birth and therefore spent more time caring for the children between May 2015 and June 2016. [ 4 ] A.C. says that during the relationship A.T. would sometimes be violent with him by throwing dishes, putting her hand over his mouth or jumping on his back.

A.T., in turn, says A.C. was assaultive towards her. A.C. says A.T. was easily angered by any conduct she perceived to constitute negligent parenting on his part. Such conduct included going to the garage when the children were napping in the house and monitoring them through a baby monitor; taking the dog for a walk and leaving the children at home with A.T. when she was napping; or cooking while caring for the children. [ 5 ] There were two events which later formed the basis of A.T.’s various complaints to the court, RCMP and child protection authorities.

One involved A.C. accidentally dropping, but catching, infant V.C. when he tried to place her in a bassinet hammock that had not been properly affixed to its frame after being laundered. The baby was not hurt. A.T. accused him of dropping V.C. on purpose.

The second involved A.T. once pressuring A.C. to get the children downstairs and out the door, to which A.C. facetiously protested “what, do you want me to just throw the children down the stairs?” A.T. told authorities A.C. had threatened to throw the children down the stairs. [ 6 ] On July 8, 2016, A.T. asked A.C. to stay in a hotel for a few days due to some marital strife and he complied. While he was out of the house A.T. moved out of the family home and left town with the household furnishings, pets and the children. She did not tell A.C. where she was going with the children.

A.C. later learned she had planned a move to Victoria by finding an application for a lease agreement in the garbage. In fact, A.T. had moved to [omitted for publication]. [ 7 ] A.C. filed an application for the return of the children. He was able to speak to A.T. on July 12, 2016 and advised her the matter was to be in Prince George Provincial Court on July 14, 2016. The day after that conversation, July 13, 2016, A.T. filed applications in Victoria for an ex parte protection order and parenting arrangements, despite still being in [omitted for publication].

She called MCFD and made reports that A.C. was abusive to her, had intentionally dropped baby V.C., and had threatened to throw the children down the stairs. A.T. told social workers she had fled to [omitted for publication] and that A.C. mistakenly believed she was in Victoria. She was aware A.C. had filed for relief in Prince George Provincial court and a hearing date was set for July 14 at 9:30 a.m. Social Workers told her to get legal advice. A.T. also made a complaint to the [omitted for publication] RCMP. [ 8 ] A.T. attended court with an Elizabeth Fry court worker in Prince George on July 14, 2016.

The Court ordered the children were not to be relocated more than 200 km from Prince George. In filing her pleadings in Prince George Provincial Court, A.T. sought a protection order and did not provide an address or contact information. When interviewed by a social worker on July 18, 2016 about the court appearance, A.T. falsely represented she was awarded full custody and guardianship over the children with no access to A.C.

In fact, a non-relocation order was made and all other relief was adjourned to August 4, 2016. [ 9 ] Based on her reports, MCFD put safety plans in place restricting A.C.’s contact with the children on July 18, 2016. When A.T.’s misrepresentation about having “full custody” was discovered by social workers, the safety plan was cancelled. On July 27, 2016, MCFD confirmed there were no child protection concerns with respect to A.C. and closed its file.

Notwithstanding, A.C. was not advised of the children’s whereabouts in [omitted for publication]. [ 10 ] On August 4, 2016, this Court ordered all relief be dealt with in Supreme Court where divorce proceedings had been initiated. The Supreme Court subsequently declined jurisdiction so the parenting issues were thereafter dealt with in Provincial Court. [ 11 ] During this time A.T. moved to Victoria with the children, without notice, and in breach of the non-relocation order. The whereabouts of the children remained undisclosed.

On August 15, 2016, she obtained an ex-parte protection order against A.C. in Victoria Provincial Court. She told the Court he was very scary, had been violent to her for years and threatened to harm the children and kill himself. She said A.C. intentionally dropped the baby. A.T. also told Judge Low that a woman who identified herself as a police officer had come to her residence in Victoria the night before for a wellness check because A.T. had missed her court date in Supreme Court in Prince George. A.T. believed the woman was impersonating a police officer and was terrified it was all a ruse.

A.C. later learned of the ex parte protection order by mail. [ 12 ] During this time A.T. continued to make various allegations about A.C. to MCFD and the RCMP. MCFD investigated and again closed its files on September 1, 2016. The RCMP did not forward any charges to Crown Counsel. [ 13 ] On September 7, 2016, A.T. filed a Private Information purporting to charge A.C. with uttering threats to hurt their children and assault on infant V.C. This Private Information was not pursued by Crown Counsel and no process issued.

[ 14 ] On September 8, 2016, the parties appeared in Prince George Provincial Court, where Judge Weatherly made an interim order for shared alternating weekly parenting time and removed the protection order vis-à-vis the children. A.C. had not seen the children since A.T. left the family home without notice, nor did he know of their whereabouts. [ 15 ] The Court file is replete with multiple applications by A.T. alleging abuse and safety issues. On March 16, 2017, A.T. took C.C. to the walk-in clinic alleging the child may have been spanked by A.C. The physician diagnosed a likely yeast infection or rash.

That day, in response to complaints by A.T., MCFD imposed another safety plan prohibiting A.C. from using physical discipline on the children. A.C. denied he ever used physical discipline on the children. On March 22, 2017, A.T. filed for another protection order alleging the RCMP were investigating A.C. for abuse and that he was not allowed to contact the children. [ 16 ] On April 5, 2017, an undisclosed caller, who I infer to be a doctor, reported child protections concerns to MCFD about A.T.

The caller reported A.T. brought the children to the hospital complaining the baby was suffering from alcohol withdrawal and that A.C. was sexually abusing the children. She had previously made similar complaints and was referred to the SCAN Clinic.

Two other doctors having contact with A.T. had concerns for the children’s safety based on A.T.’s mental health and her escalating behaviour and evolving complaints in bringing the children to the hospital. [ 17 ] On April 28, 2017, A.T. was committed under the Mental Health Act to the psychiatric ward of UHNBC for “bizarre behaviour.” No one told A.C., who continued to abide by the shared parenting time arrangement. A.T.’s mother, H.L., cared for the children in A.T.’s stead without disclosing the reason to A.C. A safety plan was put in place by MCFD suspending A.T.’s parenting time while she was in hospital.

On May 12, 2017, another safety plan was put in place requiring A.T.’s parenting time to be supervised while she was in the hospital. [ 18 ] On May 25, 2017, Judge Keyes made an interim ex parte order awarding sole parental responsibilities and primary parenting time to A.C. with A.T.’s parenting time being supervised at A.C.’s discretion. [ 19 ] On June 15, 2017, after A.T.’s release from hospital, a safety plan was put in place requiring A.T. to see her psychiatrist, take her medications, and enrol the children in full time daycare while they were in her care.

A.C. agreed A.T. could resume parenting time on a shared alternating weekly basis. On April 27, 2018, the Supreme Court issued a Divorce Order. [ 20 ] On August 15, 2018, A.T. called the RCMP complaining A.C. was following her and trying to obstruct her from taking the children to the doctor or giving them food. A.T. said she felt threatened by A.C. but could not articulate any specific concerns.

The complaints were investigated and dismissed. [ 21 ] On January 28, 2019, A.C. went to collect the children for the start of his weekly parenting time and discovered they had not been in school or daycare the entire week they were in A.T.’s care. He learned from his family doctor that A.T. had brought the children in and out of walk-in clinics and the ER throughout the week although the children had no health concerns. The children had spent the week sleeping on a couch and a chair at H.L.’s house.

When he picked up the children, five year old C.C. was crying and wearing a toddler’s pull-up diaper despite having been potty trained for years. [ 22 ] That week A.T. called the RCMP at 5:30 in the morning reporting concerns for the children’s safety while in A.C.’s care. She then showed up at A.C.’s house and forced her way in demanding to see the children, which upset the youngest. A.T. started going through the closets and boxes of items. A.T. similarly unexpectedly showed up at the children’s daycare during A.C.’s parenting time.

A safety plan was put in place with MCFD requiring the children to remain in A.C.’s care and preventing A.T. from showing up at their school or daycare without MCFD approval. [ 23 ] On February 7, 2019, an interim order was made that A.T.’s parenting be supervised by A.C. or his father, and that A.C. have all other parenting time with the children. This order was extended on April 15, 2019. On July 4, 2019, the interim order was amended to provide that A.T. may have a minimum of six hours of supervised parenting time a week, plus parenting time exercised at a wrap-around parenting program.

The order was varied to specify such supervised parenting time to occur on Tuesdays, Saturdays, and Sundays. [ 24 ] On February 28, 2019, A.T. filed an application in the Supreme Court divorce proceeding seeking “full custody” of the children and suspension of all of A.C.’s parenting time. She sought orders that real property, vehicles, and assets in A.C.’s possession be “redistributed” to the Carrier Sekani Tribal Council, Elizabeth Fry Society, Native Friendship Centre and Native Court workers.

She based her claim on the allegation that A.C. was in a coma and did not need these assets while “First Nations People” did need them. A.C. was not in a coma. She also wanted the court file to be sealed and stored offsite or shredded.

A.T. did not consider how giving away all of the family assets, home and vehicles would impoverish the children who relied on those assets. [ 25 ] On March 4, 2019, A.T. filed an affidavit in Supreme Court seeking an exemption from what she claimed to be a “new parenting test” imposed by the Family Maintenance Enforcement Program and the FLA for parents who are exempt from the Parenting After Separation Course. She complained the test was closed book and four hours long. She attached a “test preparation” package to her affidavit which was a series of logic puzzles and cryptograms.

Her application was dismissed that day. [ 26 ] Four days later on March 8, 2019, A.T. filed yet another application in the Supreme Court divorce proceeding seeking an order that the children’s paternal grandparents’ assets all be seized and given to homeless shelters. She also sought orders that the assets of various religious institutions, including the Vatican and Church of Scientology, be seized and distributed to various individuals and agencies such as the Truth and Reconciliation Commission.

She sought orders that assets of several named individuals, including A.C.’s counsel, Bill Gates, Donald Trump and Jeff Bezos, be seized and distributed to various charities and social service agencies. In her affidavit in support of the application, A.T. proposes to “rearrange a few bank accounts” and attests that Jody Wilson-Raybould would make an excellent Prime Minister. [ 27 ] On August 26, 2019, Social Worker Jaclyn Hall wrote a letter to A.T. saying it was her view the children were no longer in need of protection because A.C. has “full parenting rights.” Ms.

Hall advised that MCFD would need to re-assess A.T. before she could resume care of the children which would include receiving positive reports and supports from her mental health team and Carrier Sekani Family Services programs about her ability to parent. MCFD closed its file.

[ 28 ] At trial Ms. Hall testified that A.T. has still not engaged with MCFD about the Director’s requirements and therefore she has not been approved to resume care of the children. A.T. mistakenly believes MCFD has closed its file because there are no child protection concerns about her. In fact the Director’s child protection concerns regarding A.T. persist and remain unresolved. The MCFD file is only closed because the Director feels that as long as the children are in A.C.’s care they are safe. [ 29 ] There were concerns about the children being properly fed while in A.T.’s care.

A.C. testified that in 2017-2018 the children would often be very hungry during his weekly parenting time. They complained A.T. would feed them cold beans. The MCFD records disclose that on February 19, 2018, a medical professional called to report concerns that both children were not appropriately gaining weight. Doctors tried to address this with A.T. but she presented with mental health issues, did not seem appropriately concerned, and attributed it to the children being picky eaters.

A.C. adduced a letter from the children’s Montessori school dated March 1, 2019, signed by the children’s teacher and three early childhood educators, stating that since the children have been A.C.’s primary care they noticed the children have a consistent healthy diet and variety of healthy foods daily. [ 30 ] Since the supervised parenting time orders were made A.T.’s parenting time has been supervised by A.C. and another family member, usually A.C.’s father. A.C. has enlisted the presence of a second supervisor to avert further false allegations being made against him by A.T.

This arrangement has been onerous for him and his family. [ 31 ] On July 18, 2020, T.L. was assisting A.C. in supervising A.T.’s parenting time with the children in Wal-Mart as A.C. Sr. was not available. She filed an affidavit stating that during that visit A.T. took C.C. into the women’s washroom and tried to forcibly change the girl into a shirt A.T. had bought for her.

This child was protesting that she did not want to change there, resisted having her shirt pulled off, was crying loudly, and saying “don’t mommy.” When T.L. intervened and told A.T. her actions were not appropriate, A.T. became aggressive with her. A.T. then grabbed C.C.’s arm with one hand, put her other arm around C.C.’s neck, and dragged the girl into a stall to forcibly undress her. A.T. ultimately succeeded in forcibly changing C.C.’s shirt. C.C. was crying and resisting throughout.

A.T. subsequently reported T.L. to the RCMP for “uttering threats,” which complaint was not pursued by police. [ 32 ] A.C. also filed an affidavit July 24, 2020, affirming T.L.’s account with respect to those matters he was in a position to observe. He also attested to other times A.T. has acted inappropriately, such as trying to change the girls in a vehicle or having outbursts in their presence. He complains A.T. is hostile when he tries to intervene during these unsafe events, and that she is verbally abusive to him when she is in an agitated mood.

He does not want to be the supervisor any more. [ 33 ] In cross-examination A.T. was generally evasive when confronted with misstatements she made to MCFD or the Court and her actions taken in breach of Court orders. In response to such questioning A.T. either claimed she could not remember or the question was “irrelevant.” When asked about her mental health and being committed to a psychiatric ward, A.T. refused to answer the questions on the basis they were not “relevant.” When I ruled on her objection and found the questions to be relevant, she continued to refuse to answer by remaining silent.

She would not answer whether she had been admitted to hospital or was under the treatment of a psychiatrist. [ 34 ] The trial of this matter was heard on March 15, April 8, 29, and June 2, 2021. The parties made submissions June 2, 2021 and I reserved my decision. [ 35 ] On June 24, 2021, A.T. had a supervised visit with the children at a McDonald’s in Prince George. The visit was uneventful.

After the visit A.T. sent A.C. an email requesting FaceTime visits going forward as she was going to be on the Coast for “educational purposes.” She subsequently sent a text asking for a convenient date and time, but A.C. did not respond, and he heard nothing further. [ 36 ] On June 29, 2021, the RCMP contacted A.C. reporting that A.T. had failed to show up for work and was considered missing. An official missing persons report was circulated to the public on July 10, 2021, with information that her last known whereabouts were believed to be in Ontario.

A.C. was later informed by the RCMP that A.T. was located on July 29, 2021 and she was a resident in a psychiatric institution in Ontario. [ 37 ] On July 31, 2021, A.T. sent A.C. a text asking for the children’s report cards. On August 5, 2021, A.T. sent A.C. a three page email full of accusations and requests that bore no relation to reality. She refers to Canadian Border Services catching A.C. with his parents and sister trying to take the children across the border to Disneyland, and that thankfully authorities had stopped them upon confirming with A.T. she had not given any travel permissions.

She says MCFD and the RCMP were notified and now have an Amber Alert police file to prevent any future abduction attempts. None of those events ever happened. [ 38 ] In the email A.T. also claims she was contacted by a psychiatric nurse at UNHBC who advised that four weeks ago (roughly around the time of her last supervised visit), A.C. had been admitted to the psychiatric ward suffering from hallucinations and suicidal ideation, and that he had to be forcibly administered anti-psychotics.

A.T. says she has received calls from a number of different nurses to update her on the situation but it was “chaos.” She claimed to have heard that the pastors of their church attempted to visit A.C. in the hospital and were arrested for trespassing, and that they could not afford a lawyer because they were bankrupt. A.T. also states she tried to contact A.C.’s parents, L.C. and Al. C., and learned they had a mental breakdown and that A.C. and his siblings all suffered from schizophrenia.

Again, none of this ever happened. [ 39 ] In that same e-mail A.T. refers to reading A.C.’s mother’s obituary and how various lawyers and notaries have contacted her to deal with his mother’s estate. She refers to A.C.’s sister now being unable to act as an executor for his Will because she was in an accident which rendered her a quadriplegic.

A.T. claims to have been contacted by MCFD about what to do with her children and all of the children’s cousins, alleging they were all removed from their caregivers and no one in A.C.’s family was fit to care for them due to running drugs for the Hell’s Angels and other reasons. She claimed she was the only person left in the family who could be responsible for all the minor children, and that MCFD was interested in everyone’s “wills and assets.” This was all pure fantasy. [ 40 ] A.T.’s email to A.C. reveals much of her delusions tend to involve the children and his family members.

In the case of the children, A.T. fantasizes that they are put in harm’s way in their father’s care, either by being secreted over the border or left without a caregiver. This is consistent with her earlier multiple false complaints about A.C. harming the children in one way or another. [ 41 ] In light of the events which occurred over the summer of 2021, the trial was re-opened to allow the parties to adduce further

evidence on August 31, 2021. When confronted about being reported missing and institutionalized A.T. remained silent and refused to answer questions. She refused to answer any questions about her mental health. She would only say she was “attending to a private matter” that summer and she would not comment on her personal life.

In closing submissions A.T. said it was untrue that she was reported missing or in a psychiatric ward, but that is not evidence, and she refused to provide that evidence, or any evidence about what happened, while under oath. [ 42 ] When confronted with the email of August 5, 2021, A.T. denied she sent it. I do not believe her denial. The three page email makes references to facts, persons, events and matters unique to parties and the issues between them. It is highly unlikely to have been authored by a third party.

Further, A.T. communicated with A.C.’s counsel from that very same email address on that very same day. A.T. demanded the legal assistant send over copies of documents she requested “TODAY”, threatening to report A.C.’s counsel to the Law Society if her demand was not met, closing “So send it over lady.” I find the email to A.C. was sent from A.T. [ 43 ] On August 6, 2021, A.T.’s mother reached out to A.C. attempting to arrange a visit between A.T. and the children.

A.C. refused on the basis that he had been given no information about A.T.’s mental health other than learning she had been missing and institutionalized, and he had found her last email to be delusional. He was concerned about her mental health and risk she posed to the children, even during a supervised visit. [ 44 ] A.T. adduced three letters in support of her claim for parenting time. The first was a letter from her psychiatrist, Dr.

Udemaga, dated April 26, 2021, in which he states she is “fairly maintaining well on her current psychotropic medications occasioned by acute concern her ex-husband may be following her.” No psychiatric assessment, particularly one relating to her ability to parent, was adduced and Dr. Udemaga did not testify. His letter does not identify A.T.’s mental health diagnosis, symptoms, or risk management protocols. This letter is not helpful in assessing the serious mental health concerns affecting A.T.’s ability to exercise her parental responsibilities.

I note it was written months before recent events in which A.T. was reported missing and resident in a psychiatric ward in Ontario. [ 45 ] A.T. adduced a letter from Carrier Sekani Family Services dated April 21, 2021, saying she did engage in the wrap-around parenting program. However, it was difficult to reconcile this information with Ms. Hall’s evidence that to date the Ministry has not been made aware of A.T. fulfilling the parent education expectations outlined by the Director in its letter of August 26, 2019. CSFS supervised one Christmas visit on December 24, 2019, that appeared to go well.

However, again that is not enough evidence to suggest that her parenting time no longer ought to be supervised, or that if it is supervised, it ought to be done by A.C. It shows A.T. has had one successful visit in the past supervised by a professional agency. [ 46 ] At trial A.T. refused to discuss her mental health at all, including her diagnosis, treatment, or management. The fact she was taking medication in April 2021, alone, without more information, is insufficient to address the relevant child safety concerns.

I note to date she has still failed to connect her medical health team with MCFD so that their extant child protection concerns can be addressed. Issue #1: Should A.T. Be Removed as a Guardian? [ 47 ] A.C. seeks an order appointing him as the sole guardian of the children, effectively removing A.T. as a guardian.

In the alternative he seeks an order assigning him sole parental responsibilities. [ 48 ] A.C. says an order appointing him as sole guardian is preferable because if A.T. remains a guardian, even devoid of any parental authority, she could try and assert that status upon his death to obtain primary care of the children.

A.C. has appointed his sister as guardian in his Will but fears A.T. may use her position as a guardian to challenge that appointment should he pass away. [ 49 ] With respect to that argument, this is a remote situation and I note that if A.T. continues to pose a risk upon A.C.’s death, MCFD is likely to exercise its overriding authority to take steps to protect the children. [ 50 ] A.T. is V.C. and C.C.’s mother. Prior to separation A.T. was the primary caregiver for the children. She is a presumed guardian under s. 39(1) of the FLA .

I accept A.T. loves her children and would not deliberately, in a sound mental state, expose them to harm. If anything, her illness causes her to sometimes operate under the delusion she is sparing them from harm. It is her mental health which has affected her ability to safely care for the children. Should A.T.’s mental health improve or become effectively managed, she may again be able to safely resume her parental responsibilities. I find it is in the best interests of the children that A.T. remain a guardian and be advised of significant events and matters involving the children.

Issue #2: What Parenting Arrangements Are in the Best Interests of the Children? [ 51 ] In determining parenting arrangements I must consider s. 37 of the FLA , which states: 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. [ 52 ] A.C. has been the primary caregiver of the children for the last two years. He is self-employed and has flexible work hours. He has arranged for daycare when the children are not in school and has enrolled them in extra-curricular activities. By all accounts he is a responsible and caring parent.

For the last couple of years he has sacrificed a great deal of personal time to supervise A.T.’s parenting time to preserve the relationship between A.T. and the children. [ 53 ] A.T. wishes to increase her parenting time to an alternating shared parenting arrangement. When I asked her how that would be possible in light of MCFD’s position, A.T. said she would just like to change the current parenting time

schedule in order to have two 4 hour visits on Saturday and Sunday, and two hour visits on Tuesdays and Thursdays. She says she will work with MCFD to get re- assessed, and then will seek additional parenting time. [ 54 ] I can appreciate why A.T. feels that the inquiry into her mental health is invasive and encroaches upon her privacy and dignity. From her perspective, A.T. knows she deeply loves and cares about her children and believes that should be sufficient. Her private struggles are no-one’s business.

A.T.’s persistent attempts to use this proceeding to gather information about the children’s progress is evident of her commitment to being a good mother. [ 55 ] However, the FLA approaches issues of parenting arrangements from the perspective of the children and their best interests. S. 37 (3) of the FLA dictates that an 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.

Her mental health is relevant to the extent it impacts her ability to exercise her parental responsibilities and may impact the children’s emotional, physical or psychological well-being. [ 56 ] The evidence discloses A.T. is experiencing some kind of disorder which causes her to suffer from paranoid and delusional thoughts. Tragically, these thoughts often involve A.C. and the children. She believes A.C. is hurting the children and acts on those mistaken beliefs.

When they first separated A.T. left town with the children and would not advise A.C. of the children’s whereabouts, despite suffering from a serious mental illness which makes it imperative for the children to be regularly observed by an alternate caregiver while they are in her care. A.T. has acted inappropriately with the children, such as forcing the five year old to wear a diaper, forcibly changing the children in public places like a washroom or vehicle, or having them sleep on surfaces such as a bed or couch during her parenting time.

There is some evidence she did not always feed the children properly while in her care. [ 57 ] Many parents suffering from mental health issues are nonetheless capable of safely exercising their parental responsibilities. Like any another health issue, such parents work can with their medical team to develop strategies to manage their condition so it does not adversely affect their children. Such parents may also enlist the help of support workers and family members to monitor and detect any changes to the parent’s mental health and to provide alternate caregiving as and when required.

These strategies require transparency and open communication on the part of the medically affected parent to ensure their health challenges do not negatively impact their children. Such an approach is reflected in MCFD’s last letter to A.T., which suggests their child protection concerns could be addressed by connecting social workers with her mental health team and her engagement with parenting support services. [ 58 ] A.T. has refused to discuss her medical situation with A.C. and MCFD or work with them to develop a safe parenting strategy.

As such, MCFD’s current position is that the children are not in need of protection so long as A.C. is their primary caregiver and A.T.’s access to the children is supervised. Any order I might make in this proceeding providing for unsupervised parenting time would put the children at risk of removal by the Director. [ 59 ] I share A.C.’s and the Director’s concerns about allowing A.T. to have unsupervised parenting time in these circumstances. Her mental health condition is unknown. Its features, including whether it can cause violent or self-harming thoughts, is unknown.

Its triggers and warning signs are unknown. The kinds of action A.T. might take while under its effects are not completely known. Previously A.T. has left the province, made court filings, and written delusional emails to A.C. in circumstances where she was experiencing a mental health crisis. It is not entirely clear if A.T. was also in such a crisis when she moved the children to [omitted for publication] and Victoria, pulled them from school, made false allegations of abuse by A.C., or repeatedly sought unnecessary medical care in the unfounded belief that A.C. was physically or sexually abusing them.

A.T.’s treatment regime is unknown. Where there is a real risk of harm to the safety and well-being of children, that risk must be identified, explored, and mitigated through the imposition of appropriate conditions on parenting arrangements. [ 60 ] For the reasons cited above I find it is not in the best interests of the children that A.T.’s parenting time be unsupervised. The risk of A.T. absconding with the children, neglecting their care or exposing them to harm is too high.

The children are too young to understand their mother’s illness and are not capable of distinguishing between things A.T. might say and do while healthy from things she might say and do while unwell. An adult supervisor is necessary to detect such potentially harmful interactions. An order for unsupervised parenting time would likely be practically ineffective in any event in light of the position taken by MCFD.

[ 61 ] This turns to the issue of who should supervise A.T.’s parenting time. A.C. has been doing so for the last couple of years but he no longer wants to do it. Any order I make for parenting arrangements must take into account 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. [ 62 ] It is onerous for A.C. and his father to act as supervisors several times a week.

A.T. makes A.C. feel unsafe and he does not want to be around her. She argues with him and yells if he intervenes during her visits with the children, even though that is his role as a supervisor. A.T. has a long history of falsely accusing A.C. of being physically abusive to her, physically abusive to the children, and sexually abusive to the children. She has made numerous false allegations to the court, MCFD and the RCMP about A.C. As a result, A.C. now must have a second person with him to act as a witness when he is supervising A.T.’s parenting time.

A.T. has also made false allegations to the police against his secondary supervisor, T.L.

In these circumstances it would be completely unreasonable to require A.C. or his family to supervise A.T.’s parenting time. [ 63 ] A.T.’s parenting time must continue to be supervised, however, there should be no requirement that A.C. or his family act as supervisors. [ 64 ] Given A.T.’s serious mental health issues it is not appropriate her parenting time be supervised by just any third party adult, who may be unaware of A.T.’s history and the particular risks associated with her access to the children. [ 65 ] I share A.C.’s view that A.T.’s mother, H.L., is also not an appropriate supervisor.

Historically she has prioritized her daughter’s desire to access the children over the children’s best interests. H.L. was not forthcoming when A.T. left Prince George with the children after separation. The week A.T. pulled the children out of school during her parenting time, the children were sleeping on a couch and a chair at H.L.’s house. H.L. did not report this to A.C. H.L. did not tell A.C. that A.T. had been committed to the psychiatric unit in 2017. Instead she attempted to conceal this fact by arranging to facilitate an exchange of the children for A.T.’s parenting time as if everything was normal.

On August 6, 2021, H.L. attempted to set up a visit between A.T. and the children despite, the day before, A.T. being in mental health crisis as demonstrated in the August 5 th email. I have concerns that if A.T. were to act in a harmful way during a supervised visit, H.L. would neither intervene nor report her observations. [ 66 ] A.T. has not offered any alternative supervisors for consideration. In all of the circumstances, I find it necessary that A.T.’s parenting time be supervised by a professional third party supervisor approved in writing in advance by A.C.

The cost of such supervisor shall be borne by A.T. A.C.’s approval is necessary to ensure any proposed supervisor is aware of the concerns giving rise to the need for supervision. Should A.T. or A.C. later identify an appropriate non-professional supervisor, such person may also perform this function with A.C.’s approval. [ 67 ] I accept there is a reasonable basis for A.C.’s concern that A.T. may try to inappropriately communicate with the children out of earshot of the supervisor.

During the Wal-Mart visit, A.T. tried to run ahead with the children out of sight of A.C. and T.L., and took C.C. to the washroom unannounced and without warning. It is appropriate for A.C. to be kept informed of the supervisor’s observations of the interactions between A.T. and the children, such that he can make inquiries if he believes the children had a negative visit.

The supervisor shall provide A.C. with a report as to their observations of A.T.’s exercise of parenting time upon request, however, if he requests such a report A.C. shall bear that cost. [ 68 ] Historically A.T.’s mental health has impeded her ability to safely care for the children and make sound decisions about their education, health and living arrangements. There is no information before the Court suggesting A.T.’s circumstances have now improved such that the past is unlikely to be repeated. It is therefore in the children’s best interests that A.C. exercise sole parental responsibilities.

While the progress of the children’s lives ought to be provided to A.T. as their mother and guardian, she should not be exercising any decision-making authority at this time. [ 69 ] Because A.T. is currently not willing to involve her mental health team in managing parenting arrangements, it is A.C. alone who is left to assess whether or not A.T.’s mental health is deteriorating and negatively impacting the children. It is therefore necessary that A.C. be permitted to end or prevent parenting time between A.T. and the children if he reasonably believes she is unwell and may pose a risk to them.

To ensure he is acting objectively reasonably in making such a decision, it is equally necessary that A.T. have the ability to have that decision reviewed by the Court. [ 70 ] Given A.T.’s parenting time will primarily be supervised by a professional, it is appropriate that any parenting time order be flexible with respect to dates and times to account for the availability of the supervisor.

However, as both A.C. and the children require some routine and certainty for the schedule, it is incumbent on A.T. to identify regular fixed days and times for exercising her supervised parenting time once she has made arrangements with a supervisor. Issue #3: S. 221 Order [ 71 ] A.C. has raised concerns about A.T. filing repeated applications in Court to which he must respond. Some have involved false allegations against him.

He seeks an order pursuant to s. 221 of the FLA preventing A.T. from filing for further relief without leave of the Court. [ 72 ] While A.T. has made a number of applications in this proceeding, they were not all trivial. Some sought to set aside parenting time orders made in her absence. A.C. did not file a written application seeking a s. 221 order and this was only raised orally at the end of this hearing.

A.T. was not given a meaningful opportunity to prepare and respond, so I decline to consider his oral application at this time. [ 73 ] That being said, it is appropriate that I remain seized of any future applications in an effort to reduce the number of court appearances and court time required for hearing such applications. In the future should A.T. file trivial or abusive applications, A.C. may file an application seeking a s. 221 Order. CONCLUSION

[ 74 ] I make the following final orders: 1. Upon the court being advised that the name and birth date of each child is as follows: C.C., born [omitted for publication]; and V.C., born [omitted for publication]. 2. The court is satisfied that A.C. and A.T. are the guardians of the children under s.39(1) of the Family Law Act . 3. Pursuant to s. 40(3)(

a) of the Family Law Act , A.C. will solely have all of the parental responsibilities for the children as set out in s. 41 of the Family Law Act, including:

a) Making day to day decisions affecting the children and having day to day care, control and supervision of the children;

b) Making decisions about where the children will reside;

c) Making decisions respecting with whom the children will live and associate;

d) Making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location;

e) Making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the children is/are an aboriginal children, the children's aboriginal identity;

f) Subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children;

g) Applying for a passport, licence, permit, benefit, privilege or other thing for the children;

h) Giving, refusing or withdrawing consent for the children, if consent is required;

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

j) Requesting and receiving from third parties health, education or other information respecting the children, except in relation to health care provided pursuant to s. 17 of the Infants Act;

k) Subject to any applicable provincial legislation: i. Starting, defending, compromising or settling any proceeding relating to the children; and ii. Identifying, advancing and protecting the children's legal and financial interests; and

l) Exercising any other responsibilities reasonably necessary to nurture the children's development. 4. A.C. shall advise A.T. of the following matters relating to the children on reasonable notice to A.T.:

a) Educational milestones;

b) Religious milestones;

c) Extra-curricular sports and activities in which the children are enrolled;

d) Health matters of a significant nature, including any chronic conditions, emergency room visits, or referral to a medical specialist or counsellor;

e) Awards and special recognitions; and

f) Behavioral or emotional matters of a significant nature reported by the children’s teachers or counsellors. 5. A.C. shall provide A.T. copies of the following documents relating to the children:

a) Report cards and progress reports;

b) School photos;

c) Reports of any medical professionals or counsellors made in respect of medical or behavioral / emotional matters of a significant nature for which A.C. is required to advise A.T.;

d) Copies of any awards, certificates or other documentary form of recognition; and

e) A.C. shall use his best efforts to provide A.T. with some photos from the children’s holiday events, including birthday parties, Halloween, Easter Egg Hunts and Christmas Day. 6. Nothing in this order requires A.C. to advise A.T. of his travel plans with the children; who the children associate or live with; his intimate relationships; non-emergency health matters involving the children; the children’s child care or transportation arrangements; or

any matters relating to A.C.’s day-to-day care and routine concerning the children. 7. A.T. shall have reasonable video or audio based parenting time with the children supervised in the discretion of A.C. Such parenting time may be supervised by any third party approved in advance in writing by A.C. If A.C. is reasonably of the view that such video or audio based parenting time is contrary to the children’s best interests, he may cancel further parenting time and A.T. is at liberty to apply for a review of that decision on four days’ notice to A.C. 8.

A.T.’s in-person parenting time shall be supervised by a professional supervisor approved in writing in advance by A.C. If A.C. refuses to approve a professional supervisor proposed by A.T. to supervise parenting time, A.T. may apply to the Court for a review of that decision on four days’ notice to A.C. 9. A.T. shall have supervised in person parenting time with the children as follows: a. Two weekdays during the week for up to two hours each day, ending no later than 7 pm.

A.T. shall advise A.C. in writing of the weekdays and times she wishes to exercise such supervised parenting time and those days and times shall be A.T.’s weekday parenting time unless it is changed by agreement between the parties or further court order; b. Three weekends of the month for up to four hours on each of Saturday and Sunday, ending no later than 7 pm each day.

A.T. shall advise A.C. in writing of which three weekends of the month and what times she wishes to exercise such supervised parenting time, and those weekends and times shall be A.T.’s weekend parenting time unless it is changed by agreement between the parties or further court order; c. For up to two hours on each of the children’s birthdays at a time agreed between the parties; and d. For up to four hours on either Christmas Eve or Christmas day at a time agreed between the parties. 10.

The parties may provide for additional supervised parenting time or change the dates and times of A.T.’s supervised parenting time by agreement in writing. 11. If A.C. is reasonably of the view that in-person supervised parenting time is contrary to the children’s best interests, he may cancel further parenting time and A.T. is at liberty to apply for a review of that decision on five days’ notice to A.C. 12. A.T. shall bear the cost of any professional fees relating to the exercise of her supervised parenting time with the children. 13.

A.C. is at liberty to request any professional supervising A.T.’s parenting time advise him of the substance of those visits. If there are any fees relating to the provision of such a report, A.C. shall bear the costs of those fees. 14. A.T.’s parenting time may also be supervised by any non-professional third party approved of in writing in advance by A.C. 15. A.C. shall have all other parenting time with the children. 16. The Court declines to hear A.C.’s oral application for an order under s. 221 of the FLA . He is at liberty to file a written application seeking such relief on notice to A.T. 17.

This order shall be reviewed in 6 months to assess parenting arrangements. 18. Judge Malfair is seized of further applications by either party. ____________________________ The Honourable Judge C. Malfair Province of British Columbia