Director v. M.; L.M.M. v. M.M., 2021 BCPC 326

Citation: Director v. M.; L.M.M. v. M.M. 2021 BCPC 326 Date: 20211110 File No: 26247 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: M. L. M. , born [omitted for publication] O. R. M. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L. M. M. PARENT AND: M. M. PARENT File No: 26454 Registry: Cranbrook AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L. M. M. APPLICANT AND: M. M.

RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Director: M. B. Fuchs Counsel for the Applicant: M. J. Prestwich Counsel for the Respondent: J. H. Harrison

Place of Hearing: Creston , B.C. Dates of Hearing: September 7-10, 13-16, 28-29, October 1, 4-5, 26-27, 29, 2021 Date of Judgment: November 10, 2021 Introduction [ 1 ] The two young children who are the subject of these court files are M.L.M., who was born on [omitted for publication] and O.R.M., who was born on [omitted for publication]. The Applicant L.M.M. is the mother of these children and the Respondent M. M. is their father.

They children were removed from their parents care by the Director of Child, Family and Community Service (the “Director”), an entity appointed by the provincial Minister of Children and Family Development for the purpose of performing duties set out in the Child, Family and Community Service Act (the “CFCSA”).

That removal occurred on April 3, 2019, and these children have been in the care of the Director ever since then. [ 2 ] At the time that the children were removed, their parents were separated, and a court order made under the Family Law Act (the “FLA”) set up a structure in which the parents were supposed to divide the parenting time with these children equally. While that may have been what was ordered, that was not what was actually happening.

The shared parenting structure might have seemed like a good idea at the time it was made, but today everyone acknowledges that shared parenting is no longer in the best interests of these children, if it ever was, because of the high level of conflict between the parents. [ 3 ] The reasons for removing the children were primarily because of the exposure of the children to domestic violence between the parties.

Each of the parents allege that the other was the primary cause of this, but the evidence is also clear that neither of the parents seemed very concerned about protecting the children from their rage against one another. A secondary reason for removal of the children was an allegation of inappropriate behaviour of a sexual nature involving the Respondent and one or both of the children. This has been investigated and has not led to criminal charges.

An independent examination of the children at the BC Suspected Child Abuse and Neglect Clinic (the “SCAN Clinic”) has rendered a diagnosis of suspected sexual abuse concerning M.L.M. and suspected physical abuse concerning both children. The Respondent has also admitted, both in statements made to social workers, and in his own evidence, to commanding the children to touch themselves vaginally, but he maintains that he did this for a hygienic purpose and not for the purpose of sexual gratification. [ 4 ] On June 13, 2019, the children were found to be in need of protection within the meaning of

Section 13 of the CFCSA. On August 20, 2019 the Director brought an application for a Continuing Custody Order (a “CCO”) under

section 49 of the CFCSA. In its application, the Director mistakenly marked a box seeking a CCO under section 49(10) (an order sought after there has previously been an order made under section 49(7) (

b) or (c). Such an order is colloquially known as a “last chance order.”) In this case there has been no “last chance order” ever made. However counsel agree that no one has been misled by this mistake.

It has been understood all along what kind of order that the director was seeking and everyone has prepared for the trial of this matter with the understanding that the director was seeking a CCO order under section 49(5) of the CFCSA. [ 5 ] The Director argues that there is no significant likelihood that the circumstances that led to the children's removal will improve within a reasonable time, and also that both of the parents are unable to meet the child's needs.

Counsel for the Director notes that the trial of this matter has been delayed because of the limits placed on trial resources due to the coronavirus pandemic and that, in spite of the extra time that this afforded the parents to avail themselves of the help required to remedy the problems that led to the removal of the children, nothing has really changed. Instead of doing so, counsel argues that the parents have instead chosen to blame the social workers for the removal of their children, rather than addressing their own harmful behaviours.

This, and the fact that there has been previous involvement with these parents by child protection authorities, here with these children, and in the removal of their older children in Alberta, leads the Director to conclude that there is no significant likelihood that things would change for the better if these children were returned to either parent. [ 6 ] Each of the parents’ counsel assert that things will change for the better if the children are returned solely to their clients. Each parent sees the other as the problem here.

Each has put forward a plan in which the children would be returned to that parent’s primary care, with the other parent to have limited and supervised contact with the children. In the case of the Applicant she offers the additional aspect to her plan that she would relocate the children to Surrey, BC where they could begin a new life. [ 7 ] The trial of this matter was held over the course of sixteen days of court time.

Fourteen witnesses testified at trial, including three MCFD social workers, two social worker from another agency, two foster parents, three counsellors, the children’s paternal grandfather, the paternal grandparents’ neighbour, and the parents themselves. At the conclusion of the trial, I noted (and it merits repeating now) that the quality of the advocacy of counsel in this matter was outstanding. All of the parties were very well represented by their lawyers throughout this matter. [ 8 ] Following is a

summary of the law that this Court must follow in deciding matters of this nature, an application of that law to the evidence in this case, and the reasons for making the order that will result from this hearing. Applicable Law 1. The Application for a CCO [ 9 ] The CFCSA is intended as a structure in which the people of British Columbia, through the actions of their government (specifically MCFD), offer protection for children who are in need of it. The Act begins, in

section 2, with a direction that it must be interpreted and administered so that the safety and well-being of children are the paramount considerations. It operates on these principles: (

a) Children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) A family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children

rests primarily with the parents; (

c) If, with available support services, a family can provide a safe and nurturing environment for a child, support services should beprovided; (

d) The child's views should be taken into account when decisions relating to a child are made; (

e) Kinship ties and a child's attachment to the extended family should be preserved if possible; (

f) The cultural identity of aboriginal children should be preserved; (

g) Decisions relating to children should be made and implemented in a timely manner. [10] In deciding issues regarding protection of children from such harm, the factors listed above are described as “paramountconsiderations. The British Columbia Court of Appeal, in D.R.H. v. Superintendent of Family and Child Services (1984) (BC CA), 58 BCLR 103, emphasized this at paragraph [11]: [11] The Act is intended to deal with children who are in need of protection.

While the inquiry provided for by the Act is to be conductedupon the basis that it is a judicial proceeding, unlike some judicial proceedings it is not an adversary proceeding and there is no lis beforethe court. It is an inquiry to determine whether a child is in need of protection and, as the statute directs, the safety and well-being of thechild are the paramount considerations. [11] This Court is required to make decisions concerning children with the best interests of those children in mind.

The phrase “bestinterests” of children will mean different things to different people, and in this case, all three parties were asking for different orders fromthis court, each asserting that the order they wished to have made was in the best interests of these children. Clearly all three of themcannot be correct in their assertion. The CFCSA directs that where there is a reference in this Act to the best interests of a child, thisCourt must consider all relevant factors, specifically including the following: (

a) The child's safety; (

b) The child's physical and emotional needs and level of development; (

c) The importance of continuity in the child's care; (

d) The quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) The child's cultural, racial, linguistic and religious heritage; (

f) The child's views; (

g) The effect on the child if there is delay in making a decision. [12] A CCO makes the Director a child’s guardian. Before such an order can be made, there must be a finding by the court that achild is in need of protection. The CFCSA says that a child is in need of protection in any of the following circumstances: (

a) If the child has been, or is likely to be, physically harmed by the child's parent; (

b) If the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

c) If the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child'sparent is unwilling or unable to protect the child; (

d) If the child has been, or is likely to be, physically harmed because of neglect by the child's parent; (

e) If the child is emotionally harmed by (

i) the parent's conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides; (

f) If the child is deprived of necessary health care; (

g) If the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide orconsent to treatment; (

h) If the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care; (

i) If the child is or has been absent from home in circumstances that endanger the child's safety or well-being; (

j) If the child's parent is dead and adequate provision has not been made for the child's care; (

k) If the child has been abandoned and adequate provision has not been made for the child's care; (

l) If the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume carewhen the agreement is no longer in force.

[ 13 ] In the case of physical harm to a child,

section 13 of the CFCSA goes on to direct that the likelihood of such harm increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides. Emotional harm is present where the child demonstrates severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour. [ 14 ] In the present case, these children were found by this Court to be in need of protection under an Order made by the Honourable Judge L. E. Doerksen made on June 13, 2019. At that time both parents were represented by counsel.

Judge Doerksen also ordered that the children were to remain in the care of the Director for a period of three months. In that Order, the Applicant was ordered to have access to the children at the discretion of the Director, which could be supervised at the Director’s option. No order was made for any access to the Respondent at that time. [ 15 ] When an order of this nature is made, a number of outcomes can follow.

If, in the time that the children are in the temporary care of the Director, the protection concerns are addressed and are no longer present, the matter can then be at an end and the Director can return the children to the parent or parents entitled to primary care of the child (still referred to in the CFCSA as “custody”). If the Director is of the view that the protection concerns remain, the Director has a number of options, including applying to extend the temporary custody order.

But if the Director is of the view that the protection concerns that brought the child or children into care are unlikely to be satisfactorily addressed, one of the options for the Director is to apply for a CCO, as was done in this case. [ 16 ] A CCO is an order that makes the Director the sole personal guardian of the child. Once such an order is made, the Director has the power to consent to the child’s adoption and the child’s previous guardians lose that status unless the order is cancelled. The rules for making a CCO are set out in

section 49 of the CFCSA. Under subsection (4), the Act requires that a court must order a child be placed in the continuing custody of the director if the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or if a parent is unable or unwilling to resume custody of the child.

This has no application to the present case because the identity of the parents in this case are known and they are each willing to care for these children (though the Director disputes their ability to do so.) [ 17 ] In this case the Director is making its application under subsection (5). That provision requires that this Court may order the children to be placed in the continuing custody of the director. Before doing so, the court must be satisfied that “there is no significant likelihood ” either that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs. [ 18 ] In a decision of this court, British Columbia (Child, Family and Community Service) v.

T.H. 2019 BCPC 101 , a case cited by counsel for the Applicant, the judge in that case wrote, at paragraph [107] as follows: Thus, the Legislature’s use, in 49 (6) [sic] of the CFCSA of the phrase ‘no reasonable likelihood’ conveys a requirement that the Director’s evidence persuade a court that the prospects for a timely improvement on the part of a parent… be so constrained as to make the parent’s case near to hopeless. [ 19 ] I agree with Director’s counsel that this was likely an erroneous misstatement of the law by the trial judge in that case.

Firstly, the phrase “no reasonable likelihood” does not appear in the subsection quoted, nor in

section 49 at all. The phrase “no significant likelihood” does appear in subsection (5), and the word “reasonable” is used in the context of the time in which the circumstances which led to the child’s removal are expected to occur. [ 20 ] Before making a continuing custody order under subsection (5), the CFCSA goes on to state, in subsection (6) that this Court must consider three things: 1. The past conduct of each parent toward any child who is in that parent’s care (not just the child or children who are the subject of the CCO application); 2.

The plan of care that is being put forward for future care of the child or children; and 3. The best interests of that child or children. [ 21 ] Once this Court has performed that exercise, it has a number of options: 1. It can grant the CCO. 2. It can make an order under subsection (7) (

a) returning the child or children to “the parent apparently entitled to custody”. 3. It can make an order under subsection (7) (

b) that the child or children remain in the temporary custody of someone other than the parent for a specified period of up to six months. 4. It can make an order under subsection (7) (

c) that the child or children be placed in the temporary custody of the Director for a specified period of up to six months. [ 22 ] The last two options are often called a “Last Chance Order” and if the Director believes that the protection concerns continue to exist, it can then apply for a CCO before that order expires.

When the Director applies for a CCO after a “Last Chance Order” the court is left with only two options: returning the children to their lawful guardian or granting the CCO. [ 23 ] A “last chance order” may be appropriate when a parent is making significant progress in addressing this issues which led to the removal, but has not yet arrived at a point where the court is of the view that the child can safely be returned to that parent’s permanent care yet. Typically these orders are appropriate where that parent is working with the Director to address the protection concerns. For

example, in British Columbia (Director of Family and Child Services) v. H.(A.) 2001 BCPC 270 , the Honourable Judge Pendleton of this court wrote (at paragraph [15]): Section 49 (7) contemplates a further temporary custody order where more time is needed for the Director and the natural parents to work together to resolve the child protection concerns so that the child might be returned to the parent. [ 24 ] Similarly, in Director v.

M.R.L. 2009 BCPC 65 , a decision that I wrote, a last chance order was found to be inappropriate where the parent had made little or no progress in addressing a drug problem which was at the root of the child protection concerns, where she was uncooperative in submitting to drug testing and where she continued to display animosity to social workers. [ 25 ] When the court is considering protection proceedings under the CFCSA, there is no “default outcome.” A court must consider all of the evidence presented, both by the Director and by the parents, and arrive at an outcome that is in the best interests of the children.

Neither the Director nor the parents are presumed to be right. This was explained by the BC Court of Appeal in B.B. v. British Columbia (Director of Child, Family and Community Services) 2005 BCCA 46 : [35] With that understanding of the disposition aspect of a protection proceeding, any discussion of onus or burden of proof is misplaced. This aspect of the proceeding should not begin with a general rule that a party will be unsuccessful unless he or she satisfies a specific burden of proof.

The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden of demonstrating the most appropriate care plan for a child. Once the Director has established on the balance of probabilities that a child is in need of protection and the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it to determine the appropriate care arrangement within the strictures imposed by the Act.

Until a continuing custody order is made, the duty to determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless they agree. No general rule should deflect the court’s attention from the necessary inquiry into the child’s needs and the parents’ ability to meet them, with such support as the community is able to provide. 2.

The Application under the FLA [ 26 ] In this case there are three applications before the Court: the application by the Director for a CCO, and the applications brought by each of the parents for an order that they be named as the primary guardian for these children.

The parents’ applications are important if the Director’s application for a CCO is unsuccessful, given that one of the alternative orders that this Court can make in response to that application is an order that the children be returned to the “parent apparently entitled to custody.” [ 27 ] The term “custody” in reference to children is an antiquated one. The term had been common in family law legislation in BC until 2013, when the FLA was came into force.

The FLA removed usage of the term “custody” in relation to children because it suggested that children were a possession, something to be owned or something to held prisoner, rather than vulnerable persons in need of care. Prisoners are held in custody. Authorities take custody of seized property. But children should not have custodians, they should have guardians, persons to guide them, to protect them, the care for them and to nurture them. Unfortunately when the FLA ceased usage of the term “custody” in respect of children, the CFCSA did not follow suit and still uses this archaic term.

It is a legislative reform that is long overdue. [ 28 ] Similarly, the FLA replaced the term “access” as it refers to children with “parenting time” in the case of a guardian, and “contact time” in the case of someone who is not a guardian.

The word “access” suggests a right to use something, while “parenting time” refers to an obligation to be a parent and to take on all of the responsibilities that come with parenthood during the time spent with the child. [ 29 ] On January 8, 2021, the Respondent applied for an order for “access” to the children in the CFCSA court file. (As with the word “custody”, the CFCSA still uses the word “access” instead of parenting time or contact time.) The application was dismissed by the Honourable Judge Doerksen of this Court, who said: A parent does not have rights. A child has rights.

A child has the right to food and shelter, to clothing, and education, to be safe from physical and emotional harm. It is the parent’s obligation, their duty and their responsibility to provide these things. [ 30 ] The Respondent took offence to Judge Doerksen’s suggestion that he had no “rights” as a parent. While it may be an overstatement to say that a parent has no rights, the sentiment expressed by Judge Doerksen is correct in my view. A parent’s rights are subservient to his or her responsibilities.

Parents who appear to be more concerned with their rights ahead of their responsibilities generally present an egocentric view rather than a child-centred view, something that is generally not in a child’s best interests. In that case, the Respondent would have been better to argue why the order he was requesting was in the best interests of the children rather than framing the application as a demand “for his rights.” Presented as such, Judge Doerksen had little choice but to dismiss the application. [ 31 ] This is because the FLA directs a court, in

section 37, that in making an order respecting guardianship, parenting arrangements or contact with a child, the court must consider the best interests of the child only. A court determines what is in a child’s best interests by considering 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. [ 32 ] The FLA directs 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. [ 33 ] While parental rights do exist (such as the right to contest an application for a CCO), these “rights” take a back seat to the best interests of children. As the late Justice Proudfoot of the BC Supreme Court wrote in British Columbia (Superintendent of Family and Child Service Act) v.

M. (B.) (1982) 32 BCLR 32 (at paragraphs [26] and [27] ): I think it is clear that the issue is not one of the parental rights but rather whether, after consideration of all of the evidence, the court is satisfied, on the balance of probabilities, that it would be in the best interests of the child, having regard for her safety and well-being, to make the order sought under the Family and Child Service Act. While I say the test to be applied is, on the balance of probabilities, as to what is in the best interests of the child, no such test exists when we deal with the element of risk of injury.

I am satisfied that a much lower test would be applicable when we are dealing with that aspect. [ 34 ] Applications for a CCO are often tried concurrently with applications under the FLA where there are such applications outstanding. The rationale for this was explained in the BC Court of Appeal decision of Re C.

(1984) BCLR 317, by Justice MacFarlane, who wrote (at paragraph [22]): Such a practice results in placing before the court…all matters affecting the safety, well-being and best interests of the child, and provides a broader and more flexible basis for deciding what order or orders ought to be made in the several proceedings before it. [ 35 ] In this case there is disagreement among counsel as to whether the FLA application in this case should be decided first or whether the CCO application should first be decided.

The case law does not support any one-size-fits-all answer to this question, other than that the question of what is in these children’s best interests should be considered globally. As a practical matter, however, the fact in this case lead to only one of the following outcomes: 1. The CCO should be granted because there is no significant likelihood that the circumstances which led to the removal of these children will improve within a reasonable time or that either parent will be able to meet the children’s needs. 2.

The CCO should not be granted because there is a significant likelihood that one of the parents will be able to meet the children’s needs and the circumstances which led to removal of the children will improve within a reasonable time. If this is the case, that parent should become the children’s primary caregiver and should either become the beneficiary of a last chance order or should have the children returned to him or her, either under supervision or unconditionally. 3.

The CCO should not be granted because there is a significant likelihood that both of the parents will be able to meet the children’s needs and the circumstances which led to the removal of the children will improve within a reasonable time.

If this is the case, then it will be appropriate to determine the appropriate order under the FLA and if a last chance order should be made or the children should be returned to one or both of the parents, either under supervision or unconditionally. [ 36 ] Although the paternal grandparents have looked after these children in the past, neither they, nor any other relative or qualified person has asked for an order placing the children in their temporary care.

In the circumstances of this case it is in the best interests of these children to first decide whether or not the Director’s application for a CCO should be granted. The Director’s Application [ 37 ] Before making a continuing custody order under subsection (5), the court must consider: (

a) the past conduct of the parent towards any child who is or was in the parent's care; (

b) the plan of care, and (

c) the child's best interests. Each of these will now be addressed in turn. (

a) The Past Conduct of the Parents 1. The Alberta Child Protection Proceedings [ 38 ] M.L.M. was born on [omitted for publication] and O.R.M. was born just over [omitted for publication] later on [omitted for publication]. Child protection authorities have been a part of their lives for almost all of their existence, and have been involved in the lives of their parents since before they were born. According to the records of Alberta Child and Family Services (ACFS), they first became involved with the Applicant in 1992, when she was a child herself.

This consisted of five investigations into child protection concerns before the Applicant was the recipient of supported independent living from that agency in October of 1997 when the Applicant was [omitted for publication]. In 1995 the Applicant complained to the Alberta authorities about being the victim of physical abuse while in her mother’s care. She was self-harming at the time and talked of suicide. She reported physical abuse by her father and a risk assessment completed at that time revealed ongoing physical conflict within the family home.

[ 39 ] The Applicant’s exposure to family violence continued, with the Applicant being physically assaulted by her step-father and later by a common law spouse. The records indicate that the Applicant gave birth to her oldest child, a son, in [omitted for publication], just before her [omitted for publication] birthday.

A referral to ACFS made on March 26, 1998 states that the Applicant’s “mental and emotional health was impeding her ability to provide adequate care for” her son, and this prevented her from providing that child “with the necessaries of life.” [ 40 ] On December 17, 1998 ACFS reports allege that the Applicant had threatened to kill her sister and her stepfather, and that she had used a knife in the process of making that threat. She was removed from her home and was admitted to the Adolescent Psychiatric Unit the next year, but discharged herself from that facility.

She left to move to somewhere in northern Alberta to live with a cousin, but returned home after being physically assaulted. The report indicates a shifting mood of highs and lows, and the report indicates that a police officer who was working with the Applicant was of the view that the Applicant’s behaviour was getting worse. In April of 1999 the Applicant was involved with another physical altercation with a boyfriend that she had been living with.

No charges were laid against her. [ 41 ] The ACFS report states that “From 1999 until 2014, L.M.M. was cited as an alleged maltreator to her children in the form of twenty (20) screenings, eleven (11) investigations and four

(4) Safety Phase Assessments.” The report includes concerns from 2010 about the Applicant “drinking heavily and using drugs and as a result neglecting her children.” By this time the Applicant had given birth to two other children, another son in [omitted for publication] and a daughter in [omitted for publication]. It is at this point in 2010 that the Respondent enters the picture.

The ACFS report states that the complaints of heavy alcohol and drug use were not substantiated, but that “there did appear to be a great deal of chaos in the home.” At the time the Applicant admitted to Alberta social workers that there had been ongoing domestic violence with her previous partner.

It was also alleged that the previous partner had sexually assaulted the Applicant. [ 42 ] The Applicant and the Respondent were married in the fall of 2010, on September 4 th of that year according to the Applicant, on the 10 th according to the Respondent. (In cross-examination, he later said that he had “messed up” and thinks it was the 4 th , not the 10 th ). They were married near Grand Prairie, Alberta. The Applicant described herself as a “hockey mom” during those years, but she does acknowledge that domestic violence was present in their life right from the start.

The Respondent testified about these years, but mainly about the variety of jobs that he had during this period of time. [ 43 ] Another report was made to ACFS in November of 2010 that the Respondent was constantly yelling at the children and that the Applicant’s daughter was literally tearing her hair out and eating it. The report claimed that the oldest child, who was then [omitted for publication], was caring for his younger siblings. The following year, in June of 2011, the Applicant was arrested for assaulting her former partner with a large metal pipe.

He was treated for his injuries in hospital and then fled because he was likely in breach of a court order to have no contact with the Applicant. [ 44 ] In February of 2012, police attended a domestic dispute between the Applicant and the Respondent. M.L.M. was then less than [omitted for publication] old, and according to the ACFS report, the couple argued over who was going to change the child’s diaper. According to the report, the Applicant told police that in the past she had threatened to hit the Respondent “with a frying pan and stab him”.

Another report of domestic violence was made in March of 2012, and another in December of that year. In 2012 it was also alleged that the Applicant had been physically abusive to her son. [ 45 ] Another report was made that originated in Peace River, Alberta in July of 2013 in which it was alleged that the Respondent threatened the Applicant while holding a tire iron and that this was done in the presence of the children.

It was alleged that in the course of this incident, the Respondent threatened to burn the vehicle that the Applicant and the children were in and also attempted to slash the vehicle’s tires. [ 46 ] The family moved from Peace River, Alberta to Hinton, Alberta in August of 2013 and the reports to ACFS continued. On September 9, 2013 the Respondent called ACFS to report that the Applicant’s son had allegedly assaulted his sister and that this had occurred two years previously. He also reported that there had been other sexual assaults by the oldest son.

The Respondent also reported that M.L.M., who was then just [omitted for publication] old, had been touching herself in a sexual manner. According to the report, the Applicant and Respondent took the children to the emergency ward for an examination. By this time the oldest son had moved out of the home and the ACFS report refers to a strange Facebook post from the Applicant to her oldest son. [ 47 ] In December of that year, three children, (including M.L.M. and O.R.M., who was then just over [omitted for publication) old) were left unattended in a locked vehicle in -6C weather.

They were left there for twenty-five minutes and the vehicle was not running. This led to further concerns by ACFS about the Applicant’s mental health. The report reads: Child Family Services has reason to believe that [L.M.M.] should not have children in her care. Multiple investigations have revealed that she has been unable or unwilling to provide the adequate remedial necessities and emotional support necessary for the wellbeing of the children in her home.

CFS feels that a psychological assessment is required this time to evaluate [L.M.M.’s] ability to adequately care for her children. [ 48 ] In the same report, the Respondent admitted to the ACFS worker “that he has an anger issue and that he has a short fuse and is willing to address his anger issues.” A family therapist that the Applicant was working with described the Applicant as appearing to have “extreme mental health issues and is struggling to meet the emotional needs of the children in her care.” The report writer expressed the opinion that the Applicant was difficult to work with because of her denial about the true state of affairs.

The report states that the family therapist described the Applicant as “living in a fantasy world” and as demonstrating “histrionic personality traits where she needs to have the attention on herself.” [ 49 ] By February of 2014, child protection proceedings for the children had commenced in Alberta. The children had been living with other family members. On March 11, 2014, a psychological report prepared by a Dr. Flaro, gave the following description of the Respondent:

From a psychological perspective there is some evidence of underlying mental health issues. Clearly, this man has major anger management, impulse control and mood disturbance issues. His results suggest the possibility of intermittent explosive disorder, bipolar disorder and narcissistic personality pathology. By his own admission, he has narcissistic tendencies which he attributes to his mother’s mental health issues and unavailability when he was a child.

Both his father’s alcoholism and his mother’s mental health problems would set the stage for serious attachment/relationship issues and associated personality development. It is important to note that the best coefficient of fit with profiles of known clinical groups was with spouse abusers. This would suggest that he shares the characteristics seen in this clinical group. Reported CFSA information would support the likelihood that there are issues in this area. [ 50 ] Dr.

Flaro did go on to note that the Respondent had acknowledged his anger management issues and had expressed a desire for his children not to be exposed to any more domestic violence. In his recommendations, Dr. Flaro reiterated the need for a psychiatric assessment of the Respondent to be completed and the reasons why that was necessary. He went on to conclude: Until Mr. [M.M.] has addressed his anger management issues and mental health problems it might be in the best interests of his children to be in the care of their relatives and family friends.

This might provide the parents with the time and space to learn more effective listening, communication and parenting skills, as well as anger management and improved marital relations. [ 51 ] Dr. Flaro also completed a psychological report concerning the Applicant.

In his report, he describes the Applicant as attempting “to present herself in an overly positive manner without any psychological or mental health issues” and added that the Applicant “was reluctant or unwilling to admit to minor faults and shortcomings that most individuals acknowledge readily.” He was skeptical of her denial of having any issues with anger. Dr. Flaro concluded that there were “concerns about her ability to parent children” and added that, in his clinical judgement, underlying mental health issues were present.

He made a number of recommendations including the following: Until Mrs. [L.M.M.] has addressed her mental and medical health issues, it is my clinical judgement that the children should remain in the care of her relatives and friends. Both Mr. and Mrs. [M.M. and L.M.M.] have a number of issues that need to be resolved prior to the children being returned home. This will provide a home environment where the children feel safe and protected rather than being fearful and scared. [ 52 ] M.L.M. and O.R.M. had been living with a paternal aunt and uncle, but this placement had broken down.

On August 1, 2014, ACFS obtained an Apprehension Order for the children from the Alberta Provincial Court. According to the ACFS report, the aunt and uncle reported that the Applicant and Respondent were using drugs. The parents resisted taking a drug test initially, but the report indicates that they ultimately agreed to do so. The same report states that both parents were attending weekly counselling sessions and appeared to be making some progress. On one visit the social worker noted some positive interaction between the Applicant and the children (M.L.M. and O.R.M.).

However the report goes on to state that after the Respondent completed the Domestic Violence Program, both parents showed minimal commitment to ongoing counselling. [ 53 ] On September 3, 2014, the Honourable Judge K. E. Tjosvold of the Alberta Provincial Court made an order which found that M.L.M. and O.R.M. “need intervention services, and that, to protect the children’s survival, security or development, the children cannot remain” in the care of their parents. The order went on to state that the children could be returned to their parents at some point in the future.

The court ordered that the children would be placed in the temporary care of the Alberta Director for three months.

The order went on to order both parents to attend a psychiatric assessment and follow its recommendations, to attend weekly individual therapy sessions and couples counselling, to meet weekly with a Family Preservation Worker, to submit to drug testing when required to do so by the director, to sign any consents required by the Director, and generally to work cooperatively with the Director. [ 54 ] A report written on September 15, 2014 states: [M.M.] and [L.M.M.’s] relationship is very complex with [L.M.M.’s] mental health/functioning level and [M.M.’s] manipulative, controlling and abusive behaviours.

These combination of factors need to be fully addressed before there is a possibility of this couple providing a safe and stable environment for children. [ 55 ] Tensions continued between the parents and ACFS. A report written by an ACFS social worker on November 24, 2014 describes the previous three months as having been “volatile”.

According to the report writer, the parents had said that they had ended their relationship, but as the social worker notes, “it is difficult to find out the truth until they are in a dispute and trying to discredit the other.” The report went on to display some optimism for the future because the parents were working in separate communities. The Applicant was living and working in Killam, Alberta and the Respondent was working in Fort McMurray.

The family therapist that the couple had been working with reported that the Applicant was beginning to show signs of “reporting more amicable and cooperative interactions with” the Respondent.

The same report describes the Respondent as still having “tendencies of negative coping mechanisms of manipulating, being controlling, dishonesty and verbally aggression (sic) to get his desired outcome.” At that point in time the report also noted that “[M.L.M.] and [O.R.M.] have been away from parental care for a long time” and it went on to recommend a three month extension of the temporary guardianship order. [ 56 ] Despite the recommendation in that report, on November 26, 2014, the Honourable Judge D. C.

Nordheim ordered that the children were to be supervised by ACFS “in their residence” for a further term of six months. The order was subject to fifteen terms and conditions. These included a variety on ongoing counselling, continued drug testing, and once again required the parents to attend for a psychiatric assessment and follow the recommendations of that assessment. The parents were ordered not to leave Alberta without the consent and approval of ACFS. [ 57 ] At this time the parents had also been seeing a psychologist with the Hinton Friendship Centre.

The parents had been referred to by ACFS initially in September of 2013, and again in December of 2013. The report indicates that they had attended weekly sessions and that the Respondent had completed an anger management group. The report also indicates that the couple had experienced an escalating level of violence in the summer of 2014 and that they had separated in October of that year.

The separation was not an amicable once and the report indicates that there was a lot of fighting in the process of separating their belongings. [ 58 ] This report indicates that this was a period of instability for the Applicant. She had gotten out of an abusive relationship, had been

injured in a car accident, and had four different jobs over a brief period of time.

The report writer was concerned about the Applicant’s inability to appreciate what her part was in the children’s removal, stating that she “continues to have challenges in recognizing how her actions historically and presently impact her children”, adding, “She has required external feedback to gain full understanding of these impacts.” [ 59 ] In the same report, the writer commented that the Respondent had completed a domestic violence program in the spring of 2014 and that he had started to work on “the underlying trauma connected to his anger” but that this had been interrupted when the Respondent decided to move to Creston to live with his parents.

The psychologist also expressed concern over the fact that the Respondent had a tendency to blame others rather than take responsibility himself. She wrote: “In session, Mr. [M.M.] often focused on others behaviour and needed to be redirected to focus on his own thoughts and feelings and to take responsibility. Mr. [M.M.] had a pattern of focusing on other people to make change, especially when his needs were not met.” She went on to note that the Respondent believed that his own harmful patterns had ended because he was no longer living with the Applicant.

She concluded: In order for Mr. [M.M.] to live a violence free life he needs these dynamics to be addressed and further understand them. It is strongly recommended that Mr. [M.M.] continues to receive therapy services locally in Creston, BC to sort out these dynamics. Also, recently Mr. [M.M.] suggested that Mrs. [L.M.M.] would agree to move in with his parents and he would find alternative residence. Mr. [M.M.] needs to think through the best stable arrangements for work and living.

Given the highly conflictual relationship Mr. and Mrs. [M.M.] have had with his family, this decision needs to be thoroughly considered. [ 60 ] In an affidavit sworn on April 2, 2019, the Applicant states that sometime in 2015 she was hospitalized after being the victim of a very brutal sexual assault by the Respondent and one of his friends. She testified that she did not report what had happened to the doctors or to the police because of her fear of the Respondent and because of embarrassment. The Respondent denies that this occurred and calls the accusation a fabrication.

In his evidence he admits that he and his friend did have sex with the Applicant on one occasion, stating “we got drunk in Peace River and had a threesome.” [ 61 ] On October 28, 2015, the Honourable Judge J. P. Higgerty of the Alberta Provincial Court made an order appointing the Alberta Director as permanent guardian of two of the Applicant’s older children. Her oldest child was now [omitted for publication] of age and he was not one of the children named in this order. 2. The First Removal in BC [ 62 ] This family moved from Alberta to Creston sometime in late 2014.

It is unclear whether or not the move was approved of by ACFS as required in Judge Nordheim’s order, but according to a Presentation Report filed in 2015, the ACFS office in Hinton, Alberta did notify the Director’s office in Creston. Social worker Corinne Thompson testified that the psychiatric assessment of the parties ordered twice by the Alberta Provincial Court was never done, but that after the family moved to British Columbia, the ACFS decided not to take any further action. [ 63 ] The parties soon continued to attract the attention of police and of MCFD.

On June 13, 2015, members of the Creston detachment of the RCMP attended to a complaint by a neighbour about a heated argument between the Applicant and the Respondent in the presence of the children.

The Applicant and the children were living in a trailer at the time and the Respondent said, “We argued because it was too hot in the trailer for the girls.” A police report describes the Applicant as uninjured and also as agitated, anxious and as avoiding directly answering questions put to her by the police officer. [ 64 ] At that time the Respondent was arrested and charged with uttering a threat to the Applicant. According to this Presentation Report, the Applicant took the children and went to Vancouver. According to Social Worker Thompson, the Applicant lived in a transition home with the children.

The Respondent testified that the Applicant didn’t tell him where she was going. [ 65 ] The Applicant was back by Creston in October and once again allegations of domestic violence arose. On October 5, the Applicant was arrested and charged with assaulting the Respondent. She denied doing so and claimed that it was the Respondent who had assaulted her, but when she was questioned by police, she was unable to provide details of how she had been assaulted. This incident took place at the home of the Respondent’s aunt, where the couple had been residing together in a trailer on her property.

According to the aunt, the Respondent was inside the house having breakfast with the children, and the Applicant came into the house and began to argue with the Respondent. The aunt told police that when she told the Applicant that she was not setting a good example for the children, the Applicant struck the aunt. The Respondent tried to get the Applicant to leave the house and she responded by grabbing him in his groin. The Respondent testified that when she did this, he punched her. The argument escalated and the Respondent told police that he threw a rock at the Applicant’s car.

After that incident the children remained in the Respondent’s care. For reasons that are unclear, the charge against the Applicant did not proceed. [ 66 ] On October 9, 2015, the Respondent first saw Mike Adsett, a Mental Health and Substance Abuse clinician in Cranbrook. The Respondent was seen on an urgent walk-in basis, complaining of severe panic and intolerable stress. He attended again the following day, this time in a better condition. The Respondent began attending a therapy group called Changeways, designed to address anxiety, depression and stress management.

He attended two out of eight sessions with this group. [ 67 ] MCFD received a report on December 7, 2015 that the Respondent had used excessive discipline on the children. The complaint was investigated by Constable Salant of the Creston detachment of the RCMP and by Social Worker Corinne Thompson. The Respondent refused to allow Ms. Thompson to interview the children but did agree to have the children examined by a physician. The emergency room was very busy and the children could not be seen by a physician. At that time the Respondent told Ms.

Thompson that he had plans to work in Peace River, Alberta and that the Applicant would be looking after the children there. [ 68 ] Social Worker Thompson had a number of concerns about these developments. The Respondent had acted in an agitated fashion at the hospital, making phone calls in which he complained loudly about his displeasure with MCFD. Ms.

Thompson discussed alternative plans for caregivers for the children, other than the Applicant, but the Respondent rejected each of these, stating that his aunt and his mother were conspiring against him to have the children removed from his care and that his father was not able to look after the children because he was away at work. The Respondent was adamant that he was going ahead with his plans to reconcile with the

Applicant and have her look after the children when he was at work. [ 69 ] Social Worker Thompson was concerned about the risk to the children if the parties reconciled, given their extensive previous history of domestic violence in the presence of the children.

She states in her Presentation Report, “As there were no alternate measures available to adequately protect the children, the Director formally removed [omitted for publication] O.R.M. and [omitted for publication] M.L.M. from the care of Mr. [M.M.] in order to prevent the likelihood of further harm occurring.” The decision apparently had the concurrence of the investigating officer, Constable Salant. According to a police report, he suggested that Ms. Thompson remove the children while they were at the hospital.

She spoke to her supervisor and there was unanimous agreement on this course of action. [ 70 ] The children were placed in the foster home of C.V.R. and on December 9, 2015, the children were able to be medically examined. A police report authored by Constable Taylor contains this entry: MCFD Cori Thompson advised during the assessment, medical staff located cream in [M.L.M.’s] vagina which [M.L.M.] stated her dad put there as she was scratched by a cat.

Cori Thompson also stated [M.L.M.] stated “yes” when asked if her dad put his mouth and penis on it. [ 71 ] This entry was elaborated on in the Presentation Report. Social Worker Thompson indicates in the report that this disclosure was actually made to the attending physician. In her report she writes: The children were seen by a pediatrician, who reported that [omitted for publication] [M.L.M.] disclosed to her that her father has touched her in the private area several times and that she told him to stop in the past.

Specifically, the pediatrician wrote in her letter to the Director that [M.L.M.] “when asked whether asked whether or not he has put his mouth or private area there, she said yes he has placed these things on her private areas. She appeared remorseful when asked about these questions but it was difficult to get further history. An examination of the genital area showed some application of white cream in the introitus but no discharge was seen and there was no obvious bruising around the vaginal area and anus.

There was no discharge seen on her underwear either.” The Director notes that these comments made by [M.L.M.] are concerning and an investigation is currently under way. [ 72 ] M.L.M. was interviewed by Constable Fitzpatrick of the RCMP on December 17, 2015. In the interview M.L.M. did not disclose any inappropriate sexual touching or sexual abuse. She did tell the officer that the Respondent would spank her, using a spoon. [ 73 ] Ms. C.V.R., an experienced foster parent, recalls that when the children came into her care, they were very nervous and clung very closely to one another. O.R.M. was still in diapers.

The children experienced a lot of nightmares, especially O.R.M. They complained to their foster parent that they were afraid of the Respondent. M.L.M. had a very swollen vagina. It was red and she complained of pain there. The foster parent was also concerned because she was observing sexualized behaviour between the two children. She tried to gently correct the children by talking to them and explaining the purpose of their private parts, attempting to do so without making the children feel ashamed.

O.R.M. told the foster parent that the Respondent had “licked her bum” and when the foster parent asked O.R.M. where her bum was, she pointed to her vagina. [ 74 ] On January 20, 2016, the Honourable Judge R. J. Webb of this court made an order placing these children in the interim custody of the Director pursuant to section 35 (2) (

a) of the CFCSA. The order allowed the Applicant reasonable access to the children, to be supervised at the discretion of the Director. [ 75 ] Social Worker Thompson testified that in February of 2016, she received a visit from the Respondent. She said that he apologized to her for lying to her and he told her that he had been living with the Applicant and that they were trying to reconcile by working with a marriage counsellor through a church that they were attending. That had not gone well and there had been another incident of domestic violence. According to Ms.

Thompson, the Applicant showed her some bruises that she had received in the course of that incident. [ 76 ] It was at about the same time that the Respondent once again sought help from Mr. Adsett. According to Mr. Adsett, the Respondent saw him again on February 23, 2016 when the Respondent sought help from the stress associated with the MCFD involvement. He told his counsellor that he had made a decision to separate from the Applicant. He saw Mr.

Adsett on two more occasions, on March 9 and April 13, but failed to show up for a scheduled appointment in May of 2016. [ 77 ] On February 24, 2016, the M.L.M. was examined at the Suspected Child Abuse and Neglect Clinic (the SCAN CLINIC) in Kamloops, BC. At that time a report written by Dr. Denise Chapple concluded with the following clinical impressions: [M.L.M.] is a [omitted for publication] who was apprehended by MCFD for concerns regarding inappropriate physical discipline by the biological father, [M.M.].

Since being in foster care, [M.L.M.] has disclosed some inappropriate sexual touching by the biological father. However, when she underwent a forensic interview, no disclosures were made. Her physical exam today is normal. A normal physical examination does not rule out or support allegations of sexual abuse as 95% of children who have been sexually abused will have completely normal physical examinations. [ 78 ] The foster parent was unimpressed at how the SCAN Clinic had set up the exam, doing so without any play therapy or interview.

The foster parent also noted how, at the time, M.L.M. said that she had secrets that she could not tell. When the foster parent suggested that it was not healthy to keep secrets, M.L.M. remained secretive and when O.R.M. would start to talk about things, M.L.M. would tell her to “shut up” and would threaten to hit her little sister. The girls fought a lot and the foster parent would make them have time-outs. [ 79 ] Ms. C.V.R. disclosed a troubling incident concerning the Respondent. On a visit with the Respondent, he had taken the children to the bathroom.

On the ride home from the visit, M.L.M. reported to the foster mother that the Respondent had told her to say that the foster mother was hitting them. Following that incident she had lost all trust in the Respondent and believed him to be capable of all manner of deceit. In his evidence, the Respondent denied telling M.L.M. to say this, but it is difficult to believe either that the foster parent would make this up, or that the child would concoct this from her own imagination. [ 80 ] On February 19, 2016, the Director brought an application for a three month temporary custody order of these children. On

March 1, 2016, the Applicant filed an Application commencing these FLA proceedings. She was asking for an order for sole guardianship of the children and for child support from the Respondent. Also on March 1, 2016, the Honourable Judge W. G. Sheard of this Court made an order for the CFCSA matter and the FLA matter to be heard together. On April 15, 2016, the Respondent filed a Reply in the FLA proceedings in which he opposed the Application and made his own application for an order that he have guardianship of the children and allocation of all parental responsibilities for them. [ 81 ] On June 6, 2016, Judge Webb made an order finding the children to be in need of protection pursuant to

section 40 of the CFCSA. A contested protection hearing was held to determine the appropriate order to be made as a result of that finding. On the same date the Applicant and the Respondent entered into a Consent Order in the FLA proceedings. In that order they agreed to be joint guardians for the children and to share parenting time with the children equally. Each was to have the children in their care on alternating weeks with the exchange of the children taking place every Friday at 5:30 p.m. at the Dairy Queen in Creston.

It was also a term of the order that neither of them would relocate the children outside of Creston without the agreement of the other, or unless allowed by a court order. A final term of the order stated that the parties agreed “to make their best efforts to arrive at any parenting decisions regarding the children in a joint fashion” with the assistance of any “agreed upon third parties to do so if necessary.” [ 82 ] A second consent order was made on June 6, 2016, this one being a mutual Protection Order under section 183 (3) (

b) of the FLA. It ordered both the Applicant and the Respondent not to communicate with one another, “other than in writing, including text messages and emails, and as may be reasonably necessary to facilitate the pick-up and drop-off of the children” or in “emergency situations.” [ 83 ] The Applicant testified that she consented to these orders because she saw this arrangement as preferable to the children being in care, even though she knew what the Respondent was like. [ 84 ] These consent orders seemed to give Judge Webb some hope that the parties had turned the corner in their past history of acrimony.

On June 8, 2016, after hearing the evidence at the protection hearing, he refused the Director’s application for a Temporary Custody Order, expressing scepticism in his Reasons for Judgement about what might be accomplished in that short a time. He also stated that he did not know why “very few resources have been provided while the children have been in care”.

He felt that the family could be provided with resources regardless of whether the children were in foster care or at home with each of the parents. [ 85 ] It is often said that hindsight is 20/20, and unfortunately Judge Webb’s crystal ball was not functioning properly when he said “I do not share the Ministry’s concerns that it will automatically be a situation of conflict or that [the parties] will be incapable of dealing with the conflict.” He saw hope in the fact that the parties had arrived at a consent order, that they were not living together, and that there was a mutual protection order in place.

But he also left both parties with the following stern warning: [7] I have told the parents through the course of this matter that I would anticipate that if they are together with the children and that the children are exposed to any violence, I am virtually certain that there will be an application for a Continuing Custody Order by the Ministry.

You would have to be incredibly stupid and not paying attention to think otherwise. [8] You should not be critical of yourselves individually, but you need to be wondering about yourselves collectively and troubled by the number of times that the children have been exposed to violence, have been exposed to police, have been dragged into court. It must be frustrating for you, but to a large degree I am not here to care about you. I am here to care about the children. Most children never have police in their home. This has happened too many times with these two young children. It simply cannot happen again.

I cannot tell you more clearly that if it does, you should expect that you will lose the children. And I would expect that the Ministry will remind whoever it is if there is another court date, another hearing, of my comments today. I cannot make it any more clear. [ 86 ] Counsel for the Ministry has indeed met Judge Webb’s expectations and reminded me of his comments to both of the parents at that time. Later on, as if to highlight his point, Judge Webb once again told the Applicant and the Respondent (at paragraph [13]): We can only hit you over the head so many times.

If you do not catch on, you are going to lose the children. This is as clear as I can make it. [ 87 ] Judge Webb went on to make a six month Supervision Order pursuant to section 41 (1) (

a) of the CFCSA. The children were returned to their parents, with parenting time to be shared according to the FLA Order. The Supervision Order had seven terms which required them to attend a Family Group Conference if scheduled and to follow up with any reasonable recommendations arising from that conference. There were specific types of counselling that they were required to attend, the Applicant was to follow up with the Director’s concerns regarding her mental health issues, and both were to allow the Director access to their homes and to their children, without notice.

They were to “ensure that there be no threats of violence or threats of violence as regards each other and as regards any partner either of them may be involved with”. The order concluded with a term that the Director was empowered to remove the children in the event of a breach of this order. [ 88 ] In the course of their testimony, the parties seemed to have the impression that Judge Webb’s order (or as the Respondent kept referring to it, “Webb’s order”) wiped the slate clean for them and that anything that had happened up to that point was no longer relevant.

On a review of Judge Webb’s reasons for judgement, this was clearly not the case. It might be said that Judge Webb was making a different type of “last chance order.” 3. The Period In Between Removals [ 89 ] Counsel have submitted that, while the mutual protection order was in place, it was a time of peace and calm between the parties. Corinne Thompson testified that while this order was in force, from June 8, 2016 to December 8, 2016, both parents worked with a family support worker. Ms.

Thompson credits the Respondent’s mother [omitted for publication] with being an outstanding support for the parents during this time. The parents were encouraged to mind their own business and not be concerned about what was going on in the other’s home. There were no reports of violence and after the Supervision Order expired, Ms. Thompson closed her file. In her words, “I was satisfied at how the parents were doing.

[ 90 ] It appears that for much of the Respondent’s parenting time, the children were actually being looked after by his parents. A neighbour of the parental grandparents testified that the Respondent would be home “infrequently”. The paternal grandfather testified that during this period the children were in their care “70% of the time,” adding “this was in 2016 to 2017.” [ 91 ] The Applicant says that the arrangement set out in Judge Webb’s FLA order broke down in December of 2016. She testified, “We didn’t co-parent very well.

If we disagreed, we fought.” The Respondent agreed, and testified that he blamed this on the Applicant’s relationship with a man named R. He says that she complained to him about frequent arguments that she had with R. [ 92 ] In June of 2017 the mutual Protection 0rder also expired. A week before that order ended, the Applicant filed a Notice of Motion seeking an order preventing the Respondent from removing the children from Creston.

The motion was made returnable for June 8 th , the anniversary date of the making of the Protection Order, but the record of proceedings shows that the motion was struck off the court list. [ 93 ] The Applicant agrees that at about this time, she had someone in her life named R., who the Respondent describes as the Applicant’s boyfriend. The Applicant’s relationship with R. began sometime in the summer of 2016. The Applicant acknowledged in cross-examination that she was “very much in love with R.” but says that the Respondent went out of his way to sabotage that relationship.

On November 10, 2017, the Respondent called the Creston RCMP to allege that R. had tried to kill the Applicant and the children. He based this claim on a text message that he says he had received from the Applicant. That text message was never produced in evidence. Constable Welford of the Creston Detachment made a wellness check on the Applicant and found that she and the children were safe. When Constable Welford asked the Respondent to show him the text message, the Respondent said that he was unable to find it.

Constable Welford warned the Respondent about making false claims to police and how he could be prosecuted for committing the offence of Public Mischief under

section 140 of the Criminal Code . [ 94 ] Social Worker Thompson testified that at this time she understood that the Applicant had been living with R. since March of 2016. She said that on November 11, 2017, she had received a complaint from the Respondent, who was telling her that the Applicant was living out of her car. He also told her about the supposed threat made by R. When Ms. Thompson met with the Applicant to get her side of the story, she found that the Applicant was living at R.’s home. The Applicant complained that the Respondent was constantly threatening to bring court proceedings against her.

She said that the children were being quizzed by the Respondent about whether the Applicant was “making loud noises” which Social Worker Thopson took to mean that the Respondent was trying to find out from the children if the Applicant was having sex with R. At that time the Applicant told Ms. Thompson that she was afraid of the Respondent, who was harassing her, and that this in turn was putting a strain on her relationship with R. [ 95 ] According to Ms. Thompson, she was told by the Applicant that she had ended her relationship with R. in December of 2017.

At that time the Respondent was living in Fort McMurray, Alberta, and at his suggestion, the Applicant had agreed to move herself and the children there. She did not comply with the requirement in Judge Webb’s order of telling MCFD that she was doing so. Her time in Fort McMurray did not last very long however. She and the Respondent had an argument and a physical altercation in the home the Applicant was renting, in the presence of the children. Both blame the other for what happened.

Neither testified about taking any measures to prevent the children from witnessing their conflict. [ 96 ] According to the Applicant’s version of events, the Respondent had come to the home she was living in and said he wanted to work on their relationship. When she told him she was not interested in doing so, she says that he became very angry and grabbed M.L.M. by the hair and pushed the child down some stairs. The Respondent tells a different story.

He says that he came to her home to drop off some Christmas presents and that he looked at her phone, without her permission and discovered that she had been text messaging with R. He says that he became upset with her over this. He said that the next day he came to her residence uninvited and let himself in with a key that he had. He said that when the Applicant told him to leave he did so. He says he “may have pulled” M.L.M.’s hair as he was trying to get by her and says that the pushed the child out of the way as he was trying to get to the door.

This incident demonstrates a recurring problem in this litigation in that there are obvious credibility problems with these parents. One or both of them have not been honest with this court in giving their evidence about what happened on a number of occasions, including this one. [ 97 ] By this point in time both parents had been educated about the negative effect that their domestic violence was having on their children. Both had been lectured by Judge Webb about the consequences of such action. None of that seemed to matter.

Both lacked any impulse control to stop what they were doing, or to even suggest that they not argue in front of the children. Police were called as a result of this incident, but no charges were laid. [ 98 ] The Applicant left Fort McMurray after this incident. She took the children to Vancouver. She did not apply for any change to Judge Webb’s FLA order, but she did let Ms. Thompson know what she had done, saying that she was doing this for safety reasons.

Social worker Thompson testified that she was unsure how this affected the parties’ shared parenting arrangement because the Respondent was working in Fort McMurray and the Applicant was somewhere in Vancouver. The Respondent called Ms. Thompson but she was unsure how much information she could safely give to the Respondent. [ 99 ] The Applicant testified that she took matters into her own hands and ignored the court order because she felt that this was best for her safety and for the safety of the children. She had a support network in Vancouver.

She also justified her actions on a text message she had received from the Respondent. The message was produced in evidence, though it is undated and none of the accompanying messages were produced to put the message into context. The only portion of the text conversation produced in evidence is the following message from the Respondent which reads as follows: The teacher has pointed out [M.L.M.] being tired. My parents have herd (sic) [M.L.M.] break down about [R.] slapping their mom. I have too. Its (sic) sad and it hurts me. And it hurts them. I love my children and I am concerned about you.

If you don’t want to live in Fort McMurray where I can help with the girls, live in Kelowna or Cranbrook or any place you want but don’t live where the kids see fighting. [ 100 ] The Respondent testified that he did not recall sending this message, but believes that it is his message. In cross-examination he said that he does not believe that this message was sent anytime close to December of 2017. He thinks it was sent sometime when the Applicant was with R.

[ 101 ] It is clear in any event that Judge Webb’s FLA order was not being followed in the period after the incident at Fort McMurray and that the Applicant was denying the Respondent his parenting time. For a couple with the past history of conflict that these two had, this was not a good situation for the children. On February 19, 2018, the Respondent applied for an ex parte order asking for the return of the children and for enforcement of Judge Webb’s order. On February 21, 2018, Judge Doerksen made an order under

section 231 of the FLA for police enforcement of the Respondent’s parenting time. The order required the Applicant to return the children to Creston “immediately.” The Respondent then notified the local RCMP detachment that he had a police enforceable order under the FLA. [ 102 ] The Applicant admits that at this time the Respondent did not know where she was. She became upset when she learned that the Respondent was using various social media websites to attempt to locate her, portraying what she had done as child abduction.

By her own admission the Applicant did not take any steps to change Judge Doerksen’s order, though she says that she was looking for a lawyer through legal aid.

In cross-examination, counsel pointed out that the Applicant had previously filed applications in court without the aid of counsel, and the Applicant was unable to explain why she did not do so after she left Fort McMurray and moved the children to the lower mainland. [ 103 ] Police reports filed as an exhibit in these proceedings describe efforts made by a number of police forces to locate the Applicant and the children, including the Creston, Cranbrook and Chilliwack detachments of the RCMP as well as the Vancouver Police Department.

The Applicant had spoken with a Vancouver Police Officer, but refused to tell the officer where the children were. Police checks concluded that the children were not enrolled in school at the time. [ 104 ] On February 28, 2018 the Applicant applied for an order setting aside Judge Doerksen’s order. On the same day Judge Doerksen granted a consent order deleting the requirement for the parties to notify the Director of their intention to relocate the residence of the children and extending the time for the Applicant to return to Creston, requiring that she do so within the next two weeks. The order also set out a

schedule for parenting time up to March 17 th . [ 105 ] On March 1, 2018, the Applicant attended the RCMP Detachment in Cranbrook, complaining that the Respondent had placed false notices on a number of social media websites, accusing her of child abduction and requesting help from members of the public in locating the children. Given past events, the police did not view this as a criminal matter, and recommended that the Applicant speak to her family lawyer about this.

This action was also notable because the Applicant had testified that she was generally afraid to go to police [ 106 ] The next allegation of domestic violence occurred two days later on March 3, 2018 at an exchange of the children that took place at the home of the paternal grandparents. The Respondent was not present at the time but his mother was.

According to what the paternal grandmother told police, an argument ensued between the Applicant and her, and she told police that she had chastised the Applicant for dropping the children off at her home instead of at the local Dairy Queen, where the Respondent was waiting. The grandmother complained that the Applicant grabbed her by the throat and attempted to strangle her. She also told police that the Applicant was intoxicated. Police investigated the matter and did not see any signs of injury on the paternal grandmother, nor any signs of intoxication on the part of the Applicant.

The police report does describe the grandmother as “distraught.” Two police officers monitored the exchange of the children from the Applicant to the Respondent, which took place at the Dairy Queen. [ 107 ] When the police asked the Applicant about the incident, she agreed that there had been an assault, but claimed that it was the grandmother who had assaulted her, not the other way around. What is clear from these conflicting reports is that some sort of violence occurred at the exchange, because both the Applicant and the grandmother say that an assault occurred.

The Respondent was not present when that violence occurred. It is also clear that the children were present and that neither of the two adults expressed any concern or restraint. The police report of this incident concludes with this statement: Constable Burggraaf reiterated that [L.M.M.] was not welcome at the [grandparents’] residence and further drop-offs and pickups would be done in a public space. [ 108 ] The petty behaviour between the parties continued, and both seemed oblivious to what Judge Webb had told them.

On March 17, 2018 the Applicant complained to police that the Respondent had forgotten to bring the children’s medication to the exchange. She also complained that at the exchange the Respondent had taken a photograph of her license plate. It is unclear why this was a police matter and especially troubling because police were dealing with a priority one call at the time. It is a further example of two bickering parents refusing to act like adults. [ 109 ] On April 19, 2018, the Director became involved with this family once again, and not surprisingly it was another allegation of family violence.

Ignoring Constable Burggraaf’s previous direction, the Applicant went to the home of the grandparents where the Respondent and the children were present. She claimed that the Respondent had invited her there in a text message, but she was unable to produce that message. According to the police report, the Respondent complained that the Applicant was screaming and yelling that she wanted the children. He told police that when he tried to call 911, the Applicant attacked him and took his phone away from him. Both the Respondent and his father also complained that the Applicant attached the p

[…]