C.D.B.D. v. J.J.D., 2020 BCPC 228

Citation: C.D.B.D. v. J.J.D. 2020 BCPC 228 Date: 20201123 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.D.B.D. APPLICANT AND: J.J.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on their own behalf: C.B.D. Counsel for the Respondent: N. Bauder Place of Hearing: Prince George , B.C. Date of Hearing: November 4, 2020 Date of Judgment: November 23, 2020

Introduction [ 1 ] C.D.B.D. and J.D. are before the Court with reciprocating interim applications with respect to parenting arrangements for their three children: K.B.D., age 6, S.A.B.D., age 8, and N.S.B.D., age 11. After a 15-year discordant relationship, C.D.B.D. and J.J.D. separated. Each blames the other for the marital breakdown. J.J.D. claims that in December 2019, C.D.B.D. began plotting to move out of the family residence in [omitted for publication] and end their marriage. He says C.D.B.D.’s machinations began after she had an extra-marital affair in early December 2019, while in Prince George.

C.D.B.D. claims J.J.D. ousted her from their family residence in May 2020, while she was in Prince George caring for her dying father. On May 27, 2020, and again on May 28, 2020, J.J.D. engaged the [omitted for publication] RCMP to remove C.D.B.D. from the family residence, which he claims as his property. Shortly thereafter, C.D.B.D. returned to Prince George with K.B.D. S.A.B.D. and N.S.B.D. remained in [omitted for publication] with J.J.D. [ 2 ] C.D.B.D. has since entered into a new intimate relationship with a man on parole for manslaughter of his common law spouse.

C.D.B.D. seeks to retain primary care of K.B.D. in Prince George and have parenting time with N.S.B.D. and have parenting time with N.S.B.D. J.J.D. asks that all three children’s primary residence be with him in [omitted for publication] and seeks an order prohibiting C.D.B.D. from exercising parenting time in the presence of her new partner. Issue: [ 3 ] This Court is asked to determine interim parenting arrangements for N.S.B.D., S.A.B.D. and K.B.D., which raises issues of guardianship, parental responsibilities, primary residence, parenting time, parental conduct, and child support.

In addition, C.D.B.D. seeks a protection order against J.J.D. and access to the family residence. [ 4 ] This matter came before me for a one-day hearing on November 4, 2020. C.D.B.D. appeared in person and self-represented. J.J.D. and his legal counsel, Mr. N. Bauder, appeared by telephone from [omitted for publication], BC. Collectively, C.D.B.D. and J.J.D. provided five affidavits in these proceedings. None of the affiants was cross-examined on the affidavits.

In fact, C.D.B.D. only received J.J.D.’s latest affidavit filed November 3, 2020, the day of the hearing. [ 5 ] Credibility is very much in issue as the parties have diametrically opposing views on most significant events. Mr. Bauder informs the Court that Registry staff advised the parties that because this was a family law proceeding in the time of COVID-19, neither counsel nor the parties should appear in person. Unfortunately, this information was incorrect as trials and lengthy hearings are to proceed in person. As C.D.B.D. lives in Prince George, she was able to attend at Court in person with little notice.

As Mr. Bauder and J.J.D. reside in [omitted for publication], they could only attend by telephone. [ 6 ] This is a hearing of interim applications of some urgency. At the parties’ request, I agreed to proceed with the evidence at hand. I have taken into consideration the materials filed, the untested evidence of the parties and their witnesses, and the court record. At the conclusion of the hearing on November 4, 2020, I reserved my decision. These are my reasons for judgment. Background and Procedural History [ 7 ] C.D.B.D. was born on [omitted for publication], and is now 39 years old.

She currently resides in Prince George, BC. J.J.D. was born on [omitted for publication], and is now 45 years old. He resides in [omitted for publication], BC. [ 8 ] After a four year relationship, C.D.B.D. and J.J.D. were married on [omitted for publication]. They are the biological parents of three children: a. N.S.B.D., born [omitted for publication] (Age 11) [omitted for publication]; b. S.A.B.D., born [omitted for publication] (Age 8) [omitted for publication]; and c. K.B.D., born [omitted for publication] (Age 6) [omitted for publication]. [ 9 ] C.D.B.D. and J.J.D. cohabitated off and on for 15 years.

For all or some of these years, C.D.B.D. and J.J.D. resided at [omitted for publication] (the “family residence”), in the [omitted for publication] community. J.J.D. asserts this residence is his property. [ 10 ] Both C.D.B.D. and J.J.D. and the children are members of the [omitted for publication]. [ 11 ] J.J.D. owns shares in [omitted for publication] , an indigenous company conducting business in the oil and gas industry in the Peace. [ 12 ] C.D.B.D. is a cultural coordinator for the [omitted for publication] . In this capacity, C.D.B.D. teaches native crafts, medicine and other cultural competencies.

She also has a home-based proprietorship, “ [omitted for publication] ,” engaged in designing and selling indigenous artefacts. [ 13 ] C.D.B.D. says J.J.D. earns $250,000 per year from [omitted for publication] , much of which is tax free because his business is purportedly on the [omitted for publication] reserve lands. J.J.D. estimates C.D.B.D. earns $80,000 to $120,000 from her business which she does not report to Revenue Canada.

J.J.D. asserts C.D.B.D. left the family residence with approximately $250,000 in products to sell. (CEIS Document #40). [ 14 ] As the procedural history attests, C.D.B.D. and J.J.D. have had a troubled relationship, fraught with conflict and allegations of substance misuse, infidelity and family violence. C.D.B.D. and J.J.D. have each engaged RCMP at various times complaining of family violence at the hands of the other. [ 15 ] N.S.B.D. was born about a month after C.D.B.D. and J.J.D. married. Five months later, on January 18, 2010, C.D.B.D. applied in

[omitted for publication] Provincial Court for an order for custody and guardianship of N.S.B.D. She also sought a restraining order, child and spousal support (CEIS Document #1). Her application was served on J.J.D. on February 6, 2010 (CEIS Document #2). C.D.B.D. indicated J.J.D.’s address was [omitted for publication]. [ 16 ] In her January 18, 2010 application, C.D.B.D. sought an order prohibiting J.J.D. from interfering with or harassing with her or N.S.B.D. She says: I fear for our safety. He has a violent temper and is unpredictable.

I want to keep my child from any undue stress or aggressive confrontations with J.J.D. I think it’s in my baby’s best interests as J.J.D. can be very intimidating and [ir]rational. [ 17 ] On March 5, 2010, J.J.D. filed a reply and counterclaim in [omitted for publication] Provincial Court seeking custody, guardianship and access to N.S.B.D. (CEIS Document #3).

J.J.D. said he disagreed with C.D.B.D.’s January 18, 2010 application for custody, stating: I love my son and I feel I should be involved with his growing up and well being, for it is very important to a child’s mind. [ 18 ] On March 10, 2010, the [omitted for publication] Registry scheduled a first appearance of C.D.B.D.’s January 18, 2010 application for April 21, 2010, in [omitted for publication] Provincial Court (CEIS Document #4).

On April 21, 2010, this application came before Judge Brecknell in [omitted for publication] Provincial Court, and as neither party appeared, it was struck from the list. [ 19 ] On August 20, 2010, the [omitted for publication] Registry rescheduled the first appearance of C.D.B.D.’s January 18, 2010 application for hearing on September 22, 2010 in the [omitted for publication] Provincial Court (CEIS Document #5). On September 22, 2010, it came before Judge Bowry in [omitted for publication] Provincial Court for a first appearance.

Both parties attended self- represented, at which time C.D.B.D.’s January 18, 2010 application and J.J.D.’s March 10, 2010 Reply and Counterclaim were adjourned to a family case conference on December 15, 2010. [ 20 ] This matter came before Judge Daley for a family case conference on December 15, 2010, in [omitted for publication] Provincial Court. C.D.B.D. appeared represented by Ben Cardinal; J.J.D. did not appear in person or by legal counsel or agent.

Judge Daley made an order restraining J.J.D. from molesting, annoying, harassing, communicating with or attempting to molest, annoy, harass, C.D.B.D. or attempting to communicate with her (CEIS Document #6). [ 21 ] Judge Daley further ordered on December 15, 2010 (CEIS Document #7): 1. C.D.B.D. have sole custody of N.S.B.D.; 2. C.D.B.D. and J.J.D. have joint guardianship of N.S.B.D. in accordance with the Master Joyce model; 3. On an interim basis J.J.D. have reasonable and generous access to N.S.B.D. supervised by a third party approved by C.D.B.D.; 4.

J.J.D. had an imputed Guideline income of $123,800 per year and that J.J.D. pay to C.D.B.D. child support for N.S.B.D. in the amount of $1,097 per month commencing December 15, 2010; 5. J.J.D. pay to C.D.B.D. spousal support in the amount of $1,200 per month commencing December 15, 2010; 6. C.D.B.D. was at liberty to apply for retroactive child support and spousal support at the time of the hearing. [ 22 ] Following Judge Daley’s December 15, 2010 order, J.J.D. retained Mr. N.

Bauder as his legal counsel in these proceedings. [ 23 ] On December 22, 2010, J.J.D. filed an Application to Change or Cancel Judge Daley’s December 15, 2010 Order (CEIS Document #8), on the basis J.J.D. was not present at the December 15, 2010 family case conference where the order was made and wanted an opportunity to defend himself and respond to C.D.B.D.’s claim and for the Court to hear all the evidence. [ 24 ] On December 22, 2010, J.J.D. filed a Notice of Motion returnable December 23, 2010, seeking, among other things, access to N.S.B.D. from noon December 25, 2010, until 6 pm, December 26, 2010.

At that time N.S.B.D. was approximately 17 months old. [ 25 ] On December 22, 2010, J.J.D. filed a Notice of Change of Address with the [omitted for publication] Provincial Court Registry indicating his new address was [omitted for publication]. (CEIS Document #10). [ 26 ] J.J.D.’s December 22, 2010 Notice of Motion came before Judge Daley on December 23, 2010, for hearing ex parte . C.D.B.D. did not appear and Mr. Bauder and J.J.D. appeared by telephone. At that time, Judge Daley ordered: 1.

J.J.D. have access to N.S.B.D. from noon on December 25, 2010 until December 26, 2010 at 6:00 pm and his access supervised by B.D. or G.D.; 2. J.J.D.’s December 22, 2010 application was adjourned to a family case conference on January 26, 2011; and 3. A copy of the order be served personally or left at C.D.B.D.’s usual place of a residence. (CEIS Document # 17) [ 27 ] On December 23, 2010, C.D.B.D. filed a Reply to J.J.D.’s December 23, 2010 application (CEIS Document 11) asking for access to N.S.B.D. for 36 hours on the basis that N.S.B.D. was sick and still breastfeeding.

She indicated she feared for N.S.B.D.’s safety because of J.J.D.’s recent depression and suicide attempt on December 12, 2010 (C.D.B.D.’s June 4, 2020 Affidavit, Exhibit 3). [ 28 ] On December 23, 2010, C.D.B.D. filed an Application to Change or Cancel Judge Daley’s December 23, 2010 Order (CEIS

Document #14), because . . . my son N.S.B.D. is a sick nursing baby and had not been out of my care for more than five hours. His father J.J.D is unstable and using drugs and alcohol. B.D and G.D’s house is unsafe and not a secure environment. I fear for my son’s safety when he’s with his father. [ 29 ] On December 23, 2010, C.D.B.D. filed a Notice of Motion (CEIS Document # 12) asking that J.J.D.’s access to N.S.B.D. be limited to six hours between 12:00 pm and 6:00 pm because N.S.B.D. had the stomach flu and was still nursing and had never been out of her care for more than five hours.

C.D.B.D. also states that J.J.D. had been hospitalized on December 12, 2010, for depression and suicide. [ 30 ] On December 23, 2010, C.D.B.D. filed an affidavit in which she states: I have pictures of texts between J.J.D. and others referring to his drug and alcohol abuse, his hospitalization for depression on December 12, 2010. I fear for my son’s safety as J.J.D. is very abusive and has an anger issue. I have enclosed pictures of bruises on me when I was three weeks pregnant due to J.J.D.

I believe him to be unreliable as he did not show up for court on December 15 for our family conference. (CEIS Document #13) [ 31 ] As N.S.B.D. was born [omitted for publication], I gather the bruises to which C.D.B.D. refers in her December 23, 2010 Affidavit would have been visible sometime in early December 2008. [ 32 ] On December 24, 2010, C.D.B.D.’s Notice of Motion, (CEIS Document #12) came before Judge Gray in [omitted for publication] Provincial Court. C.D.B.D. appeared by telephone as did J.J.D. and Mr. N. Bauder. At that time Judge Gray ordered: 1.

The matter be adjourned to January 26, 2011, in [omitted for publication] Provincial Court for a family case conference; 2. J.J.D. have interim access to N.S.B.D. on December 25 th , 2010 from 12:00 pm to 6:00 pm and on December 27 th , 2010 from 12:00 pm to 6:00 pm. The pick up and drop of will take place at C.D.B.D.’s home located at [omitted for publication], BC, with D.D. picking up and dropping off N.S.B.D.; 3.

J.J.D. have further access to N.S.B.D. on December 30, 2010, and January 1, 2011, and continuing with the access pattern of Tuesday, Thursday and Saturday of each and every week from 12:00 pm to 6:00 pm, except the suspended time period from January 13, 2011 until January 25, 2011, with a visit taking place on January 25, 2011, from 12:00 pm to 6:00 pm; and 4.

D.D. or such other mutually agreed to person may do pick up and drop off of N.S.B.D. (CEIS Document #16). [ 33 ] On December 31, 2010, the [omitted for publication] Provincial Court sent to C.D.B.D. and J.J.D. a Notice of a family case conference scheduled for January 26, 2011 (CEIS Document #15). [ 34 ] On January 26, 2011, J.J.D. filed a Notice of Change of Address with the [omitted for publication] Provincial Court Registry indicating his new address was [omitted for publication]. (CEIS Document #18). [ 35 ] On January 26, 2011, J.J.D.’s December 22, 2010 Application to Vary or Change an Order and C.D.B.D.’s December 23, 2020 Reply (CEIS Documents #8 and #11), came before Judge Daley for a family case conference.

At that time Judge Daley made the following final order, by consent: 1. Judge Daley’s interim retraining order made December 15, 2010, be cancelled; 2. All previous terms of access in the following orders shall be deleted as follows: 1) Term 3 of Judge Daley’s December 15, 2010 Order providing J.J.D. with supervised access to N.S.B.D. be deleted; 2) Term 1 of Judge Daley’s December 15, 2010 Order providing C.D.B.D. with sole custody of N.S.B.D. be deleted; 3) Term #2 and Term #3 of Judge Gray’s December 24, 2010 be deleted; 3. J.J.D. will have reasonable and generous access to N.S.B.D.; and 4.

The matter was adjourned to March 30, 2011 at 1:15 p.m. for a family case conference; (CEIS Document #19). [ 36 ] March 30, 2011, C.D.B.D. and J.J.D. appeared in person and self-represented in [omitted for publication] Provincial Court for a family case conference. At that time, Judge Daley made a final order, by consent that: 1. This order shall replace all previous orders; 2. C.D.B.D. have sole custody of N.S.B.D.; 3. N.S.B.D. primary residence would be with C.D.B.D.;

4. J.J.D. have reasonable and generous access to N.S.B.D.; 5. J.J.D. pay to C.D.B.D. spousal support in the amount of $1200 per month commencing, April 1, 2011; 6. J.J.D. pay to C.D.B.D. child support for N.S.B.D. in the amount of $1,097 per month commencing April 1, 2011; 7. C.D.B.D. and J.J.D. will have joint guardianship of N.S.B.D. in accordance with the Master Joyce model; 8. C.D.B.D. and J.J.D. will not consume or possess alcohol or illicit drugs while they are the primary caregiver of N.S.B.D. or allow N.S.B.D. to be in the presence of anyone who has consumed or possesses alcohol or illegal drugs; and 9.

C.D.B.D. and J.J.D. may request the other to submit to drug testing and the party so requested to do so will comply with that request within 24 hours or as soon as possible; (CEIS Document # 20). [ 37 ] S.A.B.D. was born on [omitted for publication]. On June 12, 2012, C.D.B.D. filed an Application to Obtain an Order (CEIS Document #21), seeking custody and child support for N.S.B.D. and S.A.B.D. and spousal support for herself. She also sought an order restraining J.J.D. from interfering with or harassing her or the children.

C.D.B.D. complained that J.J.D. had made a rude comment of “your idiot mother” to N.S.B.D. On this application C.D.B.D. indicates an address for both her and J.J.D. as “[omitted for publication].” She also indicates the present custody arrangements are with “C.D.B.D. with generous/reasonable access to J.J.D.” [ 38 ] K.B.D. was born on [omitted for publication]. On September 8, 2014, C.D.B.D. filed An Application to Change or Vary Judge Daley’s March 30, 2011 Order to grant guardianship to all three children (CEIS Document # 23).

C.D.B.D. states in this application that J.J.D. moved out of the marital home on September 2, 2014, and she was now seeking guardianship of and child support for all three children. In this application, C.D.B.D. indicates her address is [omitted for publication] and J.J.D.’s address was [omitted for publication]. T.R.L. served J.J.D. with this application on September 9, 2014 (CEIS Document #22). [ 39 ] On September 25, 2014, Mr.

Bauder filed J.J.D.’s Reply to C.D.B.D.’s September 8, 2015 Application agreeing with child support, but disagreeing with the change to guardianship or varying the March 30, 2011 Order (CEIS Document #24). [ 40 ] On September 29, 2014, the [omitted for publication] Court Registry scheduled a first appearance of C.D.B.D.’s September 8, 2014 Application for October 14, 2014, in [omitted for publication] Provincial Court (CEIS Document #25). [ 41 ] On September 19, 2014, J.J.D. filed a Notice of Change of Address with the [omitted for publication] Provincial Court Registry indicating his new address was [omitted for publication]. (CEIS Document #26). [ 42 ] On October 14, 2014, C.D.B.D.’s September 9, 2014 application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) came before Judge Moore for a first appearance.

C.D.B.D. appeared in person and self-represented; Mr. Bauder appeared as legal counsel and agent for J.J.D. The matter was adjourned to January 30, 2015. [ 43 ] On January 30, 2015, C.D.B.D.’s September 9, 2014 Application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) came before Judge Bayliff for a family case conference in the [omitted for publication] Provincial Court. C.D.B.D. and J.J.D. appeared in person and self-represented.

At that time Judge Bayliff adjourned the matter to February 13, 2015. [ 44 ] C.D.B.D.’s September 9, 2014 Application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) came before Judge Moore in the [omitted for publication] Provincial Court for a subsequent appearance on February 13, 2015 (CEIS Document #28). C.D.B.D. appeared self-represented; J.J.D. did not appear in person or by counsel.

The matter was adjourned to April 17, 2015, for a family case conference (CEIS Document #29). [ 45 ] C.D.B.D.’s September 9, 2014 application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) came before Judge Daley in the [omitted for publication] Provincial Court for a family case conference on April 17, 2015. C.D.B.D. appeared represented by agent, Aboriginal Justice Worker T.R.L.; J.J.D. did not appear in person or by counsel.

The matter was adjourned to May 29, 2015, for a family case conference. [ 46 ] C.D.B.D.’s September 9, 2014 application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) before Judge Daley in the [omitted for publication] Provincial Court on May 29, 2015, for a family case conference. C.D.B.D. and J.J.D. both appeared in person and self-represented.

The matter was adjourned to July 31, 2015 (CEIS Document # 30). [ 47 ] On July 31, 2015, C.D.B.D.’s September 9, 2014 Application (CEIS Document #23) and J.J.D.’s September 25, 2014 Reply (CEIS Document #24) came before Judge Blaskovits in the [omitted for publication] Provincial Court. C.D.B.D. and J.J.D. both appeared in person and self-represented.

At that time the matters were adjourned generally (CEIS Document #32). [ 48 ] On September 3, 2015, C.D.B.D. filed an application to vary Judge Daley’s March 30, 2011 Order for custody of and support for all three children, N.S.B.D., S.A.B.D. and K.B.D. (CEIS Document #31). C.D.B.D. states: The reasons for my application are as follows: not receiving any financial support. There are two more children since last order. J.J.D. is no longer in the marital home. He has bail order with condition for no contact with me since order was made April 2015. [ 49 ] This application was served on J.J.D.’s legal counsel, Mr. N.

Bauder, on September 10, 2015 (CEIS Document #33). [ 50 ] On October 5, 2015, J.J.D. filed a Rely and Counterclaim for joint guardianship of equal parenting time for all children, child support and a termination of Judge Daley’s March 30, 2011 Order (CEIS Document #34). J.J.D. also sought a protection order that C.D.B.D. have no contact with him aside from arranging contact or matters dealing with the children.

[ 51 ] On November 4, 2015, the [omitted for publication] Court Registry issued a Notice of Hearing (CEIS Document # 35) for the first appearance of C.D.B.D.’s September 3, 2015 Application (CEIS Document #31) and J.J.D.’s October 5, 2015 Reply and Counterclaim (CEIS Document #34), for January 26, 2016, in [omitted for publication] Provincial Court. [ 52 ] On January 8, 2016, C.D.B.D. filed a Reply with Counterclaim to J.J.D.’s October 5, 2015 Counterclaim (CEIS Document #36). C.D.B.D. states she disagrees with J.J.D.’s counterclaim because she is the children’s primary caregiver because J.J.D. works so much.

She goes onto say that J.J.D. gave up his 12 –year-old son because he was incompetent and counterclaimed for guardianship of and parenting time and child support for the children. [ 53 ] C.D.B.D.’s September 3, 2015 Application (CEIS Document #31) and J.J.D.’s October 5, 2015 Reply and Counterclaim (CEIS Document #34) came before Judge Brecknell on January 26, 2016. Mr. Bauder appeared as legal counsel and agent for J.J.D. C.D.B.D. did not appear in person, or by agent or legal counsel.

The matters were adjourned to February 23, 2016, for a second appearance. [ 54 ] C.D.B.D.’s September 3, 2015 Application (CEIS Document #31) and J.J.D.’s October 5, 2015 Reply and Counterclaim (CEIS Document #34) came before Judge Daley on February 23, 2016. Mr. Bauder. The matters were adjourned generally. [ 55 ] On February 25, 2016, J.J.D. filed a Change of Address with the [omitted for publication] Provincial Court Registry indicating his new address was: [omitted for publication]. (CEIS Document #37). The current proceedings [ 56 ] In December 2019, C.D.B.D. and J.J.D.’s marriage began to unravel.

It was during this time C.D.B.D. suffered the loss of one of her sisters, who was rushed to the Intensive Care Unit on December 11, 2019, and died December 24, 2019. I gather C.D.B.D.’s sister was hospitalized in Prince George, BC. C.D.B.D. accuses J.J.D. of lacking compassion for her difficulties in coping with her sister’s illness and death. [ 57 ] J.J.D. attributes the breakdown of his marriage to C.D.B.D.’s extra-marital affair with E.S., which J.J.D. says began in December 2019, while C.D.B.D. was in Prince George (J.J.D.’s November 3, 2020 Affidavit, para. 4).

J.J.D. says C.D.B.D. admitted to the affair, but he does not say when it was she made this admission (J.J.D.’s May 29, 2020 Affidavit, para.26). [ 58 ] On December 18, 2019, C.D.B.D. sent a text message to her employer, V.B. of [omitted for publication] asking her to call the police because she feared for her safety. V.B. did so and drove to C.D.B.D.’s residence at [omitted for publication], to check on her. When the police arrived they asked J.J.D. to leave the residence, which he did, but returned the following day.

C.D.B.D. says she just wanted J.J.D. to “leave her alone” (C.D.B.D.’s June 4, 2020 Affidavit, para. 21, Exhibits 2 and 4). [ 59 ] J.J.D. says C.D.B.D. told the children in late December 2019 that she was moving out of the family residence and the children in turn told him. Consequently, J.J.D. and the children were living in a state of unknown since January 2020, not knowing one day to the next if and when C.D.B.D. was leaving.

J.J.D. says he tried “numerous times” to talk with C.B.D., but she avoided or refused to answer the question (J.J.D.’s November 3, 2020 Affidavit, para.8(a); J.J.D.’s May 29, 2020 Affidavit, paras. 8 and 9). [ 60 ] In January 2020, J.J.D. removed N.S.B.D. and S.A.B.D. from their downstairs bedroom and took them to sleep with him upstairs.

Thereafter, in C.D.B.D.’s view, J.J.D.’s embarked on a mission to isolate her from the children. [ 61 ] In January 2020, C.D.B.D. sought out and engaged in counselling with N.V., a “Stop the Violence Counsellor” with the [omitted for publication]. (C.D.B.D.’s June 4, 2020 Affidavit, para. 6, Exhibit 2). [ 62 ] In February 2020, J.J.D. stopped working (J.J.D.’s May 29, 2020 Affidavit, para. 5). [ 63 ] On February 3, 2020, at an individual education plan meeting for N.S.B.D., C.D.B.D. told the attendees there had been a breakdown in her marriage and asked N.S.B.D. be referred to the school counsellor.

B.F., the acting principal of [omitted for publication], agreed to refer N.S.B.D. to the school counsellor, T.A. ( C.D.B.D.’s June 4, 2020 Affidavit, para. 6, Exhibit 2).

J.J.D. states that he thought N.S.B.D. was seeing the school counsellor due to bullying and difficulties he was having at school (J.J.D.’s November 3, 2020 Affidavit). [ 64 ] J.J.D. deposes that up until the end of March of 2020, he and C.D.B.D. continued to have a sexual relationship and lived their lives “attending social functions with the children, shared in the day-to-day activities and life as a normal family would in the marital home” (J.J.D.’s November 3, 2020 affidavit, para. 3). [ 65 ] At the end of April 2020, J.J.D. sought out and attended counselling with S.A. a Clinical Counsellor with the [omitted for publication]. (J.J.D.’s Nov 3, 2020 Affidavit, para. 6, Exhibit 1). [ 66 ] On May 5, 2020, J.J.D. attended and completed the Parenting After Separation for Indigenous Families (J.J.D.’s May 29, 2020 Affidavit, para. 6, Exhibit 3). [ 67 ] On May 6, 2020, J.J.D. presented C.D.B.D. with a draft “Memorandum of Understanding regarding a Co-Parenting Plan” (“MOU”) which proposed that both parents be guardians of the children and share equally parenting responsibilities: J.J.D.’s Nov 3, 2020 Affidavit, Exhibit 5.

The MOU proposed that: a. J.J.D. and C.D.B.D. will have reasonable parenting times at dates agreed between the guardians; b. J.J.D. and C.D.B.D. will have reasonable and generous parenting times at dates agreed between the guardians; c. C.D.B.D. will have the majority of the parenting time with K.B.D.; d. C.D.B.D. and K.B.D. will reside outside the family residence;

e. J.J.D. will have the majority of parenting time with N.S.B.D. and S.A.B.D. f. J.J.D., N.S.B.D. and S.A.B.D. will reside in the family residence; g. J.J.D., and C.D.B.D. will have contact with the children when they are with the other parent by telephone or zoom (electronic modes) as agreed between the parties; and h.

J.J.D. and C.D.B.D. will not change the residence of the children from [omitted for publication], BC, without first obtaining the written approval of each parent, unless either parent provides 60 days written notice, and no one has filed an application under ss. 59, 60 or 69 of the Family Law Act to maintain contact or prohibit relocation within 30 days of receiving notice. [ 68 ] The MOU was drafted by J.J.D. with the assistance of T.R.L., the [omitted for publication] Justice Worker. Neither J.J.D. nor C.D.B.D. signed the MOU.

J.J.D. says the MOU was based on discussions he had with C.D.B.D. and on the premise that both parents would continue to reside in [omitted for publication]. J.J.D. states in his November 3, 2020 Affidavit, at para. 22, When this agreement was drafted, C.D.B.D. did not want the boys, and I felt if she left without any of the children, she might try to kill herself again.

So, I reluctantly agreed that K.B.D. would go with her providing she reside in [omitted for publication]. [ 69 ] C.D.B.D. says on May 5, 2020, she received a request from her family to provide urgent care to her father who was terminally ill with stage four cancer. That same day, C.D.B.D. sought permission from Chief S.G. to leave and return to the [omitted for publication] community in light of the COVID-19 pandemic. C.D.B.D. packed two bags of clothing and a container of her some of her artefacts to try and sell at small craft fairs and shops.

C.D.B.D. left the family residence on May 11, 2020, and travelled with her sister L.B. to Prince George to help care for her father in his final days. She sent a text to J.J.D. at 9:29 am on May 11, 2020, stating, “thank you for looking after the babies while I go see my dad. Please let them call me.” [ 70 ] C.D.B.D. says on May 10, 2020, she noticed a box of her deceased mother’s family picture went missing from the family residence. She asked J.J.D. where they were and he told her he took them to his mother’s house and never returned them.

For this reason, C.D.B.D. removed some items having sentimental value from the family residence as she feared J.J.D. may take and hide them from her (C.D.B.D.’s June 4, 2020 Affidavit para. 11). [ 71 ] J.J.D. says C.D.B.D. removed all her craft supplies and many of her personal belongings before she left the family residence on May 11, 2020. He states at para. 17 of his May 29, 2020 affidavit: J.J.D. had already watched his children sit and watch their mother pack with no reason or explanation given to them and remove things from the house during the past few months. This made the children sad and very confused.

He felt it was in the best interests of the children to sit them down and discuss what was happening. The children said they knew. [ 72 ] J.J.D. says in his November 3, 2020 Affidavit (para. 4), that C.D.B.D. “had been taking things from the house since January 2020, including personal/family items, her business supplies, and assets before she left on May 11.” He does nor particularize what those family items and assets were that C.D.B.D. took from the family residence, when it was she took them and when he noticed these items were missing.

Nevertheless, apparently she had left sufficient belongings behind that after C.D.B.D. left on May 11, 2020, J.J.D. had a service pack up these remaining belongings and relocate them to a cargo trailer in the yard. [ 73 ] C.D.B.D. says while she was away, J.J.D. texted her repeatedly wanting to know when she was returning. As C.D.B.D. did not know how long her father would survive, she was unable to provide J.J.D. with a return date. J.J.D. thought C.D.B.D.’s claim to be caring for her ailing father a ruse as she had very few visits with him over the years.

The man she considers her father, R.C., was not someone with whom she had a close or loving relationship. J.J.D. suspected C.D.B.D. went to Prince George to join E.S., a man with whom she admitted having a sexual relationship in early December 2019, while in Prince George. C.D.B.D. left without the children. She told J.J.D. she would return in three days.

Sixteen days later she still had not returned to [omitted for publication] . [ 74 ] C.D.B.D. disputes J.J.D.’s allegations she had a distant and poor relationship with her father and has photographs which show otherwise (C.D.B.D.’s June 4, 2020 Affidavit, para. 13). She maintains she never told J.J.D. her anticipated date of return because of the uncertainty of her father’s status at the time. [ 75 ] The day after she had left, J.J.D. sent C.D.B.D. a text message asking her where she was staying when she returned to [omitted for publication] .

C.D.B.D. replied, “I’m staying at our house, where I’ve lived for the last 15 years.” J.J.D. texted C.D.B.D. advising her: a. They were getting a divorce; b. He had changed all the locks on the family residence; c. She can’t stay at the family residence anymore; d. He had packed up the rest of her stuff and put it in a trailer in the yard; e. The kids would be staying with him at the family residence; and f.

She was to return certain items she had removed from the family residence prior to departing to Prince George, including his jewellery and business papers. (C.D.B.D.’s June 4, 2020 Affidavit, Exhibit 8; J.J.D.’s November 3, 2020 Affidavit, para.4) [ 76 ] J.J.D. sent C.D.B.D. a text in which he stated: C.D.B.D. we are getting a divorce. That’s what you want. We have to live separate and apart for that to happen. You said you were

leaving. So I don’t think it’s unreasonable to ask you what your plans are. [ 77 ] C.D.B.D. replied: J.J.D., my father is dying. I’m here looking after him, can you please have some respect and compassion. I am not leaving my home. . . . I am not leaving my home, if you would like to make other living arrangements for yourself if you are in such a rush your welcome [to]. I do not need to find a place to live when I have a home already. Please stop trying to make me leave. That’s so cruel. [ 78 ] C.D.B.D. says it was always her intention to return to her family and reside in the family residence.

While away C.D.B.D. called every night to speak to the children (J.J.D.’s May 29, 2020 Affidavit, para. 23). Upon receiving J.J.D.’s text message advising her she cannot stay in the family residence anymore, C.D.B.D. returned to [omitted for publication] and filed her May 27, 2020 Application to Obtain an Order (CEIS Document #40). [ 79 ] J.J.D. maintains C.D.B.D. was intending to end the marriage and move away. He points out that in N.V.’s notes which C.D.B.D. appended to her June 4, 2020 Affidavit, C.D.B.D. discusses her application for a mortgage having been denied.

J.J.D. points out that on Facebook, C.D.B.D. changed her family status to “divorced” and her surname back to [omitted for publication].

He also claims C.D.B.D. posted demeaning comments about him on social media and solicited assistance packing up her belongings saying she was “excited for her new adventure.” J.J.D. states in his May 29, 2020 affidavit (at para. 16) that on May 11, 2020, he came to the conclusion from her Facebook posts that C.D.B.D. was “not coming back and he too accepted the fact the marriage was over.” [ 80 ] C.D.B.D. says she returned to the family residence on May 27, 2020, to reconcile and mend the breakdown in her relationship with J.J.D., as she has done in the past ( C.D.B.D.’s June 4, 2020 Affidavit, para. 9).

J.J.D. held steadfast the marriage was over and C.D.B.D. could no longer reside at the family residence. He was upset by her actions and derogatory comments and emotional outbursts in the past. In C.D.B.D.’s absence, J.J.D. made good his promise and changed the locks on the family residence and removed C.D.B.D.’s belongings from the family residence and placed them in an outside cargo trailer. [ 81 ] J.J.D. says on May 27, 2020, C.D.B.D. returned to [omitted for publication] from Prince George unannounced and unexpectedly.

The COVID-19 pandemic was raging and C.D.B.D. had just returned from the city after caring for a sick and elderly individual. She did not self-quarantine upon her return as she had promised Chief S.G. Rather, C.D.B.D. walked in the family residence holding her phone saying she was video-recording everything. The boys were bewildered and K.B.D. ran to her crying. J.J.D. and C.D.B.D. began arguing. One or both of them called the [omitted for publication] RCMP and Constables Baker and Lavioe came to the family residence to keep the peace. The officers directed C.D.B.D. to leave the residence.

They suggested and J.J.D. agreed that C.D.B.D. could return the following day with some helpers to retrieve her belongings (C.D.B.D.’s June 4, 2020 Affidavit, paras. 4, and 6 to 8). K.B.D. was clinging to her mother and the police officers recommended J.J.D. allow K.B.D. to go with C.D.B.D. J.J.D. reluctantly agreed and C.D.B.D. left peaceably with K.B.D. [ 82 ] On May 27, 2020, C.D.B.D. filed an Application to Obtain an Order for guardianship, parenting time and child support for the children and spousal support for herself (CEIS Document # 40). C.D.B.D. also sought an urgent hearing.

C.D.B.D.’s pleadings were served on J.J.D. on May 28, 2020 (CEIS Document #47). [ 83 ] In her May 27, 2020 application, C.D.B.D. also sought a protection order and access to the family residence. She states: I fear for my safety. My husband has been verbally, emotionally and physically abusive towards me.

I fear for my children because J.J.D. beat his older son with a belt and he was removed by the Ministry. [ 84 ] She further states that J.J.D. has an “extensive violent past, assault charges and that J.J.D. had removed her belongings, changed locks while she was away caring for her father, who was dying of cancer” (May 27, 2020, Application for an Order Without Notice to the Respondent, CEIS Document #39). [ 85 ] In her application for an urgent hearing (CEIS Document #38) C.D.B.D. states: I am request[ing] access into my marital home to care for my three children. I have been primary caregiver.

My husband has no grounds to remove my belongings or refuse me entry. My husband has maliciously removed my belongings, changed locks, while I have been away caring for my father [who] is dying of cancer. My husband refuses to let me enter my home to see my children. I fear for my safety. As my husband has physically assaulted me many times. He is refusing me entry into my home where I run my small home-based business. Our children are witnessing their mother’s belongings being removed from the family home.

I have been the primary caregiver for ten years while my husband has worked away from home running his business in oil and gas. He has no right throwing me out of our home and denying me to see my children in our marital home. [ 86 ] May 28, 2020, C.D.B.D. came to the family residence with K.B.D., a U-Haul and [omitted for publication] workers, J.C. and C.S., and three others. C.D.B.D. intended on packing and removing her belongings. She understood that on May 27, 2020, she had the RCMP and J.J.D.’s permission to attend at the residence and remove her belongings.

When C.D.B.D. and her entourage entered the family residence J.J.D. demanded they leave. When C.D.B.D. refused, J.J.D. called the police and asked they remove C.D.B.D. and her supporters from the family residence. The officers allowed C.D.B.D. to retrieve only those belongings J.J.D. had placed outside for her. The officers then directed C.D.B.D. and her helpers to leave. The officers told C.D.B.D. that J.J.D. does not want her on his property, and if she goes there again she will be arrested.

C.D.B.D. says as the result of J.J.D.’s actions with RCMP assistance, she was rendered homeless (C.D.B.D.’s June 4, 2020 Affidavit, para. 4, Exhibit 2; J.J.D.’s November 3, 2020 affidavit, para. 4(d)).

[ 87 ] J.J.D. says after her expulsion from the family residence, C.D.B.D. began to behave bizarrely. For the next 48 hours she drove back and forth in front of the house. She parked in the neighbour’s yard or the graveyard and came into the yard at night with a flashlight taking pictures of outbuildings and articles. J.J.D. says this conduct made him and the boys angry, nervous and afraid. He called the [omitted for publication] Security for assistance and set up a barricade at the entrance to his driveway. He also asked the RCMP to conduct a wellness check on C.D.B.D. and K.B.D.

C.D.B.D. refused to disclose her whereabouts to the officers (J.J.D.’s November 3, 2020 Affidavit, para. 4(d)). [ 88 ] C.D.B.D. initially went to live temporarily with her sister at [omitted for publication] in the [omitted for publication] community. [ 89 ] On May 28, 2020, C.D.B.D. filed a Notice of Motion seeking guardianship, a parenting time schedule, support for herself and K.B.D., access to the family residence and a protection order (CEIS Document #39). [ 90 ] On May 29, 2020, J.J.D. filed an application seeking the following interim orders: a.

Non-removal order from the area for N.S.B.D. and S.A.B.D. during time spent with C.D.B.D.; b. Primary residence and parental responsibility remain with J.J.D.; c. No contact order between C.D.B.D. and J.J.D. other than email regarding the children; d. No contact order between E.S. and N.S.B.D., S.A.B.D. or K.B.D.; and e. Order for service by email; (CEIS Documents # 43 and 45). [ 91 ] On May 29, 2020, J.J.D. filed an application in support of his May 29, 2020 Application.

J.J.D.’s May 29, 2020 pleadings were served on C.D.B.D. on May 29, 2020 (CEIS Document #46). [ 92 ] C.D.B.D. completed the Parenting After Separation for Indigenous Families on June 4, 2020. On that same day, she filed and served J.J.D. with an affidavit in support of her May 28, 2020 Notice of Motion (CEIS Documents #51 and #52). [ 93 ] On June 5, 2020, C.D.B.D.’s Notice of Motion (CEIS Document # 39) and J.J.D.’s Notice of Motion (CEIS Document #44) came for hearing before Judge Jackson in Prince George Provincial Court.

C.D.B.D. and J.J.D. both appeared by telephone and were self-represented, although it seems J.J.D. also had the support of a family justice worker. At that time Judge Jackson made an interim without prejudice order that C.D.B.D. and J.J.D. will allow the children they have in their care to communicate with the other parent by FaceTime or Skype twice per week.

J.J.D. asked Judge Jackson to order the children could not be removed from the [omitted for publication] area, which Judge Jackson declined to do in the absence of any evidence. [ 94 ] On June 6, 2020, J.J.D. sent to C.D.B.D. a letter asking she return various items of his personal property, including, “jewellery, cellular phones, personal mail, financial and government documents and all materials pertaining to [omitted for publication].” C.D.B.D. denies removing [omitted for publication] financial documents, and suggests J.J.D. is hiding them in order to frustrate a Revenue Canada audit.

C.D.B.D. maintains the room in the family residence he says is his business office was never used for that purpose. He has multiple bookkeepers and issues with Revenue Canada for not paying taxes (C.D.B.D.’s June 4, 2020 Affidavit, para. 5 and 12). [ 95 ] C.D.B.D. returned to Prince George with K.B.D., to spend time with her ailing father who died in August 2020. She has not returned K.B.D. to [omitted for publication] to visit J.J.D.

C.D.B.D. refuses to provide J.J.D. with her home address because of his history of family violence against her. [ 96 ] C.D.B.D. has entered into a new relationship with E.S., which J.J.D. finds alarming. J.J.D. has appended to his affidavit a June 30, 2016 newspaper

article of an interview with T.A., the sister of the victim, J.M. The

article states that in 2016 E.S. was convicted of manslaughter after pleading guilty to choking his spouse to death in the presence of their children. It says the offence occurred in 2014, and E.S. was sentenced in 2016, to nine years’ incarceration less time served. Two years ago, E.S. was released from prison back into the community on parole (Exhibit 2).

J.J.D. states in his May 29, 2020 Affidavit (para. 27) that he does not know what E.S.’s release conditions were other than E.S. was living in second stage housing monitored through Corrections BC. [ 97 ] J.J.D. states that although he met E.S., at the time he was unaware of the circumstances of E.S.’s offence for which he had been convicted or that he was still on parole for that offence (J.J.D.’s November 3, 2020 Affidavit, para. 19).

J.J.D. acknowledges that people do reform and rehabilitate but says it is too soon for the children to be in a home of someone recently released from prison for a horrific crime (J.J.D.’s November 3, 2020 Affidavit, para. 19, Exhibit 4). The online newspaper

article attached as Exhibit 4 to J.J.D.’s November 3, 2020 Affidavit constitutes double hearsay and is not admissible for the truth of its contents. However, C.D.B.D. does not dispute E.S. committed the offence or the circumstances of the offence or the victim as reported.

She says in her June 4, 2020 Affidavit, at para. 20: E.S. and C.D.B.D. have openly discussed his criminal past and he [has] even went so far as to provide C.D.B.D. with a record of his criminal past and progress report from his probation officer who C.D.B.D. has met in person. [ 98 ] J.J.D. says E.S. did not tell C.D.B.D. about his criminal past until J.J.D. learned of it and told C.D.B.D. (J.J.D.’s November 3, 2020 Affidavit, para. 20). J.J.D. does not say when it was he learned about E.S.’s crime. [ 99 ] C.D.B.D. describes E.S. as her “best friend” and new business partner.

She says E.S. is a sober First Nations man who she and J.J.D. met at two indigenous art events in Prince George. She claims “J.J.D. and E.S. bonded due to both their criminal pasts.” In response to J.J.D.’s objections to the children being in E.S’s presence, C.D.B.D. states that “everyone makes mistakes” and advised the Court that J.J.D. too had been incarcerated for assaulting and almost killing his cousin.

[ 100 ] C.D.B.D. has provided the Court with evidence that E.S. is now a law abiding pro-social man. He is sober, employed, and actively engaged in First Nations crafts. C.D.B.D. has provided correspondence dated August 12, 2020, from Rob Ziegler, of the Prince George Activator Society. Mr. Ziegler has been E.S.’s counsellor for the past two years. The Activator Society is a community service provider that supports men transitioning from incarceration to balanced community living. Mr. Ziegler states in Exhibit 2: I’ve had the opportunity to counsel with E.S. on a regular basis over the past two years.

He has proven to be consistently reliable, open and honest, and willingly shares his informed insights regarding his past decisions and how he successfully implements them now, to insure a successful future. E.S. has been a consistently dependable community member. While at our work camp, Agheth Nebun, where Give Back to the Community work was expected, or during his lengthy stay at our Transition House, Activator’s, in Prince George, he has been a valued asset.

He is a skilled craftsman who continually turned out beautiful beadwork that helped him maintain a small income, and when other opportunities arose he worked a full season doing roofing, and later has taken work as a full time sign-man on road construction. He works, he saves, and he shares. E.S. has also been admirably discrete regarding the use of Facebook, an activity which can be problematic for some men who are still a part of their CSC recovery program. He is a man who thinks through his decisions carefully, and has put new program learnings into a successful and dependable way of life.

He is kind, considerate, and has a wonderful sense of humour which he also shares easily. [ 101 ] I understand “CSC” refers to Correctional Service of Canada which operates the Canadian federal prison system. [ 102 ] C.D.B.D. says she introduced K.B.D. to E.S. gradually. Initially the three of them went for walks in the public park or the ancient forest or went on outings to the lake. E.S.’s presence in C.D.B.D. and K.B.D.’s life came to the attention of MCFD. Three social workers attended at C.D.B.D.’s home in Prince George and conducted lengthy interviews with her and E.S.

The following day the same social workers conducted a lengthy interview of K.B.D. By way of a letter dated October 23, 2020, MCFD confirmed they had conducted an investigation into any safety concerns with respect to K.B.D. as a result of C.D.B.D.’s relationship with E.S. Child protection social worker, Kyle Wilson, writes in Exhibit 1: The Ministry of Children and Family Development (MCFD) has assessed and based on the result of my investigation K.B.D. is not in need of protection and there are no concerns about E.S. being around your children.

You are encouraged to continue to access the community supports and services that you have been referred to. As required by the Child, Family and Community Service Act (CFCSA), the results of this investigation will be kept confidential and our file is now closed. [ 103 ] Apparently J.J.D. refused C.D.B.D. any further video telecommunication parenting time after September 30, 2020. On this date, E.S. arrived at C.D.B.D.’s residence while she was having FaceTime with N.S.B.D. and S.A.B.D.

E.S. came into view and was heard to say, “Honey, I’m home” and observed placing some items on the counter he had been carrying in his hands. C.D.B.D. abruptly terminated the transmission. This incident upset the boys to such a degree they refused to have any further communication with their mother. [ 104 ] J.J.D. says N.S.B.D. and S.A.B.D. are afraid of their mother and so traumatized by her conduct they are now seeing Lindsay Gwynn, a [omitted for publication] counsellor. [ 105 ] C.D.B.D. says since September 30, 2020, all her calls to N.S.B.D. and S.A.B.D. go unanswered.

J.J.D. maintains it is N.S.B.D. and S.A.B.D. who have chosen to cut off communication with their mother after seeing E.S. on the video screen. C.D.B.D. says it is J.J.D. who has severed the lines of communication out of possessiveness and jealously. He has not only severed communications between the boys and C D.B.D., J.J.D. has ceased communications among the siblings and between himself and K.B.D. [ 106 ] C.D.B.D. says she no longer has a home to which she can return in [omitted for publication].

She can stay temporarily with one of her sisters, but her sister’s residence on [omitted for publication] is very small. [ 107 ] C.D.B.D. has included in her affidavit’s a number of support letters commending her as a person, parent, employee and community member. J.J.D. points out that the authors of these letters are all C.D.B.D.’s relatives. [ 108 ] K.H. filed an affidavit on August 7, 2020, stating she supports both parents. C.D.B.D. says that K.H. was once her close friend and confidant. K.H. affidavit essentially maligns C.D.B.D. and praises J.J.D.

It contains an overwhelming amount of inadmissible material, including self-serving or oath-helping hearsay, highly inflammatory remarks, argument, unqualified opinion evidence, commentary on the credibility of other witnesses, all of which I give little or no weight. [ 109 ] J.J.D. says he plans to return to work as a truck driver as soon as he can find suitable employment. He claims to have plenty of people to help with children care. Those who have agreed to assist J.J.D. include C.D.B.D.’s sisters: M. and T. and her mother S.B., and R.B.

C.D.B.D. points out that none of these relatives had “come around” before her separation from J.J.D. [ 110 ] What K.H.’s affidavit and J.J.D.’s evidence reveal is that C.D.B.D. has become alienated from at least some of her family and former friends in [omitted for publication]. [ 111 ] On October 9, 2020, the [omitted for publication] Registry scheduled a hearing of the parties May 27, 2020 and May 29, 2020 Applications and Notices of Motion in Prince George Provincial Court (CEIS Document #53). [ 112 ] November 3, 2020, J.J.D. filed an Affidavit in response to C.D.B.D.’s June 4, 2020 Affidavit (CEIS Document #54), which C.D.B.D. received the morning of the hearing on November 4, 2020.

Position of the Parties [113] C.D.B.D. asks the Court to permit her to return to the family residence to live with N.S.B.D., S.A.B.D. and K.B.D. If she cannotlive in the family residence, she has no other housing options in [omitted for publication], other than staying in a hotel. In suchcircumstances, C.D.B.D. is likely to remain in Prince George, where she now resides. She proposes K.B.D. continue to live primarilywith her. She is not asking that N.S.B.D. and S.A.B.D. relocate to live with her full-time in Prince George.

She accepts it is in the boys’best interests to remain in the family residence and continue attending the schools in [omitted for publication] in which they are currentlyenrolled. C.D.B.D. would like to have in person parenting time with the boys every second weekend and on holidays and during schoolbreaks. She also proposes the parent who is not exercising in-person parenting time have video telecommunications with the children asset out in Judge Jackson’s June 5, 2020 Order.

J.J.D.’s position. [114] J.J.D. seeks an order compelling C.D.B.D. to return K.B.D. to [omitted for publication], BC, to live with him and her brothers.J.J.D. proposes he have primary residence of and parental responsibilities for the children. J.J.D. further seeks an order prohibiting E.S.from having any contact with the children. [115] J.J.D. agrees C.D.B.D. ought to have both in-person and telecommunications with the children, provided it is not in E.S.’spresence. Legal Framework [116] This Court’s overarching duty in this matter is the child’s best interests.

Section 37(1) of the Family Law Act requires that when aCourt makes an order respecting guardianship, parenting arrangements or contact with a child “the court must consider the best interestsof the child only.” Section 37(2) provides a non-exhaustive list of factors the court must consider in determining the best interests of thechild: (

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, parentingtime 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 thechild 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 carefor 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, includingwhether 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. [117]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conductonly if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” Under s. 37(3): 37(3) 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. [118] Sections 40, 41 and 42 of the Family Law Act govern parenting arrangements and responsibilities.

Section 40(1) provides thatonly a guardian may have parenting time and parenting time with respect to a child. Section 40(2) creates a presumption that eachguardian will exercise all parental responsibilities in consultation with the other guardian, unless consultation would be unreasonable orinappropriate in the circumstances, and again subject to contrary agreement or court order. Section 40(3) provides for the allocation ofparental responsibilities between guardians by agreement or order based on the best interests of the child, as defined by the factors set outin s. 37.

Section 40(4) states that there is no requirement that parental responsibilities should be allocated equally among guardians, andthat no particular parenting arrangement is presumed to be in the best interests of a child. [119] Parental responsibilities are specifically listed in s. 41 of the Family Law Act. They include, among other things, (

a) making day-to-day decisions affecting the child; (

b) making decisions respecting where the child will reside, with whom the child will live andassociate; (

c) the child’s education and participation in extracurricular activities; (

d) and consenting to medical and other health-relatedtreatments. [120]

Section 42 of the Family Law Act provides that “parenting time” is the time a child is with a guardian, as allocated under anagreement or order. During parenting time, a guardian may exercise the parental responsibilities of making day-to-day decisionsaffecting the child and having day-to-day care, control, and supervision of the child. The courts have stated that parenting time, is theright of the child: J.B.D.K. v T.A.B., 2017 BCSC 1186 , aff’d in King v. Borserio, 2018 BCCA 308 ; D.B.S. v. S.R.G.,2006 SCC 37 .

[121] Section 43(1) of the Family Law Act mandates that a child’s guardian must exercise his or her parental responsibilities in the bestinterests of the child. [122]

Section 44 of the Family Law Act empowers a child’s guardian to make an agreement with respect to parenting arrangements, butonly after separation or when they are about to separate, for the purpose of being effective on separation. [123]

Section 45 of the Family Law Act empowers the court to make orders respecting parenting arrangements provided the child’sguardians are separated. [124]

Section 46 of the Family Law Act applies if a child’s guardian wishes to change the location of that child’s residence and there isno written agreement or order respecting parenting arrangements. The

section reads: Changes to child’s residence if no agreement or order 46

(1) This

section applies if all of the following circumstances exist: (

a) no written agreement or order respecting parenting arrangements applies in respect of a child; (

b) an application is made for an order described in section 45 (1) (

a) or (b) [orders respecting parenting arrangements]; (

c) the child’s guardian plans to change the location of that child’s residence and the change can reasonably be expected to have asignificant impact on that child's relationship with another guardian.

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1)of this section, the court (

a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location ofthe child’s residence, and (

b) must not consider whether the guardian who is planning to move would do so without the child. [125] Division 6 applies to relocation applications when there is an order or agreement in place. It assumes an existing agreement ororder respecting parenting arrangements has been made in the best interests of the child and in those circumstances, deference should begiven to that pre-established arrangement. In this case there is no existing order or agreement in place, therefore Division 2 applies. InK.W. v. L.H. 2018 BCCA 204, the B.C. Court of Appeal held at para. 92: [92] . .

Absent an existing agreement between the parties, when an initial application is brought for an order respecting parentingarrangements under s. 45 and a guardian indicates in his or her pleadings or by notice in writing of an intention to change the child’sresidence, s. 46 applies notwithstanding that an interim order is made in the course of the proceedings . . . [126] I conclude based on K.W. v.

L.H. that Judge Jackson’s interim without prejudice order of June 5, 2020, does not engage Division6. [127] Where, as in this case, there are no existing orders allocating parenting, s. 48 of the Family Law Act prohibits any unilateralchanges to informal parenting arrangements once they have become a part of a child’s routine. It states: Informal parenting arrangements 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parentingarrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to thosearrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements]. [128] The parents are seeking reciprocating interim orders.

Section 216 of the Family Law Act authorizes the court to make interimorders for temporary relief. Unless the Family Law Act prohibits it, any order that can be made as a final order can also be made on aninterim basis: S.C.B. v K.M.B., 2018 BCSC 1148 , para.

Section 216 states: 216

(1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief appliedfor.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order inaccordance with any requirements or conditions of this Act that would apply if the order were not an interim order. [129] The primary purpose of interim orders in family law proceedings is to preserve the status quo: Kouznetsova v. Kouznetsov, 2014

BCCA 160 at para. 44 . Interim orders provide short-term solutions until the best interests of the child can be fully canvassed at trial: Fitzgibbon v. Fitzgibbon , 2014 BCCA 403 , Justice D. Smith states [citations omitted]: [22] Interim orders are primarily designed to maintain the status quo and to provide short-term solutions until issues regarding the best interests of a child can be fully canvassed at trial . . .

Appeals from interim orders on issues regarding the best interests of a child generally have been discouraged absent a compelling reason . . . [23] In these circumstances, it is critical that issues involving the best interests of a child be addressed in an expeditious manner by all involved. This Court has expressed its concern over delays in matters involving family law issues, and in particular those involving the custody of and access to children. [ 130 ] J. T. v. J. A. S . , Mr. Justice Weatherill noted at para. 21 that interim proceedings are purposefully

summary and are intended to bridge the gap between the commencement of an action and trial. [ 131 ] I n I.F. v. R.J.R . 2015 BCSC 793 , Madam Justice Ballance in the course of dealing with an interim application for spousal support made the following general remarks about interim orders: [13] This would seem a logical place to make some general remarks about interim orders. By their very nature, they are stop-gap orders. It is routinely the situation that parties embroiled in matrimonial litigation will have conflicting versions of the material facts.

In the vast majority of cases, the evidence required for a complete exploration of the controversial issues is underdeveloped or not available. [14] It is commonplace for the chambers judge on an interim application to make preliminary findings based on the evidence as it then stands. Due to the interlocutory nature of the proceeding, it is understood that those findings are almost invariably drawn from a limited record. They are not intended to fetter the trial judge who will decide the issues on a broader and more developed body of evidence and, for that reason, may arrive at different conclusions.

Appreciating that only when extensive evidence is adduced at trial can the disputed issues be fairly determined on their merits, does not mean that the court will necessarily be hamstrung on an interim application. [15] While the court is inclined to take a cautionary approach on most every interim application, it strives to ensure that it is not so overly cautious as to be timid. What are the existing parenting time arrangements? [ 132 ] The evidence before indicates for many years prior to separation, C.D.B.D. was the children’s primary caregiver and J.J.D. the primary wage earner. [ 133 ]

Section 3 of the Family Law Act governs the relationships between spouses. It states in part: 3

(4) For the purposes of this Act, (

a) spouses may be separated despite continuing to live in the same residence, and (

b) the court may consider, as evidence of separation, (

i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [ 134 ] C.D.B.D. asserts she separated from J.J.D. on December 16, 2019, however, they both continued to live in the family residence. J.J.D. says he and C.D.B.D. separated on May 11, 2020, when she left the family residence to live in Prince George, BC. [ 135 ] I conclude for the purposes of this application, C.D.B.D. and J.J.D. separated on or about May 27, 2020.

That is the date when C.D.B.D. filed an application in these family law proceedings. Thereafter N.S.B.D. and S.A.B.D. resided with J.J.D. in the family residence in [omitted for publication]. K.B.D. resided with C.D.B.D. wherever she happened to be. [ 136 ] I would not consider the status quo as a parenting time arrangement, informal or otherwise. C.D.B.D. was compelled to leave the family residence without having an opportunity to establish alternative suitable housing.

It was more-or-less happenstance she was able leave with K.B.D. [ 137 ] J.J.D. says that neither he nor the boys have seen K.B.D. since May 28, 2020. C.D.B.D. has since relocated to Prince George and refuses to disclose her address to J.J.D. out of safety concerns. She has, however, attempted to maintain contact via video telecommunications. [ 138 ] C.D.B.D. justifies relocating K.B.D. on the basis J.J.D. forced her out of the family residence. She was unable to secure a mortgage to purchase a new home in [omitted for publication].

She says J.J.D. is now alienating her sons and relatives and community members against her, which makes returning to [omitted for publication] difficult. What interim parenting arrangement is in the children’s best interest? [ 139 ] The Court’s paramount concern in determining interim parenting arrangements is the best interests of the children. The current situation where none of the children have meaningful parenting time with both parents is manifestly not in the children’s best interests.

It appears to have emerged as a result of C.D.B.D. and J.J.D.’s game of brinkmanship as to who was going to remain in the family residence and who was going to leave. (

a) the child's health and emotional well-being

[ 140 ] I understand the children are ordinarily healthy. While they lived together, C.D.B.D. had the children actively engaged in numerous recreational, community, cultural and school events, including drumming, Taekwondo, soccer, swimming, dance and gymnastic. All three children attended Kindergarten at [omitted for publication], in [omitted for publication]. N.S.B.D. is now in Grade 6 and attends [omitted for publication] in [omitted for publication]; S.A.B.D. is in Grade 3 and attends [omitted for publication].

C.D.B.D. says N.S.B.D. is experiencing some difficulties in school as a result of a learning disability. As Ms. Froese’s correspondence of June 4, 2020 indicates, N.S.B.D. was placed on an Individual Education Plan (C.D.B.D.’s June 4, 2020 Affidavit, Exhibit 2). [ 141 ] K.B.D. attends Grade 1 and afterschool care at [omitted for publication], in Prince George, BC. K.B.D. swims twice per week at the Prince George Aquatic Centre and participates in ballet and jazz at [omitted for publication].

C.D.B.D. also has K.B.D. attending counselling at [omitted for publication]. [ 142 ] C.D.B.D. was concerned about N.S.B.D. emotional well-being as a result of the breakdown of her marriage to J.J.D., which is why on February 3, 2020, C.D.B.D. asked Ms. Froese to arrange for N.S.B.D. to see the school counsellor ( C.D.B.D.’s June 4, 2020 Affidavit, para. 6, Exhibit 2). [ 143 ] J.J.D. asserts N.S.B.D. and S.A.B.D. are confused and upset at their mother’s decision to leave the marriage and the family residence.

He says the boys were emotionally harmed upon learning that C.D.B.D. has entered into a new relationship with E.S. C.D.B.D. accuses J.J.D. of brainwashing their sons to believe it was she who left them rather than J.J.D. forcing her out of the family residence. [ 144 ] I have no doubt the manner in which C.D.B.D. and J.J.D.’s relationship disintegrated has had an adverse impact on the children’s emotional well-being.

Although I acknowledge counselling has its benefits, I suspect the children’s emotional angst may be significantly mitigated if the parents resist the impulse to involve the children in their separation issues and develop reasonable and workable parenting arrangements. (

b) the child's views, unless it would be inappropriate to consider them [ 145 ] J.J.D. states he has sought counselling for N.S.B.D. and S.A.B.D. as they are very distraught. He claims, “N.S.B.D. cries every time he talks to his mom as he does not want to see or speak to her.

He and S.A.B.D. are very confused and have been for many months before C.D.B.D. left.” C.D.B.D. accuses J.J.D. of fomenting N.S.B.D. and S.A.B.D.’s fear and rejection of her with falsehoods and inappropriate discussions of “adult matters.” [ 146 ] C.D.B.D. asks the Court to order an s. 211 Views of the Child Report, which in this case, I consider appropriate. [ 147 ] J.J.D. says that it was not he who alienated C.D.B.D. from the two boys but C.D.B.D. who alienated herself. Her actions, which included covertly planning to leave the family residence to join a new partner, has estranged N.S.B.D. and S.A.B.D.

J.J.D. says C.D.B.D.’s fragmented relationship with her sons can only be mended through counselling. [ 148 ] C.D.B.D. denies discussing with N.S.B.D. or S.A.B.D. her intention to leave. She had nowhere else to go. In fact, J.J.D. admits in para. 17 of his May 29, 2020 Affidavit that it was he who decided to sit the children down and discuss with them what was happening (C.D.B.D.’s June 4, 2020 affidavit, para. 14). [ 149 ] C.D.B.D. testified she gradually introduced K.B.D. to E.S. I gather E.S. inadvertently appeared on screen in C.D.B.D.’s video communication with the boys on September 30, 2020.

I note parenthetically, the expression, “honey, I’m home” is often used light heartedly since the 1980 release of the movie, “The Shinning.” Still, I agree with defence counsel that introducing a new partner to children post-separation involves patience and finesse. Nevertheless, I am not persuaded this one incident is the reason S.A.B.D. and N.S.B.D. no longer have any contact with their mother or sister.

The fact J.J.D. has cut off all contact with K.B.D. as well suggests it was he who decided to end the children’s telecommunications with C.D.B.D. [ 150 ] I suspect the children were also distressed as a result of the police attending at the family residence at various times to remove either their mother or father. If the boys believe or are encouraged to believe their mother has abandoned them, I am not surprised they are confused, hurt and angry.

On the other hand, C.D.B.D. claims that as a result of these police interventions, K.B.D. fears her father and does not want parenting time with him. [ 151 ] I do not have the benefit of cross-examination so I am not able to make any definitive findings of credibility. I do not know if there is a “good way” to end a failing marriage, but I am confident there are far less disruptive measures than those adopted by C.D.B.D. and J.J.D. [ 152 ] In my view children are still too young to bear the burden of choosing whether they are going to have parenting time with a parent.

This is particularly so where the animus between the parents is of such intensity the children may reject the parent who is absent to appease the one who is present. (

c) the nature and strength of the relationships between the child and significant persons in the child's life [ 153 ] I accept the children had a close and loving relationship with both their parents and extended family in [omitted for publication]. J.J.D. believes all the children ought to live with him in the family residence. He says the children have never been separated before and N.S.B.D. and S.A.B.D. are suffering from separation anxiety, depression, anger and confusion. [ 154 ] C.D.B.D. argues J.J.D. wants to exclude her from the children’s lives.

She says J.J.D.’s goal is about controlling and punishing her and not about promoting the children’s best interests. She points to J.J.D.’s refusal to facilitate the video telecommunications provided in Judge Jackson’s June 5, 2020 Order. She points out that J.J.D. also refuses to relinquish any of K.B.D.’s belongings. E.S. gave her $500 to help her purchase some items for K.B.D. C.D.B.D. says J.J.D. continually pressed her to tell him her residential address in Prince George on the pretext of wanting to send K.B.D. some things.

When C.D.B.D. arranged for him to have K.B.D.’s belongings delivered to her via [omitted for publication] , J.J.D. did not cooperate (C.D.B.D.’s June 4, 2020 affidavit, para. 20).

[ 155 ] I am troubled by J.J.D.’s refusal or reticence to facilitate telecommunications between the parents and children and among the children themselves. If familial harmony is his foremost objective, I expect J.J.D. would have invested significantly more effort keeping these lines of communications open. (

d) the history of the child's care [ 156 ] C.D.B.D. says that she has been the children’s primary caregiver for most of their lives, which the legal history and support letters corroborate and J.J.D. does not dispute. J.J.D. was absent for lengthy periods working; he was also left the family residence during various periods of separation. Since February 2020, J.J.D. has not being working, and therefore is now available to provide full-time care for the children. [ 157 ] As set out above, I find C.D.B.D. and J.J.D. separated on or about May 27, 2020.

Since that time, N.S.B.D. and S.A.B.D. have remained in their father’s care in the [omitted for publication] community and K.B.D. has lived with her mother, initially in [omitted for publication] and more recently in Prince George. [ 158 ] C.D.B.D. has attached to her June 4, 2020 Affidavit a number of letters of support from various people extolling her virtues as a person, mother and member of the [omitted for publication]. These include correspondence from M.L. of [omitted for publication] and D.B.S.

J.J.D. also has people who support him, as K.H’s affidavit attests. [ 159 ] J.J.D. does not dispute that K.B.D. is closely bonded with her mother, however, points out K.B.D. spent the first six years of her life in [omitted for publication]. He says for her to be abruptly transplanted from the family residence in [omitted for publication] to Prince George is not in K.B.D’s best interest. J.J.D. maintains that neither C.D.B.D. nor K.B.D. have any ties to Prince George.

Nevertheless, he has not offered any suggestions of where C.D.B.D. ought to have lived after ousting her from the family residence. [ 160 ] J.J.D. considers the family residence his property. He objected to C.D.B.D. removing various items from the property and called the police when she and her helpers attempted to remove items from inside the family residence on May 28, 2020. J.J.D. is also of the view that all of the children should primary reside with him and should he need child care, the children’s maternal and paternal relatives will assist.

J.J.D. does agree C.D.B.D. ought to have periodic parenting time with the children provided it is not in E.S.’s presence. (

e) the child's need for stability, given the child's age and stage of development [ 161 ] N.S.B.D., S.A.B.D. and K.B.D. are still relatively young, so stability is an important component in their lives. Unfortunately, long before their most recent separation, C.D.B.D. and J.J.D.’s household was torn asunder with periodic separations, conflict and family violence. C.D.B.D. attributes their marital discord to J.J.D.’s abusive and controlling behaviour. She claims that over their 15-year relationship, J.J.D. has physically, sexually and emotionally abused her. She also accuses J.J.D. of having extra-marital affairs.

J.J.D. denies C.D.B.D.’s allegations and asserts it was she who verbally and emotionally abused him. She was also charged with assaulting J.J.D. in 2010. J.J.D. says C.D.B.D. had left the marriage approximately six times in the past and these separations always involved her having extra-marital affairs (J.J.D.’s May 29, 2020 Affidavit, para. 8, and November 3, 2020 Affidavit, para. 10).

J.J.D. says these separations were emotionally draining and he and the children began walking on eggshells in C.D.B.D.’s presence. [ 162 ] It is not uncommon for parents post-separation to convince themselves that whatever they want is in their children’s best interests. Saying it does not make it so. J.J.D. says that the children ought to live together in the same household as they have never lived apart. However, until recently, they not been apart from C.D.B.D. for any significant length of time. Now the boys have no communication with their mother or their sister.

Although it is likely destabilizing for K.B.D. to have been relocated to Prince George from the community in which she lived her entire life, it is also destabilizing to have the boys’ primary caregiver abruptly excised from their lives. (

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 [ 163 ] J.J.D. says that in 2006-2007 C.D.B.D. was addicted to methamphetamines. C.D.B.D. admits that she has had substance abuse problems in the past but has been clean and sober now for 14 years ( C.D.B.D.’s June 4, 2020 Affidavit, paras. 6 to 8, Exhibit 2). C.D.B.D. has suffered from depression, but sought and obtained medical treatment and counselling for these issues. She has never been medicated.

J.J.D. says C.D.B.D. suffers “great trauma from separation and abandonment issues”

[…]