Citation: N.J. v. D.J. 2021 BCPC 321 Date: 20211214 File No: 29351 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.J. APPLICANT AND: D.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK

Counsel for the Applicant: M. A. Matthews Counsel for the Respondent: J. A. Murphy Place of Hearing: Cranbrook , B.C.

Date of Hearing: October 7, 8, November 29, 30, 2021 Date of Judgment: December 14, 2021 Introduction [ 1 ] The Applicant N.J. and the Respondent D.J. are the parents of four teenaged children: E.J., age (omitted for publication), born (omitted for publication) R.A.J., age (omitted for publication), born (omitted for publication) M.J., age (omitted for publication), born (omitted for publication), and J.J., soon to be (omitted for publication), born (omitted for publication). [ 2 ] The children reside primarily with the Respondent and the Applicant has parenting time with them according to a court order that is not being strictly followed by the children.

The Applicant is seeking more parenting time with the children and is asking for a shared parenting arrangement. She is alleging that the Respondent has demeaned and diminished her in the eyes of the children, more through his conduct than his words. The Respondent denies this and blames the Applicant’s erratic behaviour and the children’s preference on why things are the way they are. [ 3 ] The lives of these parties were visited by trauma in 2013 when their youngest child was accidentally struck by a vehicle driven by the Applicant.

While the child has fortunately recovered for the most part from his physical injuries, the stress and strain of seeing their (at the time) (omitted for publication) son in hospital and the accompanying guilt that the Applicant experienced as a result, has severely fractured the family relationship. The parties subsequently separated and each has processed their grief in different ways. [ 4 ] The Applicant’s massive guilt resulted in her becoming depressed and experiencing mood swings.

This was misdiagnosed as a bipolar disorder and the wrong medications turned the Applicant into a different person from the mother that the children had known. The Respondent dealt with his grief by becoming domineering and controlling of the family and by treating the Applicant very poorly. He relegated the Applicant to a place of diminishment and disrespect within the family, even going so far as to lead some of the children to believe that they ranked in a higher place of authority within the family than their mother.

In her weakened emotional condition, the Applicant tolerated this and it has led to a very unhealthy family dynamic and a distressing and badly distorted example for the children of what parental partnership is supposed to look like. The Respondent is either in wilful or psychological denial about how harmful his conduct has been, and this has been reinforced by well-meaning friends who have rightly commended the Respondent for some of the sacrifices he has had to make as a parent, while being unaware of how the Applicant has been treated.

When the nature of the Respondent’s actions have been pointed out by others, such as by the respected Clinical Psychologist Dr. Michael Elterman, this has gone unheeded by the Respondent. [ 5 ] The underlying question in this case is how best to address the dysfunction that has resulted from this unfortunate situation. Left unaddressed, two young teenage daughters will grow up witnessing a model of parenting in which the mother’s role is to follow orders, do as she is told, and not be an equal and valued partner in parenting decisions.

Left unaddressed, the sons in this family will be left with a model of parenting that leads them to believe that as men, they are in charge and that their partners are consigned to meekly follow the rules they set. [ 6 ] Both parties were very well-represented in this action by their counsel and both sides differ in how best to address the situation presented in this case.

The Respondent does not see a problem and thinks everything will be fine as long as the Applicant will “behave.” His counsel takes the position that because of the ages of the children, who are all teenagers, it is too late to change the children’s minds or to order them to do anything differently than what they are doing now.

Counsel for the Applicant is more optimistic and sees these children as being reasonable and willing to comply with an order of this Court that will correct the family dynamic if the Respondent does not obstruct them from doing so. [ 7 ] Over the course of four days of this hearing, each of the parties testified, along with the Applicant’s physician, one of the children’s counsellors, a teacher who is a friend of the Applicant, the children’s former nanny, and a chiropractor who is a good friend of the Respondent. The parties’ oldest son also testified, over the objections of the Applicant’s counsel.

The court also had the benefit of a comprehensive psychological assessment of the children, prepared in March of 2020 by Dr. Elterman, and a “Hear the Child Report” prepared in early September of this year. Following is a

summary of the evidence and of the applicable law and the reasons for making the order that will follow from this hearing.

Summary of Evidence [ 8 ] The Applicant is 44 years of age and the Respondent is 51. They were married in 2001 after meeting at a religious retreat. Both parties appear to be hardworking with a strong work ethic. Raising four active children required considerable effort on the part of both parents and both have worked at multiple jobs over the years. [ 9 ] According to the Applicant’s evidence, the two of them shared the childcare responsibilities prior to June of 2013. Both worked outside of the home and both were diligent about wanting to provide properly for their children.

The Applicant said that when they both worked outside of the home, she did the bulk of the childcare responsibilities. The Respondent disputes this, although he did tell Dr. Elterman that before 2013 he would be gone from home a lot. He told Dr. Elterman that he did this frequently and purposely because he did not want to have to deal with the Applicant. There seems to have always been some tension in the relationship. The Respondent told

Dr. Elterman that there were “a number of small separations” between the couple, something that the Applicant denies. [ 10 ] Things took a drastic turn in the life of this family on June 18, 2013, when their youngest son was injured in a motor-vehicle accident. At that time the parties ran a side business renting “(omitted for publication)” for children’s parties. On that day, they had supplied one to a local high school.

The Applicant had to move the truck she was driving and their son, who was then just (omitted for publication), decided to follow the truck on his bicycle, something that the Applicant was unaware of. He was riding his bicycle close to the rear driver’s side, in the driver’s blind spot, and when the Applicant made a right turn, the child was knocked off his bike and the right rear wheel of the vehicle drove over him. The child suffered a severe back injury. [ 11 ] The child was flown to Children’s Hospital in Calgary, where he spent two months recovering from his injury.

The Applicant testified that she had tremendous guilt about her son’s accident. The Respondent drove to the hospital to be with the child and the Applicant stayed home to look after the other three children. According to the parties, the child healed amazingly well and today he has no physical restrictions. [ 12 ] After the accident, the Respondent never vocally blamed the Applicant for the accident, but he also did nothing to console her. This was likely the product of his own grief.

As the Applicant put it, the Respondent reacted by cutting her out of the lives of the children, refusing to let her be close to the children. She describes it as if the Respondent had fired her from her position as mother to these children. The Applicant testified that she blames herself for the accident and is struggling with self-forgiveness. She says that after the accident the relationship just got more strained. [ 13 ] The Respondent quit his job as a bylaw officer in order to stay home with the children.

He also hired a nanny for the children and required the nanny to be present when he was not able to be at home, even if the Applicant was home. The Respondent treated the Applicant in a very condescending manner. For example, when the family was driving in their van, he would insist that the Applicant sit in the back seat, not in the front as one might in a typical family and as she had done before.

She said “that became my permanent position.” She later stated, “We had very little communication other than his orders for me.” [ 14 ] Counsel for the Applicant presented evidence through her client of a number of ways in which the Respondent acted in a demeaning manner towards the Applicant in the presence of the children. These include the following: 1. He put surveillance cameras inside the home, including in the living room, kitchen and upstairs. He claims that he did this because he had received threats in his job as a bylaw officer, but for some reason this was not done before the accident. 2.

He changed the locks on the house but would not give the Applicant a key. 3. He would hold “family meetings” with the children from which the Applicant would be excluded. 4. He would take the children to Calgary but would not allow the Applicant to come along on these trips. 5. He would not allow the Applicant to attend at the doctor’s office for the children’s medical appointments. [ 15 ] The Applicant testified that at the time she was so guilt-ridden about the accident that she just went along with what the Respondent told her to do. The marked change in her behaviour was noticed by her friends as well.

A friend of the Applicant’s, who is a teacher, testified that after J.J.’s accident, the Applicant “became quiet, lost her joy and was less confident.” [ 16 ] In September of 2013 the parties met jointly with Dr. Martin Côté Beck, a consulting psychiatrist. According to a report written by Dr.

Côté Beck, he was told by both parties that “the doctors and nurses at the hospital were cold and unkind to [N.J.], from the get go, blaming and shaming her for the accident” and he went on to note how the hospital had misdiagnosed a fracture that the child had suffered and how this was “unacceptable.” The trauma that this couple was experiencing is described in Dr.

Côté Beck’s medical report of October 5, 2013, and the paragraph especially describes how the Applicant was feeling at the time: Since the accident in June which injured [J.J.], [N.J.] has been unable to face her husband and tell him in her own words what happened.

During our two hour interview they clearly stated that they want to get the trauma and duress which they are continuing to experience out of their lives. [N.J.] stated, “It’s very hard to be in my shoes right now.” She went on to say, “It’s hard for me to show my face and to walk down the street.” [N.J.] stated that she blames herself much more than anyone else could blame her and her anger at herself is at times overwhelming. Nonetheless she is determined to take care of her four children and overcome the current problems.

With encouragement and support [N.J.] took the opportunity to tell her husband for the first time in her own words, what happened the day of the accident. [ 17 ] According to Dr. Côté Beck’s report, when the Respondent heard the Applicant describe what had happened, he “turned to her trying to comfort her and told her that this was what he thought had happened. He said to her with compassion in his voice that [J.J.] is alive and with us.” At the time it appeared that this might be the start of the healing process, but this was not so. [ 18 ] Dr.

Côté Beck concluded his report with a “working diagnosis” of adjustment disorder with mood disturbance for both parties, and he noted how both had responded differently to the trauma that each had experienced. [ 19 ] Sometime later, Dr. Côté Beck made a diagnosis that the Applicant suffered from a bipolar mood disorder. It would subsequently turn out to be a misdiagnosis, one which has adversely affected the Applicant’s life. Following this diagnosis, the Respondent convened a family meeting and told the children that their mother was bipolar.

The Applicant testified that this and her diminished position in the home only seemed to worsen her depression. She testified that the Respondent also accused her of infidelity and told the children that their mother had a boyfriend. While the Respondent admits to a version of this, he describes this as “teasing” and says that it was common in the household for him to “tease” the Applicant in this manner in front of the children. [ 20 ] The Respondent’s explanation that this was teasing is at odds with what happened sometime in 2014, when the Respondent accused the Applicant of having an affair.

He went so far as to insist that she submit to a polygraph examination and in her compliant

state, the Applicant agreed to do so. She passed the examination. In his testimony, the Respondent said that he saw nothing wrong about his requiring her to do this. [ 21 ] At some point the Applicant changed psychiatrists and began seeing Dr. Hubertus Van Der Lugt. In many of these consultations the Respondent would accompany her and would fill in the blanks when the Applicant could not remember things.

As she put it in her evidence, “I let [D.J.] do most of the talking.” The Respondent acknowledged in cross-examination that he did do most of the talking at these interviews because the Applicant claimed to have a lack of memory. In her consultations with Dr. Van Der Lugt, the Applicant described experiencing mood changes. For example, in a report dated July 16, 2016, she reported a period of two weeks in which she felt very good, but this was followed by a two-week period in which she found herself to be very irritable, annoyed and impatient. Generally, the Applicant reported a lack of energy.

At the time she had been prescribed Abilify and Lithium, medications used to treat bipolar disorder. [ 22 ] In a consultation that the Applicant had with Dr. Van Der Lugt in January of 2017, the Applicant asked her psychiatrist to increase her dosage of Abilify. Dr. Van Der Lugt found this surprising as the Applicant had previously been reluctant to increase her medication.

The report suggests that the Respondent, who was present at the interview, was supporting an increase in medication because he was of the opinion that it had resulted in improvement in the Applicant. [ 23 ] An example of the degree to which the Respondent sought to exercise control over the Applicant can be found in some of the emails he sent and later attached to his affidavits filed in these proceedings.

For example, in an email sent to one of the Applicant’s healthcare providers on March 13, 2017, the Respondent wanted the Applicant to receive injections to treat what he perceived to be her bipolar disorder because he himself had researched the matter. He wanted this to begin as soon as possible. [ 24 ] After the home that the family had been living in sold, the Respondent found a new residence and took the children with him.

The Applicant testified that the Respondent told her that she was not welcome to come with them. [ 25 ] The parties have been living separate and apart since the sale of their former family home in 2017, but they disagree as to their actual date of separation. According to the Applicant, the parties separated on July 1, 2017, while the Respondent says that the actual date of separation occurred in 2013.

The Applicant had rented a condominium in Fernie, BC, because of a work commitment that she had, but it was her evidence that she only stayed there for one or two nights a week when the job required her to be there and otherwise she lived in the family home. The Applicant testified that she wanted to end the rental of the Fernie condominium, but the Respondent insisted that she keep renting it so that he could have some place to send her if she was not behaving in a manner that met with his approval. She testified that from 2014 to 2016, she only stayed there on average once every two months.

During this period the parties maintained separate bedrooms, but pooled their household money. The Applicant testified that she was required to sign her pay cheques over to the Respondent and he did not dispute this in his evidence. [ 26 ] In previous years, the Applicant signed letters prepared by the Respondent and submitted to the Canada Revenue Agency in which she said that she and the Respondent had been separated since 2013, that the Respondent had been the primary caregiver of the children and that the children had resided with the Respondent full time.

A similar letter was prepared in 2016 and was signed by both of the parties. The Respondent admits to preparing these letters. The Applicant testified that these letters were signed at a time when she was still under prescription medication for a misdiagnosed illness and when she felt compelled to obey what she was told to do by the Respondent. She said that at this time she was becoming more withdrawn.

While she acknowledges that the Respondent was a capable parent in day-to-day activities, she says that he was not a good example for the children in the manner that he treated his wife. [ 27 ] The Respondent testified in his evidence that prior to 2016, the Applicant had been the “primary financial supporter for the family”, using 2016 as a benchmark date because she had lost a major cleaning contract at that time. He said, “She primarily supported me until she lost the contact.” [ 28 ] The Respondent blamed the Applicant for what he referred to as “the final separation” in 2017.

He gave a generalized description of his complaints against the Applicant which included “her hitting me” as well as what he called “a spectrum of issues” such as “flashes of anger, physical abuse, massive depression” and her trying to provoke arguments. His counsel asked him to give specific examples of this behaviour, but he was unable to do so.

He also said that it was his decision that the Applicant’s time with the children would be supervised and claims that someone from the Ministry of Children and Family Development told him that this was a “good decision.” [ 29 ] Despite what had been written in the letters to the Canada Revenue Agency, it is clear from independent evidence that the parties were still living together after 2013. A caregiver who looked after the children as their nanny testified that the parties were living together in 2015.

This caregiver testified that the Respondent told her that he had kept the apartment in Fernie so the Applicant would not have to drive home on nights when she was working there and so he had some place to send the Applicant if he felt that she was not behaving properly. The caregiver confirmed the changes in the Applicant before and after J.J.’s accident.

She said that after the accident, the Applicant was quiet and that there was “something very sad about her.” The caregiver also said that the Respondent had told her that medication was going to make the Applicant better, but that instead, it seemed to make her sadder. [ 30 ] This caregiver added that she was never concerned about the children being in the Applicant’s care. In cross-examination she described the Applicant as “always very patient, very loving, very kind” and said that she had never heard the Applicant yell.

She also added that she never observed the Applicant have any of the “episodes” that the Respondent had warned her about, other than once when she saw the Applicant crying in her car. On one occasion, J.J. told the caregiver that the Applicant was bipolar. When the caregiver told him he was mistaken, J.J. insisted this was so because the Respondent had told him that it was. [ 31 ] The caregiver was asked about the Respondent in cross-examination and she said that she “couldn’t see forgiveness” in him, adding, “It wasn’t there.

That’s why the situation wasn’t very comfortable.” She said that the Respondent told her that the children did not want to see the Applicant because “She has a boyfriend.” This also made her feel uncomfortable because she believed that the Respondent was using this to make the Applicant feel guilty and because she believed that the Respondent himself was also seeing someone. [ 32 ] On June 16, 2017 the Respondent once again sent an email to one of the Applicant’s healthcare providers in which he criticized

the Applicant for not making the appointments he wanted her to make and once again asking for an update on the injections he wanted the Applicant to have.

Even though he knew at this point that the Applicant would soon no longer be living with him, he was trying to formulate a plan for her medical care in the event that she moved to Alberta, suggesting that he would continue to have some sort of a controlling influence in the Applicant’s medical care even after she was no longer living with him. [ 33 ] Sometime in 2017 the Applicant stayed at a women’s shelter and in cross-examination, the Respondent said that this might have even been at his suggestion, though he says that he told the Applicant to be sure to tell people that she had not been abused. [ 34 ] On November 20, 2017, the Applicant met with Dr.

Van Der Lugt in the absence of the Respondent and in his report he writes, “I think we got a little bit more clarity of information. It was at this point that Dr. Van Der Lugt wrote “I think in retrospect that this [bipolar mood disorder] is a wrong diagnosis.” They discussed a change in the Applicant’s medication and a possible diagnosis of generalized anxiety disorder. [ 35 ] In a subsequent consultation with Dr. Van Der Lugt on February 6, 2018, the Respondent once again attended with the Applicant. Once again the psychiatrist expressed scepticism over the previous diagnosis of bipolar disorder.

This opinion becomes stronger with subsequent reports and Dr. Van Der Lugt continued to work on reducing the Applicant’s medication. By September 18, 2018, she had discontinued the use of Lithium and Abilify and a report of September 18 notes that this was done “with great success.” [ 36 ] By 2019, both the Applicant and the Respondent had begun dating other people. The Applicant initially thought it best to keep her relationship secret from the children. Initially she denied the relationship for fear of how the Respondent might react, but she later felt guilty about not being honest with them.

On April 27, 2019, the Applicant wrote a letter to the children and read it to them. The letter began by telling them, “I have some apologies to make to you guys.” It went on to state: I owe you an apology for lying to you. I met someone a year ago and have been in a relationship with him. I wasn’t honest with you guys because I didn’t want to hurt you. But my dishonesty has hurt you greatly. I was wrong and I’m deeply sorry for that. [ 37 ] The letter suggested that the Respondent was also seeing someone, but the Applicant said in the letter that she would not ask the children about this person.

In the letter she also invited the children to spend more time with her, going so far as to propose that the children live with each parent on alternating weeks. The Applicant testified that when the Respondent learned of her own new relationship, he told her that this could involve the intervention of the Ministry of Children and Family Development and might result in the removal of the children. [ 38 ] In another moment of vulnerability, the Applicant sent an email to the Respondent sometime in May.

She testified that she continued to experience guilt over lying to the children about her relationship as well as still carrying residual guilt from the accident in 2013. In an email she sent to the Respondent, she wrote: I know you have a lot to deal with after what I did. I’m sick [D.J.]. And I’m really scared. I don’t know what’s wrong with me. I don’t think it’s bipolar. I’m not safe around the kids. I need help. I’m going back to Cranbrook. I haven’t been in a really long time. I told myself I was okay. I didn’t need any meds or a doctor. I’ve been running from whatever this is for years.

I understand it’s best I don’t see the kids. I’m so sorry I hurt you so much. Especially [J.J.]. I really didn’t do this for revenge. I saw the kids with [J.] [a woman that the Respondent was seeing] and something happened to me. I felt like I lost them again. And I just couldn’t handle it. I didn’t know what to do. The kids have a great dad and they deserve a good mom. I know you’ll find them one. I just can’t watch it. It hurts too much. I saw you and the kids with J. She can be something I never could. I can keep working. The only thing I could ever do. No matter how bad I was I could always work.

I will keep cleaning the college. I don’t want any money. You keep the cheques. I know it’s not worth much but I’m sorry. [ 39 ] It is unclear when this was sent, but in a reply sent on May 30, 2019, the Respondent writes: You are still stuck back hear (sic) at the time and date of the text below. You have NOT pulled out of it yet. Iv (sic) lived this several times with you over the past 18 years. [ 40 ] The Applicant testified that after sending her message, the Respondent prohibited her from seeing the children unless it was in a public setting.

The Respondent saw this as justification for taking greater control over the Applicant’s interaction with the children. For example, on May 12, the Applicant sent a message to the Respondent asking for permission to see the children and to give them some things. He replied with a message reading “Nope. Give them another time when u have checked with me.” On May 18, the Applicant sent a message asking about previously made plans to take J.J. to church. In his reply the Respondent once again adopted a very controlling posture, making it clear that he would decide when and if the Applicant could see the children.

He was also involving the children in these discussions. He wrote: Regarding tomorrow the church thing is off. We have discussed decided and agreed yesterday we are going back to the old rules until such time that you have a constant therapy plan and we know the medication you are on and are educated on the side effects that may occurs (sic).

We are sticking to our safe zone until such time to ensure the kids are not used and treated like you did 3 weeks ago. [ 41 ] In cross-examination, the Respondent also said that he told the Applicant “If you have your boyfriend around the kids, I’ll pick up the children and move to Ontario.” [ 42 ] The Respondent continued to present the narrative to the Applicant and to the children that the Applicant suffered from bipolar disorder, even though by this point in time the medical opinion was contradicting this diagnosis.

On May 27, he sent a message to the Respondent which read: Truth in a BP persons (sic) mind is not always (sic) reality of what is or what way. BLPD believes it is correct even when it is proven incorrect. Great your making the appointments again, but education about these disorders will only help the kids and yourself. [ 43 ] On the same day, the Respondent sent other messages, telling the Applicant that “2+2 does=4 Do the math!! You are still sick,

as you indicated.” He also sent her another message asking the Applicant about her medication and whether she had considered the option of a monthly injection. The Respondent wanted to know how the Applicant was paying for her psychiatric care, the relevance of which is not readily apparent. The remainder of the message became even stranger, bordering on bizarre. The Respondent wrote: I sense you are playing games with hear (sic) like you did 4 years ago and just in for obstruction games and not for personal health recovery then I will speak out and files (sic) a complaint.

If you won’t (sic) info from any of the kid (sic) see there is a propper (sic) code of conduct you must follow. Using medical staff for defamation of chartered (sic) and obstruction purposes will get you in very hot water very fast. The goal is to make things better not worse for children as a whole! [ 44 ] A number of times in cross-examination the Respondent would respond to questions he was asked by Applicant’s counsel by asking if she could prove what she was asserting. The implication of this answer was that if the assertion could not be immediately supported by some form of evidence, then it was not valid.

This of course conflicts with the promise made by every witness to answer questions with “the truth, the whole truth and nothing but the truth.” For example, the Respondent was asked by the Applicant’s counsel if he had imposed a condition on the Applicant that she could not enjoy her court-ordered parenting time unless she furnished proof to his satisfaction that she was taking her medication. The Respondent replied by asking counsel if she had proof of this. The following day, when counsel showed the Respondent messages he had sent, he acknowledged that he had done so.

For example, on June 14, 2019, the Respondent messaged the Applicant and said “Of (sic) you are not on medication or Manic when I arrive tomorrow, I will not be releasing the children into your responsibility for the after noon (sic).” On June 20, he messaged her again, complaining that she had not answered his questions. He referenced the Applicant’s message from May, and once again his message ended strangely, asking “Who would pick up the kids? Or is it a cab?

And will the cab man be off the dope and sober!!” This trend continued through text messages of June 20, June 23 and on July 14. [ 45 ] The Respondent’s strange behaviour continued, when on August 6 he informed the Applicant that he had erected “No Trespassing” signs on his property and that these applied to her. He insisted that she “give 24 hour notice and receive permission from myself to enter my property” and said that he would “get back to” the Applicant about a future scheduled visit. [ 46 ] In July 2019, the Applicant filed the Application which gives rise to this hearing.

She had to obtain an order to serve the Respondent substitutionally. On October 29, 2019, the Applicant obtained her first order of this court for parenting time with the children. [ 47 ] In a message of November 16, 2019, the Respondent acknowledged that he had asked the Applicant to submit to a safety plan that he had prepared.

In his evidence he also admits that he had done so and admits that one of the terms he decided on was that the children were not supposed to be left alone with their mother; either he had to be present or else the hired caregiver had to be present. [ 48 ] At some point (although the time is unclear from the evidence) the Respondent had contemplated moving back to Ontario. He had obtained forms for an application for an order under Ontario’s Mental Health Act to have the Applicant arrested and examined under that Act in the event that she followed him to Ontario. [ 49 ] By November of 2019, Dr.

Van Der Lugt was confident in expressing the opinion that the Applicant had been misdiagnosed. In a report written on July 11, 2019, he wrote: I have been [N.J.’s] treating psychiatrist since 2016 and during this period of time she clearly does not have bipolar mood disorder. She currently is on no medication and has been stable since September of 2018. [ 50 ] This opinion is supported by that of Dr. Paul Michal, who had been the Applicant’s physician since 2019.

In a report which he wrote on August 19, 2019, he makes the following comments: In the 10 years that I know [N.J.], I have never seen anything in her behaviour that would indicate to me that she had bipolar disorder. She has never presented with grandiose thought patterns, pressured speech, flight of ideas, distractability, psychomotor agitation or impulsive behaviour. In contrast, I have always found her to be very quiet, calm, controlled, composed and thoughtful. I fully support her having shared custody of her children as I feel it is definitely in both her and their interest. [ 51 ] Dr.

Michal testified at the hearing of this matter. He said that he had always been suspicious of the diagnosis of bipolar disorder because since becoming the Applicant’s family physician in 2008, he has never witnessed her exhibiting any of the typical signs of bipolar disorder.

He also testified that he has never witnessed any behaviour on the part of the Applicant to justify the restrictions which have been placed on the Applicant in her ability to exercise her parenting role. [ 52 ] The Applicant testified that today she is not on any medication related to her mental health and only takes medication for Celiac Disease. In spite of these medical opinions, the Respondent testified in cross-examination, “I still question the doctors’ conclusion of misdiagnosis.” [ 53 ] The Respondent was made aware that the Applicant had been misdiagnosed.

He received copies of the medical reports expressing this opinion in the course of this litigation as attachments to affidavit material. In spite of this, he has continued to promote the false narrative to the children and to others that the Applicant has this mental illness. In common parlance, this is known as “gas- lighting”, the attempted manipulation of someone by psychological means, into questioning their own sanity. The Respondent has used this tactic to justify his controlling behaviour to alarming levels.

For example, in the summer of 2020, even after being made aware of the misdiagnosis, he unilaterally imposed a set of rules that he had written about what the Applicant could and could not do on her parenting time. These were listed in an email sent on June 19, 2020. These were not court-ordered conditions. The Respondent believed that he had the right to impose these rules, regardless of what had already been ordered by this Court. His “rules” included the following: 1.

If the Applicant left the youngest child (who was 12 and a half at the time) alone for more than 3 hours at the Applicant’s residence, then he had the “right” to take the child back into his care. 2. The Respondent gave himself the “right” to remove the child from the Applicant if she left the child in the care of anyone else.

3. He gave the children the “right” to decide their own parenting time. [ 54 ] The Respondent also wrote out a handwritten set of rules for the children when they were at the Applicant’s home. These included requiring the children to have their phones charged and he told the children that they could call 911 at any time that they were at their mother’s home. He also provided them with the number of the Kids’ Help Line. They were instructed “Don’t leave JJ alone or alone with mom.” He also told them that the Applicant could not be gone from the house for longer than two hours.

These rules appear designed to instil a false sense of fear in the children, tending to lead them to believe that they were not safe when they were in their mother’s home. [ 55 ] Further evidence of this controlling behaviour is contained in an undated text message sent by the Respondent to the Applicant, telling her that part of the safety plan required her to have $5 million liability insurance on any vehicle she was driving the children in and required her to provide a driver’s abstract. [ 56 ] The Applicant testified that despite being a joint guardian of these children, the Respondent has prohibited her from having information of J.J.’s medical treatment and appointments or about the lawsuit commenced on his behalf arising out of the June 2013 accident.

The Respondent says that this is because the Applicant is the defendant in the lawsuit. The lawsuit has now been settled, but the Applicant has not been provided with details of that settlement. [ 57 ] Sometime in 2019, the Respondent went to Ontario. Rather than leave the children in the care of their other parent, he left them in the care of a neighbour with instructions that the Applicant was not allowed to have parenting time with the children. He made a second trip to Ontario alone, doing the same thing, but on the second occasion he did not tell the Applicant that he was going.

In cross- examination, the Respondent acknowledged that he told the children not to tell their mother, but he says that he did so because the children did not want to see their mother. [ 58 ] On March 25, 2020, Dr. Michael Elterman submitted a very thorough psychological assessment concerning the parenting arrangements for this family. There are a number of concerning matters that arise out of this report. One of the most prominent is Dr. Elterman’s strong suspicion that the children were coached by the Respondent in advance of their interview with him.

In his report, he writes at page 31: It seems fairly clear that the children have been told too much about Ms. [N.J.] by Mr. [D.J.] or have overheard inappropriate conversations to a point where they question her competence. It is unusual for all the children to immediately tell me when asked about their mother, to say that she has bipolar disorder.

The examples that they give of her behaviour do not resemble bipolar disorder but rather times when she has not been in a good mood or what they deem to have been “mean” to them. [ 59 ] This revelation is troubling because by this point in time it had been known for some time that the Applicant had been misdiagnosed. The Respondent had not been honest with the children in telling them this and appears to have been continuing the false narrative for the children that their mother had this mental illness. [ 60 ] The second glaring concern arising out of Dr.

Elterman’s report was that the Respondent had created a family dynamic in which the older children were led to believe that they had authority over their mother. This is especially true of R.A.J., who was then only 15- years-old. Dr. Elterman writes of his interview with R.A.J. at page 29-30 as follows: When asked about her mother, she says that her mother has bipolar disorder and she is not “always there.” Interestingly, she says that the parent who gets mad quickest is her dad and the one who is most affectionate is her mother. . . .

Of some concern is her saying that she has been given the role of being in charge of the younger children at her mother’s during parenting time. Also of concern is that [R.A.J.] says that her mother does not want to answer (quite appropriately) when she asks questions about what medication she is on or if she has a boyfriend. She acknowledges that if her mother did have a boyfriend, she has never met this individual but it is something that she feels that she is entitled to know about.

Speaking to [R.A.J.], it is clear that the boundaries between parent and child have become diffuse just as Mr. [D.J.] regards Ms. [N.J.] like one of the children.

R.A.J. regards herself as having more authority than her mother. [ 61 ] He elaborated on this at pages 31-32 where he writes: In the case of [R.A.J.], I think that an unhealthy dynamic has developed where there is somewhat of a role reversal which puts [R.A.J.] in an uncomfortable position because she wants the love of her other parent but at the same time she has been placed in the role of “responsible” older sibling even when the children have a mother present.

She has become deputized by Mr. [D.J.] to the extent that she feels that if something goes wrong then it is her responsibility. [ 62 ] The Applicant gave an example of this. Recently, J.J. had broken his collarbone and was given medication as a result. She testified that she was told by her daughters that they were told by the Respondent that they were to administer J.J.’s medication, not the Applicant.

She also said that J.J. has wanted to have friends over to her home, but has told her that if he does so, he will get in trouble with the Respondent. [ 63 ] The Respondent’s colouring of the children’s minds comes out in Dr. Elterman’s report in his interview of J.J.. At page 30, he writes: In my interview with [J.J.], he speaks positively about both parents. He enjoys spending time with both parents.

Like his sister, when asked about his mother, the first thing he says is that “she has bipolar.” It is of note where he is asked what advice he would give her to be a better parent, he raises something from years ago where he says that she was in a relationship with a man he never met and she should not do this again. It seemed to me fairly obvious that this was something that he had heard talked about and is not likely something that he has been remembering as is the source of his real happiness. [ 64 ] Dr.

Elterman’s assessment of the parties is consistent with conclusions that can reasonably be drawn from the evidence in this

case. He writes at page 31: It would seem from the history provided that these two parents were poorly matched from the outset. Mr. [D.J.] has a need to control as a result of his own anxieties and insecurities. For her part, Ms. [N.J.] was passive and conflict avoidant and therefore, they tended to polarize each other where over time her passivity allowed him to dominate more and his control would, in turn, create situations where she became increasingly conflict avoidant and depressed. [ 65 ] In this passage of the report, Dr.

Elterman goes on to describe the adverse effect that this model of parenting has had on the children. He continues at page 31: The dynamics between these two parents played out and projected onto the children such that [R.A.J.] has enjoyed a special status within the family and has become somewhat like her father’s agent and confidante. [M.J.] finds herself wanting to identify with her big sister while still maintaining a relationship with both parents.

As the youngest child, [J.J.] enjoys a special status within the family and as a result of his mother being involved in the motor vehicle accident involving him, she has perhaps tended to be most indulgent with him. He enjoys the time with her and has not picked up any of the misgivings that one sees in older children. [ 66 ] The Respondent had each of the children write letters to the court expressing their preference about what the ongoing parenting- time arrangement should be.

Generally, when the views of children are presented to the court, this process is done through an impartial source such as in a report under

Section 211. The independence of the reporter is an important aspect of how the children’s views are presented because the children are under no pressure to please the person they are reporting those views to, or any fear of that person. This is especially important in a case like this, where the children have reported to Dr.

Elterman that the Respondent is “the parent who gets mad the quickest” and where the Respondent has displayed a strong tendency to be a controller. [ 67 ] Rather than give the children the opportunity to have their views heard in a safe and unbiased environment, the Respondent instead decided that he would be the filter for their views. The Respondent justifies this by asserting that he was giving the children a voice. The reality is that the children were denied the right to have their voice heard in a safe and impartial environment.

Unsurprisingly, the letters support the Respondent’s desired outcome. [ 68 ] Dr. Elterman did not go so far as to recommend a shared parenting arrangement. At page 31 he states that this is because the Applicant has not been able to develop that kind of relationship with the children yet and because of the position that the children have been placed in up to this point in time. [ 69 ] Dr. Elterman recommended that the parties focus on rebuilding their relationship. He recommended that the Applicant needed to engage in “more assertive parenting” with the children.

He also recommended that the Respondent take measures to “specifically address the importance of the children to have both parents in their lives” and said that this was required in order for the Respondent to “change his attitude” and address his controlling behaviour. [ 70 ] Having been given the benefit of this advice as to what was in the children’s best interests, how did the parties conduct themselves? The answer to that can be found in the parties’ efforts at co-parenting.

The Applicant testified that she would like very much to play a role in the lives of these children as a co-parent, but that the Respondent has shut her out of any decision making. He has done so even though there is a court order in place, made on June 1, 2021, by the Honourable Judge E.M. Burdett of this Court, which contained the following terms: Pursuant to s.40 (2) of the Family Law Act , the parties, [N.J.] and [D.J.], will share equally all parental responsibilities for the children as set out in s.41 of the Family Law Act .

The parties shall have the obligation to advise each other of any matters of a significant nature affecting the children. The parties shall consult each other about any important decisions that must be made about the children and shall try to reach agreement concerning these important issues. [ 71 ] In September of this year a decision was made about the children’s schooling for the current school year. The Respondent made this decision unilaterally. He did not discuss the matter with the Applicant and only told her of “his decision” after the fact.

This was an early breach and a clear breach of Judge Burdett’s order. His explanation was that he misunderstood the order and thought that he had the power to have “the final say” and that he has since been corrected by his current lawyer. This explanation appears to be a disingenuous one. Even if the Respondent is being honest about being misinformed about believing that he had “the final say”, it does not explain why he never even bothered to consult with the Applicant about this issue. It is very telling on how much or how little the Respondent learned from Dr.

Elterman’s advice about the importance of co-parenting in these children’s lives. [ 72 ] In cross-examination of the Respondent, counsel for the Applicant put forth another example of a false reality that the Respondent appears to have convinced himself of. He was asked why he does not give the Applicant any information about the children’s school or about their counselling. He said it was because the Applicant was not really interested in those things.

He maintained this position even after it was pointed out to him that the Applicant had gone so far as to apply for a court order to obtain this information. [ 73 ] The Applicant had identified herself by her maiden name in order to meet with the children’s counsellor to attempt to secure information from the counsellor. Partway into the interview, the Applicant had identified herself to the counsellor by her married name.

While the Respondent and the counsellor have expressed outrage over this deception, it is unclear how to reconcile this with the Respondent’s claim that the Applicant lacked interest about J.J’s counselling. [ 74 ] That counsellor, Dr. Wynette Morley, testified that she has worked with the children following J.J.’s accident, though her file is now closed. She spoke positively about the Respondent’s parenting of the children, based on the interaction that she had observed. She was particularly impressed with sacrifices that the Respondent has made on behalf of the children.

She had only met the Applicant on the one occasion previously mentioned, which was on September 11, 2014, and she was not impressed by the Applicant’s use of her maiden

name as a means of getting to meet with her. She said that the Applicant had revealed who she was within the first 10 minutes of the interview. She testified that it was not her policy to provide information about a child’s counselling session to a parent unless doing so was necessary to address a danger to the child. [ 75 ] Dr. Morley testified that she was aware that Dr. Elterman had written a report, but that this was not provided to her and therefore she was unable to speak to any of the concerns that Dr.

Elterman had addressed about the Respondent. [ 76 ] In his evidence, the Respondent testified that he wants to have “the final say” on decisions concerning the children. His reason for this is because “the children have been raised this way by me and I’ve done a smash-up job” (likely meaning to say “smashing”).

He also believes this to be necessary because in his words “we can’t always know that [the Applicant] is going to be healthy.” He also blames his non-compliance with the court orders for the Applicant’s parenting time as being times when the children would “frequently stray from the order.” [ 77 ] At the hearing before Judge Burdett, which occurred remotely, the Respondent had some of the children present at the hearing, but they were off camera and this wasn’t until partway through the hearing that Judge Burdett was made aware of this.

The Respondent saw nothing inappropriate about this because he believed that others had been allowed to do this. [ 78 ] In April of 2021, the Applicant became aware that her daughter M.J. was falling behind in her online assignments. She contacted M.J.’s teacher, asking for a list of M.J’s uncompleted assignments.

She testified that when the Respondent learned that she had done this, he became upset with her and told her to “butt out.” She attempted to discuss what they could do together to help M.J., but said that the Respondent refused to discuss the subject with her. [ 79 ] The views of the three youngest children were once again solicited in late August of 2021 by Gordon Rowe in a “Hear the Child Report.” The children were interviewed in the Respondent’s home. Significant in the report is that all three children told the report writer that they feel safe in both parents’ homes. In the report’s conclusion, Mr.

Rowe writes: All three children state that they love both of their parents and they enjoy and appreciate the care that they receive in both homes. However, given that they have been put in a position to choose how they share their time between the homes of their parents, they are unanimous in stating that their preference is for their father to be their primary care-giver, but want to maintain their relationship with their mother. [ 80 ] The same friend who had testified about how the Applicant had “lost her joy” after J.J.’s accident now describes the Applicant’s present state differently.

According to this witness, the Applicant is now a “kind and positive person”, someone whose confidence level is increasing, who is engaged and now makes eye contact and who has regained her ability to laugh again. [ 81 ] Dr.

Mike Rumpel, a chiropractor who has been a friend of the Respondent’s for over a decade, testified about the interaction he had observed between the Respondent and the children and described what he had observed as “an excellent parenting relationship.” He has had little interaction with the Applicant since J.J.’s accident in 2013, but on the one occasion that he met with her to discuss J.J.’s chiropractic treatment, he recalls her being very professional and courteous and asking pertinent questions. [ 82 ] In 2020, the Applicant started a bookkeeping business.

She also works as a commercial janitor and operates the bookkeeping business out of her home. She lives in a three-bedroom upper level of a home. She is presently not in a relationship. The Applicant testified that the Respondent continues to sabotage her parenting time with the children by scheduling activities for the children during her parenting time, such as hunting trips and trips in his new motor home. [ 83 ] Following the parties’ separation, the Applicant took a minimum-wage job. She testified that the Respondent had asked her to support the family by purchasing $700 worth of groceries each month.

She kept a record of this. This was increased to $900 in April of 2018. This was changed to a cash payment in 2019 on the advice of her lawyer, initially of $1,400 per month and later of $1,700 per month. In April of 2020, the Applicant was laid off work and now only has her self-employment income. She reduced the child support payment to $900, but increased it to $1,200. This was subsequently adjusted to $1,150. [ 84 ] The Respondent last filed a financial statement in this action on October 25, 2019, at which time he reported annual employment income of $50,059.40 and self-employment income of $24,739.49.

His tax information showed the following information, which is taken from tabs 15 and 16 of the Respondent’s Book of Documents, as well as from a 2020 tax return

summary filed as Exhibit 3 in these proceedings:

a) For 2016, net income of $52,341 is shown on a tax assessment

b) For 2017, net income of $23.003 is shown on a tax assessment

c) For 2018, net income of $23,688 is shown on a tax assessment

d) For 2019, net income of $60,063 is reported on a 5 year tax

summary

e) For 2020, a tax return reported net income of $37,902.85, while the 5 year tax

summary shows a net income of $39,766. [ 85 ] In the Applicant’s most recent financial statement, filed in June of 2020, she reports an annual income of $45,000. The tax assessments attached to her financial statement show the following:

a) For 2017, taxable income of $12,191;

b) For 2018, taxable income of $27,758;

c) For 2019, taxable income of $60,062.43 (taken from a tax return not from a tax assessment)

d) For 2020, taxable income of $41,445.59 (taken from a tax return, not a tax assessment)

e) For 2021, income of $31,721 (taken from a profit and loss statement, current to August 30, 2021. This prorates to an annual income of $47,582.) [ 86 ] The Applicant testified that recently the Respondent continues to sabotage her parenting time with the children. For example, her daughter R.A.J. could not attend for her parenting-time visits because she was looking after her younger brother while the Respondent was working nights. She said that the Respondent would

schedule a hunting trip with J.J. when it was supposed to be her parenting time. [ 87 ] The Respondent called the couple’s oldest child E.J. known as (omitted for publication) to testify, over the Applicant’s objection. It appears that this was also contrary to counsel’s advice, as the Respondent testified “Mr. Murphy and I have gone back and forth on this.” The Respondent was asked to reconsider this but his instructions to his counsel were to have the son testify. E.J. is 19 years of age and is an adult according to the law of this province.

On a previous occasion, the Respondent had E.J. serve court documents on the Applicant’s counsel, seeing nothing wrong with this. The Respondent had earlier testified that he blames the Applicant for the fact that E.J. does not have a girlfriend and that he has issues with women. E.J. suffers from Tourette syndrome and this has annoyed the Respondent in the past. He admits that on one occasion he made E.J. sleep in the bathtub at a hotel because he was bothered by the son’s noises.

The Respondent claimed that E.J. only goes to visit his mother because she makes meals for him. [ 88 ] Later in cross-examination, the Respondent claimed that there is distance in the relationship between E.J. and his mother. He said that he took “100% responsibility” for this because he did not get the two of them into counselling, once again implying that he had control over the Applicant’s choices. [ 89 ] Given the opportunity to speak for himself, E.J. described his relationship with the Respondent as “solid” and throughout his evidence he referred to his father as “(omitted for publication)”.

E.J. said that his relationship with the Applicant is “up and down” but he said that he spends time with the Applicant because “I enjoy it.” [ 90 ] E.J. testified that he is in school now, studying to be a firefighter. He has fought forest fires in the previous summer and also volunteers on a search and rescue team. He is scheduled to complete his studies on February 26, 2022 and expects to have employment by then. He added, “I definitely have a job in the summer” (of 2022) when he expects to work fighting forest fires again. [ 91 ] When interviewed by Dr.

Elterman, E.J. said that the Applicant was “not my favourite person” although this appears to be no longer the case and at the time of trial, E.J. was seeing the Applicant more frequently. He told Dr. Elterman that the Applicant was never physical with him and he added that he had no concerns about the Applicant being with any of the other children. In the report, E.J.’s concerns seemed to be about the Applicant showing favouritism towards J.J. [ 92 ] The oldest daughter, R.A.J., suffers from depression according to the Respondent.

In describing this child’s relationship with her mother, the Respondent used very patronizing language, saying that the daughter would visit with her mother only if the Applicant was “behaving herself.” This was consistent with the overall tone of the Respondent’s evidence in which he saw the Applicant as if she was a child and he was her parent. The Respondent says that R.A.J. will do what she wants to do. [ 93 ] R.A.J. told Dr.

Elterman that the Respondent is “the parent who gets mad quickest” while the Applicant is “the one who gives most hugs and kisses.” R.A.J. expressed concern about her mother attending at her school. She told Dr. Elterman that she adopts an authority role with her younger siblings because this is what she has been used to doing.

She also said she does this because of her mother’s bipolar disorder. [ 94 ] In the “Hear the Child Report”, R.A.J. told the report writer that there was nothing she wanted to change with her mother’s home and that she feels safe in the home of both of her parents, although she feels most comfortable in her father’s home. She told the report writer that she would like to live primarily with the Respondent, but would like the right to have the flexibility to visit her mother when she chooses, rather than have a structured

schedule for visitation. [ 95 ] The Respondent concedes that the younger daughter, M.J., wants to have a relationship with her mother but only if her little brother is not there. Like R.A.J., M.J. also identified the Respondent as the parent who gets mad the quickest and who yells the most, but she also said that the Respondent was the one who gave more hugs. She said that the Respondent will question her about how things went at her mother’s home. She also said that she was comfortable going to either parent if she had a problem. R.A.J. told Dr.

Elterman that she was content with the parenting time as it existed and complained that after three days with her mother, the two of them would be fighting. She also told Dr. Elterman that she was old enough to make her own decisions and that she had “rights.” [ 96 ] M.J. told the “Hear the Child Report” writer that the Respondent was “loving, fun and generous” and complained about having to share a room with her sister at her mother’s home, while she had her own room at her father’s home. She went on to state that sharing a room was not really a problem, as she got along well with her sister.

She said that she was happy with both homes. She told the report writer that her preference would be to live with the Respondent during the week and with the Applicant on weekends. She added that she feels safe in both homes. While she considers the Respondent to be her primary caregiver, she would like to have some private time with her mother and her sister. [ 97 ] The Respondent described his youngest son as someone who holds a lot inside and who wants to please both sides. He also thought it important to note that his son is a bed-wetter sometimes. Dr.

Elterman describes J.J. as “smart, affectionate and quick-witted.” J.J. was aware that the other children thought that the Applicant favoured him, but he attributed this to the fact that he was nicer to her. J.J. also described the Respondent as the parent who yells the most, but also as the one who gave the most hugs, and the one he found it easier to talk to. J.J. told Dr. Elterman that sometimes he wants to spend more time with the Applicant.

He said that he thought that a balance in parenting time, with him spending a week with each parent, would be good, but that “his father, however, doesn’t think it is a good idea. His father says maybe in future, but not now.” The latter comment indicates that the Respondent took steps to influence the child’s views when they did not match his own. [ 98 ] J.J. told the “Hear the Child Report” writer that he is comfortable in both homes, but the report writer added that J.J. expressed

appreciation for a number of things in his mother’s home, including how she shared her time equally with all of the children. He described her as “special, kind and a care-giver” but also thought that she was overprotective at times. On this occasion, J.J. had changed his views on parenting time from what he had initially told Dr. Elterman and said that he would prefer to reside with the Respondent during the week and with the Applicant on weekends. [ 99 ] Generally speaking, there was a significant difference in how each of the parties responded in cross-examination.

The Applicant gave direct answers to questions and conceded on points which were not necessarily favourable to her. For example, she testified that she took responsibility for her insecurity and she acknowledged that at times she had acted imperfectly and sometimes inappropriately. She said that this was especially so when she was taking prescribed medication arising out of her misdiagnosis. [ 100 ] The Respondent was less direct in answering questions in cross-examination, often using one of three tactics to avoid directly answering a question put to him.

Sometimes he would answer a question from counsel by asking his own question rather than addressing the question he had been asked. Sometimes he would give a lengthy answer on an unrelated point, avoiding the question he was asked, and when counsel reminded him of what he had been asked, he would claim to have misunderstood the question.

Sometimes he would answer a question by asking counsel “can you prove that” or “can you show me the proof of that?” When one statement alleged to be his was put to him, he did not deny it, but instead said “do you have proof I said that?” [ 101 ] Counsel for the Applicant, in her submissions, submitted that where the evidence of the parties differed on any point on which there was no independent corroborating evidence, I should find the evidence of the Applicant to be more credible. Based on how each of the parties gave their evidence, this seems to be a sensible course of action.

Whether by reason of deliberate obfuscation, or because of some psychological reason, the Respondent appeared to have a lesser fidelity to the truth. [ 102 ] The Respondent implied in cross-examination that he may commence further court proceedings if he is unhappy with the result of this hearing. He said that he might bring further court applications “depending on how things go.” He also stated that he blames the Applicant for the breakdown in their communications because she was the one who started this litigation.

Positions of the Parties [ 103 ] The Applicant in essence asks for an order restoring her role as an equal parent in the lives of her children, something that she alleges has been wrongfully denied to her because of the controlling and manipulative actions of the Respondent. As her counsel puts it, the Respondent has “cut her out of the lives of her children.” Counsel acknowledges that the Applicant allowed this because that was how she responded to the trauma that she had suffered as a result of witnessing her son’s accident and feeling at fault for it.

The problem is that the Respondent has taken advantage of this as a means of gaining control over the lives of the children to the exclusion of the Applicant. The Applicant argues that this is not in the children’s best interest because it presents a distorted and very wrong model of parenting to the children and that there is a danger that the children will carry this example into their own relationships. [ 104 ] Counsel asserts that the Respondent has been controlling and has treated the Applicant in a cruel and demeaning manner, rather than treating her with the compassion that she deserved.

In doing so, he has driven a wedge between the children and their mother by lies, manipulation, bullying and hypocrisy. The biggest lie has been by telling the children that their mother had bipolar disorder, even after he knew that a preponderance of medical evidence showed this to be false. He has threatened to take the children from the Applicant if she had a new relationship, while at the same time entering into new relationships himself. Court orders have meant nothing to him and he has refused to obey even the most basic aspects of them, such as discussing important issues like the children’s schooling.

His behaviour has been very troubling and counsel asserts that it can only be harmful to the children to be in the primary care of someone who has behaved like the Respondent has. [ 105 ] Counsel for the Applicant asks for an order giving her client the deciding vote in parental responsibility decisions. She says that the Respondent will not change. Even after a respected childcare professional like Dr. Elterman pointed out what changes each parent needed to make, the Respondent ignored Dr. Elterman and doubled down on his controlling behaviour.

Counsel submits that the Respondent has shown appalling judgment by injecting the children in the middle of their parental conflict. Counsel asks for an order gradually transitioning the two younger children into a shared parenting arrangement. Counsel acknowledges that the two older children are essentially adults who should be allowed to make their own choices. The two younger children are teenagers and counsel also acknowledges the difficulty in attempting to force these kinds of changes on teenaged children. Counsel notes however that these children present as well-behaved and do not hate their mother.

Counsel also asks for any order for child support to be adjusted according to a separation date of July 1, 2017, and for any order for ongoing support to follow the result of the outcome of this hearing. [ 106 ] Counsel for the Respondent asks for an order giving his client the deciding voice in any parental responsibility decisions, arguing that any past mistakes made by the Respondent were the result of a misunderstanding of the orders, not an unwillingness to cooperate. He also asks for an order for retroactive child support from and after December 1, 2016.

Counsel also asks that the parenting time be left up to the wishes of the children, given their ages. Counsel points to the Applicant’s own admission that his client is “a good dad.” [ 107 ] Counsel points to the Applicant’s past struggles with her mental health, to her lying to the children about not having a boyfriend, and to what he describes as the Applicant’s “roller coaster” behaviour in the past eight years.

Counsel excuses his client’s controlling nature as something born out of trauma, noting that each parent has processed their trauma in different ways. [ 108 ] On the issue of potential parental alienation, counsel argues that this is not shown to exist in any of the reports of professionals. He argues that the two reports of the children’s views and the letters which the children have written to the court support the Respondent’s position in his having primary responsibility for the children. He says that the reports show rejection of the Applicant by the children, but not alienation.

He says that the accident was the catalyst which led to the children taking notice of the Applicant’s behaviours, shaping the opinion of her that they have formed today. Counsel also warns that an order requiring the children to spend more time with the Applicant will only serve to drive them further from her. Applicable Law 1. The Best Interests of Children

[109] The Family Law Act of British Columbia (the “FLA” or the “Act”), in

section 37, directs that in making an order respectingguardianship, parenting arrangements or contact with a child, the court must consider the best interests of the child only. A courtdetermines 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 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. [110] 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'sphysical, psychological and emotional safety, security and well-being. The Act also provides in

section 2 that the term “family violence”as used in this

section and elsewhere in the Act includes “psychological or emotional abuse of a family member.” 2. Parental Alienation [111] This case involves allegations of parental alienation in which the Respondent is alleged to be alienating the children’s affectionfor the Applicant. The British Columbia Court of Appeal, in its decision in N.R.G. v.

G.R.G., 2015 BCSC 1062, described the concept ofparental alienation as follows: [276] In high-conflict separations, both parents commonly attempt to undermine their children's relationship with the other parent.Occasionally children reject one of the parents, resisting or even refusing contact.

It is in such contexts that the concepts of"estrangement" and "alienation" are often invoked. [277] The difference between an estranged child and an alienated child lies in the cause; estrangement, sometimes referred to as"realistic estrangement", is the label applied when the child understandably refuses contact with a parent because of the latter's behaviourwhether it be physical or emotional abuse, rigid or restrictive parenting, immature and self-centered behaviour, and/or dysfunctionalconduct arising from the parent's own psychological or psychiatric issues.

In such circumstances, the child's rejection of the parent maywell be a reasonable and adaptive response to the estranged parent's behaviour. [278] An alienated child, on the other hand, is the label frequently applied when there is little or no objectively reasonable cause for thechild's rejection of the parent and particularly when it is the product of the other parent's hostility and antipathy towards his/her formerspouse and the intentional undermining by the former of the child's relationship with the latter.

While the undermining of the relationshipcan arise from direct or indirect behaviours, in its worst form the parental conduct is expressly designed to alienate the child from theother parent. Such conduct is pernicious and unpardonable. [112] The BC Court of Appeal, in its decision in Williamson v.

Williamson, 2016 BCCA 87, requires that allegations of parentalalienation be supported by expert opinion evidence, in part because there is not unanimous opinion on the subject and also likely as animpediment to prevent litigants from making false claims of this, when there are other valid reasons for children not wanting to havecontact with parents. Justice Stromberg-Stein of that court wrote: [47] Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties.

Further, asdescribed above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a longterm impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supportedwith admissible expert evidence. In determining whether the particular evidence is admissible a court must follow the steps outlined inWhite Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22-23.

First, a court must examine the thresholdadmissibility of such evidence in accordance with the well-established factors in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9(relevance, necessity, absence of an exclusionary rule and a properly qualified expert).

Then, if the evidence meets the thresholdrequirements of admissibility, the court must exercise its gatekeeper function and balance the potential risks and benefits of admitting theevidence. [48] Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and tosupport that the FRRP was in the best interests of the children. The judge appeared to rely on the report of Mr.

Finlay withoutconsidering his qualifications, that is, whether he was a properly qualified expert; or the necessity of his assessment given that Dr.Elterman, the court appointed expert, had already been ordered by Arnold-Bailey J. to update his s. 211 report.

[113] Subsequent decisions have considered whether the requirement of expert evidence to support claims of parental alienation is fair,given that the cost of such expert evidence can be very expensive and outside of the means of most litigants. This requirement has beenseen as an impediment to access to justice, a rule that creates one law for the rich and one for everyone else. In a subsequent decision ofthe BC Supreme Court, Kanta v Kanta, 2017 BCSC 1428, Justice Kent recognized this problem, writing at paragraph 45: [45] . . .

The simple fact of the matter is that, as in the present case, many family law cases involve self-represented litigants with verylimited financial resources. Such parties not only have no insight into the technical requirements respecting admissibility of evidence butalso have no ability to retain experts to present properly admissible opinion evidence to the court.

While the Court of Appeal inWilliamson has effectively made such expert evidence mandatory in alienation cases, it made no comment on the access to justicedilemma many such self-represented litigants confront in these situations. [114] In spite of making that observation, Justice Kent concluded that the Court of Appeal’s decision in Williamson prevented a findingof parental alienation without that finding being supported by expert evidence.

Justice Kent came to a similar conclusion in L.C.T. v R.K.,2018 BCSC 1016, once again commenting on the barrier that the requirement of expert evidence places on those family litigants unableto afford an expert. Justice Kent went on to write: [62] Based on all of the above, it remains unclear whether, having regard to the realities of family law litigation, particularly casesinvolving self-represented litigants, the court is able to take into account social science literature without the need for formal proof byway of expert evidence.

Some concrete guidance on the matter from the Court of Appeal would be helpful, not only to litigants but fortrial and chambers judges called upon to determine parenting arrangements based solely on the best interests of the child. [115] Courts in other provinces have rejected the need for opinion evidence in cases where alienation is believed to exist. For example,in V.M.B. v K.R.B., 2014 ABCA 334, a unanimous panel of the Alberta Court of Appeal wrote: [16] The appellant challenges the finding of alienation, but that finding of fact is supported by the record.

There is no rule of law that afinding of alienation can only be made based on expert evidence. The “best interests of the child” and whether one parent will “facilitatecontact” are largely based on findings of fact.

Trial judges are entitled to come to conclusions on those issues based on the evidence onthe record. [Emphasis added.] [116] This is not the law in British Columbia however and the absence of expert evidence precludes a finding of alienation in this case.As Justice Kent and others have suggested, further consideration of this issue, either by the Court of Appeal, or by the legislature, iswarranted, in order to address the practical consideration that a denial of the ability to raise this issue for those litigants unable to affordthe expensive expert reports required in this province results in an unequal playing field for the wealthy and everyone else. [117] It should also be noted however that the absence of expert reports finding alienation is not a bar to a court in this provinceconsidering the conduct of one parent towards another and with the children in assessing what is in a child’s best interests under section37 of the FLA. 3.

The Views of Teenaged Children [118] Counsel for the Respondent has provided a number of authorities for the proposition that deference should be shown for theviews of teenaged children in matters such as which parent they wish to live with. In Alexander v.

Alexander, (1988) (BC CA), 15 RFL (3d) 363, Justice MacDonald of the BC Court of Appeal considered the wishes of a 14-year-old child, and wrote: [12] This court is now faced with the decision as to what is best for this boy who has been in the middle of a protracted custody battlebetween two parents who are both equally well qualified to parent and who would each offer him a good home. What the child wishes isnot necessarily best for the child, but there does come a point when at near adult years a child capable of responsible thought must nowbe deemed to be able to settle his own future in this important matter.

Concomitant with that he must take the responsibility for his ownactions. . . . [119] In O’Connell v. McIndoe, (1998) (BC CA), 42 RFL (4th) 77, Justice Donald of the BC Court of Appeal madethese comments concerning request for a child’s wishes, even where alienation had been found to exist: [13] In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of thechild. See Shapiro v. Shapiro (1973), (BC CA), 33 D.L.R. (3d) 764 (B.C.C.

A) and Alexander v. Alexander (1988)

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