J.L.D. v. W.J.D., 2022 BCPC 272

Citation: J.L.D. v. W.J.D. 2022 BCPC 272 Date: 20221121 File No: 30429 Registry: Creston IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.L.D. APPLICANT AND: W.J.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: D. F. Collins Counsel for the Respondent: M. J. Prestwich Place of Hearing: Creston , B.C. Creston , B.C. November 16, 2022 Date of Judgment: November 21, 2022

Summary of Evidence [ 1 ] The Applicant J.L.D. and the Respondent W.J.D. are the mother and father of the three children who are the subject of these proceedings: A.C.M., born [omitted for publication], G.S., born [omitted for publication], and M.S., born [omitted for publication]. The parties are also the parents of two older children who are not the subject of these proceedings. Those children are the biological children of the parties. A.C.M. began living with the parties when he was seven years old, and they later became his guardians under the Child, Family and Community Service Act.

The parties became guardians for G.S. and M.S. under the Adoption Act when G.S. was one year old and shortly after M.S. was born. [ 2 ] The parties separated in 2020 and in the time since, in the words of one of their counsel, they have “a length history of filings” in this court. On February 11, 2021, the Applicant obtained a Protection Order under section 183(3)(

a) of the Family Law Act against the Respondent, prohibiting him from having contact or communication with her or with the children (other than through email with the Applicant) and from attending at their home, school or workplace. [ 3 ] That order was reviewed in February 19, 2021, at which time it was extended for three months. The Respondent was also permitted to have parenting time with the children as permitted by a family court order. At the same time, a separate order was made “on an interim basis, without prejudice to either party” giving the Applicant primary care of the children, and also giving her all of the parental responsibilities for the children under

section 47 of the Family Law Act. (This was likely intended to be

section 41) . The Respondent was given parenting time with the children “at the sole discretion of” the Applicant, and more specifically it was ordered that she would have the authority to decide if the Respondent’s parenting time would be supervised and if so who the supervisor would be, where the parenting time would take place, how long the parenting time would be for, and where pick up and return of the children would take place.

The order was to be enforced by police at the discretion of the Applicant if the Respondent did not return the children from the parenting time. [ 4 ] On May 13, 2021, that order was extended for a further 60 days and the matter was set down for a contested hearing of the Applicant’s application for a protection order. On May 27, 2021, the protection order was extended for a further period of six months, and an amendment was made that permitted the Respondent to return to the residence to retrieve some items from the garage and shed on the property.

At that time conduct orders were also made governing how the parties were expected to conduct themselves in front of the children. That order also provided that the Respondent was to have parenting time with the children every Saturday from 9:00 a.m. to 7:00 p.m. The order did not state if that parenting time was to be supervised or not. [ 5 ] The protection order was extended once again on November 9, 2021, this time until February 17, 2022. At that time, it was extended yet again until March 17, 2022.

In the meantime, an order requiring the Respondent to pay interim child support was made on January 19, 2022, an another order was made which required the Respondent to inform the Applicant if he was unable to exercise his parenting time, and to give her the option to care for the children, rather than him finding a third party to look after them. [ 6 ] On March 17, 2022, a protection order was made which prohibited the Respondent from having contact or communication with the Applicant or with the children or from attending at their home, school or workplace.

There were certain exceptions that allowed contact by email to the Applicant, or through lawyers or court documents, and the Respondent was permitted to have time with the children “in accordance with the order made herein May 27, 2021 that is from 9:00 a.m. to 7:00 p.m. every Saturday.” [ 7 ] Two observations should be noted about this order.

First, it used the term “contact” with the children rather than “parenting time.” Previous orders described the Respondent’s time with the children as “parenting time.” I find that this may have been confusing drafting of the order, and it was not the intention of the judge making the order to change the status of the Respondent’s time with the children from “parenting time” to “contact time” as those terms are used in the Family Law Act.

There was no discussion in the proceedings about changing the Respondent’s status from that of guardian, and the use of the word “contact” as opposed to “contact time” did not have the intention of changing the Respondent’s status in relation to the children.

It was likely used because an earlier term of the order was one of “no contact.” [ 8 ] Secondly, the reference to the earlier order of May 27, 2021 added to the confusion because this reference led the Applicant to believe that this meant that things were to be as they had been then, in that she retained the broad discretion to be able to set the rules for the Respondent’s parenting time, including selection of supervisors, duration and location of visits. But this

interpretation was in conflict with the clearer direction which specified the time and length of the Respondent’s parenting time. [ 9 ] The Respondent showed little respect for the protection orders that he was bound by. According to the Applicant, she tolerated some of the breaches of these orders, but reported others. The Respondent was charged criminally, under

section 127 of the Criminal Code , with breaching these orders, and he admitted to breaching the orders on three separate occasions: May 2, 2021, May 24, 2021, and April 27, 2021. He pled guilty to these breaches and on July 7, 2022 he was sentenced for these breaches and placed on probation for 18 months. [ 10 ] The last breach for which the Respondent was convicted took place just one week after the parties appeared in court on April 20, 2022, at which time the protection order was extended to June 9, 2022.

On June 9, the protection order reiterated the same terms as contained in the March 17 th order, and the order was set to expire on July 7, 2022. On July 7 th the current protection order that the parties are presently operating on was made. To reiterate its terms, that order provided as follows: 1. All previous protection orders were terminated. 2. The Respondent was ordered to have no contact or communication with the Applicant or the children except as follows: (

a) By email contact with the Applicant only; (

b) Communication through a Family Justice Counsellor or Family Justice Services Mediator;

(

c) Through their lawyers; (

d) Through court documents served by a third party, and the parties could also be present in a courtroom together for scheduled court proceedings, with a sheriff present; (

e) Once again the Respondent was permitted to have parenting time with the children “in accordance with the order made herein May 27, 2021, that is from 9:00 a.m. to 7:00 p.m. every Saturday.” 3. The Respondent was not to attend at, enter or be found within 100 metres of the residence, school or workplace or the Applicant or of the children, even if he otherwise had the lawful right to enter such place or places. 4.

This protection order was to expire on January 6, 2023. [ 11 ] The orders in place left each of the parties with a different understanding of what the rules were in regards to whether or not the Applicant could require any future parenting time exercised by the Respondent to be supervised. She believed that she could do so, because of the

section of the order which stated that the Respondent’s parenting time was “in accordance with the order” of May 27, 2021. That order did not specify supervised parenting time, but the Applicant believed that the “Interim Without Prejudice Order” or February 19, 2021 which gave her that power was still in force. [ 12 ] That point of view was reinforced on August 4, 2022, when the Applicant applied for a Case Management Order Without Notice. That application was rejected.

The Judge who rejected the application wrote reasons for rejection, which stated the following: “However, the Applicant deposes at paragraph 3 [of her affidavit in support] that she already has all parental responsibilities ‘… and can exercise these rights, which include: supervised visits if required.’ This is pursuant to Judge Doerksen’s February 19, 2021 order, which I have reviewed.

As there is a current order that allows for supervised parenting at the Applicant’s discretion, there is no need for a without notice, urgent order of the court.” [ 13 ] The Respondent believed that the February 19, 2021 order was superseded by the more recent orders which gave him specific parenting time and which did not require supervision. As it later turned out when the parties sought to have the terms of the order settled to clarify this point, his

interpretation was the correct one. In the meantime however, it created the perfect storm for conflict between these parties. As I stated to the parties during the hearing of this matter, I don’t find fault with either of them for their confusion, especially since two different Judges of this court had differing opinions of what the conflict in the terms of these orders meant. [ 14 ] The perfect storm hit on August 6, 2022 when the Respondent had parenting time scheduled with the children. The Applicant decided that a Mr.

S. (grandfather to the two younger children) would supervise the Respondent’s parenting time and that the parenting time would take place at a local restaurant. The Respondent attended at the restaurant and (correctly as it turns out) was of the view that his parenting time was not to be supervised and that the Applicant did not have the authority to dictate where his parenting time should take place. He removed the children from the restaurant and left with them, over Mr. S.’s protests.

The police were called and the Respondent’s parenting time was of shorter duration than what had been court ordered. [ 15 ] On September 13, 2022, the parties sought a resolution to the apparent conflict in the two orders. The Honourable Judge Doerksen embarked on a careful review of the past proceedings, including a review of the transcript of the hearing before the Judge who had made the protection order. He concluded that the Respondent’s

interpretation was correct. In brief written Reasons for Judgment dated September 15, 2022, he wrote: 3. A transcript of the proceeding of May 27, 2021 was prepared and it is clear that this court no longer saw a requirement that the parenting time by the father be supervised. It is noted at page 7, lines 12-16 that the mother had allowed for unsupervised parenting time since the previous order of February 19, 2021. 4. It is also that this court was attempting to limit the parties need to communicate with each other and therefore lessen the friction between them. 5.

Thus, the Order of May 27, 2021 should have been more clear that paragraph 4 of the May 27, 2021 order replaced paragraph 4 of the February 19, 2021 Order. I settle the terms of the May 27, 2021 Order accordingly. 6.

Given this outcome, the mother has short leave to seek from the Judicial Case Manager a one hour hearing to seek to vary the now amended May 27, 2021 Order.” [ 16 ] Although Judge Doerksen did not reference this consideration in his reasons, I would also add that his conclusion is consistent with and supported by section 189(2) of the Family Law Act , which provides that if there is an inconsistency between a Protection Order and another order made under the Act , the other order is suspended to the extent of the inconsistency until the orders are varied in such a way that the inconsistency is eliminated or the protection order is terminated. [ 17 ] The Applicant now asks this Court for a reduction in the Respondent’s parenting time, reverting back to what had been ordered in the “Interim Without Prejudice” order of February 19, 2021.

Specifically, she wants the parenting time limited to two hours every Saturday morning (from 9:00 a.m. to 11:00 a.m.) and that it be supervised. She wants parenting time with the oldest child to be at that child’s discretion. She also wants the parenting time to take place in Creston, B.C. and does not want the Respondent’s new girlfriend to be present at any of the parenting time visits.

She also wants the protection order extended for another six months. [ 18 ] The Respondent is content to leave things as they are. [ 19 ] In terms of whether there has been a change in the circumstances of these parties and their children in recent times, there are four things that merit consideration. The first of these that I will address is the misunderstanding as to whether the order for supervised parenting was still in effect, and the incident that occurred on August 6 th . As I stated earlier, I find no fault in the actions of either party in

their understanding of what the rules were, given the confusion created by the terms of the court orders. There was little in the actions of the Respondent on that occasion that would justify the changes to the order that the Applicant is seeking and he appears to have been cooperative with police when they intervened. His only fault was that he reacted with anger and profanity towards Mr.

S. and did so in the presence of the children, showing poor judgment and poor self-control on his part. [ 20 ] The second concern is an alleged assault that took place in June of this year between the Respondent and his girlfriend. This was not brought to the Applicant’s attention until after the most recent protection order was made. The Respondent admitted in a conversation that he had with the Applicant, that he had assaulted this woman. He did not know that the Applicant was recording the conversation.

An audio recording of this conversation was marked for identification as an exhibit at the hearing of this matter, but was not marked as a full exhibit. Both of the parties gave the same version of their conversation, and accordingly the probative value of hearing the conversation would likely have been overwhelmed by its prejudicial effect. Nevertheless, both parties agreed that in early June, when the Respondent and his girlfriend were in Nelson, B.C., the Respondent and his girlfriend had gotten into an argument about his looking at younger women.

He alleges that she called him a hurtful name, and in response, he slapped her. He said that his girlfriend then punched him and he punched her back.

The Respondent sees all of this as irrelevant to these proceedings, while the Applicant says that this is further indication of a severe anger problem on the part of the Respondent, poor impulse control on his part, and an indication of very bad judgment on his part that carries over onto how he is likely to deal with the children when they say things that he does not like. [ 21 ] The third concern raised by the Applicant is in regard to a visit that took place on September 17, 2022, after Judge Doerksen had given his reasons settling the confusion from the conflicting orders.

At that time the Respondent came to the Applicant’s house to pick up the children for his scheduled parenting time visit. The Applicant claims that the children did not want to go on the visit. She left her house to look for the Respondent to tell him this. In her words she wanted to try to “discuss a possible solution.” She says that the Respondent got out of his car and began to approach her and argue loudly with her in front of her neighbours. She says that she reminded the Respondent about the protection order and the distance he was supposed to keep from her.

On the one hand, it is difficult to be critical of the Respondent for approaching the Applicant when she had planned on approaching him first. On the other hand, it is also clear that the Respondent continued to act in an angry manner, and that he was unconcerned about acting this way in front of the neighbours and at the home of the children. This escalated the children’s discomfort in having the visit proceed. The Applicant says that the two younger children became scared and that one of them hid under a bed.

Needless to say, that visit did not take place. [ 22 ] The fourth concern is what has been referred to as “the park incident,” when on the following day, September 18, 2022, the Respondent once again breached his Protection Order by having contact with his son A.C.M. in a park in Creston, B.C. and angrily confronted him about allegations of drug use. There was a witness to the incident, and although this person did not testify at the hearing of this matter, he did provide a written statement that both counsel referred to in presenting their cases.

As neither party took any significant issue with what was contained in the statement, I have taken it into account, as allowed by

section 199 of the Family Law Act which permits the relaxation of the rules of evidence. I do so because the maker of the statement appears to be impartial in the parties’ dispute, and because much of his evidence appears to be uncontroverted. In his evidence, the Respondent admits that he yelled at this witness, but says that he later apologized to this witness, who he describes as “a calm man.” [ 23 ] The witness statement reads as follows: On September 18, 2022 I was at the park beside the Theatre and Subway in Creston, BC. I now know that it was A.C.M. and his friend that were there.

I now know that it was A.C.M.’s dad that came there to speak to A.C.M. I was sitting with A.C.M.’s friend now at the chairs up above the park’s greenspace because A.C.M. and his dad were sitting at the table. A.C.M.’s dad W.J.D. was yelling very loud at A.C.M. A.C.M. got up and was running to get away and going up the ramp. Then W.J.D. came after him, jumping over the fence and W.J.D. fell a bit when he landed. W.J.D. kept trying to grab A.C.M. as A.C.M. was trying to get past him and W.J.D. was coming towards him backing him down the ramp.

So I told W.J.D. to leave the boy alone, not knowing at the time that it was A.C.M.’s dad. The man, W.J.D., A.C.M.’s dad, yelled at me to (expletive deleted) off and stay out of it. A.C.M. turned and ran out of the park to the back alley. W.J.D. then came up to me and A.C.M.’s friend asking if I am doing good by the boys, and “do you know who I am” to A.C.M.’s friend. W.J.D. said “you are giving my boy drugs.” W.J.D. was yelling at us especially A.C.M.’s friend. Then A.C.M. came back and the boys left together. I stayed and W.J.D. continued to talk to me.

I said “if you talk that way and treat people that way in abuse, then no one wants to be around you.” [ 24 ] The Applicant arrived at the park shortly after this and picked up A.C.M. in her car. She describes him as being very upset and afraid. The Respondent defends his conduct by claiming that he was justified in violating his protection order because he believed that his son was using drugs, and he wanted to correct his behaviour. [ 25 ] The Applicant testified that to the best of her knowledge, A.C.M. does not uses drugs and she testified that she has not seen anything to suggest the contrary.

She believes that this to be a false conclusion that the Respondent has drawn because A.C.M.’s birth parents are both active drug users. In his own testimony, the Respondent testified that he believes that A.C.M. is using drugs, and claims that he saw A.C.M. in the park “with a bong,” something that, if true, escaped the notice of the witness. [ 26 ] What is clear from this incident is that the Respondent lacks insight into his behaviour and showed very poor judgment on this occasion.

He feels justified in breaching the Protection Order, even though he had recently been convicted of other breaches, and thought nothing of his public display of anger. In his evidence in chief, he testified that he sees himself as the wronged party, stating “this is being thrown in my face.” [ 27 ] The Respondent would like to take A.C.M. to Lethbridge, Alberta, to show him what life is like on the streets for drug addicts, in some sort of attempt to scare A.C.M. into rejecting drug use as an option.

The Applicant says that drugs are not something that A.C.M. is using, and the Respondent is showing poor judgment in wanting to do this. She feels that the Respondent’s plan would only serve to

traumatize A.C.M., given the behaviour that the Respondent has displayed in the past. For this reason she asks for an order requiring that his parenting time be exercised in Creston. The Respondent has confirmed that taking A.C.M. to Lethbridge is indeed something he would like to do. He testified that he wants to give A.C.M. “a look at what it’s like to live on the streets.” [ 28 ] Another concern arises about the Respondent’s possible disregard for the opinion of professional persons in the health care field. The Applicant testified that A.C.M. has been diagnosed as being autistic.

The Respondent is adamant that this is false. The Applicant claims to have a report containing a formal diagnoses of autism, but did not produce that report. From her description of the document she is referring to, it is unlikely that this is a diagnosis, although the Respondent acknowledges that there was some kind of report generated by professional when A.C.M. was the subject of proceedings under the Child, Family and Community Service Act, but says that this is not a diagnosis. He dismisses the notion that A.C.M. might be autistic as nonsense.

He also testified that he prefers his own internet research over the opinions of medical professionals, and for that reason he is against vaccination for Covid-19 and sees his opinion on the subject as irrelevant to these proceedings.

Given that it is the Applicant who has the authority to make medical decisions for the children, and no change to that order is being sought, I agree that little more need be said about this. [ 29 ] The final concerns are about a number of statements that the Respondent has made, both in email communication with the Applicant, and in his testimony in court, that he really doesn’t care about what orders are made concerning the children.

He has expressed the opinion that, in words he used in an email to the Applicant on September 18, 2022, “I am too passionate and realize that due to the circumstances, I see no hope in visits with him [A.C.M.] anytime soon.” In another email sent later that day, he wrote: “Not to worry, I am backing off! I will not be proceeding with more parenting time. I am going to relinquish my role within the context of what is legal.” [ 30 ] In answering questions put to him by his own counsel about what he meant by these statements, the Respondent said: “I’m tired of fighting. This has been very exhausting.

I’ve had enough of this court crap. I don’t want to be here. I need to start a new life. I’m not a good influence. I just want to back off.” He later added, “Kids are little brats.” [ 31 ] Since Judge Doerksen cleared up the confusion between the court orders, the Respondent has had four parenting time visits with the children, though none have been with all three children present. The Respondent testified that he has met with his probation officer, but that the counselling he has been ordered to take as part of his probation order has not been set up yet.

Applicable Law [ 32 ] The issues to be decided in the applications now before the court are: 1. Should the Protection Order in place be extended for a further six months? 2. Should the parenting time which the Respondent now has with the children remain as is, or should it be adjusted in the manner sought by the Applicant (or in some other manner)? [ 33 ] In making orders respecting guardianship or parenting arrangements,

section 37 of the Family Law Act directs that both the parties and the Court must consider the best interests of the children who are the subject of the proceedings before the Court. It is the best interests of the children that are paramount, not the best interests of the parents. Parents are called upon to be child-centered, not self-centered, something that is often easier said than done for parents who are parties to family court litigation. In determining what is in a child’s best interests, all of the child’s needs and circumstances must be considered including the factors listed in section 37(2) of the Family Law Act . Those factors are: (

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

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; and (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 34 ] Where family violence is a factor, additional considerations apply. Family violence isn’t restricted to one parent assaulting another. The definition set out in the Family Law Act is wider than that. It is defined to include psychological or emotional abuse of a family member.

Section 38 of the Family Law Act states: 38. For the purposes of section 37(2)(

g) and (h) [best interests of child], a court must consider all of the following:

(

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directedat a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [35] In order to make a protection order, section 183(2) of the Family Law Act directs that a court may make an order against a familymember for the protection of another family member if the court determines that: (

a) family violence is likely to occur, and (

b) the other family member is an at-risk family member. [36] In determining whether to make a protection order, section 184(1) of the Act requires a court to consider the following riskfactors: (

a) any history of family violence by the family member against whom the order is to be made; (

b) whether any family violence is repetitive or escalating; (

c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directedat the at-risk family member; (

d) the current status of the relationship between the family member against whom the order is to be made and the at-risk familymember, including any recent separation or intention to separate; (

e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by thatfamily member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence,access to weapons, or a history of violence; (

f) the at-risk family member's perception of risks to his or her own safety and security; (

g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances,health or economic dependence. [37] Under section 45(3) of the Family Law Act, this Court can order that parenting time can be supervised by another person namedin the order if the Court is satisfied that supervision is in the best interests of a child. In summarizing when an order for supervisedparenting time may be appropriate, the British Columbia Supreme Court (in Q.B. v.

W.I.M. 2014 BCSC 219 , 2014 B.C.S.C.219) has cited with approval the 2004 Ontario Superior Court decision in V.S.J. v. L.J.G., (ON SC), [2004] O.J. No.2238 (S.C.J.) where the court stated that when terminating or restricting access, it is necessary for the court to weigh and balancenumerous factors in the context of the child's best interest (at para. 136).

The court in V.S.J. also stated (at para. 137): … It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/childrelationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; createa bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, theimpact upon children. [38] The factors considered by the Ontario Court were: 1.

Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear 2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/orpresents a risk to the child's safety and well being. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. 4. Ongoing severe denigration of the other parent. 5. Lack of relationship or attachment between noncustodial parent and child. 6.

Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access. [39] In B.C.H. v. J.D.R., 2012 BCPC 88 , 2012 B.C.P.C. 88, the Honourable Judge Merrick of this court adopted theprinciples regarding supervised access set out in Miller v. McMaster, 2005 NSSC 259 , 2005 N.S.S.C. 259, a decision of theNova Scotia Supreme Court which held (at paras. 11-12): Supervised [parenting time] is not a long term solution to problems which usually arise in high conflict custody and access cases wheredistrust and negative parental allegations abound. Supervised [parenting time] is appropriate in specific situations, some of which includethe following: (

a) where the child requires protection from physical, sexual or emotional abuse; (

b) where the child is being introduced or reintroduced into the life of a parent after a significant absence; (

c) where there are substance abuse issues; or (

d) where there are clinical issues involving the access parent. Supervised [parenting time] is not appropriate if its sole purpose is to provide comfort to the custodial parent. Access is for the benefit ofthe child and each application is to be determined on its own merits. Analysis 1.

Protection Order [40] Family violence has been a problem for these parties, even though neither party has alleged assaultive behaviour against oneanother, and the only assaultive behaviour alleged against the children is the Respondent’s actions in seeking to restrain and unlawfullyconfine A.C.M., in flagrant violation of the existing protection order. The presence of the large number of previous protection ordersproves that family violence has been a problem in the past, and the Respondent acknowledges this to be the case when he states in hisevidence that he consented to the making of those protection orders.

In making this admission, he acknowledges that the grounds formaking those orders against him were present, and the most important of those grounds is the presence of family violence. [41] The likelihood of family violence in future remains a concern because of the Respondent’s demonstrated inability to control hisbehaviour. He is prone to impulsive and offensive behaviour and poor judgment, which he describes as his being “passionate.”Numerous examples of this emerge from the evidence presented at the hearing of this matter, including: 1.

His use of angry profanity directed at the grandfather of the two younger children in the presence of the children; 2. His assault of his girlfriend, and his seeing this behaviour as defensible because he did not like the names she was calling him; 3. The self-pity demonstrated in the emails he sent to the Applicant on September 18, 2022; 4. His flagrant violation of the protection order on September 18, 2022, even after being placed on probation for similar offences; and 5.

The remaining resentment he has towards the Applicant as was apparent from his testimony at the hearing of this matter. [42] The Respondent demonstrates a self-centered or egocentric perspective of matters concerning the children. He mistakenlybelieves that something is in the children’s best interests if it matches what he wants. He justifies his breaches of court orders and hisinability to control his anger in public on this basis, and he sees his judgment as superior to that of medical or other professionals.

In lightof these considerations, the risk of future family violence is unlikely to subside until such time as the Respondent has availed himself ofthe counselling that he has been ordered to take under his probation order. It is in the best interests of these children for the Respondentto undertake an honest self-examination with the assistance of the counsellors that he has been ordered to see. Until this happens, hisdeveloping a meaningful relationship with his children is being impaired, and exposing them to a parent easily prone to angry outbursts isnot in their best interests.

Hopefully he will come to realize this and he will value his relationship with his children as more importantthan egocentric concerns of being right, getting his own way, and getting angry at others when he thinks he is right and they are wrong. [43] Based on these considerations, I find that there is a reasonable likelihood that future family violence will occur and that it isappropriate to extend the protection order for a further period of six months as the Applicant has requested. 2.

Ongoing Parenting Time [44] On a consideration of the best interests of the children, and the other aspects of the law that I am required to apply to thesecircumstances, I find that some of the orders requested by the Applicant in her Application are appropriate and others are not. Dealingfirstly with A.C.M., I find that it is in A.C.M.’s best interest for any parenting time that he has with the Respondent to be at A.C.M.’sdiscretion. In coming to this conclusion, I take into account the following factors: 1. A.C.M. has just turned 16 years of age.

In two years from now he will be able to vote in elections and will be eligible for militaryservice if he should choose to do so. While his brain is not yet fully developed, he is of sufficient maturity to make decisions about whatkind of relationship he wishes to have with the Respondent. 2. The Respondent has demonstrated an inability to control his anger towards A.C.M. even in a public setting, and there is a significantlikelihood that he would direct further aggression and intimidation of A.C.M. in future.

A.C.M. has the right to be safe from that kind ofconduct, and accordingly, A.C.M. should be given the right to control the interaction he has with the Respondent in future, based on hisown assessment of how safe he feels when in the presence of the Respondent.

3. The Respondent himself has acknowledged the injury that has taken place to his relationship with A.C.M. As he states in his email of September 18, 2022, “I see no hope in visits with him anytime soon.” [ 45 ] For these reasons, I find it to be in A.C.M.’s best interests that any future parenting time that A.C.M. has with the Respondent be at such times as consented to by A.C.M. This includes the right of A.C.M. to terminate a parenting time visit if he sees fit to do so. [ 46 ] The Applicant wants the Respondent’s parenting time with the children to be supervised.

I am not satisfied that grounds for a supervision order exist. The Respondent has not been violent towards the two younger children, although he has failed to constrain his anger towards others in their presence. If this conduct persists, it may well amount to emotional abuse of the children, in which case supervision may be called for. However I am not satisfied that this point has been reached yet. The evidence discloses two instances of this occurring: once when the Respondent used angry profanity towards Mr. S., and once when the children did not want a visit and the Respondent became angry at the house.

How the Respondent conducts himself in their presence going forward will be crucial to his future relationship with these children. He will have to choose which he loves more: his children of his angry outbursts. One would hope that this would be an easy choice, but it may be that the Respondent will require professional help to come to this realization. [ 47 ] Because recent parenting time visits have been infrequent, a graduated parenting time

schedule will be instituted. As long as the visits go well and the children are not subjected to angry outbursts, the parenting time will gradually increase from an initial two hours to the weekly ten hour visits that had previously been ordered.

But if there are further incidents, the Applicant will be allowed to apply for an order shortening these visits or putting other constraints on them. [ 48 ] The concern about restricting visits to Creston was initially based on the fear that the Respondent planned to take A.C.M. to Lethbridge for his version of “tough love.” He will no longer be able to do this without A.C.M.’s consent.

It is unfair to restrict the Respondent’s parenting time to Creston, given that there are many other locations in the East Kootenays where quality parenting time can occur, especially now that the Respondent has a boat for use on some of the lakes in the region. I will order that parenting time be exercised in British Columbia, within a 300 kilometre radius of Creston. [ 49 ] Finally, no grounds have been shown to prohibit the Respondent’s girlfriend from being present at any of the Respondent’s parenting time visits. It has not been suggested that she is any sort of threat to the children.

The fear was that the Respondent would act violently towards her in the presence of the children. If that happens, the Respondent will severely jeopardize any hopes to build a healthy relationship with his children or for increased parenting time.

But at this point in time, it has not been shown that exposing her to the children would somehow be contrary to their best interests. [ 50 ] The hope is that through the rehabilitative effects of the probation order and the counselling that has been ordered, this will help to repair the injuries that the Respondent’s past behaviour has caused to his relationship with his children. Maybe this is a feint hope, maybe not. This will depend upon how much the Respondent values his relationship with these children, and whether his love for them is stronger than his stubbornness and self-centeredness.

It is not my intention to set future court dates for the parties so that court proceedings come to define their lives. I will however make the following directions for future review of this order: 1. If there are future incidents of abusive or angry behaviour directed against the children, or occurring against others in circumstances that the children have to witness, the Applicant may apply for a review of the order that is being made in these proceedings, at which time she may renew her application for decreased parenting time or for supervised parenting time. 2.

If the Respondent seeks increased parenting time in future, such application should be supported by reports from the counsellors he is seeing so that they can provide objective and independent evidence of what efforts the Respondent has made to manage his anger and otherwise decrease the risk of exposing the children to emotionally abusive conduct. Favourable reports supporting a positive change in the Respondent’s conduct can be considered as a change in circumstances. 3.

The children should have their voices heard independently in order than an unbiased account of how parenting time visits are taking place can be available for a judge having to decide any review or subsequent application for changes to parenting time. [ 51 ] It should be mentioned that both counsel in this matter represented their clients very capably in this matter and the parties should be grateful to their lawyers for presenting their cases in the best light possible. Orders [ 52 ] For the foregoing reasons, the following orders are now made: Protection Order 1. Pursuant to s. 183(3)(

b) of the Family Law Act , W.J.D., (born [omitted for publication]) must have no contact or communication, directly or indirectly, with J.L.D. (born [omitted for publication]), A.C.M. (born [omitted for publication]), G.S. (born [omitted for publication]), or M.S. (born [omitted for publication]) except as follows:

a) Through email with J.L.D.;

b) Through a Family Justice Counsellor, a Family Justice Mediator, or through a member of the Law Society of British Columbia;

c) Through court documents served by a third party, and during scheduled court appearances or case conferences but only with a sheriff present unless a judge waives this requirement;

d) As allowed by the terms of a valid Family Law Act Order. 2. Pursuant to s. 183(3) (

a) of the Family Law Act , W.J.D. must not go to, or be within 100 metres of any place where J.L.D., A.C.M., G.S. or M.S. lives, works, attends school, or worships, or happens to be, even if W.J.D. is an owner of any such place or otherwise has a

right to possess or enter such a place. If W.J.D. sees any of those persons, he must leave their presence immediately without any words or gestures, unless he is otherwise permitted to be in their presence under the terms of this order. 3. This Order shall replace any and all previous protection orders made in this action, and all such previous orders are terminated. 4. This Order shall expire on May 31, 2023, unless otherwise extended by an Order of this Court.

Family Law Act Order Upon the court being advised that the name and birth date of each child is as follows: A.C.M. (born [omitted for publication]), G.S. (born [omitted for publication]), and M.S. (born [omitted for publication]). 1. The Court is satisfied that the Applicant J.L.D. and the Respondent W.J.D. are the guardians of the children under section 39(1) of the Family Law Act . 2. Pursuant to section 40(3)(

a) of the Family Law Act , the Applicant J.L.D. will solely have all of the parental responsibilities for the children as set out in s. 41 of the Family Law Act , and for greater certainty, she shall have responsibility for: (

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

b) Making decisions about where the children will reside; (

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

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

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

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

g) Applying for a passport, licence, permit, benefit, privilege or other thing for the children, including the right to apply for a passport or Nexus Pass for the children without the Respondent’s consent; (

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

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

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

k) Subject to any applicable provincial legislation: (

i) Starting, defending, compromising or settling any proceeding relating to the children; and (ii) Identifying, advancing and protecting the children's legal and financial interests; (

l) Exercising any other responsibilities reasonably necessary to nurture the children's development. 3. The Respondent W.J.D. shall have parenting time with the child A.C.M. at such times and on such conditions as are consented to by A.C.M. 4.

The Respondent W.J.D. will have parenting time with the children G.S. and M.S. every Saturday from 9:00 a.m. to 11:00 a.m. commencing on Saturday, November 26, 2022, with the length of the parenting time to increase by one hour every week thereafter, to a maximum of 10 hours (i.e. from 9:00 a.m. to 7:00 p.m.) and at such other times as consented to in writing (including email) by the Applicant. The Applicant shall specify where pick-up and return of the children shall take place.

Such parenting time shall be exercised within the Province of British Columbia in Creston, B.C., or at such other location within the Province that is within 300 kilometres of Creston, B.C. The parenting time ordered in this order shall not be required to be supervised, and nothing in this order prevents the Respondent from exercising his parenting time with the children in the presence of C.T. 5.

In the event that the Respondent is unable to exercise any parenting time under this order, he is to inform the Applicant by email at least 48 hours in advance, in which case the Applicant shall have the option of having the children in her care during that time. If she elects to do so, she shall offer the Respondent alternate parenting time of equal duration. 6.

Upon being satisfied that the Respondent has not returned the children or any of them to the Applicant as required by the terms of this order, this court orders under s. 231(4) of the Family Law Act that a police officer may apprehend the child or children and take the child or children to the Applicant.

7. Pursuant to

section 211 of the Family Law Act the Family Justice Counsellor of British Columbia is directed to prepare a report on the Views of the Children, and specifically on issues relating to parenting time or family violence. 8. The parties will put the best interests of the children before their own interests and will encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent’s partner in a positive and respectful manner. 9.

The parties will make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children. 10. The parties will not question the children about the other parent or time spent with the other parent beyond simple conversational questions. They will not discuss with the children any inappropriate adult, court or legal matters, or blame, criticize or disparage the other parent to the children. 11.

The parties will encourage their respective families, including kinship families, to refrain from any negative comments about the other parent or that parent’s extended family, and from discussions in front of the children concerning family issues or litigation. 12. Either party may apply for a review of this order upon there being a change of circumstances as referred to in

section 47 of the Family Law Act , or in the following cases: (

a) If there has been a credible allegation that there has been family violence; (

b) If the Respondent has completed counselling as required under the terms of his probation order and he has supported his request with a report from his counsellor; (

c) If the report under

section 211 has been completed and the report supports a change in parenting time that the parties are unable to agree upon by consent. The party seeking leave to review this order must first obtain leave from a Judge of this court, and such leave may be sought without notice to the other party. 14. This order supersedes all previous orders made in this action (other than the current protection order), and where the terms of this order are in conflict with or inconsistent with the terms of any previous order, the terms of this order shall apply. 15.

This order does not cancel any existing order concerning the payment of child support, and it does not affect the right of either party to apply to amend, revise or review any such orders for child support. _______________________________ The Honourable Judge K.D. Skilnick Provincial Court of British Columbia