T.T. v. A.S.T. Date:, 2017 BCPC 388

Citation: T.T. v. A.S.T. Date: 20171106 2017 BCPC 388 File No: 3420 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.T. APPLICANT AND: A.S.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: M. Olson Appearing on their own behalf: A.S.T. Place of Hearing: Burns Lake , B.C. Date of Hearing: October 25 and October 26, 2017

Date of Judgment: November 6, 2017 Introduction [ 1 ] T.T. is before the Court seeking a shared parenting arrangement with respect his children, B.T., age 7 and A.T., age 5. He also seeks conduct orders to manage the parties’ behaviour while exercising parenting time. The Respondent, A.S.T., is B.T. and A.T.’s biological mother. She is agreeable to some of the conduct orders T.T. requests, but opposes his application for shared parenting. She seeks to maintain the current parenting arrangement wherein the children reside primarily in her home.

Issues [ 2 ] The salient issue before the Court is the allocation of parenting time between T.T. and A.S.T. for B.T. and A.T. The Present Proceedings [ 3 ] This matter came before me for hearing in Burns Lake Provincial Court on October 25 and 26, 2017. T.T. appeared with his legal counsel, Megan Olson. A.S.T. was self-represented. T.T. gave evidence on his own behalf and called the following three witnesses:

a) B.J., a family support worker for [omitted for publication] Family Services in Burns Lake, B.C.;

b) M.A., a neighbor and friend to T.T.; and

c) S.L., a network administrator and friend of T.T. [ 4 ] T.T. also tendered into evidence the following exhibits: Exhibit 1: Certificate of Completion from the [omitted for publication] Cultural Healing Camp dated October 6, 2013, certifying that T.T. completed the co-ed addictions recovery program from September 8 to October 6, 2013; Exhibit 2: Correspondence dated April 18, 2015, from J.V. of the [omitted for publication] Recovery House Society; Exhibit 3: Correspondence dated April 22, 2016, from Maureen Olson, child protection social worker for the Ministry of Children and Family Development; Exhibit 4: Messages exchanged between T.T. and A.S.T. on December 22, 2016, concerning T.T.’s access 2016 Christmas parenting time; Exhibit 5: Excerpts from A.S.T.’s Facebook page for December 23 and 26, 2016; Exhibit 6: Messages exchanged between T.T. and A.S.T. concerning T.T.’s parenting time with B.T. on her birthday; Exhibit 7: Correspondence from the [omitted for publication] Elementary School dated September 7, 2017, with respect to B.T.’s attendance; Exhibit 8: Correspondence from social worker G.P. of the [omitted for publication] Family Services dated April 7, 2016; and Exhibit 9: Certificate of Participation presented to T.T. for attending the [omitted for publication] from January 27 to March 10, 2014. [ 5 ] Also before me was T.T.’s Affidavit filed on July 17, 2017, in support of his Amended Application to Obtain an Order filed the same day. [ 6 ] A.S.T. testified on her own behalf and called one witness, M.T.

A.S.T. also entered into evidence the following exhibits: Exhibit 10: Twenty-four pages of Facebook messages exchanged between T.T. and A.S.T.; and Exhibit 12: Four letters of support for A.S.T. from: (

a) A.S.T.’s mother, M.S.; (

b) A.S.T.’s supervisor, T.J., the general manager of the [omitted for publication] First Nation; (

c) A.S.T.’s co-worker, M.A.(2) ; and (

d) P. S., [omitted for publication] Administrator and relative.

History of the Proceedings [ 7 ] On December 14, 2014, T.T. filed an Application to Obtain an Order for guardianship, parenting time, allocation of parental responsibilities, shared custody with respect to: B.T., born [omitted for publication] A.T., born [omitted for publication] [ 8 ] B.S. filed an Affidavit stating he personally served A.S.T. with T.T.’s December 14, 2014 Application on December 15, 2014. [ 9 ] On January 27, 2015, A.S.T. filed a Reply agreeing with T.T.’s request for guardianship and access, but disagreed with his request for “shared custody”.

A.S.T. counterclaimed for custody and maintenance for B.T. and A.T.

[ 10 ] On January 27, 2015, T.T.’s December 12, 2014 Application came before Judge Jackson sitting in Burns Lake, B.C. T.T. was represented by legal counsel, Warren Chapman. A.S.T. was self-represented. At that time Judge Jackson found T.T. and A.S.T. were guardians of the B.T. and A.T. under s. 39 of the FLA and made an order to that effect. Judge Jackson further ordered, on an interim basis, T.T. and A.S.T. would share the following parenting responsibilities:

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 about the Children’s educational, cultural, medical, religious and spiritual upbringing;

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 their aboriginal identity;

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Children;

g) applying for a passport, licence, permit, benefit, privilege or other thing for the Children;

h) giving, refusing or withdrawing consent for the Children, if consent is required;

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

j) requesting and receiving from third parties health, education or other information respecting the children;

k) subject to any applicable provincial legislation:

i) starting, defending, compromising or settling any proceeding relating to the Children; and ii) identifying, advancing and protecting the Children’s legal and financial interests; and

l) exercising any other responsibilities reasonably necessary to nurture the Children’s development. [ 11 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Jackson on February 10, 2015. T.T. appeared together with his legal counsel at the time, Warren Chapman. A.S.T. did not attend in person, by counsel or agent. The matter was adjourned to the Judicial Case Manager. [ 12 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Jackson on March 10, 2015, for a Family Case Conference.

T.T. was present and represented by Mr. Chapman. A.S.T. was present and represented by Michael Reed. The Family Case Conference was adjourned to the Judicial Case Manager on March 16, 2015 for rescheduling. [ 13 ] On May 1, 2015, T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Keyes at a Family Case Conference. T.T. was present and represented by legal counsel, Warren Chapman. A.S.T. was present and represented by legal counsel, Michael Reed. At that time, Judge Keyes ordered:

a) T.T. will have parenting time with the Children each Tuesday from 4:00 p.m. to Thursday at 4:00 p.m. commencing May 5, 2015;

b) A.S.T. will have parenting time at the Family Treatment Centre in [omitted for publication] for eight weeks commencing May 31, 2015; and

c) the matter be brought before the Judicial Case Manager on May 4, 2015, to fix a date for a further Family Case Conference in August 2015. [ 14 ] On August 28, 2015, T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Keyes in a Family Case Conference. T.T. was present and represented by legal counsel, Karl Strimbold. A.S.T. was present and represented by her legal counsel, Michael Reed. At that time, Judge Keyes ordered the following rotating

schedule for T.T. and A.S.T.’s parenting time with B.T. and A.T.: Week 1: Commencing September 3, 2015, T.T. will have parenting time commencing directly after daycare on Thursday until drop off at school daycare on Monday morning. Week 2: T.T. will have parenting time on Wednesdays from after school/daycare until 7:30 p.m. The matter was scheduled for a review after November 30, 2015. [ 15 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Buller on January 13, 2016. T.T. was present and represented by Karl Strimbold.

A.S.T. was present and represented by Michael Reed. The matter was referred to the Judicial Case Manager on January 18, 2016, to fix a one day hearing with respect to parenting time only. [ 16 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Jackson on April 14, 2016. T.T. was present and represented by Karl Strimbold. A.S.T. was present and represented by Michael Reed. The matter was adjourned to the office of the Judicial Case Manager.

[ 17 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Birnie on June 14, 2016. T.T. was present and represented by Karl Strimbold. A.S.T. was present without her legal counsel. The matter was adjourned to the office of the Judicial Case Manager. [ 18 ] On January 19, 2017, T.T. filed a Notice of Motion returnable February 7, 2017, for an order requiring A.S.T. to comply with his Court ordered parenting time. [ 19 ] T.T.’s January 19, 2017 Notice of Motion came before Judge Wright on February 7, 2017. T.T. was present and represented by legal counsel, R.

Bigler; A.S.T. was not personally present, but was represented by her legal counsel, Mr. Reed. The matter was adjourned to the office of the Judicial Case Manager. [ 20 ] T.T.’s December 12, 2014 Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before Judge Jackson on June 29, 2017. T.T. appeared at the hearing represented by his current legal counsel, Megan Olson. A.S.T. did not attend in person, by counsel or agent, although duly notified. Judge Jackson made the following interim orders:

a) pursuant to s. 61(2)(

b) of the Family Law Act , A.S.T. shall attend and successfully complete counselling, regarding communication after separation, and provide confirmation of attendance to the Court by October 31, 2017;

b) as a Conduct Order, pursuant to s. 222 of the Family Law Act , neither parent shall change parenting time ordered without the consent of the other parent, including holidays and dates significant to the Children or parents;

c) as a Conduct Order, pursuant to s. 222 of the Family Law Act , neither parent shall restrict or block communications with the other parent with regard to parenting time and issues regarding the Children;

d) a copy of the Order be served on A.S.T.; and

e) this matter be referred to the trial scheduler in Burns Lake Provincial Court on Monday, July 10, 2017 at 9:30 a.m. to fix a date for a three day hearing. [ 21 ] On July 26, 2017, T.T.’s January 19, 2017 Notice of Motion came before me. T.T. was present represented by his legal counsel, Megan Olson. A.S.T. did not appear in person, by counsel or agent, although duly notified. The Court made the following interim orders:

a) the Court declares that A.S.T. wrongfully denied T.T. his parenting time from July 6 - 10, 2017, and contravened the Conduct Order of June 29, 2017, by unilaterally changing T.T.’s parenting time. A.S.T. also contravened the Conduct Order of June 29, 2017, regarding communication by blocking contact with T.T.;

b) pursuant to s. 61(2)(

c) of the Family Law Act, T.T. shall exercise make up parenting time for the missed parenting time of July 6 - 10, 2017. The make-up parenting time will occur by extending his regular August 18 - 22, 2017 parenting time up to and including August 25, 2017;

c) pursuant to s. 61(2)(

c) of the Family Law Act, should A.S.T. not deliver the Children to the father in accordance with the parenting schedule, a police officer is authorized to apprehend the Children, or either of them, alone or separately, and deliver them to their father, T.T.; and

d) this matter has been set for hearing on October 24 - 26, 2017, in Burns Lake Provincial Court. A pre-trial date will also be set for Tuesday, September 12, 2107 at 9:30 a.m. in Burns Lake Provincial Court. [ 22 ] On July 17, 2017, T.T. filed an Amended Application to Obtain an Order as set out above. [ 23 ] On July 17, 2017, T.T. also filed a Notice of Motion returnable July 26, 2017, for an order that A.S.T.:

a) immediately resume T.T.’s scheduled parenting time;

b) provide make-up time for the parenting time T.T. was wrongfully denied; and

c) under s. 231(4) of the Family Law Act, an order requiring a police officer to apprehend the Children and take the Children to T.T., should future denial of parenting time occur. [ 24 ] On July 17, 2017, T.T. filed an Affidavit in support of his application, which is relied on in these proceedings. [ 25 ] On July 17, 2017, the JCM scheduled a three day hearing of T.T.’s July 17, 2017 Amended Application to Obtain an Order and A.S.T.’s January 27, 2015 Reply and Counterclaim for October 24, 25 and 26, 2017. [ 26 ] On July 24, 2017, S.L. filed an Affidavit that on July 12, 2017, he personally served A.S.T. with T.T.’s July 17, 2017 Amended Application to Obtain an Order, Notice of Motion and Affidavit. [ 27 ] On July 26, 2017, S.L. filed an Affidavit stating that on June 30, 2017, he personally served A.S.T. with a copy of Judge Jackson’s June 29, 2017 Order. [ 28 ] On September 12, 2017, M.A. filed an Affidavit stating that on September 8, 2017, he personally served A.S.T. with a copy of Judge Doulis’ July 26, 2017 Order. [ 29 ] On September 12, 2017, T.T.’s July 17, 2017 Amended Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before me for a pre-trial conference.

T.T. was present and represented by his legal counsel, Megan Olson. A.S.T. was present and

represented by duty counsel, Ms. Newman. At that time, the Court refused A.S.T.’s oral application to adjourn the hearing and adjourned the matter to the JCM to fix a further pre-trial conference. [ 30 ] On October 10, 2017, T.T.’s July 17, 2017 Amended Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before me for a second pre-trial conference. T.T. was present, represented by his legal counsel, Megan Olson.

A.S.T. did not attend in person, or represented by legal counsel or agent. [ 31 ] On October 24, 2017, T.T.’s July 17, 2017 Amended Application and A.S.T.’s January 27, 2015 Reply and Counterclaim came before me for the first day of the scheduled three day hearing. T.T. was present, represented by his legal counsel, Megan Olson. A.S.T. was present and self-represented. The Court refused A.S.T.’s request to adjourn the entire hearing, however, granted her request to adjourn the first day of hearing. [ 32 ] The hearing of this matter began on October 25, 2017 and continued on October 26, 2017.

Background Facts: T.T.’s Evidence [ 33 ] T.T. is 27 years old. He now resides in Burns Lake, B.C., where he has lived much of his life, although he has also lived in North Burnaby and Prince George. T.T. is Carrier and a member of the [omitted for publication] Nation. Although he lives in Burns Lake, he does not reside on the [omitted for publication] Nation Reserve. [ 34 ] T.T. currently works part-time for [omitted for publication] as a cultural liaison, a job he has held since March 2, 2017. He earns between $1,600 and $1,700 per month from this job.

As a cultural liaison, T.T. assists clients undergoing clinical counselling to understand the process. [ 35 ] After graduating from high school, T.T. planned to go into mining exploration; however, in the past two years he has developed an interest in treatment and management of mental health. T.T. is now enrolled in the chemical addictions worker’s certificate program through the [omitted for publication] Institute of Technology. It is a nine month course which started on September 22, 2017.

T.T. is enrolled in the clinical counselling degree program. [ 36 ] T.T.’s long term goal is to qualify as a social worker; however, he does not want to work for the Ministry of Children and Family Development (“MCFD”). He would rather work helping families, perhaps in the role of a family preservation counsellor. [ 37 ] T.T. also undertakes community outreach work. T.T. compares his role in the mental health field to a First Aid Level 3. T.T. hosts men’s groups every Monday and Wednesdays to assist those struggling to deal with their addictions.

T.T. focuses on guiding his male clients to wellness through after-care meetings. [ 38 ] T.T.’s father died when he was four, after which he was raised sometimes by relatives and sometimes in foster homes. In 2009, T.T. aged out as a youth in MCFD care. [ 39 ] T.T. and met A.S.T. in high school. They began a relationship in 2009. By 2012, their relationship began to “get dark.” By “dark”, T.T. means it was fraught with alcohol abuse, mutual disrespect, and family violence. [ 40 ] T.T. and A.S.T. separated when A.S.T. was pregnant with A.T.

A.T. was born [omitted for publication], and T.T. and A.S.T. briefly reconciled. [ 41 ] T.T. and A.S.T. separated permanently in 2013, and T.T. has not established a new relationship with anyone else. [ 42 ] In 2012, T.T. was in detox for alcohol abuse many times; he was even hospitalized.

T.T. attended a day treatment program in 2012. [ 43 ] In 2013, T.T. attended residential treatment at [omitted for publication] Healing Camp co-ed addictions recovery program from September 8 to October 6, 2013: Exhibit 1. [ 44 ] When he returned from treatment at [omitted for publication], T.T. attempted to return to his family; however, he and A.S.T. reverted back their cycle of abuse. [ 45 ] In October 2013, T.T. decided to do whatever needed to be done to recover from his addictions. To that end, he headed to the lower mainland. T.T. attended three “AA” type recovery homes in the Lower Mainland.

This included [omitted for publication] First Nations Recovery Centre, [omitted for publication] and [omitted for publication] Recovery House Society. All of these facilities were in the Surrey area. [ 46 ] [omitted for publication] Recovery House is a three stage treatment facility. T.T. attended the residential substance misuse recovery program from January 31, 2014 to April 23, 2014, after which, he attended the society’s Per Diem Second Stage Recovery Support in Vancouver, B.C. T.T. graduated from this second stage facility on June 19, 2014.

T.T. completed the third stage of [omitted for publication] recovery program in October 2014: Exhibit 2. [ 47 ] While in the lower mainland, T.T. also attended the [omitted for publication] from January 27 to March 10, 2014: Exhibit 9. [ 48 ] While he was in treatment, T.T. did not see his daughters. At first he sent videos, but did not receive a response. During this time, T.T. felt useless and depressed, but still, concentrated on his rehabilitation. T.T. succeeded in this struggle and has not consumed alcohol now for over four years. [ 49 ] T.T. returned to Burns Lake on October 28, 2014.

He continued his counselling and returned to school.

[ 50 ] One of T.T.’s counsellors was B.J., a family support worker for the [omitted for publication] Family Services. The [omitted for publication] Support Services assisted T.T. in obtaining housing, employment, and counselling. [ 51 ] T.T. re-established contact with B.T. and A.T. on November 23, 2014. At the time, T.T. was just moving into his own apartment and the girls came to stay with him. Although he continued to have parenting time with B.T. and A.T., T.T. was unable to see them as much as he wanted. This led to T.T. making his December 15, 2014 Application in an effort increase his parenting time.

He felt because of the unresolved issues with A.S.T., it was always a struggle for him to have parenting time with his daughters. [ 52 ] After attending Court in 2015, T.T. began to have regular parenting time with B.T. and A.T. A.S.T. was ensnared in her own alcohol addiction and binge drinking. She would sometimes see the girls only one week per month. T.T. estimates that during this time, A.S.T. was binge drinking for six to eight months. [ 53 ] A.S.T.’s incremental increase in the amount of parenting time he had with B.T. and A.T. led to Judge Keyes’ Order of August 28, 2015.

Since then, T.T. has continued to have parenting time with B.T. and A.T. in excess of that ordered by the Court with either A.S.T.’s consent or at her request. T.T. estimates he now has the girls in his care approximately half the time. Often his Court allocated parenting time from Thursday to Sunday is extended to include additional weekdays such as Wednesday or Monday. [ 54 ] T.T. and A.S.T. had not carved out any exceptional parenting arrangements for holidays. This lacuna has led to their most significant conflicts. In 2016, Christmas fell on a weekend when T.T. was to have parenting time.

A.S.T., who was used to having the girls during the holidays, refused to allow him his parenting time and lied to him about being in Hazelton. Similarly, when B.T.’s birthday fell at a time when he was to the girls, A.S.T. refused T.T. his parenting time. [ 55 ] T.T. and A.S.T. communicate about the girls through Facebook messenger. When A.S.T. is angry at T.T. she blocks him so they have no way to share information about the girls, including transitioning them for parenting time. When she wants T.T. to have parenting time with the children, such as on New Year’s Eve, A.S.T. unblocks him.

It was in these circumstances Judge Jackson made his June 29, 2017 Order. [ 56 ] T.T. and A.S.T.’s recent conflict arises from the fact that A.S.T. receives the entire Universal Child Care Benefit (“UCCB”) and T.T. pays no child support. [ 57 ] Until this spring, T.T. was unemployed and receiving social assistance. He struggled to support the girls when they were in his care without any financial aid. Maureen Olson is a delegated social worker for the MCFD. On April 22, 2016, she provided T.T. with a letter of support confirming he had care of his two daughters, overnight for three to five days a week.

She went on to say this posed a financial hardship on him as he only receives “single rates”: Exhibit 3. B.J.’s evidence [ 58 ] B.J. is a family support worker for [omitted for publication] Family Services. She works with families involved with MCFD; she supports young families who are dealing with social assistance, housing, and just “life in general.” B.J. has known T.T. since 2015 when he became her client upon his return to Burns Lake from treatment in the lower mainland. In her letter marked as Exhibit 8, B.J. describes T.T.’s sustained commitment to live drug and alcohol free.

B.J. said that when he returned to Burns Lake, T.T. focused his energy on obtaining housing, employment, and more time with his children. He has achieved all three goals. B.J. often sees T.T. with B.T. and A.T. and provides them with transportation to the grocery store and other venues. She has the impression that he is a good father and very in tune with his daughters. B.T. and A.T. are always polite, clean and well-groomed. [ 59 ] B.J. has confirmed that to her knowledge T.T. has the children three days per week from Thursday to Sunday, but periodically this is extended to include four or five days.

M.A.’s evidence [ 60 ] M.A. lives in Burns Lake near T.T. He is a recreational coordinator in the employ of the [omitted for publication]. He runs sporting and cultural programs for the children and youth in the community. [ 61 ] M.A. has a partner and two sons. He is T.T.’s cousin and neighbor and has known T.T. most of his life. In the course of his employment, M.A. has attended the men’s group T.T. hosts each Wednesday. [ 62 ] M.A. has met B.T. and A.T. He has been in T.T.’s home when they were present. Sometimes T.T. and the girls would come to M.A.’s home to play with his dog S., or to take S. for a walk.

T.T. has impressed M.A. as a respectful and loving parent. [ 63 ] M.A. often provides T.T. with transportation to deliver B.T. and A.T. to their mother’s house or to the store to buy groceries. M.A. describes T.T. as an “awesome father” who has maintained his sobriety for many years and has helped other men in the community to do the same. [ 64 ] M.A. testified that in May 2017, T.T. knocked at his door at 11 or 12 p.m. He told M.A. that B.T. and A.T. were having a sleepover a couple of doors down at his cousin D.’s residence. T.T. was worried the adults were drinking in the residence.

M.A. accompanied T.T. to D.’s residence and knocked on the door for five or ten minutes before someone finally responded. M.A. and T.T. found D. and another male present in the home. B.T. and A.T. were sleeping on the living room sofa. There were a number of alcoholic beverages on the table. T.T. and M.A. retrieved the girls and brought them back to T.T.’s residence. M.A. said T.T. was heartbroken and crying at seeing his daughters in such an environment. S.L.’s evidence [ 65 ] S.L. works and resides in Burns Lake, B.C. He is a network technician employed full-time with [omitted for publication].

He has three children, ages 11, 12 and 13. S.L. has known T.T. for about a year and one-half. He lives less than a five minute drive from

T.T.’s house. S.L. considers T.T. a good friend and has participated in T.T.’s support groups for men. [ 66 ] S.L. has taken T.T. and his daughters to various social events and provides them with transportation to and from A.S.T.’s residence. S.L. has observed T.T. with his daughters. He has been to T.T.’s home and has taken T.T., B.T. and A.T. to the beach.

S.L. describes T.T. as a good father with a stable home who participates in a number of social events with his daughters in the same manner S.L. does with his own children. [ 67 ] S.L. described an incident on August 3, 2017, when he went with T.T. to pick up B.T. and A.T. from A.S.T.’s house in Palling. Neither girl was home when they arrived so he and T.T. went searching for them in the community. They found B.T. running back through the fields but were unable to locate A.T. T.T. and S.L. went to four or five different houses trying to find A.T.’s whereabouts. Eventually, they had to leave without her.

S.L. was sufficiently alarmed that he thought they should call police. Eventually, S.L. and T.T. left with only one of the girls. [ 68 ] S.L. testified that he is always willing to help out with providing transportation for T.T. and his daughters. A.S.T.’s evidence [ 69 ] A.S.T. is 25 years old and B.T. and A.T.’s biological mother. [ 70 ] A.S.T. met T.T. in 2007, while still in high school. They started dating in 2009, the year they graduated. Their relationship progressed quickly and A.S.T. gave birth to B.T. on [omitted for publication]. [ 71 ] A.S.T. became pregnant with A.T. in July 2011.

Two months later she and T.T. separated. [ 72 ] A.S.T. gave birth to A.T. on [omitted for publication]. The following day, while she was in the Prince George hospital A.S.T. received a call from T.T. At the time, T.T. was in a detox centre. T.T. came to the hospital to see A.S.T. and A.T. T.T. and A.S.T. then reunited for a brief period. Unfortunately, their relationship was marred by alcohol abuse, family violence, and dysfunction. [ 73 ] A.S.T. and T.T. separated permanently when T.T. went into the recovery houses in Surrey, B.C.

On March 23, 2013, A.S.T. lost her best friend to domestic violence and began drinking heavily. [ 74 ] In September 2013, A.S.T. placed B.T. and A.T. in the temporary care of MCFD while she took an [omitted for publication] course through the College of New Caledonia. [ 75 ] In 2014, A.S.T. moved with B.T. and A.T. to live with her grandmother in Hazleton. T.T. was still living in the lower mainland. The only contribution T.T. made towards his daughters’ support was $500 in July 2014.

A.S.T.’s only source of income was the UCCB of approximately $1,000 per month. [ 76 ] When T.T. returned to Burns Lake, he began to have parenting time with B.T. and A.T. T.T. and A.S.T. began arguing, often about the UCCB. T.T. believes A.S.T. ought to share this benefit with him.

A.S.T. has difficulty comprehending why she should give T.T. a portion of the UCCB when he has contributed so little to the B.T. and A.T.’s financial support over the years. [ 77 ] A.S.T. put into evidence Exhibit 10 to demonstrate to the Court the difficulties she has communicating with T.T. because of his demands she share with him the UCCB. [ 78 ] A.S.T. now lives on the [omitted for publication] Reserve at Palling, B.C. She describes it as a very small close knit community of 70 people, the majority of whom are children, teens, and pre-teens.

A.S.T. describes the community as a very safe and trusting environment in which to raise her daughters. [ 79 ] A.S.T. works part-time for the [omitted for publication] as a band social development worker and part-time for the [omitted for publication] Economic Development Ltd. as a finance assistant.

Together these positions provide A.S.T. with full-time employment. [ 80 ] A.S.T. put into evidence letters of support praising her parenting skills and devotion to her two daughters: Exhibit 12. [ 81 ] This spring A.S.T. attended a healing program in Houston, B.C. called [omitted for publication]. [ 82 ] A.S.T. says her family offers her a lot of support, both past and present. M.T.’s evidence [ 83 ] M.T. is A.S.T.’s cousin and co-worker. She has cared for B.T. and A.T. and remembers them as having been nice quiet babies who are now smart and fun little girls.

M.T. says they cry for their mother when A.S.T. leaves. [ 84 ] M.T. described an incident of family violence which she observed in December 2013. According to A.S.T., T.T. showed up at her door and shoved his way into her home. He insisted A.S.T. speak to him about their relationship. He refused A.S.T.’s request that he leave and took away both her home and cell phones when she tried to call the police. It was at this point M.T. arrived at A.S.T.’s residence. M.T. came to take A.S.T. Christmas shopping in Prince George. M.T. found T.T. on the bed on top of A.S.T. holding down her arms.

M.T. felt the situation was unsafe. She told T.T. to get off A.S.T. and then she called the police. The police arrived and escorted T.T. out of A.S.T.’s residence and retrieved her phones. Circumstances of the Children [ 85 ] B.T. and A.T. attend the [omitted for publication] Elementary School. Generally, they travel to and from school by bus. Sometimes A.S.T. drives them. They return from school at about 3:00 p.m. and go to A.S.T.’s work place until she is ready to leave at 4:15 p.m.

[ 86 ] A.S.T. involves the Children in various activities. In the summer of 2016, A.S.T. took B.T. and A.T. to Vancouver to the PNE and this year, she took them to the Fall Fair in Smithers. In the summer, A.S.T. often takes the girls to the lake. Throughout the year she brings them into Burns Lake to go shopping, swimming, and visiting. When they are not in school and in their mother’s care, B.T. and A.T. spend time in their community playing with friends and relatives. [ 87 ] When the girls are with T.T., they also travel to and from school by bus.

T.T.’s friends help T.T. transition the girls to and from A.S.T.’s residence. While living with T.T., B.T. and A.T. participate in a number of social and cultural activities. [ 88 ] Last year, B.T. missed 46.5 days of school, eight of which occurred while the girls were in T.T.’s care: Exhibit 7. Legal Framework [ 89 ] In order to determine whether T.T. ought to have increased parenting time, I must consider what is in B.T. and A.T.’s best interests.

Section 37 of the Act sets the criteria of what is in the best interests of the child. It states: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the Court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following: (

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

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

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

d) the history of the child’s care; (

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

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

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

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

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

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a Court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Section 37(2)(a): the children’s health and emotional well-being [ 90 ] Like all children, B.T. and A.T.’s health and well-being benefit from being in a stable, loving home. I have no doubt that both T.T. and A.S.T. provide the Children with a home where they are loved and cherished. [ 91 ] The evidence indicates the Children enjoy their time with both parents.

T.T. lives in a three bedroom house on [omitted for publication] Avenue in Burns Lake. A.S.T. lives in a two bedroom home on the [omitted for publication] First Nations Reserve at Palling. Neither parent has another partner at this time, although A.S.T. has had a number of other relationships in her past. [ 92 ] Both parents engage the girls in a variety of activities. I am satisfied that T.T. and A.S.T. each have the capacity and commitment to care for the Children’s health and well-being.

Section 37(2)(b): the children’s views unless it would be inappropriate to consider them [ 93 ] The girls are only seven and five and their views have not been canvassed. Section 37(2)(c): the nature and strength of the relationships between the children and significant persons in their lives [ 94 ] B.T. and A.T. are T.T. and A.S.T.’s only children. I accept they are bonded into a family unit with both parents.

The Children also have close ties with A.S.T.’s relatives in Burns Lake and Hazelton. [ 95 ] As both Burns Lake and Palling are small communities, the proximity of friends and extended family is not a significant factor. Section 37(2)(d): the history of the children’s care

[ 96 ] For the first years of their lives, B.T. and A.T. were predominately in their mother’s care. When T.T. was pursuing his rehabilitation in the lower mainland, the Children were alternatively in the care of their mother, their grandmother, and for a while, MCFD. [ 97 ] Since he returned to Burns Lake in late 2014, T.T. has gradually increased his parenting time with the children so it is now more or less equal. Section 37(2)(e): the children’s need for stability given their age and stage and development [ 98 ] As with all children, the B.T. and A.T. need stability.

At present, both parents appear to have a stable home for the Children, free of discord and dysfunction. [ 99 ] B.T. and A.T. attend [omitted for publication] Elementary School, and there is no suggestion this would change if T.T. were to have formalized increased parenting time. The Children would take the school bus to and from school, to either parent’s home. [ 100 ] Alcohol has been a significant destabilizing force in T.T. and A.S.T.’s life in the past. T.T. has been sober now for over four years. I gather A.S.T.’s journey to recovery is ongoing.

Neither parent allows alcohol in his or her home when the Children are present and they want to keep it this way. [ 101 ] T.T. and A.S.T. agree the Children should not be left alone with a third party without the other’s approval. [ 102 ] A.S.T. has had a number of relationships in the past with partners who have lived with her. T.T. has not had any live-in relationships with new partners since he has separated from A.S.T. It can be destabilizing for Children to have their household repeatedly reconstituted when parents re-partner.

Section 37(2)(f): the ability of each guardian to exercise his or her responsibilities [ 103 ] Parenting responsibilities are set out in s. 41 of the FRA , which states: Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

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

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, 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 child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. [ 104 ] Because he needed to recover from his alcohol addiction, T.T. only began exercising his parent’s responsibilities as a single father in late November 2014. Since then, T.T. has established and maintained a close and loving relationship with his Children. Incrementally, T.T. has assumed increasing parenting time of the Children and they are now in his care roughly half time. [ 105 ] A.S.T. has had responsibility for the Children for many years as a single mother.

She has had some troubled times resulting in the Children being placed with relatives or with MCFD. Now when A.S.T. needs respite, B.T. and A.T. remain in T.T.’s care. A.S.T. has and continues to receive counselling and is committed to her own recovery. [ 106 ] I do have concerns about T.T. having to rely on friends and neighbours to transport the Children to wherever they need to go. This lack of transportation has caused B.T. to miss school. T.T. says he anticipates obtaining a driver’s licence and vehicle by the end of November 2017, so his transportation concerns will abate.

In my view, T.T. ought to make obtaining a driver’s licence a priority given the distances involved in transitioning the Children between Burns Lake and Palling.

[ 107 ] Since late 2014, T.T and A.S.T.’s ability to effectively exercise their respective parenting responsibilities has been compromised by their inability to establish a respectful relationship with each other. I am confident that with some effort and thoughtfulness, T.T. and A.S.T. can learn to communicate in a more mature and respectful manner. Section 37(2)((

g) the impact of any family violence on children’s safety, security or well-being, whether the family violence is directed toward the child or another family member [ 108 ] Although there is evidence of family violence in T.T. and A.S.T.’s past, this does not appear to be a present concern. [ 109 ] I am satisfied that both parents can provide the girls with a safe home free of family violence and discord. Section 37(2)(

i) the appropriateness of an arrangement that would require the children’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 [ 110 ] T.T. and A.S.T. are young and in the past they have communicated with each other in a manner best described as juvenile.

A.S.T. believes this problematic communication could improve if they were to just text one another rather than communicate on Facebook. [ 111 ] As indicated above, I am confident that T.T. and A.S.T. can learn to communicate in an effective and respectful manner. Despite their angry and hurtful messages, they have worked together to parent and transition the Children. [ 112 ] The source of discord between T.T. and A.S.T. has been holiday parenting time and sharing the Universal Child Benefit.

A.S.T. admits she has denied T.T. his parenting time during holidays because she was not accustomed to having to share parenting time during these times. She recognizes this is something she must do and invites the Court to implement shared parenting during holidays. [ 113 ] Now that both T.T. and A.S.T. are employed, I expect their discord over finances will also abate.

Section 37(4): In making an order under this Part, a Court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [ 114 ] By all accounts, B.T. and A.T. are thriving. The Children need to go to school on a consistent basis. Both parents need to arrange their affairs and households to minimize the times when the Children do not attend scheduled classes.

Section 37(3): an agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being [ 115 ] I am of the view the Children’s physical, psychological and emotional safety, security and well-being will be best protected by maximizing their time with both parents with minimal disruption to their current circumstances. [ 116 ] A.S.T. said if the Court were to increase T.T.’s parenting time, she would like it to be every second week from Wednesday after school to Monday morning.

In this way the Children can transition between the two households by school bus. [ 117 ] Both parties agree the Court ought to set out a

schedule for parenting time during the holidays. Disposition [ 118 ] The Court confirms that A.S.T. and T.T. are guardians of B.T., born [omitted for publication] and A.T., born [omitted for publication] (collectively, the “Children”), under s. 39(1) of the Family Law Act (FLA) . [ 119 ] Under s. 40(2) of the FLA T.T. and A.S.T. will share equally all parental responsibilities for the Children. Orders with Respect to Regular Parenting Time [ 120 ] T.T. and A.S.T. will have the following rotating

schedule for parenting time with the Children during the school year: Week 1: T.T. will have parenting time with the Children from directly after school on Wednesday until directly after school on Monday. If there is no school on Monday, T.T. will have parenting time until 1:00 p.m. on Monday. Week 2: T.T. will have parenting time on Wednesdays from directly after school until directly after school on Thursday. [ 121 ] T.T. will have additional parenting time at such dates and times as they may agree. [ 122 ] The Children will ordinarily transition between T.T. and A.S.T.’s residence by school bus.

If, for any reason, the Children cannot transition by school bus, then T.T. will be responsible for picking up the Children when they are transitioning into his care and A.S.T. will be responsible for picking up the children when they are transitioning into her care. Orders with Respect to Holidays and Special Days: [ 123 ] T.T. and A.S.T. will have parenting time with the Children on holidays and special days as follows:

a) Christmas Vacation: T.T. and A.S.T. will share parenting time of the Children during the Christmas school break. In the odd years commencing and including 2017, T.T. will have the Children from after school on the last day of school until the day that is one- half way through the Christmas break at 12:00 p.m. and A.S.T. will have the Children from 12:00 p.m. through to the day before school resumes at 12:00 p.m. In even years the

schedule will reverse.

b) Spring Vacation: T.T. and A.S.T. will share parenting time of the Children in the school spring break such that in even years T.T. will have the Children from after school on the last day of school until the day that is one-half way through the spring break at 12:00 p.m., and A.S.T. will have the Children from 12:00 p.m. through to the day before school resumes at 12:00 p.m. In odd years the

schedule will reverse.

c) Summer Vacation: T.T. and A.S.T. will share parenting time with the Children during the summer vacation at such dates and times as they may agree. If they cannot agree, then in the even years, commencing in 2018: i. A.S.T. will have the Children from July 1 to July 15; ii. T.T. will have the Children from July 16 to July 31; iii. A.S.T. will have the Children from August 1 to August 16; iv. T.T. will have the Children from August 17 until 12:00 p.m., the day before school resumes. In odd years the

schedule will reverse.

d) Parents’ Birthdays, Father’s Day and Mother’s Day: A.S.T. shall have parenting time with the Children for the entire day on her birthday and Mother’s Day. T.T. will have parenting time with the Children for the entire day on his birthday and Father’s Day.

e) Children’s Birthdays: T.T. and A.S.T. will alternate parenting time with the Children on their birthdays. In even years, T.T. will have parenting for the entire day with B.T. on her birthday and A.S.T. will have parenting time for the entire day with A.T. on her birthday.

In odd years, T.T. will have parenting for the entire day with A.T. on her birthday and A.S.T. will have parenting time for the entire day with B.T. on her birthday. [ 124 ] T.T. will be responsible for picking up the Children for holidays and special days when they are transitioning into his care and A.S.T. will be responsible for picking up the Children for holidays and special days when they are transitioning into her care. Conduct Orders [ 125 ] I make the following Conduct Orders:

a) Neither T.T. nor A.S.T. will use or permit the use of alcohol or drugs in the presence of the Children;

b) T.T. and A.S.T. will ensure the Children are supervised by a responsible adult at all times;

c) T.T. and A.S.T. will (

a) put the best interests of the Children before their own interests; (

b) encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent in a positive and respectful manner; and (

c) 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; and

d) T.T. and A.S.T. will not blame, criticize or disparage the other parent to the Children. Communication Orders [ 126 ] I make the following Communication Orders:

a) T.T. and A.S.T. will communicate by text messaging or email, except in the event of an emergency with respect to the Children, in which case they may communicate as required. [ 127 ] T.T. and A.S.T. may vary the terms of this Order by agreement provided they do so in writing. [ 128 ] Either T.T. or A.S.T. can seek to vary the terms of this Order upon reasonable notice to the other. [ 129 ] The requirement to obtain A.S.T.’s signature approving the form of this Order is dispensed with. ________________________ J. T. Doulis Provincial Court Judge Province of British Columbia