T.B. v. S.S. Date:, 2017 BCPC 217

Citation: T.B. v. S.S. Date: 20170428 2017 BCPC 217 File No: 5047 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , S.B.C. 2011 c. 25 BETWEEN: T.B. also known as T.S. APPLICANT AND: S.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Applicant: S. Davidson Appearing on their own behalf: S.S. Place of Hearing: Prince Rupert , B.C.

Date of Hearing: August 15, 16 and 18; October 31, November 1 - 4, 2016 Dates of Written Submissions: Applicant - December 21, 2016; Respondent - January 20, 2017; Reply - February 3, 2017 Date of Judgment: April 28, 2017 INTRODUCTION [ 1 ] T.B. (Ms. B.) and S.S. (Mr. S.) (collectively the Parties) are the parents of five children namely: 1. R.E.S., born [omitted for publication] (R.); 2. D.P.S., born [omitted for publication] (D.); (Collectively the Girls) 3. O.W.S., born [omitted for publication] (O.); 4. C.D.S., born [omitted for publication] (C.); and 5. S.S.S.

Jr., born [omitted for publication] (S.); (Collectively the Boys) (All together collectively the Children). [ 2 ] The Parties have been engaged in litigation at various times since 2003, but have never had a trial to resolve the issues concerning parenting responsibilities, parenting time, and support of the Children until now. [ 3 ] Ms. B. seeks to have the Court determine that Mr.

S. is now, and was throughout their relationship, a controlling and abusive spouse who has refused to provide sufficient support for the Children over the years, has taken little interest in the Children until recently, and is attempting to manipulate the Children against her and against their best interests. [ 4 ] Mr. S. seeks to have the Court determine that Ms. B. is a neglectful parent who has long suffered from various mental health and emotional issues that render her incapable of properly caring for the Children without extensive assistance from family members and other resources.

He also asks the Court to conclude that Ms. B. is intentionally under-employed for the purpose of causing him financial distress. [ 5 ] Ms. B. is now 32 years old. Mr. S. is 37 years old. They began their relationship in 1999 when Ms. B. was 15 and Mr. S. was 19. There is no doubt their relationship was tumultuous throughout the time they have known each other. They commenced a common- law relationship in 2001, were married in 2007, and separated in 2012.

There were periods of reconciliation in 2012, 2013, and 2014, but none long enough to re-establish the relationship. [ 6 ] The Parties allege that each was verbally and emotionally abusive to the other and Ms. B. alleges many instances of physical abuse by Mr. S. Mr. S. responds by alleging there were occasions when Ms. B. threatened him with weapons and assaulted him. [ 7 ] Throughout most of their relationship, Mr. S. was the primary income earner for the family and Ms.

B. was a stay-at-home parent until she became employed first as regular on-call care aide for the Northern Health Authority at the Prince Rupert Regional Hospital in 2010, and subsequently as a casual on-call first aid attendant with a local safety company in 2016. [ 8 ] During the course of the trial of this matter, Mr. S. brought Notices of Motion against Ms. B.'s sister, S.B., and her new partner, M.P., seeking Protection Orders against those two persons. Both of those applications were dismissed by the Court and will not be further addressed in this decision. LITIGATION HISTORY [ 9 ] On February 10, 2003, Ms.

B. filed an Application to Obtain an Order seeking sole guardianship and custody of, and child support for R. [ 10 ] On October 29, 2003, Mr. S. filed an Application to Obtain an Order seeking sole guardianship and custody of R. and D., and a further order that they not be removed from Prince Rupert. [ 11 ] On February 3, 2012, Ms. B. filed an Application to Obtain an Order seeking sole guardianship and custody of, and child support for all of the Children and spousal support for herself. [ 12 ] On February 28, 2012, Mr. S. filed a Reply seeking shared guardianship of the Children.

He also sought orders that the Children’s primary home be with him and that Ms. B. pay him child and spousal support. [ 13 ] March 22, 2012, the Court granted an interim Consent Order requiring that there be no alcohol or drugs in the Children’s home

and that no person possessing or under the influence of alcohol or drugs be permitted in the Children’s presence or home. [ 14 ] On June 7, 2012, the Court granted a Final Order that the Parties share joint guardianship of the Children on the Master Joyce model, that they share joint custody of the Children, and that the Children’s primary home be with Ms. B. Mr. S. was granted liberal and generous access to the Children and that there was a requirement that 60 days’ notice be given if either Party contemplated a move away from Prince Rupert. [ 15 ] On January 7, 2013, Ms.

B. filed a Notice of Motion seeking orders for specified access and a request to deal with child support as set out in her Application filed February 3, 2012. On that date, she also filed an Affidavit alleging that Mr. S. was not paying the Court ordered child support. [ 16 ] On January 24, 2013, the Court granted an interim Consent Order that Mr. S. pay to Ms. B. $1,000 per month child support on February 1, 2013, and each month thereafter without prejudice to any retroactive application for child support. There was no reference to an imputed or determined income for Mr.

S. in that Order. [ 17 ] On January 31, 2013, Ms. B. filed a Notice of Motion seeking an order that Mr. S.’s access to the Children be supervised. On that date she also filed an Affidavit alleging that Mr. S. was partying, abusing drugs, and was not safe to care for the Children. [ 18 ] On February 7, 2013, the Court made an Order requiring Mr. S. to file a Financial Statement by February 21, 2013. Mr. S. did not comply with that Order. [ 19 ] On March 1, 2013, Mr.

S. filed a Financial Statement indicating he had been unemployed for two weeks, disclosed “0” income, attached none of the necessary Tax Returns or other documents, but disclosed a $35,000 student loan. [ 20 ] On March 20, 2013, the Court granted an interim Consent Order that Mr. S. pay child support to Ms. B. for the Children in the amount of $653 per month commencing April 1, 2013, and payable the first of each month thereafter. There was no reference to an imputed or determined income for Mr. S. in that Order. [ 21 ] On April 29, 2013, Ms.

B. filed an Application Respecting Existing Orders or Agreements seeking to vary the Orders of June 7, 2012 and March 28, 2013, and seeking sole guardianship of the Children and an increase in child support due to Mr. S.’s employment situation. [ 22 ] On April 29, 2013, Ms. B. filed a Notice of Motion seeking to shorten the time for service on Mr. S. and seeking the relief set out in the Application filed the same day. On that date she also filed an Affidavit alleging that she was the only one caring for the Children and requesting sole guardianship of them. She also alleged that Mr.

S. had returned to work and was earning more income than he had been in the past. [ 23 ] On May 16, 2013, the Court granted an Order that Ms. B. serve Mr. S. with her Application filed April 29, 2013, by mail within 30 days. [ 24 ] On May 21, 2013, Ms. B. filed an Application to Obtain an Order seeking spousal support and an order that Mr. S. provide financial disclosure. [ 25 ] On February 16, 2015, Ms. B. filed an Application Respecting Existing Orders or Agreements seeking to change the Order of June 7, 2012, to grant her sole guardianship and seeking a review of the support payable by Mr.

S. because he had returned to work. [ 26 ] On March 10, 2015, Mr. S. filed a Reply disagreeing with Ms. B.’s Application concerning guardianship, parenting time, and child support. He also alleged that he was being denied access to the Children and that Ms. B. was caring for them in an unsafe environment. [ 27 ] On March 12, 2015, Mr. S. filed a Financial Statement disclosing that he was employed as a deckhand but indicating “0” income. An attached Canada Revenue Agency (CRA) T-4 for Mr. S. indicated an income of $74,112 for 2014, and an attached CRA

Summary indicated an income of $80,513 for 2013. The Financial Statement also indicated a student loan of $17,500 and other debts of $7,000 but there were no verifying documents attached. [ 28 ] On June 3, 2015, the Court granted a Consent Order at a Family Case Conference that Mr. S. file a Financial Statement four weeks before a scheduled hearing showing his income for 2015. [ 29 ] On September 23, 2015, Mr. S. filed a Financial Statement disclosing that he was employed as a deckhand but indicating “0” income.

The Financial Statement contained the same attachments as the one filed March 12, 2015. [ 30 ] On October 29, 2015, the Court granted a Final Order that the Parties exchange their 2014 Tax Returns and pay stubs, that a Family Case Conference and a Pre-trial Conference be scheduled, and that each of the Parties keep track on a day-to-day basis of when the Children were in their home. [ 31 ] On January 20, 2016, Ms. B. filed a Financial Statement disclosing that she was employed by the Northern Health Authority (NHA) on a casual basis as a care aide earning an income of $17,870.

She attached to that Financial Statement her 2014 Tax Return indicating an income of $11,875, her 2014 CRA Notice of Assessment indicating income of $13,674, her 2013 Tax Return indicating income of $18,263, and her 2012 Tax Return indicating income of $21,116. [ 32 ] On January 20, 2016, Ms. B. filed a Notice of Motion seeking Royal Canadian Mounted Police (RCMP) records of their contacts with Mr. S. [ 33 ] On February 17, 2016, the Court granted an Order that the RCMP disclose documents in their possession concerning Mr. S.

[ 34 ] On May 2, 2016, Mr. S. filed a Notice of Motion seeking a change of the court date due to his absence from the country. [ 35 ] On May 5, 2016, Ms. B. filed a Notice of Motion to enforce the Order of January 24, 2013, and seeking retroactive and ongoing child support, a police assist clause, and conduct orders regarding Mr. S.’s method of communication and content of communication with her. On the same date she filed an Affidavit in support of the Notice of Motion setting out her version of the chronological parenting time she and Mr. S. had with the Children or smaller groups of them.

She also attached to that Affidavit copies of text messages between her and Mr. S. from 2015 concerning parenting time and child support. [ 36 ] On May 12, 2016, Mr. S. filed an amended Reply. [ 37 ] On May 12, 2016, the Court granted an Interim Order that Mr. S. was to file and deliver to Ms. B.’s counsel copies of all Affidavits he intended to rely on at the hearing not less than ten days before and that the Parties exchange updated financial information not less than ten days before the hearing. [ 38 ] On May 31, 2016, Ms. B. filed a Reply to Mr.

S.’s claims for guardianship, parenting responsibilities, parenting time, child support, and his application to cancel or vary arrears of support . [ 39 ] On June 15, 2016, Ms. B. filed a Financial Statement indicating an estimated income of $42,690 from her employment at NHA and a local first aid/safety company.

She also attached numerous documents from the Federal and Provincial governments concerning the Canada Child Tax Benefit (CCTB), the BC Early Child Tax Benefit (BCECTB), the BC Family Bonus (BCFB) and the Universal Child Care Benefit (UCCB), (collectively “Child Benefits”) concerning her reassessment by those agencies as a result of Mr. S.’s actions in applying for those credits. This resulted in a claimed overpayment to her by various government agencies amounting to $62,850. [ 40 ] On June 29, 2016, Mr. S. filed an Affidavit disclosing income of $79,353 for 2015, and income of $41,434 to the end of June 2016.

That Affidavit also indicated Mr. S.’s wages were being garnisheed for a delinquent student loan. [ 41 ] On June 29, 2016, the Court granted an Interim Order setting out parenting time for each of the Parties with the Children on a varying

schedule and that if either of the Parties could not exercise their parenting time they would be responsible for finding alternative care for the Children. The Court also ordered that Mr. S. was to pay $1,000 to Ms. B. if he did not file a new and complete Financial Statement and deliver it to Ms. B.’s counsel by August 8, 2016. [ 42 ] On August 2, 2016, Ms. B. filed a Notice of Motion seeking an Order that Mr. S. be fined $1,000 for failing to provide documents to her counsel as required by the Court Order of June 29, 2016. [ 43 ] On August 8, 2016, Mr.

S. filed a Financial Statement disclosing that he was employed as a deckhand but disclosing “0” income. That Financial Statement also indicated a student loan of $8,500 and a debt to the Insurance Corporation of British Columbia (ICBC) of $2,700. It also attached his CRA Tax

Summary for 2014 indicating income of $74,382 and his CRA Tax

Summary for 2013 indicating income of $43,536. It was not a complete Financial Statement as he was ordered to file. [ 44 ] On August 8, 2016, Mr. S. filed an Affidavit of D.L., his brother-in-law, in support of his applications before the Court. [ 45 ] The trial of this matter commenced on August 15, 2016, and continued on August 16, 17 and 18, 2016. Mr. S. did not attend the proceedings on August 18, 2016, advising the Court in advance that he did not want to do so without his support person, his brother. In fact, Mr.

S. and his brother travelled with their spouses to Las Vegas for a vacation, something that was not revealed to the Court until much later. [ 46 ] On October 27, 2016, Ms. B. filed a Notice of Motion seeking a Protection Order against Mr. S. pursuant to

section 183 of the Family Law Act ( FLA) . [ 47 ] On October 27, 2016, Mr. S. filed three separate Notices of Motion seeking Protection Orders against Ms. B., S.B. and M.P., pursuant to

section 183 of the FLA . [ 48 ] On October 27, 2016, Ms. B. filed an Affidavit setting out the attempts made by her and her counsel to obtain documentation from various government agencies concerning the Child Benefits. [ 49 ] On October 31, 2016, Mr. S. filed an Affidavit to which he attached a photocopy of a calendar for August 2015 through March 2016, indicating his parenting time with the Children. That Affidavit also made numerous allegations against Ms. B., her mental health, her temperament, her care of the Children, and assaults on him. The Affidavit also alleged that Ms.

B. instigated a breach of his Recognizance causing him to be arrested and incarcerated for a month. [ 50 ] Mr. S. also alleged that he had the Boys living with him 75% of the time until May 2016, and that they were primarily living with Ms. B. since then. He also claimed that the Girls resided with him continuously since August 2015. [ 51 ] The trial continued on October 31, November 1 - 4, 2016, when the evidence concluded. [ 52 ] Ms. B.’s written submissions were filed on December 21, 2016. Mr. S.’s written submissions were filed on January 20, 2017. Ms. B.’s Reply was filed on February 3, 2017.

EVIDENCE General [ 53 ] The Parties and their witnesses spent considerable time describing to the Court their perspectives on specific incidents to demonstrate how one of the Parties was superior or inferior to the other in their ability to meet the best interests of the Children. The Court will not review all the details alleged in the evidence unless they pertain directly to the decisions to be made with regard to the

Children and their best interests. With the consent of the Parties, the Court also considered the Affidavit evidence filed in the proceeding. Applicant: Ms. B. [ 54 ] Ms. B.’s evidence concerning the nature of the violence within her relationship with Mr. S. can be summarized as follows:

a) Mr. S. has been violent to her since the beginning of their relationship and has physically assaulted her on many occasions; far more than she reported to the RCMP;

b) throughout their 13 years of residing together, Mr. S. physically abused her two to three times per month, generally after he had been drinking and participating in infidelity;

c) prior to the separation in 2012, she and Mr. S. separated briefly approximately 50 times, mostly as a result of his violence or infidelity;

d) throughout their lives, the Children have been intimidated and abused by Mr. S. both physically and emotionally. He often demeans the Children including shouting and swearing at them for even minor infractions or if they irritate him;

e) throughout their relationship and since the separation, Mr. S. has been mentally abusive to her by calling her names such as whore, fat and ugly, making fun of her body and saying that she drove him to be unfaithful many times;

f) there have been times, both prior to and subsequent to the separation, that Mr. S. has been very nice to her and the Children between bouts of violence. She now recognizes that behaviour to be within the continuum of spousal abuse;

g) in 2006, when Mr. S. assaulted her by kicking her in the head and body with steel toed boots, she did not go to the hospital because she was ashamed of what had occurred. That incident occurred in front of R.;

h) on one occasion several years ago, C.S., Mr. S.'s brother, saw him assault her. After Mr. S. left, C.S. consoled her and told her that she should leave Mr. S. because of his violence;

i) on another occasion years ago, she confronted Mr. S. with a bread knife when he returned home from an infidelity with a co- worker. Mr. S. took the knife from her and threw her to the ground;

j) on the occasion when Mr. S. was cut by an umbrella while assaulting her, she grabbed the umbrella to defend herself, but it broke and cut his hand. She accompanied Mr. S. to hospital where he received stitches;

k) during the fork incident soon after separation in 2012, she had the fork in one hand and was waving her hands about while talking when she poked but did not lunge at Mr. S. with the fork. He became angry, stabbed her with the fork, punched and elbowed her in the head until she was almost unconsciousness. She did not bite his arm. She told Mr. S. that she would call the RCMP and he replied it would be the last time she did. Eventually the RCMP arrived and she was taken to the hospital;

l) at the time of the separation in 2012, Mr. S. was placed on a Recognizance, restraining him from having contact with her. She made arrangements for her parents to pick up and drop off the Children so that Mr. S. could maintain his relationship with them;

m) in the months after the separation of 2012, Mr. S. stalked her, threatened to kill her and the Children, and to burn their house down. He also told her that if she ever received any child support from the Court he would throw her into the Skeena River and nobody would ever find her;

n) prior to traveling with Mr. S. to Las Vegas in late 2013, she did advise the Court that they were working things out;

o) in about 2014, when Mr. S. started to beat O. with a belt, she intervened. Mr. S. became extremely angry and ordered her and the Children out of his home. At that time, they had been residing with him for a short period of time but she still had her own home which she moved the Children back to. During that incident, she became angry and struck Mr. S. in the leg with the belt he used on O. Mr. S. took the belt from her and beat her several times with it before she left;

p) although she did invite Mr. S. to her home in January 2015, when a Recognizance was in place, she did not concoct the situation in order to have him arrested. He attacked her and the RCMP were called;

q) in January 2015, Mr. S. became angry when he discovered that she was out for the evening with a female friend. When she returned home and confirmed to him that the relationship was irrevocably ended, he assaulted her and threatened to kill himself. He briefly left her home but then returned and was in the process of attacking her again when the RCMP arrived;

r) since Christmas 2015, Mr. S. has entered her home without her invitation or permission five times. On one of those occasions he assaulted her and on several others he shouted and screamed at her;

s) in late 2016, Mr. S. got angry with O. and threw him across the room because he had been speaking to her new partner M.P. (Mr. P.). Some of the other Children were present at that time;

t) since she has become involved with Mr. P., Mr. S. has made threats against him including threatening to attack him with a baseball bat. This greatly concerns her due to Mr. S.'s violent history against her.

u) since she began her relationship with Mr. P., Mr. S. has, on several occasions, refused to have the Boys visit him because they speak to Mr. P. On other occasions, Mr. S. had spanked the Boys because he found out they were speaking to Mr. P. There have been several occasions in 2016 where both O. and S. have told her they do not wish to go to Mr. S.'s house because he says mean things about Ms. B.

and Mr. P.

v) the Boys told her that Mr. S. told them that when the meet Mr. P. they should “kick him in the balls” and that he would use Mr. P. “like a punching bag”. [ 55 ] Ms. B.’s evidence on the issue of parenting capabilities and responsibilities can be summarized as follows:

a) during the course of the relationship, Mr. S. often used cocaine. She pointed to three specific occasions: once when Mr. S. was living in Terrace and attending college; once soon after the separation when Mr. S. said he was using cocaine because he was depressed; and once in 2015 when she went to visit him in Vancouver and he returned to the hotel room with cocaine residue around his nose and tried to throw her off the balcony. Others were present and intervened. The next morning Mr. S. claimed he had no memory of the incident;

b) she is supportive of the Children participating in sports. She did not attend any soccer games one year because Mr. S. was attending them with the Boys and he was under a Recognizance not to have any contact with her. She has not been able to attend as many of the Children’s sporting events as she would like for a variety of reasons including work requirements. She was not even aware R. was playing rugby until told during the trial. She has not attended any of those games because she does not wish to make R. uncomfortable given the present state of their relationship;

c) Mr. S. regularly ignored any of the Court’s Orders he disagreed with but would ensure he adhered to them immediately before any court appearances;

d) she has had since teenage years and continues to suffer from anxiety and depression from time to time. Her doctor describes it as social anxiety disorder. She maintains contact with her doctor and other community resources. Her anxiety and depression is less of an issue now than it was when residing with Mr. S.;

e) she has made several attempts to call or text the Girls since they moved to Mr. S.’s home in order to re-establish a relationship with them but the Girls have either blocked her attempts electronically or simply declined to reply. She is convinced that the Girls’ actions are strongly influenced by Mr. S. and his animus towards her;

f) the Boys have failed to return home to her home after school on several occasions, resulting in various members of both families having to go and look for them. She requires the Boys to walk to her home if they are not picked up by a family member after school. Mr. S. interferes with that direction by telling the Boys to go to his house, which is closer to the school, even when he is at work and not there to supervise them;

g) the allegation of Mr. S. concerning S. Junior being in traffic near the Civic Centre is incorrect because on the day in question the Boys were home with her because due to inclement weather;

h) she acknowledges that there are times Mr. S. can appear to be an excellent father to the Children but other times he is mean and condescending to them. She believes that a lot of his positive actions in the past were done for show, that he has beautiful Children, a beautiful wife and a beautiful home, but that there is a much darker side to him;

i) she and Mr. S. have both taken anger management but she did so voluntarily and followed it up by accessing other community resources whereas Mr. S. was required to take the courses as a result of his criminal convictions.

j) there were times in the past when she would send the Children over to Mr. S.’s home with extra clothing but the clothing was not returned so she stopped that practice. She also often sent the Children to Mr. S.’s along with extra food because the Children told her there was no food at his home. [ 56 ] Ms. B.’s evidence concerning past and present parenting time can be summarized as follows:

a) from the time of the separation in 2012, until the Girls went to reside with Mr. S., the Children resided primarily with her. From 2012 until the early part of 2015, Mr. S. spent very little time with the Children. He became more involved when she began to push ahead with the proceedings;

b) when Mr. S. was attending school in Vancouver in 2014, he did assist her by occasionally speaking to the Children by telephone to ensure their compliance with her directions;

c) D. was hospitalized with pancreatitis in August 2015. Five days after her hospitalization she left for New Brunswick on a prearranged trip to visit her father who had his own health issues. Prior to leaving for New Brunswick, Ms. B. was assured by the doctor that D. was recovering, but it turned out she needed more surgery. D.'s well-being while in hospital was overseen by Mr. S. and the extended family;

d) on one occasion in late 2016, the Boys were at Mr. S.'s home after school and despite her calling them and telling them to return home on three occasions they did not return. Eventually they returned home with Mr. S. He entered her home, shouted at her, called her a deadbeat mom and initially refused to leave. The next day she received a call from a social worker at the Ministry of Children and Family Development (MCFD) concerning allegations of child neglect;

e) her relationship with R. has become strained since R. moved to live with Mr. S. She does not understand why this is so because they had a very close relationship prior to the move. She was unaware that R. was upset by her use of the phone while they were visiting because those complaints did not arise until after she had moved in with Mr. S.;

f) it was not until April 6, 2016, that R. advised her that she would reside with Mr. S. permanently. She has never been told the same by D.;

g) R.'s dog is not permitted to be at her home due to the rules of her complex. Mr. S. refuses to care for the dog on occasion so that R. can visit;

h) there is a morning routine in her home to get the Boys ready for school either when she is there or when their grandfather is transporting them because she must work an early morning shift. When the Girls lived with her they would assist in getting the Boys organized;

i) her parents are very involved in the Children's life including transferring to them to school and other activities and by participating in social and cultural activities with them. She does not understand why R. has chosen to stop visiting with her grandparents even if R. does have some disagreements with her. [ 57 ] Ms. B.’s evidence concerning where the Parties resided since their separation can be summarized as follows:

a) after the separation in 2012, she and Mr. S. began some discussions towards reconciliation within a few months;

b) there were times in 2013, for a period of months where reconciliation was attempted, but was unsuccessful. She and Mr. S. did travel to Las Vegas together around that time;

c) there have been periods of attempted reconciliation, including sometimes that she and the Children stayed at Mr. S.'s home, but he has never stayed at her home which she has maintained throughout since the separation;

d) although she visited Mr. S. in Vancouver in the summer and winter of 2014, they were not back together as a couple;

e) Mr. S. did assist her during the Christmas season of 2014, when she had injured her back, but they were not a couple at that time;

f) although she and Mr. S. and the Children all spent Christmas 2015 together, she and Mr. S. were not a couple at that time. [ 58 ] Ms. B.'s evidence concerning D.'s Traumatic Brain Injury (TBI) and how it has affected her can be summarized as follows:

a) she is very impulsive, is easily distracted, and has difficulty remaining on one topic for very long;

b) she becomes irritated very quickly if she cannot accomplish a task properly in short order;

c) her reading level is lower than expected for her age and she requires learning assistance in a small group;

d) she is easily influenced by others, particularly Mr. S. and R.; [ 59 ] Ms. B.’s evidence concerning financial matters and the payment of child support can be summarized as follows:

a) six years ago she took a six-month course, with 11 other students to become a care aide. All of the students obtained work with NHA in Prince Rupert were she has remained since. None of the students obtained immediate full-time employment because they are low on the seniority list. Her work hours are extremely variable because it is a casual position;

b) she has also taken training as a construction safety officer and first aid attendant and has very occasional work with a second employer in that field. She has worked for that employer for less than a year on a casual basis;

c) at NHA she is entitled to 12 paid sick days per year but in 2015, had to take 20 sick days. She often deals with very ill and contagious patients and contracts illnesses from them. She also takes sick days when she’s suffering from migraines which occur more often in winter than in summer, approximately four or five months apart;

d) she has had to refuse work on some occasions, particularly night shifts, when she has nobody to care for the Children, or if she doesn't have sufficient time to get the Children into the care of another and then get to work on time. There have been occasions when she has had to leave work early due to falling ill or an emergency involving one of the Children;

e) she has been injured twice at work, lost shifts as a result and which have resulted in back pain from time to time;

f) she has taken some short vacations from her employment including a trip to New Brunswick to visit her father and a trip to Ontario;

g) she lives in subsidized housing and her rent is 30% of her employment income adjusted two times per year;

h) her parents did receive money for caring for the Children but those payments ended because she no longer required such extensive child care from them. She and her parents did not make any claims they were not entitled to;

i) when the child support payable by Mr. S. was initially set at $1,000 per month and then reduced to $653 per month, it was because he lost his job and started receiving Employment Insurance. He was off work until soon after the later Order. She believes Mr. S. was laid off as a convenience to him by his employer to reduce his child support obligations;

j) soon after the separation in 2012, Mr. S. told her that she could have full custody of the Children and that if she ever tried to get any money from him he would quit his job and leave town. He repeated those threats to her in a series of texts in 2016;

k) Mr. S. told her that he would make the claim for Child Benefits if she didn’t agree to abandon her claim for child support;

l) in 2016, Mr. S. told her that he applied for the Child Benefits and advised the government that he had all the Children with him full- time from 2012. His application resulted in the government reassessing her Child Benefits status and a decision that she owed over $60,000 in arrears;

m) she has received no Child Benefits for the Girls since April 2016;

n) even though her Financial Statements show expenses greater than her income from all sources, those extra expenses were met through assistance from her parents and charity from churches and social agencies;

o) she received $20,000 with regard to D.'s injuries and used that money to purchase a van to transport the Children, take the Children on vacation, and purchase school supplies and pay bills, all of which was approved of by Mr. S.;

p) at Christmas 2015, Mr. S. told her that he had no money to purchase gifts for the Children, so she purchased gifts for them on his behalf;

q) she has never held a driver’s license but has made three attempts in the past to get a license. Mr. P. does not have a driver’s license, although he has recently received his learner’s license; Ms. B.’s Witnesses [ 60 ] W.W. is Ms. B.'s stepfather and a taxi driver in Prince Rupert. His evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) Ms. B. was violently attacked as a young teenager and has suffered from depression and anxiety from time to time since that assault;

b) over the years, Ms. B. was in a relationship with Mr. S., he frequently observed injuries on Ms. B. which he believed or was told were caused by Mr. S.;

c) several years ago he spoke to Mr. S. about his violence towards Ms. B., telling him he should stop hitting her. Mr. S. initially agreed but soon returned to his violent ways;

d) throughout the time Ms. B. and Mr. S. were living together, Mr. S. was very demanding of her often shouting at her and ordering her to do things around the house to the point where Ms. B. would be shaking and trembling;

e) both prior to and subsequent to the separation of Ms. B. and Mr. S., he and his wife, J., would often care for the Children. He and his wife would sometimes be paid for their care of the Children but they were always willing to care for the Children regardless of whether they were being paid if they were available to do so;

f) after the Parties separation, there were several occasions when Mr. S. would just drop the Boys off at his home without notice and in some circumstances when it was not convenient;

g) when asked, he has often driven the Children to school in inclement weather or from either Ms. B.'s or Mr. S.'s home. He does not mind being the person to transport the Children for pickups and drop-offs as long as he is available;

h) from his observation, Ms. B.'s ability to parent the Children is very good. She is concerned about the Children, ensuring that they are properly fed and dressed and make their medical and dental appointments. She's very active and concerned about ensuring that the Children get to activities;

i) he does smoke marijuana but never around the Children and marijuana is not accessible to them at his home;

j) there have been occasions in the past when he and Ms. B. have had angry verbal disagreements like any father and daughter and his observed disagreements of similar nature between his wife and Ms. B., but never any physical altercations. The disagreements are usually resolved within a few days;

k) he was aware that on several occasions Mr. S. had Recognizance restraining him from having contact with Ms. B. but he did not comply with those court orders;

l) Mr. S. has never been anything other than respectful to him and his wife over the years. [ 61 ] S.B. is Ms. B.'s sister and a Licensed Practical Nurse in Prince Rupert. Her evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) she is the single mother of six children; some of whom have special needs, and many of whom are in the same age range as the Children;

b) she and Ms. B. are very close as sisters. They see each other on an almost daily basis and they are employed at the same hospital;

c) with the exception of times when Mr. S. did not return the Children as required, they have been primarily in the care of Ms. B. from the separation until early 2016, when the Girls began residing with Mr. S., while the Boys remained residing primarily with Ms. B.;

d) Ms. B. and Mr. S. became a couple when she was 15 and he was 19. They separated many times over the years they were together. There was a measure of finality to the relationship in the separation of 2012, although there were sporadic attempts at reconciliation since then;

e) there have been various Court Orders made since the separation of the Parties concerning the parenting time of the Children, but Mr. S. has regularly refused or declined to comply with those Orders;

f) throughout the time Ms. B. and Mr. S. were residing together, she expressed her concerns on numerous occasions to Ms. B. about Mr. S.'s disciplining and general parenting of the Children being borderline abusive. She has seen the Children's terrified reactions to

Mr. S.'s anger on many occasions;

g) in her observations of Mr. S., he has very little respect for the Children often belittling them by calling them names, swearing or screaming at them. There are occasions where she has also observed Ms. B. yelling at the Children, but those were in circumstances where there was a safety issue, or their behaviour was getting out of control. She has never heard Ms. B. swear at or belittle the Children;

h) she was present on several occasions when Mr. S. assaulted Ms. B., including one occasion in 2007, when she intervened after Mr. S. smashed Ms. B.'s head through a gyproc wall. During the course of her intervention, Mr. S. assaulted her resulting in her requiring hospitalization. The RCMP were involved in that incident;

i) although there have been a variety of reasons given for why R. has moved from Ms. B.'s home to Mr. S.'s home, from her observations is mostly due to the fact that R. cannot reside with her mother so long as she has her dog and that she cannot even come to visit Ms. B. because Mr. S. refuses to care for the dog, even for short periods of time;

j) the decision of the Girls to no longer have parenting time with Ms. B. concerns her and she believes it is in part related to R.'s dog, in part because at Ms. B.'s home D. has taken over R.'s room, in part because R. feels she's being made to choose between the Parties, and in part because the Girls are adjusting to the new relationships that each of the Parties have entered into;

k) she does not understand why the Girls have stopped coming to visit with her or their grandparents. The Girls would regularly come for lunch at their grandparents or her home, but they stopped abruptly without any explanation;

l) she is concerned that Mr. S. leaves the Girls alone overnight and, on one occasion, when he was gone for approximately a week;

m) since the Girls have moved to live with Mr. S. she has seen them on several occasions downtown late in the evening without supervision;

n) she and Ms. B., and their respective Children, often participate in joint group activities in and about the Prince Rupert community;

o) Ms. B. does rely on her and their parents’ assistance from time to time with regard to the Children. Ms. B. does suffer from anxiety and depression, but she recognizes those symptoms and is able to obtain the necessary assistance from her family and other resources;

p) Ms. B.'s symptoms of depression and anxiety were much worse when she was with Mr. S., although they still arise when Mr. S. harasses Ms. B. over the status of their parenting of the Children and financial matters. Mr. S. continues to threaten Ms. B. by telephone and by text and has taken steps to deprive Ms. B. of the financial resources she is entitled to;

q) she does a lot of transport of the Children because Mr. S. has lost his driver's license and Ms. B. has never had a driver’s license. She often has to bring such things as groceries and clothing for the Children when they are delivered to Mr. S.'s house;

r) on the date D. suffered her TBI, she was under the care of S.B.’s former spouse who told her and Ms. B. that he did not want to care for the Children on that date;

s) there may have been a time when she was transporting the Children in the van that there were more passengers in the vehicle than there were seatbelts;

t) there are occasions where Mr. S. puts in the effort to be a good parent, but they have to be balanced against the many other occasions when he is violent or intimidating;

u) Mr. S. does regularly take the Boys to soccer. For a long period of time when he was under a Recognizance, Ms. B. stayed away from the soccer games to give him time with the Boys;

v) there have been several occasions where she has tried to assist Ms. B. in finding the Boys after school because they did not return to Ms. B.'s home as expected, but sometimes located them later at Mr. S.'s home on days where he was not scheduled to care for them and not present to supervise them;

w) she is aware of one occasion when a rat was found in Ms. B.'s home, but Ms. B. communicated with the landlord’s representative, an exterminator was called and the matter was resolved;

x) there have been several occasions when Ms. B. has had to resort to the use of the food bank in Prince Rupert, particularly since Mr. S. filed his Child Benefits application claiming that he had the Children in his care since the separation;

y) Ms. B. did go on a trip to Ontario, paid for by someone else, while Mr. S. had the Children in his care. [ 62 ] J.W. is Ms. B.'s mother, a retired social worker, and a homemaker in Prince Rupert. Her evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) over their growing up years, she has seen the Children regularly and has participated in their upbringing in a variety of ways including teaching them about First Nations cultural activities and dance. Mr. S. has never interfered with her attempts to ensure the Children maintain family and cultural traditions;

b) from the initial Court Orders after the Parties separated, Mr. S. was not involved with the Children very often for several years. Mr. S. has not adhered to the various Court Orders for parenting time;

c) O. had some orthopedic difficulties, so she and her husband purchased orthotics prescribed by a doctor and provided them to Mr. S. who threw them away;

d) on many occasions when Mr. S. has the Children and one or more of them fall sick, he returns the Children to Ms. B. or to their home. On some occasions he has told her that he has no money for medicine or time to take the child to the hospital;

e) she has observed Mr. S. regularly shouting and swearing at the Children and calling them belittling names;

f) there have been several occasions when Mr. S. has delivered the Children to her home without notice and in circumstances where it is most inconvenient, but she and her husband do the best that they can to ensure that the Children have a safe place despite the battling of the Parties;

g) Mr. S. has the ability to be an excellent father, but he can go from being "super dad" to an angry and disrespectful parent in a matter of minutes and for no apparent reason. When he is acting as an appropriate parent, he takes the Children to activities which they seem to enjoy;

h) she is not aware of what morning routine Ms. B. has for the Children because she is not there. She and her husband care for the Children in the mornings on the occasion when Ms. B. has to go to work on short notice because she is an on-call employee;

i) she has cared for the Children on occasions when Ms. B. has a bout of depression or anxiety, and other occasions where she had to be hospitalized for medical testing or treatment;

j) both she and Ms. B. can have a temper and get into arguments with each other but they usually repair the relationship very quickly. They have had one or two physical altercations but both occurred when Ms. B. was a teen;

k) she has brought food to Mr. S.'s home on many occasions when she is delivering the Children because she was told that there was no food at his home. Respondent: Mr. S. [ 63 ] Mr. S.’s evidence concerning the nature of the violence within his relationship with Ms. B. can be summarized as follows:

a) many of the problems between himself and Ms. B. during the relationship were due to his infidelity and later Ms. B.'s infidelity. They had arguments over those topics, many of them heated. He thinks his infidelity may have hurt Ms. B. because her infidelities hurt him tremendously;

b) when Ms. B. is engaged in an argument she is persistent and even when he would try to leave she would follow him and try to continue the argument;

c) when they lived in Victoria both he and Ms. B. went to a mixed martial arts gym and learned some fighting techniques;

d) while they were living with his brother, C., he and Ms. B. got into an argument and she began hitting him so he pinned her down by holding her arms. She bit his chest and he punched her. He left the apartment and C. comforted her;

e) on another occasion, he and Ms. B. were arguing over housecleaning and his infidelities. Ms. B. struck him three times with an umbrella and it broke and cut his hand. They went to the hospital and he received some stitches;

f) on January 1, 2012, he was resting on the couch because he was hung over from drinking the night before. Ms. B. and her sister wanted to go shopping and he said no and pushed a blanket into Ms. B.'s face. She pursued him into the bedroom and when he pushed her out of the room, her head hit the wall when she stumbled. At that point, S.B. attacked him. He retaliated by pushing her down and things calmed momentarily before S.B. attacked him again. He left the home and was later arrested by the RCMP and convicted of assault;

g) on another occasion, they had an argument where Ms. B. demanded money but he had none to give her so she called him a deadbeat. When Ms. B. left her home he called R. and instructed her to get the computer, cell phone, and tablet from the home and return them to him. He obtained those items from the mailbox but there were no charging cords so we went to Ms. B.’s home, knocked on the door and requested the charging cords. At no time did he threaten to burn down the house;

h) he has no recollection of any incident in which he assaulted Ms. B. with steel toed boots. There was an incident many years ago where he threw a fishbowl through the wall during an argument with Ms. B.;

i) in January 2012, he and Ms. B. were arguing when she lunged at him with a fork and cut his finger. He pushed her onto the couch but she bit his right tricep so he punched and elbowed her. The RCMP arrived and he was arrested but the matter was resolved by way of a peace bond and the charges were stayed;

j) from January 2012 through November 2013, he was under a Recognizance requiring him to have no contact with Ms. B. They had contact in any event and she cooperated in getting the Restraining Order lifted to allow them to take a trip together to Las Vegas at Christmas 2013;

k) Ms. B.'s allegations of an incident in a hotel room in Vancouver where he was high on cocaine and tried to pick her up and throw her off the balcony are untrue;

l) in January 2015, Ms. B. invited him to her house. There was an altercation between them, the RCMP were called, and he was arrested and spent 30 days in jail. In February 2015, he was found not guilty of assault, but guilty of breach of his bail and was sentenced to time served and one year of probation;

m) in March 2014, O. had punched C. in the face and he determined that O. needed to be disciplined by being belted. Ms. B. intervened before he could do that and then she struck him three times with the belt. He told her to leave the home and to take the Children with

her;

n) he has sought assistance with regard to violence including taking anger management, respectful relationships, attending Alcoholics Anonymous, counselling and a men's group;

o) since the separation, he has used social media to contact men who are having a social relationship with Ms. B. to tell them to stay away from her;

p) he believes very few people change over time. He is not a violent man and he is not a butterfly. He can't say that he is no longer violent because he never was violent in the first place. [ 64 ] Mr. S.’s evidence on the issue of parenting capabilities and responsibilities can be summarized as follows:

a) as a result of the head injury Ms. B. received as a teenager, she has had problems trusting other people or going out, and for many years, she was fearful. He encouraged her to look for work, to go to school, and make friends. She eventually got her Grade 12 and certificates;

b) in 2005, when Ms. B. was caring for the Children she left them in the care of S.B.'s then husband while they went shopping. During that time, D. fell from a second story window and suffered a TBI, including a fractured skull, brain swelling, and a brain bleed. He resents Ms. B. for that incident and for a long time blamed her for it occurring;

c) Ms. B.'s allegations that he used cocaine throughout their relationship are false. He did experiment with some drugs as a younger person, as did Ms. B.;

d) when they were living together, he and Ms. B. would often argue about housework. He would get mad at having to be "Mr. Mom" while Ms. B. did nothing and it led him into infidelity;

e) Ms. B. has trouble caring for all of the Children at the same time and often requires the assistance of her family members because she becomes overwhelmed;

f) prior to the Girls moving to reside with him, Ms. B. would often require R. or D. to care for the Boys, either in the morning, or at times Ms. B. was out of the home;

g) Ms. B. shows no interest in ensuring the Children participate in sporting activities. He wants the Children to participate in such activities and has insured that they do so both before and after the separation;

h) in the past, the Girls participated in taekwondo. They are now also involved in basketball and R. plays rugby. The Boys are very active in soccer and have become quite skilful. The Boys also wish to participate in basketball;

i) Ms. B. has often been neglectful of the Children's care and safety. There have been many occasions when she has not been able to locate the Children after school because there is no one there from her family to pick them up when school ends, and sometimes they wander about or on other occasions they come to his home;

j) very recently, Ms. B. contacted him because the Boys had not returned to her home by 7:15 p.m. He went and found the Boys one block from her home and walked them home. He went into her house and told her she was failing as a parent and they argued and swore at each other. He called the MCFD on his way home to express his concerns about her care of the Boys;

k) there have been other times when Ms. B. has left the Boys at soccer without appropriate adult supervision and without making the necessary arrangements to ensure such supervision;

l) during the course of the trial he received information that S. Junior was seen crossing the highway, at a busy time of the day, without any parental supervision when he was supposed to be in Ms. B.'s care;

m) he has seen Ms. B. scream and swear at the Children;

n) Ms. B. has no solid routine for the Children when they reside with her. He maintains a rigorous routine to ensure that the Children get up in the proper time in the morning, have breakfast, get cleaned up, and get to school on time. When any of the Children are with him they have a routine in the afternoon and evening depending on their various sporting activities;

o) there have been many occasions when Ms. B. has sent some, or all of the Children, to his home in worn-out, ill-fitting, or dirty clothing;

p) Ms. B. spends extended time either gossiping on the phone or texting people she knows to the point that it interferes with her capacity to parent the Children;

q) when D. fell ill in 2015, Ms. B. chose to travel to New Brunswick to visit relatives rather than remain to care for D. [ 65 ] Mr. S.’s evidence concerning past and present parenting time can be summarized as follows:

a) while he and Ms. B. resided together, he was not often away on hunting or fishing trips with his brother. Most of those trips were day trips to obtain food for the family which everyone enjoyed;

b) in the fall of 2014, while he was at school in Vancouver, he believed he and Ms. B. were reconciling and he called and spoke to her and the Children several times each day, including assisting her in getting the Children to behave themselves;

c) in June 2015, all of the Children resided at his house full-time and seemed happy because they had new furniture in their rooms;

d) from June through August 2015, the Children resided with him a majority of the time. D. was hospitalized in August 2015 and since then the Girls have resided with him;

e) from the spring through November 2015, he was dating another woman, but in December 2015 Ms. B. and the Children were at his house for Christmas;

f) there were difficulties between him and Ms. B. concerning the Children and in May 2016, he told her to keep the Boys until the trial and the Boys stopped going to soccer;

g) when the Boys are at his home, he invites their male cousins over so they can all play together;

h) despite the various Court Orders concerning parenting time for the Children, neither he nor Ms. B. particularly followed the

schedule that was ordered;

i) there was a Court Order specifying a parenting time, but he disagreed with it so he chose not to comply;

j) since the Girls came to live with him, he has encouraged them to contact Ms. B., including visiting her or staying overnight. R. has told him that she feels that Ms. B. has disowned her. He is also encouraged the Girls to visit with their grandparents but R. reports that she feels the whole family has cut her off;

k) D. has complained to him that Ms. B. has no time for her because she is always on the phone speaking to her boyfriend or others. She also has told him that the Boys pick on her and Ms. B. does not intervene to stop them whereas he does;

l) the Boys have complained to him that Ms. B.'s home is not clean and he has encouraged them to help her out with the housework he also encourages the Boys to carry the groceries when they go shopping with Ms. B. because she has a bad back;

m) the Boys know that they are free to come to his home after school if they wish, they are welcome at his house at any time. The Boys go to his house when Ms. B.'s family members are not there on time after school to pick them up;

n) when the Boys do come to his home after school, he cannot contact Ms. B. to let her know because she blocks his phone calls. There is no point in him walking the Boys to Ms. B.'s home unless he knows for sure she is there to take them in;

o) he maintained a calendar for several months of when the Children were with him, either collectively or individually, although sometimes he did not complete the calendar contemporaneously and, as such, the calendar may not be completely accurate. [ 66 ] Mr. S.'s evidence concerning where the Parties resided since their separation to the present can be summarized as follows:

a) he and Ms. B. separated in January 2012, soon after she stabbed him with a fork. He moved to his parents’ home where he resided until April 2012;

b) in April 2012, Ms. B. moved with the Children to a different home so he returned to the former family home on [omitted for publication]. He resided there until June 2012;

c) in June 2012, he moved to a home on [omitted for publication] and resided there until May 2013. In May 2013, he moved [omitted for publication], where he still resides;

d) Ms. B. and the Children moved in with him and remained there until the spanking incident involving O. in March 2014, when Ms. B. and the Children moved out;

e) while he was in Vancouver furthering his education between August and December 2014, he stored his personal belongings at Ms. B.'s home;

f) in August 2014, Ms. B. received a lump sum amount from D.'s lawsuit and she came to Vancouver to be with him and to purchase a van;

g) during the Christmas season of 2014, Ms. B. injured herself at work and he cared for her and the Children at her home even though the Court Order restraining him from having contact with her was in place;

h) after he was released from jail in February 2015, he lived briefly with his parents and then returned to live at [omitted for publication]. [ 67 ] Mr. S.'s evidence on the general attributes of the Children can be summarized as follows:

a) R. is very intelligent and mature. She is on the honour roll, plays sports, has many friends, and is getting involved with boys. When he and Ms. B. separated, R. would not talk to him. He spoke to her school counsellor and eventually she restarted the relationship. R. told him later that she was mad at him and felt guilty over the separation;

b) D. is very smart despite her head injury. She is a visual learner. She likes sports but was being bullied until he talked to the school and things evened out. She attends regular classes and works hard to overcome her disabilities;

c) C. and O. both play sports and he tries to encourage them to excel. C. is intelligent and athletic and plays soccer at a level better than many older boys. O. is bright and thinks he's a ladies man;

d) S. is a jokester and is learning to enjoy sports. [ 68 ] Mr. S.’s evidence concerning financial matters and the payment of child support can be summarized as follows:

a) throughout their relationship, Ms. B. was never happy with the jobs he had. He regularly tried to find better employment, but that was never good enough for her. On other occasions, Ms. B. demanded that he quit some of his jobs because he was at work too much and she wanted him home to help with the Children;

b) he has worked for [omitted for publication] since 2011, starting first in the shop and then moving to work on the tugboats. He is a deckhand and earns $34 per hour on a full-time callout basis. He would like to be a master and has taken some training in that regard but wants to return to complete that program;

c) starting in 2012, after the separation, he became heavily involved with alcohol. On January 24, 2013, the Court ordered him to pay child support in amount of $1,000. A month or so later he lost his job due to his heavy drinking and applied for Employment Insurance;

d) his brother took him in and he resided in Port Simpson for a month. On March 20, 2013, the Court made a further order for him to pay child support amount $653 per month based on his Employment Insurance income. In April 2013, he returned to his employment;

e) Ms. B.'s parents cared for the Children regularly in the past but they stopped doing so when they were no longer being paid under a child care subsidy. Even when they were providing child care he observed Ms. B. and them falsely reporting the number of hours they were caring for the Children;

f) in both May and June 2014, he was taking courses in North Vancouver to further his career. Between August and December 2014, he was taking courses in Vancouver to obtain his Master Mariners ticket, which he did not complete;

g) in May 2015, he went crab fishing, earned $13,000 and purchased new furniture for his entire home. He has not returned to crab fishing since 2015, because he suffered two injuries during that time and does not want to return to that type of work;

h) he has student loans from the time he was attending the college and owed approximately $35,000. That loan is being repaid by a garnishee of his wages in the amount of 15%;

i) he has been paying various debts, including some for items financed while he and Ms. B. were together. When they separated she took those items, but refused to take over the payments. The television set was eventually broken by C. playing video games;

j) he is suffering from financial hardship and is struggling to live pay cheque to pay cheque;

k) he has been primarily responsible for the purchase of the necessary equipment for the Children to participate in the various sporting activities;

l) he no longer has a driver’s license because he owes money to ICBC for various reasons, so he and the Children walk most places, although he receives transportation assistance from his and Ms. B.'s family members if necessary;

m) in discussions with Ms. B. at one time he told her that he would not make a claim for Child Benefits if she abandoned her claim for child support for the Children;

n) in October 2016, he filled out an application for Child Benefits. When asked in cross-examination he acknowledged he also completed an earlier application online. He did not produce that application although he had earlier been ordered by the Court to do so.

o) Ms. B. told him he should send in an application just for the Girls but he sent in an application for all the Children. He was unaware that Ms. B.'s receipt of Child Benefits from various government agencies comprised a large portion of her income. He applied for Child Benefits because he needed the help. When Ms. B. found out what he had done she was very angry and abusive towards him;

p) in the spring of 2016, during a text conversation with Ms. B., he told her that if she was successful in getting money from him through the court system he would quit his job and go on welfare. He believes that he should not have to give Ms. B. any money and his income should go to operate his household and pay for things for the Children while they are with him;

q) there were several occasions when he was preparing and filing Financial Statements that he made errors. He is not a lawyer, did not have a lawyer representing him, and didn’t understand what he had to do.

r) Ms. B. does not work all the shifts offered to her because she wishes to maintain a low income to ensure that her rent remains low. Mr. S.’s Witnesses [ 69 ] C.S. is Mr. S.'s brother and a senior manager with a local First Nations development corporation. His evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) he has been in Ms. B.'s home from time to time both when she was residing with Mr. S. and subsequently and on those occasions he has seen mouldy food in pots, fruit flies, garbage, rot in the vapour barrier and insulation, and a rat;

b) he has never seen Ms. B. participate in maintaining her household either during the time she resided with Mr. S. or subsequently;

c) he has seen the Boys being late on their way to school on numerous occasions while on his way to work, but he never reported those incidents to Ms. B. because they do not communicate regularly. He has been asked by Ms. B. to assist in looking for the Boys because they did not return home after school on several occasions;

d) he has seen Ms. B. and Mr. S. arguing on many occasions and it appears to him that Ms. B. picks an argument and continues with it to prove her point;

e) on occasions when the Boys are dropped off by Ms. B. at his parents’ home, they often are wearing undersized and unclean clothing;

f) Mr. S. has been forced to buy a complete wardrobe for the Boys and keep them at his home because when they are returned to Ms. B.'s they go missing;

g) he has seen injuries on Mr. S. after altercations with Ms. B., including bite marks on two occasions;

h) based on what he has experienced and seen, Mr. S. is not a violent person;

i) he knows that as part of his employment Mr. S. has been required to be out of town occasionally, to both Vancouver and Stewart, for several days at a time;

j) he and Mr. S. would do drugs together when they were younger and he has observed Mr. S. and Ms. B. engaging in similar activity while they were together;

k) Mr. S. did occasionally get highly intoxicated on alcohol when younger, but he has a responsible job now and does not engage in those activities. [ 70 ] L.L. is Mr. S.'s sister and the teacher who formerly taught the Boys in Prince Rupert. Her evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) while she was teaching at their school she saw the Boys regularly and noted that they were often late for school. She also observed that sometimes they were not picked up from school until much after the end time of 2:45 p.m. On those occasions, the Boys were to be picked up by Ms. B.’s sister or parents;

b) she is aware that Mr. S. has a morning routine for the Boys and they come to school clean and neat, but she is also seen them coming to school from Ms. B.'s when they are messy and unkempt;

c) there was one occasion when Ms. B. dropped the Boys at the soccer field while she was there and then went to the lake demanding that Mr. S. pick up the Boys even though he was at work. Eventually Ms. B.'s parents came to pick up the boys;

d) when Ms. B. arrived at the soccer field on that occasion she was in a van with her sister and numerous children, such that there were not sufficient seatbelts for all of the passengers;

e) she has rarely been in Ms. B.'s home, but on one particular occasion, the home was messy with laundry, garbage, and unwashed dishes strewn about;

f) Ms. B. was not actively engaged in ensuring the Boys could participate in soccer, complaining that she didn't want to put them in soccer and she had no support;

g) she was in an argument with Ms. B. approximately five years ago and Ms. B. was very persistent in pursuing her point long after the argument ended;

h) she saw a bite mark on Mr. S.'s left arm in approximately 2012. He told her it was inflicted by Ms. B. when they were having an argument over housework and after she had stabbed him with a fork. [ 71 ] R.S. is the Parties’ daughter. She is 15 years old and in Grade 10 and resides with Mr. S. in Prince Rupert. Her evidence concerning the matters at issue in this proceeding can be summarized as follows:

a) she is an average student who likes photography and participating in sports, such as basketball and rugby. In the past, Ms. B. came to some of her games and recently Mr. S. has come to her games and provided the necessary athletic gear for her;

b) she moved from Ms. B.'s home to Mr. S.'s home in mid-November 2015, although she did not tell her mother she would not be returning until the spring of 2016. D. came to reside with Mr. S. in February 2016;

c) Mr. S. has a set morning routine, both for her and D., and for the Boys when they are visiting;

d) she takes care of her own laundry and her dog, Buddy. She also assists with other household duties including dishes and sometimes doing laundry for the Boys;

e) she has had Buddy since December 2015, when he was given to her by a family member as a Christmas present. Mr. S. did not want the dog and so he and she agreed that she would be responsible for walking, feeding, carrying, and other responsibilities concerning the dog. Mr. S. is prepared to watch Buddy for short periods of time when she can't. As far as she is aware, Buddy would be allowed at Ms. B.'s home;

f) when she resided at Ms. B.'s home, the morning routine was almost the same as it is now at Mr. S.'s, but she was required to assist the Boys occasionally, particularly when it came to looking for the clothing which was sometimes a difficult task because there was no specific place for the clothing to be stored;

g) she had, in the past, heard Ms. B. swear at the Boys because they were not listening. She felt it was intimidating but not scary. Mr. S. is also intimidating, but not scary when he swears at the Boys;

h) lately, she feels disowned by Ms. B. because she does not call often, but when Ms. B. does call, she does not want to answer the phone. There was one occasion when she saw Ms. B. but they did not communicate. There have been no negative interactions between them since she moved to Mr. S.'s home;

i) Mr. S. does encourage her to have a relationship with Ms. B. and her grandparents, but she has not spent an overnight with Ms. B. since September 2016;

j) she does not feel neglected at Mr. S.'s and he encourages and supports her sporting activities;

k) although she was unable to remember many instances of past violence between Mr. S. and Ms. B., she did recall one event when Ms. B. was pregnant with her brother O. when Mr. S. assaulted Ms. B. while wearing steel toed boots;

l) in the past when they were all living together, she observed that Mr. S. is more likely to walk away from an argument while Ms. B. is more likely to persist in the argument and although Mr. S. tries to be patient when he is angry he gets very intimidating;

m) for a period of time after Ms. B. and Mr. S. separated, she refused to speak to Mr. S., but Ms. B. encouraged her to do so and eventually she repaired her relationship with him;

n) when the Boys are at Mr. S.'s home it is very hectic because they are younger and like to be very active so they mostly play outside. At dinnertime the whole family gathers together almost every night, except for nights on which there are sporting events;

o) Ms. B. cooks more dinners than ordering takeout food, while Mr. S. orders more takeout; which she likes. She also likes game and fish obtained by Mr. S.;

p) she doesn't want to participate in a

schedule where she visits Ms. B. regularly because she cannot leave Buddy at Mr. S.'s and she cannot have Buddy at Ms. B.'s. Buddy is her priority. There have been times when her grandparents have cared for Buddy when she is unable to do so;

q) by her recollection, the Parties separated in 2012, and after that for a long period of time, Mr. S. only saw the Children occasionally. After that the whole family was living together in the same house for a short period of time and then the Parties separated again. Criminal Complaints [ 72 ] In addition to the numerous Court applications brought by one or either of the Parties in this proceeding, there were many occasions when complaints were made, primarily by Ms. B., to the RCMP arising from altercations between her and Mr. S. which are relevant to the determination of whether there was family violence and some of the other issues in this proceeding. These include:

a) January 24, 2010, Mr. S. was involved in a bar fight, was arrested for causing a disturbance, but released without formal charges;

b) June 13, 2010, Mr. S. was arrested at a street fight for causing a disturbance but released without formal charges. He advised the RCMP that he had been attacked and was defending himself;

c) January 17, 2012, Mr. S. was arrested for assaulting Ms. B. Ms. B. was taken to hospital with concussive symptoms. Mr. S. later completed restorative justice measures and a stay of proceedings was entered;

d) November 24, 2012, Mr. S. was arrested for assault and uttering threats against Ms. B. after he forced his way into her home, shut her in the laundryroom, and told her that if she called the RCMP it would be last time anyone saw her. Four of the Children were present at the time. He was released on a Recognizance which was terminated with the consent of the Crown and Ms. B. on November 7, 2013;

e) December 3, 2012, Mr. S. contacted Ms. B. by text message in violation of Recognizance. On April 8, 2013, Mr. S. was found guilty and fined $500 and placed on probation for one year;

f) January 7, 2013, Ms. B. filed a complaint with the RCMP about Mr. S. continuing to breach his Recognizance by sending her text messages. The text messages were photographed by the police and forwarded to Crown but charges were not approved;

g) May 24, 2013, Mr. S. was stopped by the RCMP on suspicion of impaired driving. He admitted to consuming three beers and was given the ASD test two times and on each occasion he blew a “Warn”. The vehicle was impounded for three days and Mr. S. was given the necessary paperwork for an immediate roadside prohibition for three days;

h) October 29, 2013, Mr. S. was stopped by the RCMP while driving. His driver's license had expired on September 20, 2013 and he had been served with a three-month notice of driving prohibition. He was served with a further prohibition and a ticket for no driver’s license;

i) November 7, 2013, Mr. S. was stopped by the RCMP while operating a motor vehicle. He was known to the RCMP to be a prohibited driver at that time and the vehicle was impounded. On January 22, 2014, Mr. S. pled guilty to driving while prohibited and was fined $500 plus the victim fine surcharge with a further prohibition;

j) April 23, 2014, Ms. B. reported to the RCMP that Mr. S. was at her home threatening to take her and the Children’s cell phones and burn down the house with her inside it. He had departed by the time RCMP members arrived. He was subsequently arrested. On February 5, 2015, Mr. S. was found not guilty of charges of assault and uttering threats with the Court finding his version could possibly be true and there is no corroboration of Ms. B.'s complaints;

k) June 8, 2014, Ms. B. contacted the RCMP alleging that Mr. S. had hacked into her Facebook account and had deleted a number of items of data. The RCMP spoke to Mr. S. who denied any involvement in that matter;

l) January 11, 2015, the RCMP received information that Mr. S. was at Ms. B.'s home in violation of his no contact orders. Upon the arrival of the RCMP, Mr. S. was initially cooperative but once handcuffed became uncooperative and combative. He appeared to be intoxicated on some substance. Ms. B. reported that while at the home, Mr. S. had committed damage to various items of personal property. On February 5, 2015, Mr. S. was found guilty of breach of bail and was given a sentence of 30 days’ time served, plus probation for one year. He was also found guilty of mischief and fined $250 and the victim fine surcharge;

m) August 26, 2015, Mr. S. was stopped by the RCMP while driving a motor vehicle. He was a prohibited driver at the time. He was issued a further prohibition and the vehicle was impounded;

n) August 31, 2016, Ms. B. filed a complaint with the RCMP alleging that Mr. S. had sent a threatening message to Mr. P. When contacted, Mr. S. acknowledged sending the message, but denied attempting to threaten Mr. P.;

o) September 29, 2016, Ms. B. filed a complaint with the RCMP alleging that Mr. S. had threatened to attack Mr. P. with a baseball bat if he came around the Boys. When a RCMP member went to speak to Mr. S., he became very angry and slammed the door in the face of the member;

p) October 1, 2016, Ms. B. filed a complaint with the RCMP that Mr. S. had threatened to beat up Mr. P. Other Evidence [ 73 ] During the course of the trial the Parties entered or referred to other documentary evidence such as family photographs, the Children’s school records, calendars of time with the Children, and their Financial Statements. During the oral evidence these items were either referred to briefly or simply entered and not referred to at all. THE LAW The Family Law Act [ 74 ] The following provisions of the FLA have application in this case: a) "family member" , with respect to a person, means (

a) the person's spouse or former spouse, (

b) a person with whom the person is living, or has lived, in a marriage-like relationship, (

c) a parent or guardian of the person's child, (

d) a person who lives with, and is related to, (

i) the person, or (ii) a person referred to in any of paragraphs (

a) to (c), or (

e) the person's child, and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (

a) to (e); "family violence" includes (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence; b) S. 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.

c) S. 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 directed at 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) t

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