F.J. v. J.C., 2021 BCPC 133

Citation: F.J. v. J.C. 2021 BCPC 133 Date: 20210426 File No: [Omitted for publication] Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: F.J. APPLICANT AND: J.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF

Counsel for the Applicant: M. Screech Counsel for the Respondent: K. Yuen Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 23, 26, 2021 Date of Judgment: April 26, 2021

PREAMBLE [ 1 ] I could simply say application granted or denied and provide reasons at a later date, but I think it is time to finish this trial and I will attempt to give some reasons today, even if it is so late in the day. [ 2 ] It is my intention to provide more complete reasons within the next week or so, but then it may take a little time for them to be made available to the public. For the next 21 days, I reserve the right to amend, vary, change, alter, supplement or even supplant this decision by ripping it up and starting fresh - with the only promise that the orders made today will be the same.

If there is no written decision provided in the next 21 days, then I expect these reasons, unrevised, will be available for appellate purposes. If written reasons are provided, then I expect that those written reasons will be the ones reviewed by the appellate court. Of course, the appellate courts may choose a different course of action, but that is not my concern. My main concern today is to bring this trial to a conclusion as fast as possible, in order to provide a sense of finality and closure to this mother and father, and more importantly, their four-year-old little girl.

The alternative would be to delay the decision for a month or two which, in my view, would not suit anyone’s interest. In my view, to delay this case further is contrary to this young little girl’s best interest. INTRODUCTION [ 3 ] We have just completed a two-day trial and it is very late in the day. Rather than post-pone the decision in this case, I will provide these reasons orally. [ 4 ] There has been a two-day trial and there is a four-year-old child named J.L.C. [ 5 ] This is a case is about two parents and their little girl named J.L.C. J.L.C. was born [omitted for publication]. [ 6 ] F.J. is her mother.

She is 36-years-old. [ 7 ] J.C. is her father. He is 37-years-old. [ 8 ] They are both francophones. Their English is very good and these proceedings were in English. However, there are nuances in their testimony that I have had to be careful with. [ 9 ] The applicant claims that not only has she been the primary care giver of J.L.C. for most of her life, but that the respondent is not capable of being a parent due to his abuse of alcohol, his immaturity and, perhaps most importantly, as a result of his alleged sexual abuse of J.L.C.. [ 10 ] The respondent denies any sexual abuse and says he is able to parent.

Although he admits that historically his parenting time has been during the day and not at night. Part of the reason he was not parenting at night is due to his alcohol consumption in the evenings. APPLICATION [ 11 ] On November 21, 2019, the applicant filed a request with the court to have her appointed as guardian, for her to have primary care and all parental responsibilities. The applicant mother also requested an order for child support.

On the face of the pleadings, there is also an indication that the applicant also wanted a protection order that the respondent father have no contact with J.L.C. without the applicant’s permission. REPLY [ 12 ] On December 13, 2019, the respondent father filed a reply. He essentially disagreed with everything that the applicant requested. PREVIOUS COURT HISTORY [ 13 ] There have been protection orders in place. It is unclear whether they have expired or not.

THE PARENTING TIME ARRANGMENTS [ 14 ] Currently, there are attempts at phone calls and there are supervised visits for four hours every two weeks. [ 15 ] J.L.C. spends up to three days a week in daycare and the rest of the time with her mother. APPLICANTS POSITION AT TRIAL [ 16 ] The applicant says the respondent father should have no parenting time. In the alternative, it is submitted that if the court grants parenting time to the father, that parenting time should be supervised.

However, whether the respondent has parenting time or not, the applicant mother also believes that the respondent father should be in therapy for alcoholism. RESPONDENT’S POSITION AT TRIAL [ 17 ] The respondent wants parenting time to increase to Thursday noon to Sunday morning each week. He denies the sexual abuse

allegations and is of the view he and his daughter have a great relationship. THE LAW [ 18 ] This hearing is guided by particular sections of The Family Law Act [SBC 2011]

CHAPTER 25

Part 4 — Care of and Time with Children Division 1 — Best Interests of Child: Best interests of child 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. Assessing family violence 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) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

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

i) any other relevant matter. [ 19 ] As defined in

section one of the Family Law Act of BC , "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. APPLICANTS EVIDENCE [ 20 ] Since 2014, these two parents had an on-and-off relationship. They sometimes lived together in BC or Quebec. They sometimes lived separate from each other in these same places. Sometimes when they lived together, it was a romantic relationship. Other times they might have lived under the same roof, but more as friends and co-parents. [ 21 ] In September 2016, the applicant realized she was pregnant. There is no concern about paternity.

ALCOHOL, IMMATURITY AND ABILITY OF RESPONDENT TO PARENT [ 22 ] With respect to alcohol, the applicant claims that the respondent is an alcoholic. There were questions put to her in chief examination on this topic. She said he fell out of bed once after having consumed some beer. She also said that she knew someone that said he was driving after having consumed some alcohol.

While the details are not specific, apparently, according to her evidence and based on what she had heard, J.L.C. was in the vehicle with him. [ 23 ] The applicant is clear and consistent that alcohol has been a complicated part of their relationship. She says he has always drank. Sometimes he would go out and drink anywhere from six to 20 beers a day.

She painted a picture of someone who got caught up in a circle of borrowing money to buy alcohol only to pay people back with his pay cheque and then start it all over again. [ 24 ] She hinted implicitly that she did not like the way he treated her when he drank, but, unlike other cases, there are no clear allegations of physical, emotional or verbal abuse. Of course this does not take away from her feelings that alcohol was a big problem for him. To put it another way, there are no details in her evidence that help me understand the negative impact on her relationship.

For example, she does not indicate whether there was physical, psychological or emotional abuse. There also seems to be a void in the evidence as to whether they argued with each other in front of J.L.C. This complicates any analysis under the ‘family violence’ provisions. [ 25 ] On the other hand, she was clear that, for the most part, he would not drink alcohol until J.L.C. was in bed. She was also clear that, to her, he was not a capable parent in the evenings due to his consumption of alcohol. Again, in her chief-testimony, she was vague.

She did not describe with any detail the specifics of his intoxication. [ 26 ] I accept her view that alcohol played a very negative role in their relationship, but I am mindful that even alcoholics can be good parents. Perhaps her definition of what is a good parent differs than his. Certainly if it was proven on the balance of probabilities that he, with any degree of regularity, drove while intoxicated, this would be a significant issue. However, other than a fleeting moment in her testimony, there is no proof of this.

If there was, a court order could be created that forbids him from driving a vehicle after consuming any alcohol while J.L.C. was with him. There are no indications of physical domestic abuse or even loud arguments in front of J.L.C. [ 27 ] His drinking of alcohol is no secret to her. From the beginning of their relationship to the end of it, she knew he drank, she did not like it and she did not want to be in a relationship with him.

On the other hand, she also recognized that he is the father of their child and, as a result, accepted that some co-parenting was needed. [ 28 ] I do not find, as a matter of fact, that the respondent’s alcohol intake necessarily affects his ability to take care of J.L.C. Even if it did, I am of the view creating a condition could minimize any risk to J.L.C. very easily.

For example, I could order that “The respondent will abstain absolutely from the consumption of any alcohol or non-prescribed medication from 12 hours of any parenting time, as well as during any parenting time.” Such a condition would reasonably ensure alcohol would not interfere with his ability to parent.

I note in cross-examination the respondent said he would not have any alcohol for a week before and that drinking is no longer an issue for him. [ 29 ] I do not think it makes sense for the applicant to allow extensive and consistent parenting time between daughter and father, and then some four years later raise the argument that ‘well, now I am going to say he cannot parent because he is an alcoholic’.

To put it another way, her concerns never stopped her from them spending time together before. [ 30 ] I am also mindful that this case is not about whether he is an alcoholic or whether he should spend his money on things other than alcohol, or whether he should go to meetings. The applicant’s counsel cross-examined him extensively on his alcohol consumption and submits he is in denial, and is inconsistent on the topic. Counsel posed this question, if he is not an alcoholic, then why would he just not abstain from drinking all together to help support his case for parenting time?

Counsel strongly submitted that he is not truthful about ‘having a problem with alcohol’ and thus he is not being truthful about other issues. [ 31 ] Once more, this case is not about his alcohol consumption. This case is about, can he parent this child? And if not, then why not? [ 32 ] I acknowledge and appreciate that the applicant is not just relying on one particular incident or aspect in her claim that the respondent should not have parenting time. [ 33 ] She views a number of circumstances as ‘cumulative’. Here are some other things she mentioned that concerned her:

Too Easy Going – ‘nonchalance’ [ 34 ] The applicant described a scene when J.L.C. was younger. The respondent was with J.L.C. in a laundry mat. J.L.C. had been left sleeping on a shelf while the respondent folded some laundry. It was the applicant’s view the child could have fallen off the shelf and perhaps even wandered out the door into traffic. [ 35 ] On a separate occasion, the applicant described testified that while at Gabriola, J.L.C. was in the play area of a library, and the respondent was on a computer terminal. A bookshelf blocked the respondent’s direct view of J.L.C.

The applicant says she was concerned and has heard of children going missing from Gabriola Island in the past. [ 36 ] The applicant claims that the respondent is immature and, on occasion, puts things in his ears and nose in an attempt to be humorous and make J.L.C. laugh.

She believes the act of putting things in a humans ears and nose is not something a child should be exposed to, as they might mimic the behaviour and accidentally hurt themselves. [ 37 ] While she acknowledges that accidents happen, she also recalls an incident where J.L.C. was sitting on the counter near a stove while the respondent cooked, and she was left unattended for a brief moment and J.L.C. burnt her hand on the stove. [ 38 ] The applicant concluded in her testimony with this thought as to their parenting techniques. She said, “ I am the opposite.

I do not think I am over protective; I am just safe”. [ 39 ] I do not find that any of the incidents reported by the applicant to be overly troubling. Accidents do happen, and it would be impossible to have ‘eyes on’ at all times. My comments do not mean that I would recommend parents leave their children sleeping on a shelf or unattended at a library play area, but these incidents to me are a far cry from what I would call neglect or abuse. [ 40 ] So what is the real reasons for this hearing?

FINDINGS OF FACT REGARDING THE ABUSE ALLEGATIONS [ 41 ] I believe that the applicant and respondent have been managing the care of J.L.C. quite well. I acknowledge that it appears they argue often. However, even in times where money was short, jobs were scarce, and housing was hard to find, it appears both parents made sure J.L.C. was clothed, fed, protected and loved.

There is one area, however, that needs to be examined by the Court. [ 42 ] Specifically, the applicant claims that the respondent has sexually abused J.L.C. [ 43 ] Before directly addressing the broader aspects of the application, such as parenting regimes, I must make certain findings of fact regarding the sexual abuse allegations. [ 44 ] I do have some concerns about the specific allegation that J.L.C. was sexually abused. There is no expert evidence in this trial. There is no conclusive medical documentation or other medical evidence to support the claim of sexual abuse.

In essence, the only evidence proffered to support an allegation of sexual abuse is from J.L.C.’s mother. I note that an agency specializing in medical examinations of children who have been neglected or sexually abused examined J.L.C. They described J.L.C. as a delightful little girl with no health concerns. The physical examination was described as being normal and there were no indicators of sexual abuse. I am mindful that a lack of indicators is not proof of anything. It does not mean that she was not inappropriately touched by someone.

It does not mean that she was inappropriately touched by someone. [ 45 ] I acknowledge that there is no apparent history of the respondent being sexually abused or actually acting inappropriately towards any other children, whether that be in a sexual manner or otherwise. For the purpose of full disclosure, I note the applicant has suffered sexual abuse at the hands of people that were supposed to keep her safe.

I do not need to explore these details any further in these reasons, but to say, I certainly understand why a victim of sexual abuse would be on high alert for signs of sexual abuse on her daughter, as naturally, you would never want your child to go through the same trauma that you have. [ 46 ] I note that complaints have been made to the police as well as the Ministry. Whether or not those concerns went anywhere is not relevant.

The police or other criminal justice participants might be concerned with other factors, such as whether there was a substantial likelihood they could prove the charges beyond a reasonable doubt. They might have even been concerned with the public interest. I am only concerned with the best interests of J.L.C. THE ALLEGATIONS OF SEXUAL ABUSE [ 47 ] It was November 2019, when the applicant became suspicious that J.L.C. had been touched inappropriately. J.L.C. was about two-and-a-half years old then.

She was not overly verbal and communicated with some words and body language, such as pointing. [ 48 ] Here are some of the factors that gave rise to that suspicion: • J.L.C. did not want her father to change her diaper; • On one occasion, J.L.C. pushed the applicant mother away and this act of aggression was unusual for J.L.C.; • Earlier in November, J.L.C. peed the bed and this was unusual; • J.L.C. started putting some toys in her mouth and sometimes sucked on them; • She described other ‘regressive behaviour’, such as crawling around like a baby; • There were other moments described, such as a shower incident with her mother and a broomstick incident where she put it between her legs and said ‘penis’.

[ 49 ] Once more, there was no expert or medical evidence provided to me with respect to any of these behaviours. I recognize when considered independent of each other, one might argue these are all natural behaviours when children grow up. I am not in a position to inferentially leap from these behaviours to a conclusion that J.L.C. was sexually abused by anyone, let alone her father.

However, they do need to be considered under the broader context of some other, more specific allegations to do with J.L.C.’s body. [ 50 ] A month earlier, on October 21, 2019, J.L.C. had complained ‘of pain around her vulva’, and it appeared there was a little cut around J.L.C.’s clitoris [ 51 ] In an attempt to find out what this pain might be, or how it may have been caused, the applicant mother tried to communicate with her child.

She said that she asked J.L.C., “Did your dad touch you there?” (While pointing in the direction of J.L.C.’s genitals.)” J.L.C. responded and said, “Yes.” [ 52 ] The applicant then asked, “Why do you have pain?” There was no response. [ 53 ] Then she asked, “Did Daddy hurt you?” The answer was, “No.” [ 54 ] The applicant described another event when she saw J.L.C. touch her vagina with her hand in a circular motioning action. There were other behaviours as well. [ 55 ] Lastly, the applicant said that J.L.C. had some nightmares where she was speaking in her sleep saying “No, Daddy.

No.” [ 56 ] In November 2019, J.L.C. also uttered some words like ‘daddy tongue’ and pointed to her vagina. This is what the applicant told the Court. I note that the actual verbal disclosures made to the examining physicians were different. For example, one doctor was explicitly told that she said, “Daddy’s tongue touched me down there.” No matter what the words were, the applicant mother was of the view that the respondent father had inserted his tongue into J.L.C.’s vagina. It is clear that these were not the words actually uttered, or at least not what was testified to in Court.

The details aside, the applicant mother saw her daughter do things and heard her say some words that led her to the belief that J.L.C. may have been sexually abused. Since J.L.C. had extremely limited contact with other males, it is the applicant’s view that J.L.C.’s father was the only one who would have had the opportunity to commit the act of touching her vagina with his tongue. WHAT ABOUT SOME OF THE OTHER ACTIONS THE APPLICANT TOOK? [ 57 ] In considering the totality of the evidence, I like to assess whether the actions people took were logical and cogent.

Or in other words, did the behaviours make sense or are they consistent with what is being claimed? In this instance, the applicant, upon having a suspicion her daughter had been sexually abused, did a number of things. [ 58 ] She went to the RCMP. She made a complaint to the Ministry of Child and Family Services. She sought counselling for herself and her daughter. She took counselling. She sought the advice of medical professionals. She had her daughter seen by a doctor. She researched what kind of therapies might benefit her daughter and actually located a play therapist. She sought out other specialists.

She even wanted a female doctor to examine her daughter. She sought the courts assistance to protect her daughter from unsupervised visits with her father. [ 59 ] Perhaps when considered independently, these things are not very probative. However, when I consider them cumulatively, there is a great amount of effort taken to ‘do what was right’. Her behaviours are consistent with a mother who truly believes her daughter has been abused. Her approach, behaviours and actions are logical and make sense to me. [ 60 ] Perhaps not surprisingly, neither the RCMP nor Ministry pursued the allegations.

They both determined that J.L.C. was too young to be interviewed. It is disappointing, but it appears there were no in-depth interviews with the parents. Perhaps more information from the parents would helped me understand some of the behaviours J.L.C. exhibited or some of the words that she had said. THE LAW REGARDING THESE ‘DISCLOSURES’ [ 61 ] F.A.A. v. T.A ., 2013 BCPC 37 is a useful starting point. That case is certainly distinguishable, as it was decided under the previous Family Relations Act , not the Family Law Act , that guides me today.

However, the approach of the Honourable Judge Hamilton in F.A.A. with respect to disclosures in these types of cases is helpful. [ 62 ] With respect to the facts of that case, there were allegations that the father sexually abused their nearly three-year-old child.

The allegations were that the father had “touched her vagina and that she was in pain because of this.” The child said, “Daddy touched my vagina.” There was evidence provided that the father abused substances, was abusive towards the mother, and, as a result of his substance abuse, he only saw their child on alternate weekends during the day. [ 63 ] Unlike our case, Judge Hamilton had the benefit of medical information that was corroborative of sexual abuse. In F.A.A. , a doctor did examine the child and there was evidence of a torn hymen.

The child, when asked “why does your pookie (vagina) hurt?” answered by pointing towards her vagina and said that her father and grandfather touched her there. So, there is more evidence in that case than this case. In the end, Judge Hamilton could not determine who the abuser was with any degree of certainty and he reinstated parenting time. [ 64 ] Judge Hamilton had to deal with the issue of admissibility of the child’s words. Any words said to the doctor or parents in that case was deemed to be hearsay evidence, and thus there were evidentiary protocols that needed to be considered.

These same issues arise in this case. [ 65 ] At paragraph 179, Judge Hamilton says this about hearsay evidence of children in these type of cases. Case Law Regarding Hearsay Evidence Of Children

[179] The evidence before me of Z.A.’s disclosures is hearsay. While I acknowledge that the audio/video recording of Z.A.’s interviewwith Dr. Korpach records what Z.A. said, the video is nonetheless an out of court statement by Z.A. being introduced through the digitalrecording for the truth of its contents. I am of the view that the recorded interview of Z.A. with Dr. Korpach is hearsay evidence. [180] Hearsay statements of children may be admissible if the requirements of necessity and reliability are met – R. v. Khan (1990), (SCC), 59 C.C.C. (3d) 92; Foote v. Foote, [1988], B.C.J. No. 278. [181] In R.(S.F.) v.

R.(E.C.), (B.C.S.C.) Madam Justice Dillon reviewed the law relating to the admissibility of hearsaystatements of children. In R., supra, Justice Dillon was considering the statements of a 5 year-old boy in a case where the mother allegedthat the father had sexually abused their son.

In the case before her, Justice Dillon stated, “I have no hesitation in determining that thehearsay evidence of these statements was necessary given the age of the child and the nature of the proceedings” (para 42). [182] I find that the hearsay evidence of Z.A.’s disclosures is necessary for the same reasons articulated by Justice Dillon. In this case,Z.A. was only three years old when she made her disclosures and, coupled with the nature of these proceedings, I find that it is necessaryto admit the hearsay evidence of Z.A.’s statements.

The real issue in this case, as it was in the R. case, is a question of the reliability ofthe hearsay evidence. [66] I pause in these reasons to note that, due to J.L.C.’s age in this case, I also believe that receiving the hearsay evidence isnecessary. [183] In considering the reliability of the child’s statements in the case before her, Justice Dillon reviewed the indicia of reliability thathave been established in R. v. Khan, supra, and the cases that have considered R. v. Khan, supra. [184] Justice Dillon listed the indicia of reliability as follows: i. Timing of the statement; ii.

Demeanour of the child; iii. Personality of the child; iv. Intelligence and understanding of the child; v. Absence of motive of child to fabricate; vi. Absence of motive or bias of the person who reports the child’s statement; vii. Spontaneity; viii. Statement in response to non-leading questions; ix. Absence of suggestion, manipulation, coaching, undue influence or improper influence; x. Corroboration by real evidence; xi. Consistency over time; and xii.

Statement not equally consistent with another hypothesis or alternative explanation. [185] Reviewing the factors above relating to a determination as to whether a child’s hearsay statement is reliable, it appears the issue ofreliability has two aspects. First, the court must determine whether the child is a reliable source of information. Second, the court mustdetermine if the statement offered in court is a reliable account of what the child said.

In circumstances where the child’s statement isaudio/video recorded, the second aspect of reliability will not arise. [186] Turning to the first aspect of the reliability determination, I find that Z.A., at the time she made her disclosures, was not a reliablesource of information. She was only three years old. There was no attempt by any of the professionals who interviewed Z.A. to determineif she knew the difference between telling the truth and telling a lie. Conclusions regarding J.L.C.’s Hearsay statements [67] J.L.C. was young.

As in the F.A.A. case, there was no attempt by any of the professionals to interview J.L.C. Not only is there nomedical evidence, but I have very little evidence that helps me understand J.L.C.’s intelligence, demeanour or personality. I am notsuggesting that J.L.C. is somehow lying. I am simply affirming that I have no evidence to help me understand if J.L.C. even knew aboutthe difference between telling the truth or not at the time of the disclosure. [68] I acknowledge the applicant’s testimony that when she was questioning J.L.C., she knew she had to be careful with whatquestions were asked.

But even well-intended questions can be dangerous. In any event, the applicant’s intentions aside, I have very littleevidence to do a proper reliability factor analyses described above. The lack of information and her age all favour a determination thatthis young toddler is not a reliable source of information. [69] Is the applicant mother a reliable source of information? Or to put it another way, can I rely on her evidence as to what herdaughter said and did? I do not think that the applicant is somehow making up her evidence.

I find she is telling the Court everything sheknows to the best of her ability. [70] In the end, I have a mother who suspects, and with all her motherly instincts believes her daughter was sexually abused by the

respondent father. [ 71 ] Even after considering the totality of the evidence, I am not persuaded that the applicant has proven on the balance of probabilities that the respondent committed sexual acts on his daughter. To be clear, unlike some family cases, there does not appear to be any inherent animosity that existed between these two parents prior to the allegations of sexual abuse. The applicant may not have liked his drinking, but they tried to work together as co-parents.

They lived as friends and co-parents through some very transient times, in closed quarters, living in a van, sharing rooms in houses, and they shared their lives and duties to their child the best they could. I mention this because I am always mindful that sometimes, in high-conflict family cases, which this is not, there is a motive or incentive to fabricate or lie about things.

I believe that the applicant’s position is founded on her honest, and perhaps even mistaken belief, that her daughter has been sexually abused. [ 72 ] At the risk of being too emphatic, I conclude that she does not possess any motive to lie. To the contrary, I believe she wants her daughter to spend time with her father, but only if he takes some treatment and only if the contact does not hurt her daughter. She essentially said this in her testimony. [ 73 ] As far as credibility goes, I found her testimony clear, concise, unrehearsed, and extremely fair and consistent.

Her recollections were fair and she comes across as an attentive and caring parent. [ 74 ] While I will touch on some particular points of evidence provided by the respondent later in these reasons. I conclude the exact same thing with respect to his evidence. I found his testimony clear, concise, unrehearsed, and extremely fair and consistent. His recollections were fair and he comes across as an attentive and caring parent. He openly admitted that he has made mistakes and I got the impression if he could turn back time, he would have done some things differently.

I note that he adamantly denied ever being inappropriate with his daughter. I have no reason to disbelieve him. [ 75 ] It is important to recognize that there are alternate explanations for the injury seen by both parents.

For example, it is acknowledged by both that J.L.C. often likes to be nude, or wear leggings with no underwear, and thus may be less likely to be protected from small injuries in her vaginal area. [ 76 ] While there is no expert evidence, I accept that children may prefer one parent over another parent when it comes time to have their diaper changed. [ 77 ] What has J.L.C. been exposed to when it comes to sex? These two parents lived in numerous places over the course of J.L.C.’s life. Sometimes they were romantically involved, sometimes they were not.

Sometimes they shared a room and sometimes they lived in a campervan. I note that there is absolutely no evidence as to whether J.L.C. witnessed any male nudity or consensual activity between these two parents. This information would be useful.

For example, if J.L.C. had bathed with her father or seen him nude, she might have seen his penis and this simple point might help us understand why she, at some point, took a broomstick, stuck it between her legs while uttering the word ‘penis’. [ 78 ] It is true that the utterance ‘daddy tongue’ and pointing to her vagina could be J.L.C.’s way of trying to communicate that her father somehow inappropriately touched her in a sexual manner, but these words and actions are vague and it is very unclear what to make of them.

I find to conclude with any degree of certainty that the truth must be that this father sexually abused this child is a dangerous inferential leap that I will not take. I acknowledge one approach would be to simply err on the side of the abuse taking place and cease all unsupervised contact until professionals determine J.L.C. can see her father, but to take this approach would be improper. I cannot ‘guess’ as to what took place. I cannot flip a coin and find in favour of the applicant because her instincts make her believe something. [ 79 ] I must be guided by reliable evidence.

Through no fault of the applicant or respondent, there is very little evidence in this case to support, with any degree of certainty, that J.L.C. was sexually abused by anyone, let alone her father. RESPONDENT FATHER TESTIMONY [ 80 ] The respondent says that he would never hurt his daughter, sexually or otherwise. He says that until these allegations they had a very close relationship. [ 81 ] He acknowledges that he was seeing J.L.C. three days a week, from around noon to 8 or 9 p.m. He would drive to Nanaimo from his place of residence and spend the day with her.

They would do a lot of things, such as go for long walks and spend time outdoors. [ 82 ] The respondent says he is working. He showed pictures of his home, which is a motorized campervan that has all the amenities of a house, including a shower and flush toilet. He confirmed that there are three beds in this camper and that he is fully able to take care of J.L.C. He wants to pick up J.L.C. on Friday and have her brought back home on Sunday. [ 83 ] With respect to alcohol, he had a great amount of difficulty agreeing with opposing counsel that he was an alcoholic.

Perhaps a greater discussion about the meaning of ‘alcoholism’ would have tempered the exchange on this topic. [ 84 ] The respondent put it this way. He said that he ‘had always made drinking a priority.’ Now, having attended some AA meetings, listened to his friends and family, he ‘has changed his priorities’. He describes himself now as a social drinker, having a few beer on a weekend or after work on a Friday.

He openly admits that his current use of alcohol is very different than his past use of alcohol. [ 85 ] With respect to the quality of his evidence, he was consistent and clear that he did not abuse J.L.C. He was never shaken on this point. He consistently told the Court that it is only J.L.C.’s best interests that he focuses on and that he cannot imagine anyone harming their child like this. It is obvious to me that he loves his daughter and loves spending time with her. There are supervisory reports that also bolster this conclusion. Best Interests of J.L.C.

[ 86 ] As I have concluded that there has been no sexual abuse, I now turn to whether having J.L.C. spend parenting time with her father is in her best interest. [ 87 ] I do not know much about J.L.C. I am told that she maintains a vegan, gluten-free diet and the applicant adheres to this factor. I would have preferred these two parents let me know more about J.L.C., but Court time is limited. Although it appears that J.L.C. is doing well. She is healthy and emotionally attached to her mother. She enjoys spending time with her father.

They met yesterday during a supervised visit and, by all accounts, the visit went well. [ 88 ] She is too young for me to gauge what her views would be. As well, on this topic, I do not have the benefit of any professional information.

The applicant mother was asked, ‘Do you think the current supervised visits are traumatic for J.L.C.?’ and the applicant mother responded, “No.” She later clarified that she did not think the idea of visits being ‘supervised’ was traumatic, but she could not say with any certainty whether J.L.C. seeing her father was traumatic. [ 89 ] With respect to the history of J.L.C.’s care both parents have tried to be active in parenting of J.L.C. However, due to a breastfeeding regime, as well as the applicant’s lack of trust of the respondent when he drinks at night, J.L.C. spends her nights with her mother.

She always has. [ 90 ] This is an important point. J.L.C. has always been with her mother at night. Yet, the respondent father now wants to shift his limited contact with J.L.C. to overnights with her every weekend. To me, this would be an unreasonable shift in parenting time. It is disruptive of a lifelong pattern of parenting. It may well be one day there could be overnights. However, to go from seeing your daughter for four supervised hours every two weeks to overnights would certainly be an extreme disruption in the current regime of J.L.C.’s care.

I suspect trust also needs to be built up between these two parents. [ 91 ] J.L.C. is still young. If I understand the evidence, at age four she is still breastfeeding. As an aside, the applicant believes that the respondent was not breastfed long enough and, as a result, should be in therapy to assist him with feelings towards his family members on this topic. In any event, J.L.C. is very attached to her mother and even though she is in daycare for a couple of days here and there, her mother is her primary care giver. [ 92 ] J.L.C. has moved a lot.

She does not have a huge amount of family supports, and her mother recognizes that daycare provides a socialization that all young children benefit from. The applicant also set out her circumstances and confirmed that she has a suite in a motel and between social assistance, child tax and child support, she is managing to provide J.L.C. a safe home environment appropriate to her stage of development. [ 93 ] I find that both the applicant and respondent have abilities to parent J.L.C.

It may be true, as the applicant submits, that she is safer than the respondent, but parents always have different styles of parenting. I do not find that there is a pattern of behaviour that causes me any concerns with regard to the respondents’ ability to parent. There is an exception to this finding. Both applicant and respondent, agree that in the past, his alcohol use may have interfered with his abilities to parent at night. As a result, in an effort to ensure any parenting time the father has is in J.L.C.’s best interest, I find some conditions are necessary.

I will create these at the end of these reasons. [ 94 ] Where will J.L.C. sleep if there are overnights? Children can be raised in motels, such as where the applicant resides. They can be raised in campervans, such as where the respondent resides. I, myself, spent time being raised in campers and tents. In this era of expensive housing, it is not about whether you rent or own a house, but whether you have the ability to parent.

These two parents have that ability. [ 95 ] With respect to the impact on family violence, I accept that if the allegations of sexual abuse were proven, a more detailed analysis would be required under this consideration. Certainly a finding that sexual abuse took place would impair the respondent’s ability to parent.

It would be hard to imagine a scenario where it would be in J.L.C.’s best interest to spend any time with her father until he received treatment for sexual offending and J.L.C. received treatment and supports from medical professionals. [ 96 ] I acknowledge once more that the applicant did not appreciate some of the behaviour towards her by the respondent, especially when he had been drinking. However, there is nothing specific in her testimony that helps me understand whether the allegations of ‘bad behaviour’ were emotionally or physically abusive in nature.

Without a better evidentiary foundation, it is not possible for me to conclude that there was family violence that would interfere with the ability of these two to parent J.L.C. [ 97 ] However, even the mere allegation of sexual abuse, and the mothers concurrent ‘instinctual belief’ that J.L.C. was sexually assaulted no doubt will affect their ability to cooperate on issues affecting J.L.C. [ 98 ] While I conclude that parenting time should take place, I am mindful that in doing so, I must be focused on creating an arrangement that protects J.L.C.’s physical, psychological and emotional safety.

CONCLUSIONS [ 99 ] After hearing the evidence in this trial, I conclude the following order is in the best interests of the child. I am cancelling all previous court orders. [ 100 ] Upon the Court being advised that the name and birth date of each child is as follows: J.L.C., born [omitted for publication]. [ 101 ] The Court is satisfied that F.J. and J.C. are guardians of the child under s. 39(1) of the Family Law Act (“ FLA ”) . [ 102 ] Under s. 40(3)(

a) of the FLA , F.J. will solely have all of the parental responsibilities for the child as set out in s. 41 of the FLA : a. Making day to day decisions affecting the child and having day to day care, control and supervision of the child;

b. Making decisions about 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; 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, except in relation to health care provided pursuant to sec. 17 of the Infants Act ; k. Subject to any applicable provincial legislation; l. Starting, defending, compromising or settling any proceeding relating to the child; and m. Identifying, advancing and protecting the child's legal and financial interests; n.

Exercising any other responsibilities reasonably necessary to nurture the child's development. [ 103 ] Each guardian will advise the other guardian of any matters of a significant nature affecting the child. [ 104 ] Each guardian will consult the other guardian about any important decisions that must be made about the children and will try to reach agreement concerning these important issues. [ 105 ] Under s. 49, if the guardians cannot agree on a parental responsibility, F.J. must make the decision and J.C. may apply for a review of that decision under s. 49 of the FLA .

PARENTING TIME [ 106 ] Since the previous parenting time of a few days a week has gone to four hours of supervised time every two weeks, it would be improper to immediately go back to the previous regime. J.L.C. needs time to adjust. A similar approach to creating this specific regime was taken by Judge Hamilton in F.A.A . [ 107 ] Commencing Saturday May 1, 2021, there will be a series of five supervised parenting time lasting a minimum of two hours, but no longer than four hours.

This parenting time may be supervised by the applicant and/or a person agreed to by the parties, or a professional supervisors as agreed by the parties, or by J.D. The cost of the supervised parenting time is to be split by the parties, so it may be in their mutual interest to agree to non-paid supervisors. These times will take place between 12:00 noon to 4:00 p.m. on a Saturday or Sunday as agreed by the parties in writing.

Failing such an agreement, the visits will take place on Saturdays. [ 108 ] After five supervised visits, the goal of which is to introduce J.L.C. back into her father’s life, not because of any protection concerns, there will be four weeks of day-visits on either Saturday or Sunday between the hours of 12:00 noon and 4:00 p.m., as agreed to in writing. These visits do not need to be supervised. Failing any agreement as to time, the parenting time will take place on Saturdays. Pick-up and drop-off to be determined by the parties.

Failing any agreement, the pick-up and drop-off shall be at the closest park to the child’s home. [ 109 ] The parties will make best efforts to allow J.L.C. to have some virtual time or telephone time every Wednesday at 6:30 p.m. [ 110 ] On Saturday July 3, 2021, and Sunday July 4, 2021, J.C. shall have parenting time with the child from noon to 6:00 p.m. This regime of parenting time will continue until January 2022.

Commencing the parenting time weekend in January, the parenting time will be from noon on Saturday to Sunday at 6:00 p.m., and continuing on alternate weekends or until further order of the court. [ 111 ] Commencing the fall school term of 2023, parenting time will commence on the alternate Friday after school, to Sunday at 6:00 p.m. [ 112 ] J.C. shall have other parenting time at dates and times agreed between the guardians.

Such parenting time should include day- visits during holidays, such as Christmas, spring or summer break when the child becomes of school age. [ 113 ] J.C. will pick up and drop off the child at the beginning and end of his parenting time. If the guardians cannot agree as to place of pick-up and drop-off, it shall be at the child’s primary residence or the nearest park to the residence. [ 114 ] Guardians will not consume alcohol or consume or possess any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except in as prescribed by a licensed physician, during parenting time and 12 hours before any parenting time. [ 115 ] P ursuant to s. 227 of the Family Law Act ( FLA ), each party must comply with all orders and directions issued in relation to

COVID-19 virus by the federal and provincial government, the Public Health offices of Canada and British Columbia and any health care practitioner caring for the child and the parties. Each party must also comply with the same directions by the public health entities in any foreign jurisdiction in which they are travelling with the child. [ 116 ] Under s. 69(2) of the FLA , F.J. may relocate the child from Vancouver Island with the written consent of J.C. If consent is not obtained, F.J. will have to obtain permission of the court prior to relocating the child off of Vancouver Island. [ 117 ] The parties will:

a) put the best interests of the child before their own interests;

b) encourage the child to have a good relationship with the other parent and speak to the child about the other parent and that parent’s partner in a positive and respectful manner; and 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 child. [ 118 ] The parties will not:

a) question the child about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with the child any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to the child. CHILD SUPPORT [ 119 ] With respect to child support, there has been very little evidence provided.

However, on an interim without prejudice basis I make the following order. [ 120 ] F.J. is found to be a resident of British Columbia and is found to have a guideline annual income of approximately $23,000 based on social assistance, child tax benefit and child support. [ 121 ] J.C. is found to be a resident of British Columbia and is found to have a guideline annual income of approximately $22,000 based on three days per week, 7.5 hours per day at $20.00 per hour. [ 122 ] On consent of the parties, J.C. will pay to F.J. the sum of $195 per month for the support of the child, commencing on November 1, 2019, and continuing on the first day of each and every month thereafter, for as long as the child is eligible for support under the Family Law Act or until further Court order. [ 123 ] By consent, all special expenses and extraordinary expenses, including daycare, are to be split equally between the parties. [ 124 ] For as long as the child is eligible to receive child support, the parties will exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 30 each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency, immediately upon receipt. [ 125 ] I want to thank counsel and staff for staying so late to complete this case. _____________________________ The Honourable Judge A. Wolf Provincial Court of British Columbia