D.M.B. v. G.B.L., 2021 BCPC 153

Citation: D.M.B. v. G.B.L. 2021 BCPC 153 Date: 20210226 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.M.B. APPLICANT AND: G.B.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE O.A. FLECK Counsel for the Applicant: S. Robinson Appearing on their own behalf: G.B.L. Place of Hearing: [Omitted for publication] , B.C.

Date of Hearing: February 24, 2021 Date of Judgment: February 26, 2021 [ 1 ] The hearing of this matter took place on February 24, 2021. I reserved my decision and, finding some urgency in the situation as presented, delivered an oral decision on February 26, 2021. [ 2 ] Due to the time constraints, the oral decision given on February 26, 2021 was of a truncated nature, thus I advised the parties that I would deliver full reasons in writing at a later date. These are those reasons.

INTRODUCTION [ 3 ] This proceeding involves competing notices of motion. [ 4 ] The Applicant, D.M.B., seeks a finding under the Family Law Act , S.B.C. 2011, c. 25 (“ FLA ”) that the Respondent has wrongfully denied parenting time to the Applicant, as well as various orders to remedy the situation. Her notice of motion was filed January 25, 2021. [ 5 ] The Respondent, G.B.L., seeks an order that unsupervised parenting time by the Applicant cease immediately, citing concerns for the safety of the child while the child is with the Applicant.

His notice of motion was filed December 17, 2020. [ 6 ] At the hearing, the Applicant provided viva voce evidence and relied on two affidavits she made in support of her motion along with the affidavits of three other persons. The Respondent relied only on his own affidavit. There is also a “Section 211” report that was completed in 2019. Background [ 7 ] The Applicant and Respondent met in 2009. They moved in together and eventually married on [omitted for publication], 2011.

The Applicant had one son from another relationship and the Respondent had no children at the time of the marriage. [ 8 ] The marriage produced one child, A.A.L., born [omitted for publication]. This is the child that is the subject of these proceedings. [ 9 ] The parties separated in November 2014 and divorced in 2017. The child resides primarily with the Respondent. [ 10 ] Since the separation, the Applicant has given birth to two younger daughters from a different relationship. These two younger daughters reside with the Applicant.

Prior Orders [ 11 ] Prior court orders between the parties date back to the divorce proceedings. Most recently, the parties were before the Honourable Judge T. Golinsky for family case conferences (“FCCs”) on October 30, 2020 and November 27, 2020. The FCCs were held in advance of scheduling a trial on the Applicant’s underlying application to change an order, in which the Applicant seeks to address issues with respect to parenting arrangements. That trial is now scheduled for June 2021. [ 12 ] At the October 30, 2020 FCC, Judge Golinsky made an interim consent order that included the following parenting time

schedule for the Applicant:

a) Mondays from 3:00 pm to 7:00 pm;

b) Wednesdays from 3:00 pm to 7:00 pm;

c) Fridays from 3:00 pm to 7:00 pm;

d) Sundays from 10 am to 7:00 pm. [ 13 ] In addition, Judge Golinsky ordered, inter alia , that: • the Applicant’s parenting time take place within 50 km of [omitted for publication]; • the Applicant not operate a motor vehicle with the child in the vehicle; • communication between the parties occur only through a First Nation youth outreach worker, or other third party as agreed by the parties, and only for the purpose of facilitating parenting time as necessary; • neither party make any social media posts about the other party or their immediate family; and • each party be at liberty to seek a police enforcement clause under

section 231 of the FLA upon providing three days notice to the other party of such application. This final clause was renewed in Judge Golinsky’s order of November 27, 2020, which was also an interim consent order. [ 14 ] Court orders made prior to the October 30, 2020 order had allowed the Applicant to have only supervised parenting time; however, the parenting time became unsupervised with the new order of October 30, 2020.

EVIDENCE The Applicant’s Evidence [ 15 ] The Applicant’s evidence is that she had regular unsupervised parenting time with the child throughout November 2020, up until the November 27, 2020 FCC. The Applicant states that the parenting time leading up to November 27, 2020 went well.

However, after the November 27, 2020 FCC, the Applicant only had one parenting time visit with the child, on December 7, 2020 and has had no parenting time since then. [ 16 ] With respect to December 7, 2020, specifically, the Applicant says that the parenting time went well; that she and the child were bonding well; that there was nothing unsafe about the child’s visit to the Applicant’s home; and, that the child was excited to be with her mother. The Applicant said they spent part of that day dancing and baking.

Overall, the Applicant describes December 7, 2020 as a normal visit. [ 17 ] The Applicant is at a loss to explain why she has been denied parenting time since December 7, 2020.

She says that she and the Respondent had no discussions around the December 7, 2020 visit about any concerns the Respondent may have had and there has been no substantive communication since then, directly or indirectly, about the reasons for the denial of parenting time. [ 18 ] The Applicant told the Court that, around that time, she had some concerns about whether the [omitted for publication] First Nation, where she resides, would institute pandemic-related measures that may prevent her from bringing the child onto the reserve for visits.

However, she also told the Court that those concerns were alleviated relatively quickly and that there are no rules regarding visitors to the reserve that would justify a denial of parenting time. [ 19 ] The Applicant stated that she has tried multiple times since December 7, 2020 to contact the Respondent to discuss his reasons for denying her parenting time but he has not responded to her requests for communication. [ 20 ] The Applicant told the Court that the denial of parenting time was especially difficult over Christmas, as the presents that she had intended to give her daughter are still with the Applicant and that the Respondent did not allow a video visit between the Applicant and the child over Christmas.

Instead, all she received was a recorded video of the child singing a song for her mother. [ 21 ] During her examination-in-chief, the Applicant volunteered information about her interactions with a family friend who has, apparently, been charged with a sexual offence or offences involving children. This individual was also a primary focus of the questions the Applicant faced on cross-examination. [ 22 ] The suggestion on cross-examination was that the Applicant has allowed this individual to be around the child, despite the nature of the outstanding charges against him.

The Applicant said that the last time she was in the presence of this individual was in 2019, before he had been charged.

The Applicant concedes that she still socializes with the individual’s partner but that she has not allowed her daughters, including the child, to be in the presence of the individual facing charges and will never again socialize with him. [ 23 ] The Applicant told the Court that she has long been concerned with the social media posts and other online messages that the Respondent has made to try to undermine her in the eyes of their community, including her alleged ongoing friendship with the individual who has been charged criminally. [ 24 ] Aside from the alleged contact with the criminally charged individual, the Applicant also gave evidence in response to other specific issues raised by the Respondent, including the Applicant’s relationship with a male the Respondent asserts is a drug dealer.

The Applicant denies that this person is a drug dealer. She also says that the child has never been left alone with the male and that she has no safety concerns with the male being around her children. [ 25 ] There was also an incident raised by the Respondent where the Applicant requested the Respondent to pick-up the child early from parenting time with the Applicant due to the child having hair lice.

The Applicant confirmed the incident, telling the Court that there was an outbreak of lice at the child’s school and that she felt that the best way to treat the lice was to have the child go home to her regular residence. [ 26 ] The Respondent also raised as an issue a snowmobile trip that the Applicant once took with the child, during which the Respondent alleges that the child was not properly clothed.

The Applicant denies that the child was in any danger on the snowmobile trip and this is backed up by the affidavit of another adult who attended the snowmobile trip. [ 27 ] Finally, the Respondent alleged that the Claimant has falsely made statements to the child that scars on the Applicant’s body were caused by past violence by the Respondent and that this has caused a rift between the Respondent and the child.

The Applicant denies ever making any such statements to the child. [ 28 ] The Applicant also told the Court about her efforts to develop as a parent, including working with professionals to assist with learning general life skills; traditional First Nations ways of life; financial management; and, how to deal with trauma. She also asserts that she has no current involvement with the Ministry of Child and Family Development. The Respondent’s Affidavit [ 29 ] The Respondent filed an affidavit as the only evidence he presented at the hearing.

His sworn evidence in the affidavit consists of the following: I have recently been made aware of D.M.B. knowingly putting her children in the path of a predator of children Exhibit A paperwork and posts proving this true

Exhibit B D.M.B.’s public posts on Facebook about myself and others derogatory and accusatory Exhibit C D.M.B.’s sick brutal attack on a post that she was not apart of and has been blocked from multiple times Exhibit D D.M.B. posting publicly on a community Facebook page about C.A.’s father A.A.L.s sister Exhibit E D.M.B. posting publicly on Facebook impersonating a police officer Exhibit F D.M.B. posting on Facebook during our last court session in [omitted for publication] [ 30 ] The contents of the various exhibits can be described as follows. [ 31 ] Exhibit A is what seems to be a series of screenshots from a mobile phone or several mobile phones.

The screenshots appear to be from the Facebook mobile app. The screenshots capture a variety of conversations, with most of the parties to those conversations only identified by what seem to be first names (or nicknames). Pages 26 and 27 of Exhibit A include what seems to be the court history of an individual, as accessed via Court Services Online; these records purport to be those of the individual who is said to be criminally charged for child sexual offences.

Most of the screenshots in Exhibit A are not date-stamped. [ 32 ] Exhibit B is also a series of Facebook screenshots from what seems to be a screen capture from the mobile phone Facebook app. Most of the posts purport to be from “D.B.”. Most are not date-stamped, although some posts at pages 12-14 of Exhibit B are dated December 30, 2019. [ 33 ] Exhibit C is very similar to Exhibit B: a series of purported Facebook posts from a mobile phone screenshot, with many by “D.B.”. The posts are mostly not date-stamped. [ 34 ] Exhibit D appears to be a two-page printout of a screenshot from a mobile phone.

Again, it purports to be a posting by “D.B.”. There is no date-stamp and the source of the post (i.e. Facebook) is not identified in the screenshot. [ 35 ] Exhibit E is a further set of mobile phone screenshots but without the source app being directly identifiable and with no date stamp. The posts also purport to be by “D.B.” and also include a header with the title “Staff Sargent”. [ 36 ] Exhibit F is a mobile phone screenshot with a header that says, “D.M.B. posting on facebook during our last court session in [omitted for publication]”.

The date November 27, 2020 at 11:54 am is visible. [ 37 ] The common theme running through all of the exhibits is that each contains purported online posts. However, these all being out- of-court statements, each such online post is hearsay, if the intention is to offer it for the truth of its contents. Furthermore, the Respondent/affiant offered no foundational evidence for any of the exhibits.

I was not provided with any extrinsic evidence of who made the posts; when the posts were made; by what medium the posts were made (except that the affidavit states that certain ones come from Facebook); and what the contexts of the posts are. [ 38 ] Hearsay statements in an affidavit (or exhibit to an affidavit) can be given weight if a court is satisfied as to their reliability, provided the hearsay statements are also relevant to the issues to be decided by the court, as detailed by Skilnick, PCJ, in S.M.A. v.

R.E.W. , 2015 BCPC 34 , at paragraphs 57-60 : [57] Family law legislation in this province has always made allowances for the admission of evidence which might technically otherwise offend the rule against admitting hearsay evidence. This is because different considerations apply in family cases than may otherwise apply in other kinds of hearings. In a criminal case the presumption of an accused’s innocence calls for a higher standard in order to prevent wrongful convictions, whereas in a family law matter, any “rights” that the parties may insist on must take a back seat in favour of the child’s best interests.

Often these interests are better served by adopting less of a technical adherence to the formal hearsay rule. For example, section 68 (2) of the Child Family and Community Service Act expressly permits the acceptance of “any hearsay evidence that the court considers reliable”. That

section also allows a court to admit into evidence written documents that the court considers relevant. In the former legislation, the BC Family Relations Act ,

section 120 gave wide latitude to the court to hear application “in the manner the court may direct.” [58] The new legislation continues this approach, and allows the court to relax the rules of evidence when it is in a child’s best interests to do so.

Section 199 of the BC Family Law Act reads as follows: 199

(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to i. minimize conflict between, and if appropriate, promote cooperation by, the parties, and ii. protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties. [59] The power granted to the court to limit formality includes the power to adopt a relaxed application of the hearsay rule in favour

of getting to the heart of the issues which relate to what is in a child’s best interest. Surely if the court is given the power to dispense with formal application of the hearsay rule in a child protection matter where more is at stake for the parents, there is no reason why the same consideration shouldn’t apply in an FLA matter.

In both cases, the court can prevent parties from refusing to fully disclose circumstances which pertain to the child by refusing to allow them to hide behind technical evidentiary rules that may deny consideration of relevant and reliable information about what is in a child’s best interests. [60] A relaxed application of the hearsay rule and of other formalities, as considered in

section 199, also reflects the reality of contemporary family law proceedings. Many parties appear in court without the benefit of counsel. Many who have counsel have retained their lawyers under the legal aid system, which often does not provide sufficient resources for counsel to gather and present all of the evidence in the same way as might occur where the luxury of an abundance of resources exists. The scarce commodity of hearing time in Provincial Court often makes it wiser for counsel to abridge the amount of time a hearing would require in order that an earlier hearing date can be set and matters can be resolved earlier. This is what

section 199 is expecting. It would not make sense to insist that every collateral source of information be called to testify in family proceedings in order that there be strict adherence to the hearsay rule.

There must be reasonable allowance made to accept evidence which might be technical hearsay if that evidence is relevant and if it can be considered as reliable. [ 39 ] Thus, it is often appropriate for a court to accept evidence in family law proceedings even though the evidence does not adhere to the strict requirements of the hearsay rule, provided such evidence is sufficiently reliable. [ 40 ] However, in this case, I am declining to place any weight on the evidence presented in the Respondent’s affidavit, including the exhibits. [ 41 ] As mentioned above, I have virtually no evidence, or even submissions, before me as to the origins or reliability of the statements contained in the various screenshots.

I also have no submissions as to what, if anything, these screenshots do to advance the Respondent’s arguments in this proceeding (except for the very short labels given to the exhibits in the body of the affidavit).

Instead, the screenshots were attached to the affidavit and placed before the Court without the provision of further context by the Respondent with an expectation that 1) the Court would assume or infer the authenticity and reliability of the statements; 2) the documents speak for themselves and the Court would find from the face of the documents that the statements are relevant to the issues in this hearing; and 3) the Court would be moved to make negative inferences about the Applicant as a result of the statements.

However, given the lack of foundation for the exhibit statements, I do not find that the statements have the requisite hallmarks of reliability such that they should be given any weight under the hearsay rule. [ 42 ] Furthermore, without having before me any evidence as to the context of these statements, I do not find that their relevance has been established. As a result, I make no inferences or findings of fact based on the material contained in the exhibits to the Respondent’s affidavit. [ 43 ] I also make no use of the Respondent’s sworn evidence in the affidavit.

Aside from the list of exhibits, it consists of nothing more than one sentence containing the indirect allegation that, “I have recently been made aware of D.M.B. knowingly putting her children in the path of a predator…” There is no direct evidence offered in support of this statement.

There is no first-hand knowledge offered; there are no specific events or occurrences cited; and there is no explanation provided as to how the Respondent has recently become aware of such a thing. [ 44 ] The affidavit of the Respondent amounts to nothing more than a bald indirect accusation; therefore, I place no evidentiary weight on the Respondent’s affidavit. The s. 211 Report [ 45 ] The s. 211 report on file is somewhat dated but it confirms that both parents provide an appropriate environment for the child.

The report also notes that the professionals who work with the Applicant and who were interviewed by the report writer express no concerns about the Applicant as a parent. This viewpoint is also present in some of the third party affidavits filed by the Applicant. ANALYSIS Denial of Parenting Time [ 46 ] The Applicant contends that she has been denied parenting time with the child continuously since December 7, 2020. [ 47 ] The Respondent does not deny this. Rather, he seeks to justify the denial of parenting time and seeks to terminate the Applicant’s unsupervised parenting time. [ 48 ]

Section 61 of the FLA addresses wrongful denial of parenting time and imposes the following threshold requirements before a remedy can be contemplated by a court: An application under this

section may be made only (

a) by a person entitled under an agreement or order to parenting time or contact with a child, and (

b) within 12 months after the person was denied parenting time or contact with a child.

[ 49 ] The Applicant satisfies the threshold requirements of s. 61(1). Various court orders since 2017 have granted her parenting time, including the interim consent order of October 30, 2020, which sets forth a

schedule of unsupervised parenting time. As well, the evidence before the Court is that the parenting time has been denied since December 7, 2020; her application is thus well within the 12 month limitation. Wrongfulness of the Denial of Parenting Time [ 50 ] To determine whether the denial of parenting time is wrongful, a court is required to apply s. 62 of the FLA :

(1) For the purposes of

section 61 [ denial of parenting time or contact ], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61 , the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child. [ 51 ] The Respondent does not allege any of the enumerated grounds embodied in subsections 62(1)(a-e).

Instead, the thrust of the Respondent’s argument falls under s. 62(1)(f), which allows a court the discretion to find that other circumstances justify the denial of parenting time. [ 52 ] The Respondent’s submission to the Court is that the Applicant allows certain people to be around the child during unsupervised parenting time and that this is harmful to the child.

Specifically, the Respondent submits that the individual who has been criminally charged is still allowed to have contact with the child and that the male whom the Respondent accuses of being a drug dealer is regularly in the presence of the Applicant and, by extension, her children. The Respondent also submits that the Applicant has made false rape accusations against him. He also says the child expresses that she does not want to go to visit her mother.

The Respondent further submits that the Applicant seeks to alienate the child from the Respondent by falsely telling the child about things the Respondent has done in the past. Finally, the Respondent submits that the Applicant places the child in danger by not properly attending to the child’s safety while the child is undertaking activities with the Applicant, such as the snowmobile trip. [ 53 ] As explained above, I do not place any weight on the affidavit evidence tendered by the Respondent.

Therefore, I do not find that the evidence before me supports the Respondent’s submissions that there are circumstances that have caused a safety concern for the child. I also do not accept that the Applicant has done anything to impede the relationship between the child and the Respondent in a way that would justify a denial of parenting time.

In contrast, I do accept the Applicant’s evidence that she properly tends to the child’s safety and well being. [ 54 ] Even if I were to find the Respondent’s evidence to be reliable, I find that the allegations he makes refer mostly to events that took place prior to Judge Golinsky’s interim consent orders of October 30 and November 27, 2020 (in many respects, well before those interim consent orders were made). [ 55 ] In other words, the Respondent’s evidence is of dubious relevance to the issue of whether there is anything that has happened since the FCCs with Judge Golinsky that would justify a denial of parenting time in the face of the October 30, 2020 order.

Any concerns the Respondent may have had about past events should have been considered by him before he consented to the orders that Judge Golinsky made on those dates. [ 56 ] Once those orders were made, the parties should be entitled to rely on them. It would render the FCC process and the making of consent orders ineffective and unfair if past events could be unilaterally revisited by a party to justify not obeying a consent order whenever the party decides they no longer wish to follow that order.

The parties should not be mistaken about this: a consent order is an order of the Court just like any other order; obeying a consent order is not optional just because it was made by consent. [ 57 ] I also find that there is no evidence, that I accept, that anything happened after October 30, 2020, that would justify a denial parenting time. As discussed, I place no weight on the Respondent’s affidavit but, even if I was inclined to give it some weight, the

exhibits mostly seem to relate to events prior to October 30, 2020. [ 58 ] While I had difficulty with some aspects of the Applicant’s viva voce evidence, namely that she became combative and unwilling to acknowledge basic facts where those facts are unfavourable to her, I accept her evidence that her parenting time with the child between October 30 and December 7, 2020, inclusive of the December 7, 2020 parenting time, went well and did not result in any incidents that would justify a denial of subsequent parenting time.

Thus I find that there is no factual basis to justify the denial of parenting time. [ 59 ] I also note that the Respondent’s application to terminate the Applicant’s unsupervised parenting time was not filed until December 17, 2020, ten days after the December 7, 2020, parenting time.

If the Respondent had a bona fide belief that the child would be in danger unless the Applicant’s parenting was terminated, the Court’s expectation is that this be brought to the Court’s attention in the most expeditious manner possible. [ 60 ] The Respondent is not at liberty to simply avail himself of a “self-help” remedy by denying parenting time in the face of a court order and then delay bringing an application before the Court to address the situation.

This is especially true where the Respondent also refuses to even discuss the situation with the Applicant, as I accept happened in this situation, and makes no effort to come to some less drastic solution in the interim, such as arranging for supervised or video parenting time, while the matter is brought back before the Court for determination. [ 61 ] Therefore, I draw a negative inference from the Respondent’s delay in bringing the matter before the Court while simultaneously refusing to discuss interim measures with the Applicant. [ 62 ] While the Respondent may very well hold a subjective belief that the child was in danger while in the unsupervised presence of the Applicant, I do not find that such a belief is objectively reasonable.

In fact, I find that the Respondent has displayed a cavalier attitude toward the interim consent orders of Judge Golinsky. Despite having consented to the interim orders, the Respondent now seeks to rely on dated grievances over the Applicant’s parenting skills and lifestyle as justification for acting contrary to those very recent consent orders. Further, the Respondent offers little in the way of evidence of more recent events that would justify a full denial of parenting time.

Still further, the Respondent has demonstrated little regard for the importance of the role that the Applicant plays in the child’s life by outright denying parenting time without demonstrating a willingness to even discuss less stringent interim measures. [ 63 ] Therefore, I find that the Respondent has not justified the denial of the Applicant’s parenting time since December 7, 2020 and I find that that the denial is wrongful.

Remedies for Wrongful Denial of Parenting Time [ 64 ] Section 61(2) of the FLA provides that: If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (

c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (

d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (

e) require that the transfer of the child from one party to another be supervised by another person named in the order; (

f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (

i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

g) require the guardian to pay (

i) an amount not exceeding $5,000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5,000. [ 65 ] Pursuant to s. 61(2), the Applicant seeks the following: a. a police enforcement clause; b. a $5,000 amount to be paid by the Respondent to the Applicant for the benefit of the Applicant; c. compensatory parenting time. [ 66 ] The Court must also keep in mind at all times that s. 37(1) of the FLA instructs us that, “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 .” (Emphasis added.)

[ 67 ] As discussed above, I am satisfied that the Applicant has been wrongfully denied parenting time. In addition, I find there is a likelihood that the denial of parenting time has harmed the relationship between the child and the Applicant by causing some alienation between them, given that the Applicant has been denied any parenting time at all with the child for an extended period, including during Christmas, which is generally a special time for children and parents. Any action that harms the child’s relationship with a parent is necessarily contrary to the child’s best interest.

As a result, I am satisfied that remedies are warranted to 1) help repair the relationship between the Applicant and the child; and 2) encourage the Respondent to respect the best interests of the child (and court orders made in the best interests of the child) in the future. [ 68 ] Section 61(2) of the FLA allows a court broad discretion to craft remedies [ K.R. v. J.W. , 2016 BCSC 225 at paragraph 58] but, as I have already emphasized, a court must only craft remedies that are in the best interests of the child. [ 69 ] I will turn first to compensatory parenting time.

The Applicant has gone more than two and half months without parenting time. This is a significant period of time in the life of a child and a gap of this length is likely to create a setback in the parent-child relationship. The logical and most appropriate way to repair this is by allowing the affected parent to have extra time with the child to counteract the earlier loss of parenting time. However, in this case, making up for the lost parenting time is not as simple as just replacing the hours or days missed on a one-for-one basis.

This is because the Court needs to be mindful that the child’s primary residence is with the Respondent and thus the child’s time cannot simply be shifted to the Applicant in bulk. As well, a trial on the issue of parenting arrangements, including parenting time, is set for later this spring, thus any interim compensatory time should, ideally, be completed prior to the making of a final order after trial. Therefore, I will order significant compensatory time, to be exercised at the discretion of the Applicant, but to be completed by the end of March 2021.

However, the compensatory parenting time ordered will not alter the fundamental living arrangements of the child, even on a temporary basis, and will respect the fact that the child still resides with the Respondent. It will also respect the fact that the Respondent also still needs to have meaningful parenting time with the child during the period the compensatory parenting time is in effect. [ 70 ] A police enforcement order is to be considered a tool of last resort [ S.(D.J.) v. D.(J.M.) , 2014 BCSC 1143 ].

It is not difficult to understand why such a remedy must be viewed as one of last resort, as subjecting a child to police apprehension and transport to the other parent is likely to be an event that has a profound effect on a child. Nonetheless, I find it an appropriate remedy in the present case. With the prolonged period of denying parenting time, combined with his unwillingness to discuss the situation with the Applicant, the Respondent has demonstrated a willingness to deal with the Applicant in an unreasonable manner.

When this is combined with the fact that the child resides with the Respondent, it places the Respondent in a clear position of power relative to the Applicant in terms of being able to unilaterally deny parenting time, a power that the Respondent has now demonstrated a propensity to use without justification. As can be seen from this proceeding, applying to a court for a remedy in such a situation can take some time. By contrast, a police enforcement order provides a much more immediate remedy.

In my view, the best interests of the child lie with having a relationship with her mother that is not unduly interrupted by the unilateral actions of the Respondent. This cannot be achieved if the Applicant’s only recourse is to apply to the court for a new remedy, as in the present situation.

Thus, in my view, a police enforcement order is appropriate in this case to regulate the actions of the parties and to prevent another long period of denied parenting time. [ 71 ] I also find that the manner in which the Respondent denied parenting time to the Applicant warrants the imposition of a payment of $500 by the Respondent for the benefit of the Applicant. I do not have before me any evidence as to the relative financial positions of the parties.

So, to order the maximum amount allowed under the FLA , as suggested by the Applicant, in the absence of such financial information, would run the risk of possibly placing the Respondent in an untenable financial position and that would be contrary to the best interests of the child, who resides primarily with the Respondent. This is also the first time, of which I am aware, that the Respondent has been found by a court to have denied parenting time without justification.

Therefore, I have settled on a lesser amount that addresses to some extent the emotional toll the Applicant has suffered, as well as the time she has had to devote to remedying the situation, while also emphasizing to the Respondent that parenting time must be respected, especially court-ordered parenting time, except in the narrow exceptional circumstances recognized at law.

The Respondent’s Application [ 72 ] Given my conclusions with respect to the wrongfulness of the denial of parenting time, there is no need for me to separately address the Respondent’s application to terminate unsupervised parenting time for the Applicant. For the same reasons, the Respondent has not satisfied me that grounds exist to terminate the unsupervised parenting time. CONCLUSION [ 73 ] For the foregoing, the Respondent’s application is dismissed and the Applicant’s application is granted. As a result, I make the following order: 1.

The Court is satisfied that G.B.L. has wrongfully withheld the child, A.A.L., born [omitted for publication], from D.M.B. 2. Under FLA section 61(2)(g), G.B.L. shall pay $500 to D.M.B., for the benefit of D.M.B., to be paid on or before March 15, 2021. 3. Upon being satisfied that D.M.B. has been wrongfully denied parenting time with the child by the child’s guardian, this Court orders under section 231(4) of the FLA that a police officer apprehend the child, A.A.L., born [omitted for publication], and take the child to D.M.B.; this clause comes into effect at 3 pm on February 26, 2021. 4.

Under FLA section 63(1)(a), D.M.B., at her sole discretion, may exercise compensatory parenting time with the child as follows: anytime between 3 pm and 7 pm, on any day of the week on which D.M.B. has not already been allocated parenting time by prior court order, upon giving G.B.L. at least 24 hours prior written notice via text message for each day on which she wishes to exercise compensatory parenting time; this discretionary compensatory parenting time will end at the end of the day on March 31, 2021.

5. All prior court orders remain in effect, except to the extent of any conflicts with this order. 6. The requirement to obtain the signature of G.B.L. with respect to this order is dispensed with. _______________ O.A. Fleck, PCJ Provincial Court of British Columbia