D.M. v. C.R., 2021 BCPC 318

Citation: D.M. v. C.R. 2021 BCPC 318 Date: 20211222 File No: 7539 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.M. APPLICANT AND: C.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. VANDOR Counsel for the Applicant: P. Busch Counsel for the Respondent: C. Wayne Counsel for the Children: K. Wong Place of Hearing: Richmond , B.C. Date of Hearing: September 7 - 10, 13 -16, 2021 and October 26, 28, and 29, 2021 Date of Judgment: December 22, 2021

Introduction [ 1 ] C.R. and D.M. began living together in a marriage like relationship in 2006. There are two children of their union, D.W.R. born [omitted for publication], and K.M.R. born [omitted for publication], (together, the children ). C.R. says the parties separated in 2016. D.M. says they separated in 2020. Issues [ 2 ] The issues to be decided in this case are: 1. Primary Residence of Children 2. Parenting Responsibilities 3. Parenting Time 4. Child and Spousal Support 5. Protection Orders 6.

Conduct Orders History of Litigation [ 3 ] On July 21, 2020, C.R. applied for orders seeking, among other things, that D.W.R. and K.M.R. primarily reside with him, that he have most of the parental responsibilities for them, and that the order of the Honourable Judge Rogers dated October 30, 2019, which sets out parenting time and prohibits relocation of the children from Richmond, be complied with (the 2019 Order ).

C.R. also sought a “views of the child” report for both children, and a number of conduct orders, including an order to prohibit D.M. from making further applications without leave of the court. [ 4 ] On October 22, 2020, D.M. replied and counter-claimed seeking, among other things, a protection order against C.R., a declaration of parental alienation as it relates to D.W.R., all parental responsibilities for D.W.R. and K.M.R., spousal support, child support, and extraordinary expenses. D.M. claimed that she is the victim of domestic violence and that C.R. is the abuser.

She claimed that C.R. alienated her children and other family members from her. [ 5 ] C.R. disputes every aspect of D.M.’s counter-claim in his reply filed on October 22, 2020. C.R. claimed that the parties separated in 2016, and since then, D.M. has made false claims of family violence and obstructed his access to his children. Evidence [ 6 ] I heard the evidence of 12 witnesses over 11 days of trial on September 7, 8, 9, 10, 13, 14, 15, 16, 2021 and October 26, 28, and 29, 2021. C.R.’s Witnesses [ 7 ] C.R. testified and called five other witnesses in support of his case.

R.T. [ 8 ] R.T. is a foster parent who fostered K.M.R. in Richmond from March 2020 to September 2020. A.W. [ 9 ] A.W. is D.M.’s younger sister. They grew up together. She lives in Calgary and is a registered nurse. She has two biological children. She also has guardianship over D.M.’s older daughter, D.W. J.K. [ 10 ] J.K. is C.R.’s mother. B.H. [ 11 ] B.H. is the biological father of I.H. who is D.M.’s second oldest son. B.H. and D.M. were together for approximately two years before D.M. met C.R.

M.W.M. [ 12 ] M.W.M. is D.M.’s eldest child. He lived with his mother, for the most part, from his birth until he was 13 years old. He was in foster care for some time around the age of 7 years. He started living with his father, N.M., when he was 13 years old. He is currently 23 years old. D.M.’s Witnesses [ 13 ] D.M. testified and called five other witnesses in support of her case. M.L. [ 14 ] M.L. is a friend of D.M. and former neighbour. M.L. lived next door to D.M. in Nanaimo for approximately three months from June 2020 to August 2020.

M.L. looked after K.M.R. in Powell River when D.M. went to Calgary in February 2021. O.W. [ 15 ] O.W. is D.M.’s mother. A.B. [ 16 ] A.B. is the biological father of one of A.W.’s children. He testified by way of telephone from Quebec. K.V. [ 17 ] K.V. is a friend of D.M. and former neighbour. They share an interest in bodybuilding and fitness train together in Nanaimo. W.C. [ 18 ] W.C. rented a house to the parties on [omitted for publication] Drive in Richmond from December 2019 to April 2020. The names of C.R. and D.M. were on the lease.

Applicable Law Best Interests of Children [ 19 ] Section 37(1) of the Family Law Act says that the court must only consider the best interests of the child when making a parenting order.

To determine what is in the best interests of a child, the court must consider all of the child’s needs and circumstances including those factors set out in s. 37(2) of the Family Law Act : • The child’s health and emotional well-being; • The child’s views unless it would be inappropriate to consider them; • The nature and strength of the relationships between the child and significant person in the child’s life; • The history of the child’s care; • The child’s need for stability, given the child’s age and stage of development; • The ability of each guardian to exercise their responsibilities; • The impact of family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; • Whether the actions of the person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child’s needs; • 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 risk to the safety, security or well-being of the child or other family members; • Any legal proceeding relevant to the child’s safety, security or well being. [ 20 ] No order will be in the child’s best interest unless it protects to the greatest extent possible a child’s safety, security, and well- being.

Family Violence Effects on Children

[ 21 ] An overarching consideration of the Family Law Act is to protect the child from family violence that can be harmful. When making an order respecting care and time with a child, the court must consider whether family violence creates a risk of harm to the child. [ 22 ]

Section 1 of the Family Law Act defines family violence to include various acts against the child or a family member, such as physical, sexual, or psychological abuse, and exposure of the child to those acts. Family violence encompasses any conduct by a family member towards another family member that is violent, threatening, or amounts to a pattern of controlling behaviour, which causes that other family member to fear his or her own safety or the safety of others. It does not matter whether the harm was intentional. What is relevant is the resulting harm to the child. [ 23 ] At issue, in this case, is the impact of the family violence on the children’s best interests.

Section 38 of the Family Law Act provides that, in assessing the impact of any family violence on the best interests of the child, the court must consider: • The nature, seriousness, recency, and frequency of the family violence; • Whether there is a pattern of coercive or controlling behaviour in relation to a family member; • Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; • The physical, emotional, and psychological harm or risk of harm to the child; • Any compromise to the safety of the child or other family member; • Whether the family violence causes the child or other family member to fear for their own safety or for that of another person; and • Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child. [ 24 ] Judges are required to apply an intersectional and contextual approach to assessing family violence cases because of the wide variety of different ways in which violence can arise in a family: Michel v.

Graydon , 2020 SCC 24 . I have interpreted the Family Law Act as set out by the Supreme Court of Canada in Michel v. Graydon , 2020 SCC 24, which identified three key principles to statutory

interpretation under the Family Law Act : paras. 21, 54; Concurring judgment, para. 97. First, I consider the statutory provision in its entire context and grammatical and ordinary sense, in harmony with the statute’s scheme and objects with the key object being the best interests of the child. Second, I consider that the legislator is taken to know the social and historical context in which it makes its intention known.

Third, it is presumed that the Family Law Act takes into account Canada’s international obligations including the United Nations Convention on the Rights of the Child [ Convention ]. [ 25 ] Below, I apply these legal principles to the facts in this case. Credibility and Reliability Assessments [ 26 ] The parties have provided very different, and often, irreconcilable versions of events. This has required me to resolve conflicting evidence. Where I have had to resolve conflicting evidence, I am guided by the principles summarized in Bradshaw v.

Stenner , 2010 BCSC 1398 , aff’d 2012 BCCA 296, leave to appeal refused [2012] S.C.C.A.

No. 392 at para. 186: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides […] The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross - examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally … Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. [citations omitted] [ 27 ] My findings on the credibility and reliability of evidence are set out below.

Analysis of Issues 1. Guardianship [ 28 ] There is no dispute that D.M. and C.R. are the guardians of the children under s. 39(1) of the Family Law Act . Guardians unable to cooperate on issues affecting children [ 29 ] I find that these guardians cannot communicate directly due to the high conflict nature of this dispute, and that requiring cooperation between D.M. and C.R. would increase the risk to the safety, security, and well-being of their children.

This is borne out by the overwhelming amount of evidence detailing the conflict that has arisen between these guardians, which has played out through a multitude of family and criminal justice proceedings in two provinces over five years. [ 30 ] Pursuant to court orders, a children’s lawyer has been appointed for D.W.R. and K.M.R. under s. 203(1) of the Family Law Act .

These orders recognize the severe high conflict nature of these proceedings. Under s. 203(1) of the Family Law Act , children's counsel are appointed to represent the interests of the child when the degree of conflict between the parents is so severe that it impairs the parties' abilities to act in the best interests of the child and it is necessary to protect the best interests of the child.

The role of children's counsel is to protect the child's interests, which includes shielding the child from parental conflict and the adversarial nature of family law proceedings. [ 31 ] The evidence is clear that it is not possible for D.M. and C.R. to cooperate on issues affecting D.W.R. or K.M.R. Their inability to work together has caused tremendous harm to D.W.R. and K.M.R. As such, an arrangement that would require these guardians to cooperate on issues affecting their children is not appropriate in the circumstances.

Since these parents cannot make decisions about D.W.R. or K.M.R. as a team, one parent will have to make significant decisions. 2. Parenting Arrangements Any legal proceeding relevant to the child’s safety, security or well being [ 32 ] In cases dealing with the well-being of children, a court is not obliged to reach specific factual conclusions as to what has transpired while children have been in their parents’ care in making an order respecting parenting arrangements: NDT v. TFT , 2016 BCSC 134 at para. 103 .

This principle is recognized implicitly in s. 37(3) of the Family Law Act , which provides only that the best interests of a child be advanced through an order that protects a child’s physical, psychological and emotional safety, security, and well- being to the greatest possible extent. This wording contemplates that evidence in family cases is often of a type that may be only suggestive of the truth, and that resists drawing specific conclusions: NDT v. TFT , 2016 BCSC 134 at para. 103 . [ 33 ] In this case, however, D.M. has asked me to draw specific conclusions on who is responsible for the family violence.

D.M. claims that she has proven, on a balance of probabilities, that she is the victim of domestic violence, that D.W.R. and K.M.R. are the victims of domestic violence, and that other family members have been alienated from her by her abuser, C.R. The issue that D.M. is asking me to decide is whether the court should place the children with the abuser in a domestic violence family matter. [ 34 ] On its face, there appears to be support for her argument. D.M. has obtained seventeen without-notice protection orders against C.R. in Alberta and British Columbia.

She has reported serious allegations of domestic violence against C.R. in British Columbia that has resulted in C.R. facing two sets of criminal charges in two years. D.M. testified that C.R. sexually assaulted her in Nanaimo in 2018 and assaulted her and K.M.R. in Richmond in 2019. [ 35 ] After a careful consideration of all the evidence, I have determined that the allegations of family violence made by D.M. are not true. I find that D.M. fabricated allegations of domestic violence after the parties separated in 2016 and C.R. started a new relationship in 2017.

In reaching this conclusion, I have considered the myths and stereotypes that may be imbedded in assessing a woman’s credibility in family violence cases. One such myth is that women are particularly prone to making false allegations in family law cases to gain an advantage. Evidence presented to support that conclusion should be carefully evaluated to ensure that it is bias free. I have done so, and my reasons for reaching these conclusions are set out below.

Start of Relationship [ 36 ] The evidence on how the parties met is not in dispute, and illustrates the power dynamic between D.M. and C.R. [ 37 ] C.R. and D.M. met working over the summer at a concession stand in Alberta. C.R. was still a teenager living at home, having recently graduated from high school. D.M. was ten years his senior and the mother of three children with three different fathers. Her first child, M.W.M., was born on [omitted for publication]. Her second child, D.W., was born on [omitted for publication]. Her third child, I.H., was born on [omitted for publication].

All of her children were, at that time, in foster care. [ 38 ] D.M. was living in a home that she had shared with the biological father of I.H., B.H. Shortly after the parties met, D.M. got pregnant with her fourth child, D.W.R. She invited C.R. to live with her. They moved in together, D.M. testified, a month after they met and before her other children were returned to her. In response to the question of whether C.R. was aware of her children being in care, she responded that she was embarrassed of the situation “and slowly told him once he was fully moved in”.

She testified that he was okay with it and wanted to support her. She was pregnant with D.W.R. when her other children were returned to her. C.R. got a job in construction to support the whole family. [ 39 ] J.K. testified that her son did his best to look after his children. She explains that he was only a teenager when he met D.M. and was “thrown into having four children.” I find that J.K. was a credible witness. Although she is C.R.’s mother, I did not detect any bias in her testimony.

For example, she testified that C.R. was not the easiest child to raise, and that her relationship with her son has been strained. J.K. stuck to the facts, and was a balanced witness. Separation [ 40 ] There is conflicting evidence on when the parties separated. C.R. testified that the parties separated in 2016. D.M. testified that the parties separated in 2020. [ 41 ] I accept C.R.’s evidence that he separated from D.M. in July 2016. C.R. found a house for D.M. and the kids in Calgary and paid for two-months of rent. He told her that they were done, and that he could not deal with her drinking anymore.

His evidence is corroborated by D.W.R., who attests in his affidavit that his parents stopped living together in 2016. C.R.’s evidence is also corroborated by members of D.M.’s family who did not see him after this time. O.W. does not remember seeing C.R. after 2015. A.W. did not see too much of C.R. in 2015 or 2016. M.W.M. did not even see C.R. when he visited his siblings in Nanaimo over the Christmas holidays in December 2015.

[ 42 ] D.M. denies the separation occurred in 2016. She testified that C.R. wanted them to return to Calgary temporarily because of her father’s health. She relies on the fact that they both signed the lease to a house as evidence that they came back as a couple and were living together in Calgary in July 2016. [ 43 ] I reject D.M.’s evidence on the basis that it is internally inconsistent, and at times, contradictory. D.M. provided a shifting account in her evidence of when the parties separated that ranged over 18 months from 2019 to 2020.

Her evidence does not reconcile with independent evidence, such as the court proceedings in Alberta in 2017 that involved parenting orders and her application to relocate the children to Nanaimo. Although D.M. introduced a voluminous record of police reporting incidents from Alberta, they do not support her case. Rather, the police report from 2017 corroborates C.R.’s evidence that the parties were separated and he was concerned about the welfare of the children in D.M.’s care. [ 44 ] Rather than acknowledge the separation, D.M. accuses C.R. of cheating on her.

In her evidence, D.M. often conflated cheating with abuse. D.M. testified: “he was cheating on me and it was abuse, I had to leave”. [ 45 ] Based on the evidence I do accept as credible and reliable, I conclude that the parties separated in 2016. Post-Separation Violence [ 46 ] In early 2017, C.R. met S., who is a nurse who lives in Calgary with her two children. They started dating in 2017, and aside from a short separation, C.R. has been in a relationship with S. since then. [ 47 ] D.M. followed C.R. to S.’s house, knocked on the door, and confronted her.

She followed S., took photos of her car, searched her on social media, and accused her of prostitution. This unwelcome conduct prompted court proceedings between the former spouse and new girlfriend of C.R. On October 31, 2017, an Alberta judge issued a mutual no contact order between S. and D.M. [ 48 ] D.M. presented a number of photos of S., including photos of her car at C.R.’s house in Richmond, photos of her children on social media, and photos of her dog.

All of those photos were entered into evidence, including naked photos purportedly from a porn website that D.M. claims were of S. [ 49 ] D.M. insisted C.R.’s girlfriend was a prostitute and her dog contributed to D.W.R.’s asthma attacks, all of which was denied by C.R. There is no independent evidence to support D.M.’s allegations. On a balance of probabilities, I find none of these accusations have been proven.

I find D.M. was motivated to fabricate allegations about C.R.’s girlfriend because she could not accept the fact that C.R. left her and entered into a new relationship. [ 50 ] D.M. sent frequent angry correspondence to C.R. saying he would not see the children again, and that he would go to jail. In a number of text messages in November and December 2018, D.M. confronted C.R. about his relationship with S. [ 51 ] On November 17, 2018, D.M. texted C.R. congratulating them on their engagement and wrote, “you will never have my kids or me round you” and “what hate I feel for you is more than any of my baby fathers”.

The following week, D.M. texted, “we are moving INTERNATIONALLY so go ahead lol … don’t [sic] contact me no more gonna let them handle you now…they asked if I want you in jail…and I said [sic] yes… so 6-12 months they know all the movements thought I would give you the heads up.” C.R. responds, “Yah going to jail for what…not wanting to be with you!!! I can’t [sic] wait for you to tell this to the judge in Feb!” In another text exchange, D.M. wrote to C.R., “u lost u kids for ever [emoji] but keep it coming”.

She warned C.R. that he has no idea what is going to happen to him over the next few weeks, and keep provoking her and he is going to jail for a long time. [ 52 ] On December 2, 2018, C.R. texted D.M.: “Can I see my kids today please?” D.M. sent the following response referring to S. as “trick trash” or “T.T”: What’s up with T.T.? Take the post down Take it down [C.R.]. Then yep. Yes or no? To me Okay let me know.

Kids or T.T.? your choise all other things could have been eliminated your choice if you want it to all go away. [ 53 ] On December 5, 2018, D.M. sent another text to C.R.: Please tell T.T. to stop posting things towards me it just making everything worst for you and the kids and this situation. Hope you can see this. More pics [C.R.] wow I can

Believe you would keep this up … I asked you to stop provoking me .. and Harassing me. I have to Take action to be away to focus [D.W.R.] and all the Problems he is struggling With right now I am sorry. [ 54 ] On December 28, 2018, there was another text exchange between D.M. and C.R. D.M. wrote a number of text messages that included, “U lost your kids for ever [emoji] but keep it coming”, “marry the bitch I dont care”, “U have no idea.. what’s gonna happen [in] the next weeks love it!!! For both of you!!!!”, “Keep provoking me [emojis] funny how God has worked out for me”.

C.R. responds, “Explain it to the courts!” D.M. responds, “Your going to jail for a long time explain that to the courts.” [ 55 ] D.M. made false complaints about C.R.’s whereabouts to the police, which he disproved on several occasions through a location setting on his phone. C.R. testified that, from 2017 to 2019, he did not take the location setting off his phone because he was getting so many calls from the RCMP after they had received reports from D.M. C.R. testified that he needed something to prove where he was, which assisted him, because he was able to take a screen shot of his location.

For example, he was in Calgary or Victoria when he got calls from the Nanaimo RCMP asking where he was. [ 56 ] D.M. repeatedly contacted C.R.’s place of employment to make false allegations that he has engaged in improper conduct that could result in adverse employment consequences. C.R. testified to these incidents, but had difficulty remembering dates. His evidence is corroborated by a letter from one of his employers, and B.H. who testified to similar conduct from D.M. [ 57 ] A letter from one of C.R.’s employers is in evidence.

In that letter, an employee describes receiving a phone call from a supervisor in early October 2019 asking her about C.R. She informed him that C.R. worked on the construction site as a concrete foreman. She was informed by her supervisor that “C.R.’s ex called our regional office and made claims that C.R. was committing inappropriate behaviour during work hours”. After investigation of the claims, it was determined that no inappropriate behaviour had taken place on the job site and her allegations were unfounded.

Approximately three weeks later, she was informed that C.R.’s ex-partner “D.M.” had called the office to follow up and was “extremely upset” after being told that her allegations were investigated and deemed to be unfounded. She ended the call by hanging up. [ 58 ] B.H. testified that D.M. made false allegations against him to his employer, which got him fired. B.H. testified to an agreement that he had with D.M. to take over the payments of an extra vehicle registered in her name, a Ford Explorer. D.M. got angry with him, he is not sure what over, so she called the police and said that he stole her vehicle.

When he arrived at work, he was met by police. He was a new employee, and his boss witnessed the police incident. He was immediately fired and lost his job. [ 59 ] I find that B.H. is a credible corroborative witness. He was honest and forthcoming and readily acknowledged facts that went against his interests. For example, he acknowledged that he had issues with alcohol and engaged in domestic violence when he was involved with D.M. He testified that things were “not civil” with C.R. and “we shared words sometimes”.

Although D.M. repeatedly accused B.H. of lying, his evidence on this incident was not challenged or shaken on cross-examination. I have taken into account that B.H. exaggerated the number of times he went to court with D.M. when assessing the reliability of his evidence. I have discounted his impressions accordingly, but rely on his recollection of events as corroborative. [ 60 ] A.W. testified that her sister, D.M., was posting on social media between 2018 and 2020. Even though she was not seeing her sister, she was aware of some things that were going on through social media.

She described a number of social media posts from D.M. as “erratic” and gave the following example. She testified that her sister would post words to the effect: “watch” what she is about to do to C.R. now and “get out your popcorn”. She also testified that her sister announced that C.R. is back in her life after posting a statement that she is deathly afraid of him. [ 61 ] I find that A.W. is a credible and reliable corroborative witness. She was honest and forthcoming, and readily acknowledged facts that were adverse to her interests. She acknowledges that her perceptions of her sister are negative.

She describes her relationship with her sister as “toxic” and that there is “bad blood” between them. She acknowledges that her opportunity for knowledge is limited because she has not physically seen her sister since a 2019 court appearance in Alberta that involved guardianship over D.W. She stuck to the facts of what she observed and experienced. Her evidence was unshaken on cross-examination and corroborated by independent evidence. [ 62 ] Based on the evidence I do accept as credible and reliable, I conclude that D.M. has engaged in post-separation violence towards C.R.

Fabricated Nanaimo 2018 Allegation [ 63 ] There is conflicting evidence on what happened in Nanaimo in 2018. [ 64 ] D.M. testified that C.R. sexually assaulted her in two separate incidents after following her to Nanaimo and moving back in with her and the children as part of a reconciliation. [ 65 ] C.R. testified that no such incidents took place. He testified that he travelled to Nanaimo to attend a court hearing to get Alberta orders recognized in British Columbia because D.M. was denying him access to D.W.R. and K.M.R. [ 66 ] I disbelieve D.M.’s evidence for the following reasons.

[ 67 ] First, the impossibility of the event occurring because C.R. was not in Nanaimo when the incident was first alleged to have occurred. On March 14, 2018, D.M. went to the hospital in Nanaimo to report that C.R. sexually assaulted her on March 3, and 4, 2018. Reference to those hospital records was included in a Report to Crown Counsel that was admitted into evidence. However, C.R. was not in British Columbia at this time. A letter of employment confirms that C.R. started a new job in Alberta on March 4, 2018. [ 68 ] Second, the internal inconsistencies in D.M.’s evidence.

D.M. provided a shifting account in her evidence of when the sexual assaults occurred, ranging from February 28, 2018 to March 4, 2018. Although D.M. reported to hospital staff that the sexual assaults took place on March 3 and 4, 2018, she reported to police the following day that the sexual assaults took place on February 28, 2018 and March 1, 2018. [ 69 ] Third, the external inconsistencies in her evidence. D.M. testified that these sexual assaults occurred in the context of a reconciliation with C.R. and that C.R. was living with her and the children in Nanaimo at the time.

However, that evidence does not accord with the parties’ separation in 2016, C.R.’s residency and employment status in 2018, or the nature of the order that C.R. obtained in Nanaimo. That order was issued on March 3, 2018 recognizing the Alberta orders for parenting time with the children. There would have been no need for C.R. to obtain such an order had the parties been living together and C.R. had unimpeded access to his children. [ 70 ] D.M.’s testimony does not accord with what she reported at the time.

On March 14, 2018, a constable was alerted by a hospital social worker that D.M. was requesting information about restraining orders: After the examination, [D.M.] stated she had to get home to her kids but was curious if a Peace Bond would supersede any existing family court orders in place as she and [C.R.] had shared custody of their two children (age 11 and 6). [C.R.] resides in Calgary, AB, but, [D.M.] alleges the offence occurred when he was here last. [ 71 ] The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models.

D.M. reported that she was sexually assaulted approximately two weeks after the alleged incidents took place. Non-reporting is a stereotype that privileges complainants who resist and report immediately. A person may choose not to report for a variety of reasons. The issue I have with D.M.’s evidence is not with any delays in reporting. Rather, it is with her shifting account of what happened. [ 72 ] An inability to recall the sequence of such a traumatic event from years ago is not very surprising, and in most instances, it would be of little concern.

However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of events was put forward by D.M. as a sincere and accurate recollection. [ 73 ] When a witness is comfortable with giving different versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of a witness. D.M.’s evidence in direct examination was shaken. Under cross-examination, the value of her evidence suffered irreparable damages.

The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism. [ 74 ] I prefer C.R.’s evidence because his evidence is corroborated by independent evidence and consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. [ 75 ] C.R. testified that he was living in Alberta when D.M. left the province with the children in December 2017. There were a number of parenting time orders in place. When C.R. travelled to see his children over the Christmas holidays in British Columbia, D.M. refused him.

Although the Alberta order was “police enforceable”, it did not appear to be police enforceable in British Columbia. When C.R. tried to enforce the Alberta order in British Columbia, he was told by the police that he first had to get the order recognized by the courts in British Columbia. C.R. travelled to Nanaimo in February 2018 to get the Alberta orders recognized in British Columbia so that he could see his children. C.R. testified that he did not see D.M. during this visit. After the court hearing, C.R. returned to Calgary to work. [ 76 ] By his own admission, C.R. had trouble remembering dates.

My finding that C.R. was in Nanaimo on February 23, 2018 and returned to Alberta to start a new job on March 4, 2018 is based on independent documentary evidence. The court record shows that C.R. attended a court hearing in Nanaimo two days before [omitted for publication] birthday. The Nanaimo court order indicates that C.R. was the only party present in court on February 23, 2018. D.W.R. affirmed in his affidavit that he did not see his father for extended periods of time in 2018.

His employment record indicates that he started a new job in Alberta on March 4, 2018. [ 77 ] While I find that his evidence was not reliable as to the timing of events, I find that C.R. was a credible witness. Although there were some inaccuracies and mistakes in C.R.’s evidence, there was no aspect of evasiveness in his responses. He readily admitted facts that went against his interests. By his own admission, C.R. had a poor memory and was unable to recall days, months, and even, years. He found the number of court proceedings overwhelming and was emotional when recalling some of the events.

His inability to remember dates was consistent, regardless of whether that memory would have assisted or not assisted his case. There was no evidence of reconstruction during testimony. His evidence was corroborated by independent documentary evidence. [ 78 ] Although the order was issued pursuant to a date stamp on March 2, 2018, the hearing actually took place before The Honourable Judge Saunders on February 23, 2018. C.R. and D.M. would have received a copy of that order after the date it was issued.

I observe that the actual date of the hearing on the court order, the 23 rd day of February, is blurry and could have easily been mistaken for the 28 th day of February, which D.M. testified was the earliest date of the sexual assault. The dates that D.M. gave for the sexual assault ranged from approximately five days to ten days after C.R. attended the court hearing in Nanaimo. [ 79 ] The Crown did not approve the charge of sexual assault. Rather, the Crown applied for a Peace Bond.

On June 1, 2018, C.R. was charged for incidents that occurred from March 3, 2018 to March 4, 2018, in Nanaimo contrary to s. 810(1) (

a) of the Criminal Code . C.R. was alleged to have caused D.M. to have “reasonable grounds to fear and does fear that he will cause personal injury to her in that he threatened her” on these dates. [ 80 ] On September 17, 2018, C.R. provided confirmation to Crown counsel that he was not in the province at the time the alleged

incident occurred. He attached a letter of employment confirming that he started his new job in Alberta on March 4, 2018. C.R. was self- represented, and asked Crown counsel whether he still needed to appear in court in Nanaimo. Crown counsel responded to C.R.: The dates in the Peace Bond application are in error and are in the process of being changed. You will note from the police report that at first she thought it was March 3 and 4 and then realized it was February 28 to March 1. The Crown has not approved the charge associated with the sexual assault and is only going ahead with a Peace Bond.

Please read the police report which was provided to you in the package […] [ 81 ] On September 18, 2018, a new information was sworn and C.R. was charged for incidents that occurred from February 28, 2018 and March 1, 2018 in Nanaimo under s. 810(1) (

a) of the Criminal Code . [ 82 ] C.R. entered into a Peace Bond on October 25, 2018, for one year. I accept his explanation for doing so. He testified that the Crown asked him to agree to a Peace Bond. He assumed it was a peace bond to keep the peace between two parties. He found out months later that he agreed that something happened when he should not have.

He did not have legal representation and just wanted the charges to go away so that he could see his children again. [ 83 ] The Recognizance was for one year, and C.R. was ordered to have no contact or communication, directly or indirectly, with D.M. except through legal counsel, by written communication for the purpose of arranging visits with children, or when picking up or dropping off children at a time and place agreed by D.M. [ 84 ] I have accorded little weight to the fact that C.R. entered into a Peace Bond given my findings on his whereabouts.

C.R. was not in the province of British Columbia when D.M. first alleged that the sexual assaults took place. C.R. attended the court hearing five days before the earliest date of the amended sexual assault allegation on February 28, 2018. [ 85 ] Based on the evidence that I do accept, I conclude that D.M. made a false allegation that C.R. sexually assaulted her. Fabricated Richmond 2019 Allegation [ 86 ] An incident that occurred between C.R. and D.M. on November 21, 2019.

There is conflicting evidence on what happened that evening. [ 87 ] D.M. testified that C.R. assaulted her and K.M.R. after he went into one of his “anger and rages”. D.M. gave evidence that she was strangled and assaulted, near death, had K.M.R. not entered the room and tried to get C.R. off her. She testified that C.R. assaulted K.M.R. during that incident. She provided photographs of the purported injuries that she and K.M.R. suffered. [ 88 ] C.R. testified that D.M. fabricated these allegations after he told her to move out and they had an argument.

C.R. gave evidence of an argument that occurred after he confronted her about her drinking and asked her to move out. [ 89 ] I disbelieve D.M.’s evidence for the following reasons. [ 90 ] First, her evidence is internally inconsistent as it relates to K.M.R. D.M. testified that C.R. hit K.M.R. However, D.M. said the opposite to her three oldest children during a meeting with them in February 2021 that M.W.M. surreptitiously recorded. In the surreptitious recording, D.M. told her children that the Crown prosecutor will not let C.R. have K.M.R. M.W.M. asks her whether C.R. hit K.M.R. Her response is no.

She said that she caught C.R. cheating on her for the tenth time. She said that they moved to Victoria because C.R. would not stop calling the police on them. [ 91 ] M.W.M. surreptitiously recorded his mother during a meeting that he and his two other siblings – I.H. and D.W. – had with her in Alberta in February 2021. It appears the meeting took place on Saturday February 27, 2021 at around 3 pm [ surreptitious recording ]. I find that M.W.M. was sincere and honest in his reasons for doing so. M.W.M. was not invited to attend that lunch. His siblings invited him to attend the lunch for support.

He recorded the conversation on his phone to “keep everyone in their truth so they can’t take back what they said”. He explains that there have been words put in their mouths so he records conversations with his mother to keep the conversation “honest” and “everyone to the truth”. [ 92 ] The authenticity of the surreptitious recording is not in dispute. Rather, D.M. feels betrayed by her son, M.W.M. She describes the surreptitious recording as abusive. D.M. accuses her children of provoking her and then recording her responses.

She believes that C.R. manipulated her three oldest children to provoke her into making incriminating statements and then used those recordings to have the criminal charges stayed against him. D.M. challenged the admissibility of that recording primarily on these bases. I admitted that recording into evidence in an oral ruling dated September 10, 2021, which is appended to this decision as Appendix “C”. [ 93 ] I find that M.W.M. was a credible witness, and for the most part, his evidence is corroborated by independent evidence.

I have taken into consideration whether M.W.M.’s feelings for his mother have coloured his perception of events. M.W.M. describes his mother as manipulative and abusive, and it has affected every aspect of his life. He does not want to hurt his mother, but feels responsible as the oldest sibling to look out for the best interests of his siblings. M.W.M. explains that it would have saved him a lot of pain had he been out of his mother’s care sooner. He felt traumatized by the sheer number of people who went in and out of his life as a child under her care, and the cut-off of communication.

As a result, some of his impressions were not reliable. For example, M.W.M. testified that D.W.R. does not want a relationship with his mother, but that is not consistent with D.W.R.’s affidavit that indicates that he wants a relationship with his mother. I have accorded less weight to his impressionistic evidence when not corroborated by independent evidence. [ 94 ] Second, I disbelieve the evidence of M.L. M.L. testified that K.M.R. spontaneously confided in her that she had witnessed her father assaulting her mother in November 2019.

M.L. testified that K.M.R. told her that she saw her dad choking her mom and that it went on for a while. M.L. testified that K.M.R. told her the exact same story a couple of times and it has not waivered. [ 95 ] I was troubled by M.L.’s testimony about the frequency of her interactions with K.M.R. given the impossibility of those interactions.

[ 96 ] D.M. and M.L. were neighbours in Nanaimo only for approximately three months from June 2020 to August 2020. M.L. testified that she spent at least five days a week with K.M.R. between June 2020 and August 2020. She described them as a “dynamic duo” and that they “did pretty much everything together”. M.L. would spend hours alone with K.M.R. in her craft room when D.M. was purportedly working next door. [ 97 ] However, K.M.R. was living in foster care in Richmond between June 2020 and August 2020. It was simply not possible for M.L. to have seen K.M.R. daily during this time period.

Since K.M.R. was in foster care during the COVID pandemic, she was initially only seeing her parents on video. When in-person visits resumed, they took place in Richmond. Although K.M.R. visited D.M. in Nanaimo, those in-person visits only took place towards the end of the summer. Both sets of foster parents confirmed that those visits took place in August 2020 and early September 2020. [ 98 ] A letter from D.W.R.’s foster parents was entered into evidence. They confirm that they took D.W.R. and his sister K.M.R. every Monday at 8 pm to the Horseshoe Bay Ferry to meet with their mother.

They were weekly visits and would typically last 3 days. D.M. would return the children every Wednesday to the Tsawwassen ferry terminal. R.T. picked them up at the ferry terminal and drove them to her home. The B.’s would then pick D.W.R. up at her home and drive him back. [ 99 ] In re-direct, it was put to M.L. the possibility of her being mistaken about the frequency of her interactions with K.M.R. M.L. was steadfast in her belief that she saw K.M.R. daily.

M.L. testified that it was not possible that she just saw K.M.R. on weekends. [ 100 ] M.L.’s description of the frequency of her interactions with K.M.R. was an important feature of her recollection of what she remembers K.M.R. saying to her. And yet this memory is simply wrong. The impossibility of this memory makes one seriously question what else might be honestly remembered by M.L., and yet, actually be wrong. This demonstrably false memory makes me question all of her evidence.

I have rejected her evidence for these reasons. [ 101 ] Third, I have accorded little weight to the documents that D.M. has submitted in support of her allegations. D.M. submitted a number of photographs of bruises that she testified were taken of her and K.M.R. shortly after the incident. These photographs are not dated, and there is no independent corroborative evidence as to when they were taken and of whom.

The medical documents show that D.M. reported symptoms to different doctors and are of limited assistance. [ 102 ] Counsel for D.M. asks me to consider the heightened awareness of D.M. being the victim of domestic abuse, as demonstrated by her seeking domestic violence support services and counselling. D.M. testified that the domestic violence has been so severe and traumatizing that she has only sought counselling and support services over the past few years in British Columbia. A.W. testified that her sister had been in past relationships that involved domestic violence.

The timing of when D.M. accessed these services does not assist me in determining whether the allegations against C.R. in November 2019 are true. [ 103 ] I prefer C.R.’s evidence because it harmonizes with independent evidence that has been accepted. [ 104 ] On November 21, 2019, C.R. told D.M. to leave the house because her drinking was out of control. He was upset that D.M. had returned from the gym, with K.M.R. in play care, and had been drinking. They had a verbal argument in the presence of both children, and D.M. left the house not long after.

D.M. called the police and alleged that C.R. had choked her, hit her, and that he had also hit and threw K.M.R. against the wall. She also told police that K.M.R. was a witness to the assault. That evening, C.R. was arrested by police in his home in the presence of both children. [ 105 ] My conclusion is bolstered by D.W.R.’s observations. There is no dispute that D.W.R. was in the house that evening. D.W.R. attests that he has never seen his dad hit his mother or K.M.R.: para. 15. D.M. made bald assertions that C.R. has “rages and anger”.

However, D.W.R. attests that his mother says that his father “yells and has a temper but it’s not true”: para. 15. D.W.R. has witnessed both of his parents yelling at each other. The police have been called but he believes they have been called for no reason. [ 106 ] On November 22, 2019, C.R. was charged with assaulting D.M. and K.M.R. contrary to s. 266, and uttering threats to D.M. to cause death or bodily harm to her contrary to s. 264.1(1) of the Criminal Code . The Crown proceeded on a new information a few weeks later.

On December 9, 2019, C.R. was charged on four counts with assault with choking D.M. contrary to s. 267(c), assaulting D.M. and K.M.R. contrary to s. 266, and uttering threats to D.M. to cause death or bodily harm to her contrary to s. 264.1(1) of the Criminal Code . The Crown issued a stay of proceedings on these charges on April 23, 2021. [ 107 ] I find that C.R. readily acknowledged facts against his interests. He acknowledges that his children have experienced family violence, and that he bears responsibility for the family violence that they experienced. He described that family violence as mostly verbal.

He also readily acknowledged one incident when it was physical. His evidence is corroborated by the police incident reports from Alberta. In 2009, C.R. sustained injuries in an incident with D.M. that involved him spitting on her and her hitting him with a cell phone. In 2017, C.R. attended anger management counselling, as part of the parenting time orders, and found the courses to be 100% valuable. These admissions add to the credibility of his evidence.

Coercive and Controlling Violence [ 108 ] After a careful consideration of all of the evidence, I have determined that D.M. has engaged in a pattern of coercive and controlling violence towards C.R. after each of the criminal charges. My finding of fact is based on the following evidence. After Fabricated Nanaimo 2018 Allegations [ 109 ] I find that D.M. followed C.R. to Victoria, and then Richmond, and used their children to gain access to his home. [ 110 ] Around May 2018, C.R. obtained employment in Victoria and moved there.

He visited the children on weekends in Nanaimo. [ 111 ] At some point, there was a conflict between C.R. and D.M.’s downstairs tenants. The fact that C.R. had conflict with K.V., the

downstairs tenants in Nanaimo, is not material to the issues that I need to decide. It shows, at best, that both parties behaved poorly in dealing with television noise and the downstairs tenant’s dog. [ 112 ] Although D.M. denies that C.R. was living in Victoria at that time, C.R.’s employment records show that he was employed in Victoria from June 15, 2018, to March 2019. [ 113 ] When it was put to D.M. that C.R. got a job in Victoria in June 2018, she testified in cross-examination that he was living with her in Nanaimo and she bought him a car so he could commute for work in Victoria.

She says that he begged to come back to her and her family at the end of May 2018, and he took the greyhound bus to do that. [ 114 ] In April 2019, C.R. was hired by his former employer, E.D., to work on a construction project in Richmond. He moved to Richmond and rented a house on No. 5 Road. Soon thereafter, D.M. moved to Victoria. [ 115 ] D.M. testified that she moved to Victoria with D.W.R. and K.M.R. after the school year in Nanaimo finished in June 2019. She claims that it was for a reconciliation with C.R.

When it was put to her that C.R. had already left Victoria in March 2019, D.M. acknowledged that she did not know whether he was in Victoria when she moved there with the children. [ 116 ] On July 16, 2019, there was a court order in Victoria that gave C.R. parenting time once a week and an October court date. Before the next court date, D.M. had moved to Richmond. D.M. claims that the move to Richmond was a reconciliation with C.R. who wanted to be with her, one of several times that she has claimed that she and C.R. reconciled since 2016.

She says that he invited her back because he wanted to be a family again. [ 117 ] I have rejected her evidence of a reconciliation for the reasons set out above. Given my credibility findings, where there is a conflict in the evidence between D.M. and C.R., I prefer the evidence of C.R. [ 118 ] C.R. testified that D.M. contacted him in the middle of August 2019 that she and the children were going to be homeless. D.M. denies saying this. D.M. testified that she was not evicted, but rather, left because it was no longer safe for her children.

She testified both that she did and she did not register her children for that school year in Langford. [ 119 ] C.R. testified that he invited D.M. and the children to move back in with him in Richmond temporarily because D.M. told him that she was going to be homeless in Victoria. He did not want to see his children in a shelter. [ 120 ] C.R. testified that he invited them to stay with him in Richmond for three months while D.M. got back on her feet. He laid out the ground rules: three months, no rent, no alcohol, and no reconciliation.

D.M. moved into the house with the children, who attended school in Richmond. C.R. testified that D.M.’s drinking was excessive, and he asked her to leave after three months. D.M. denies that the “no alcohol rule” existed and claims that she did not drink there. [ 121 ] In October, two things happened. On October 10, 2019, Judge Rogers ordered that the children not be removed from Richmond, gave the parents equal parenting time, and ended C.R.’s child support and accumulation of arrears. Finally, the court terminated all of the outstanding protection orders against C.R.

That is the same month, D.M. made a false allegation of impropriety against C.R. to his employer. [ 122 ] In November, after C.R. told D.M. that she had to move out, D.M. made a false allegation that C.R. had assaulted her and K.M.R. C.R. was criminally charged. He was in jail briefly and had to leave the house. After Fabricated Richmond 2019 Allegations [ 123 ] On December 11, 2019, the Honourable Judge Raven released C.R. on a release order with a number of conditions. C.R. was restricted from having any contact with D.M. and his children except for the purposes of arranging finances for the family.

C.R. was also allowed to have contact or communication with K.M.R. or D.W.R. as permitted by the Ministry of Children and Family Development. [ 124 ] D.M. was required by Crown counsel to produce a lease with her name on it, which she could not do, because C.R. was on that lease for the house on No. 5 Road. C.R. found another house on [omitted for publication] Drive for D.M. and the children. He signed the lease and D.M.’s name was added later. C.R. was ordered not to attend at the residence on [omitted for publication] Drive. [ 125 ] W.C. was the landlord of [omitted for publication] Drive.

He testified about problems that arose when the rent was due. He only saw C.R. once. All of his dealings were with D.M. Although I found that W.C. was a credible witness, his evidence was largely not relevant to these proceedings. [ 126 ] On January 16, 2020, the Honourable Judge Raven issued an order that the Director would supervise the care of K.M.R. and D.W.R. In that order, D.M. must not allow C.R. access to the children unless approved in advance by the Director.

D.M. and C.R. must allow the Director to visit and inspect the home and to have direct access to the children whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the children. [ 127 ] In March 2020, K.M.R. and D.W.R. were placed in foster care because D.M. failed to follow the supervision order and failed to ask the Ministry for permission to let C.R. watch K.M.R. The parties were evicted from [omitted for publication] Drive.

D.M. testified that after the children were taken into foster care, she had to leave the home on [omitted for publication] Drive because C.R. was not paying rent anymore. [ 128 ] C.R. found a new residence in [omitted for publication] where he still lives. D.M. went into a transition house. She then sought that the bail conditions be changed to allow her access to C.R.’s new home at [omitted for publication]. After she got there, she appears to have quit her job. [ 129 ] D.M. now claims that the [omitted for publication] house was hers, and the parties had reconciled. When it was put to her that

C.R. rented the house on [omitted for publication], she responded that “the house we were supposed to be living in together, he is still there”. When it was put to her that it was his house, she says “where my furniture and children’s stuff is”. [ 130 ] On the one hand, D.M. testified that the parties broke up in March 2020.

On the other hand, D.M. testified that the parties moved back in together in April 2020 for the purposes of reconciling. [ 131 ] D.M. testified that C.R. suggested to her to work from his home so they could start couples counselling and that house would be both be theirs. [ 132 ] When it was put to her that they were not going into couples counselling, she said that it was “absolutely true”. D.M. testified that C.R. really wanted to stay with her and “make our family work”. She also testified that they were going into couples counselling.

However, this is in the context of C.R. being arrested for breaching his bail conditions by looking after K.M.R., which resulted in both children going into foster care. [ 133 ] She was evasive in her testimony when it was put to her that there was a no communication order between her and C.R., and that a clause in the bail order allowed her to work in his house between 7 am to 5 pm. Rather than answer the question, D.M. testified about attending couples counselling. She testified that they never attended couples counselling because he was cheating on her again.

When it was put to her that there was no relationship between her and C.R., she testified “absolutely there was.” [ 134 ] I find that D.M. asked that the bail order be changed under the pretense that she needed a secure internet connection to work. The release order was ultimately varied to allow D.M. to work in C.R.’s house. [ 135 ] She asked Crown counsel to change the bail order so that she and C.R. could reside together. Crown refused. A month later, she asked again, and after C.R. agreed for her to use the house when he was at work, the bail was changed. She quit work.

He wanted her to leave and get his keys back. She refused. This was around April to May 2020 when the children were in foster care. [ 136 ] D.M. approached Crown counsel in March 2020 shortly after she was evicted, to have C.R.’s bail conditions changed so that she could stay with him.

She said that she could not work on her computer at the transition house (which she called a woman’s shelter). [ 137 ] On March 30, 2020, Crown counsel advised D.M. that they would not be changing C.R.’s bail conditions. “MCFD does care if you live together when it comes to determining whether you are able to provide a safe environment for [K.M.R.] and [D.W.R.]. If you and [C.R.] are living together they will conclude that that is not a safe environment for your children. You could lose your children for some time.” [ 138 ] Later that day, D.M. responded to Crown counsel.

She wrote, “I have been keeping the kids safe except for when I need emergency help from [C.R.] and no help from MCFD.” She wrote that it was “unsettling” that MCFD is telling her “they have no concerns with this situation”, and once again, she is “hearing the opposite” from Crown counsel. She wrote that she “needed emergency care for [K.M.R.] due this Virus nothing else”. I understand her email to be referring to COVID. She says that the police apprehended C.R. by mistake and that it was “bad luck”. She accused the Ministry of “pure lies” but “confirmed truth by my Son”.

She writes that she is seeking this as a “temporary solution” because the shelters and transition homes are full, and she does not meet the criteria for a woman fleeing abuse. [ 139 ] On April 20, 2020, Crown counsel wrote to defence counsel for C.R.: “[D.M.] reached out to me today regarding her work. She tells me that she is residing at a transition house, but there is not a secure internet connection there, and therefore she cannot work on her laptop from that location. It would be a shame for her to lose her job.

She tells me that she has spoken to [C.R.] and he has suggested that she work from his residence while he is at work from Monday-Saturday. I am requesting that his bail be amended and the following exception be added …” [ 140 ] On April 21, 2020, the release order was varied by the Honourable Judge Milne. [ 141 ] I find that after the release order was changed, D.M. quit her job. On April 27, 2020, defence counsel emailed Crown counsel: “[C.R.] just called me.

He says that the complainant quit her [sic] full-time job at Amazon directly after the order was changed; that is, she quit the very job that the change was designed to assist her with [sic]. He says that she came over Saturday, when [sic] she was not working, stayed all day and would not leave until the evening. She has refused to return her copy of the keys to him. Apparently, she wants to get back together with him but he is not inclined at this time to do that. He says that the conflicts arose in their relationship because of her drinking (alcohol) and he believes that she has not stopped.

He fears that if he were to make a fuss she comes over at times when she is not working then she will blow up and make another false allegation of assault or threatening. The purpose of this note is to ask you to talk to the complainant and advise her that she is not to use the system in this way. She should return the keys and she should show that she actually is working on the days that she uses the facilities at the residence. She should leave when she is not working.

She needs to realize that he does not need to permit her to be there”. [ 142 ] D.M. said that it was “incorrect” that once she was in that house, she stopped working. She testified that she was working and only took a leave of absence from work after she left the house.

She testified that she left the house because she caught him cheating. [ 143 ] I find that after she quit her job, D.M. refused to return the house keys to C.R. [ 144 ] The following day, on April 28, defence counsel reported to Crown counsel that D.M. refused to return the keys, and when C.R. said to her that he would not permit her to return if she did not give him the keys, she replied that she would be back tomorrow and “… don’t worry, the cops will be here to let me in in the morning”.

[ 145 ] When it was put to her that C.R. wanted his keys back, and she refused to give the keys to him, she responded that “I did give him his keys”. She was evasive. When the correspondence between Crown counsel and C.R.’s defence counsel was put to her, she acknowledged that Crown counsel talked to her about the situation, brought it up, and suggested that she return the keys. She finally gave the keys back by putting them in the mailbox. She explained that she had company equipment in his home, and that he wanted his keys back but she wanted the keys because she wanted the equipment back.

She testified that he “purposely wanted me to get fired and lose my job”. [ 146 ] On May 5, 2020, defence counsel reported to Crown counsel that C.R. will no longer be allowing D.M. to attend at his residence.

He reported to his lawyer that when he advised her of this, she was “very angry” and told him that she was “going to arrange with the police to attend the residence” the following day to collect her belongings, but he says that none of her belongings are at the residence. [ 147 ] On May 19, 2020, defence counsel reported to Crown counsel that C.R.’s residence is at the end of a cul-de-sac, and that C.R. saw D.M. twice that weekend coming out of the cul-de-sac when he was about to enter it. On one occasion, he saw her with someone else. Defence counsel advised him to call the police.

Impact of family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member The nature, seriousness, recency, and frequency of the family violence [ 148 ] Children are uniquely impacted by family violence. One of M.W.M.’s first memories is being 4 years old hiding in the closet while his biological parents were “going at it” and the police came.

He says that he has been traumatized his whole life by that incident. [ 149 ] The Ministry removed the children from the care of D.M. after she left K.M.R. in C.R.’s care when she went to Victoria with D.W.R. for an orthodontics appointment on March 10, 2020. D.M. asked C.R. to watch K.M.R. because she says that K.M.R. was sick. C.R. was arrested in front of K.M.R. in a very traumatic incident for her. [ 150 ] D.M. gave inconsistent evidence as to her awareness of her obligations under that court order.

In response to the question of whether she was concerned that she was breaching a court order by not consulting with the Ministry, D.M. gave a number of different responses. She responded that her daughter was sick and C.R. was the only support she had. On the one hand, she denies that she knew she was in breach of that court order. On the other hand, she testified that she knew she was not supposed to do it. She testified that she told the Ministry afterwards what she did. She acknowledges that C.R. called her to tell her that police had arrived at the house.

When it was put to her that she told C.R. that she got permission from MCFD to have him look after K.M.R., D.M. says “that is a lie”. [ 151 ] I accept R.T.’s evidence that K.M.R.’s experience in foster care was very hard on her. R.T. fostered K.M.R. for approximately six months from March 2020 to September 2020. That coincided with the start of the COVID pandemic. K.M.R.’s only contact with both parents was through phone or video. During this time, she would “retire in the evenings crying, she missed her mom and dad”.

Once the COVID restrictions lifted, and in-person visits began, “the emotional upset before bed was not as intense”. Whether there is a pattern of coercive or controlling behaviour in relation to a family member [ 152 ] In assessing the impact of family violence on the best interests of D.W.R. and K.M.R., I must consider whether there is a pattern of coercive or controlling behaviour in relation to a family member. [ 153 ] In Fielding v.

Fielding , 2013 ONSC 1458 , Mackinnin J listed 17 alienating strategies which she found could be used as a checklist of parental misconduct which may impair the child’s relationship with the other parent: badmouthing; limiting contact; interfering with communication; limiting mention and photographs of the targeted parent; withdrawing love or expressions of anger; telling the child that the targeted parent does not love them; forcing the child to choose; creating the impression that the targeted parent is dangerous; confiding in the child personal adult and litigation information; forcing the child to reject the targeted parent; referring to the targeted parent by their first name; referring to a step-parent as mom or dad and encouraging the child to do the same; withholding medical, social and academic information from the targeted parent and keeping their name off records; changing the child’s name to remove association with the targeted parent; and cultivating dependency on self or undermining the authority of the targeted parent. [ 154 ] My assessment of the evidence is that D.M. has engaged in the following alienating behaviours.

Bad Mouthing [ 155 ] D.M. gave evidence that she does not want her children to have a relationship with C.R. because of her experiences with domestic violence. [ 156 ] D.W.R. attests that his mother tells his sister, K.M.R., bad things about his father and makes him seem bad.

By way of example, D.W.R. explains that his father has tried to send K.M.R. presents, but his mother will say that he forgot when in fact she returns the presents to make him look bad. [ 157 ] D.W.R. attests that he is able to talk to both of his parents “although my mom often tries to put stuff in my head about dad”: affidavit, para. 19. [ 158 ] D.W.R. has experienced his mother saying negative things about his father. D.W.R. attests that “she talks badly about him”: affidavit, para. 16. By contrast, D.W.R. has not experienced his father saying negative things about his mother.

D.W.R. attests that “my father does not badmouth my mother at all in our home”: affidavit, para. 18. [ 159 ] In the surreptitious recording, D.M. described C.R. as the “master manipulator”, “narcissist”, “sabotages everything”.

Limiting Contact [ 160 ] D.M. has demonstrated through her actions that she is not prepared to accommodate any relationship that K.M.R. would like to have with anyone who she perceives as working against her interests. The fallout for K.M.R. is that she has not been able to see her father, most of her siblings, aunts, or paternal grandparents for extended periods of time when under her mother’s care. [ 161 ] D.M. has not let K.M.R. see or speak with anyone in her family except her maternal grandparents, and D.W.R., when he visits her in Nanaimo, for over one year.

D.W.R. only sees K.M.R. at his mother’s home because K.M.R. “is not allowed to visit at my father’s home”: affidavit, para. 21. [ 162 ] There is no court order preventing K.M.R. from spending time with her father. When D.M. was asked what court order prevents C.R. from having contact with his daughter, she says the bail condition. Those conditions do not deprive these visits as long as the Ministry was agreeable.

When it was put to her that the bail conditions put the contact between K.M.R. and C.R. at the hands of the Ministry and the Ministry withdrew in September 2020 and took no position, her response was the K.M.R.’s birthday was only one month later and she had safety concerns. [ 163 ] For K.M.R.’s first birthday out of care, which was October 2020, D.M. allowed K.M.R. to talk to her older sister D.W. She does not remember whether K.M.R. talked to D.W.R., and that was it. [ 164 ] D.W.R. gave evidence that his mother has made it difficult for K.M.R. to see her father and other siblings.

D.W.R.’s evidence is corroborated by an exchange between him and his mother on K.M.R.’s birthday on [omitted for publication], 2020. D.M. wrote: Good Morning my beautiful son. Miss you very much every day and hope your doing okay. I have [K.M.R.] call you on speaker to during or after her bday party. [C.R.] is not allowed to speak to [K.M.R.] or me or send gifts. Love you will call soon. [emojis].

And sorry I should say due to court orders [C.R.] can’t speak or send gifts for [K.M.R.]. just wanted to make it clearer for you son [emoji]. [ 165 ] J.K. has not seen K.M.R. since she returned into her mother’s care in September 2020. J.K. tried calling K.M.R. four times, and called her for Thanksgiving and D.M. hung up on her. She called K.M.R. for her birthday in October 2020 and D.M. hung up on her. The third time that she called D.M. said that it was too late for her to be bothering with her grandchildren and hung up on her.

The fourth time she called, it rang busy so she assumed that her phone number was blocked. [ 166 ] A.W. testified that some family members, including some of K.M.R.’s siblings, have not seen K.M.R. in four years. In the surreptitious recording, M.W.M. confronted his mother that she has not seen all three of her kids together in four years. M.W.M. testified that, over the past year, he has spoken to K.M.R. for a very short period of time, maybe 30 seconds. She had called from a private number to speak with D.W. on her birthday.

He told her that he missed her and loves her and hopes that one day they can be together again, and that it does not have to be this way. A.W. testified “we are missing [K.M.R]”. [ 167 ] In the surreptitious recording, D.M. acknowledges that “[K.M.R] loves [C.R.]” but blames the criminal charges for why K.M.R. is not allowed to talk to C.R. In the surreptitious recording, D.M. tells her children that K.M.R. is happy. D.W. says that “she never sees her dad though.” D.M. says she can’t because there are bail conditions. D.W. says “because of you”.

D.M. says it is because of the Crown prosecutor who laughed when C.R. asked to get the charges dropped. [ 168 ] D.W. says that she should let K.M.R. “go with [C.R.] so she does better”. D.M. says “so I don’t see her again” and her daughter replies “so you can get better.” [ 169 ] D.W. asks her mother to “let [K.M.R.] call us like you promised multiple times”. D.M. says to her three older children that she was told not to let K.M.R. speak with them because “nobody wants to jeopardize the stuff that’s going to court in the next couple of months”. D.W. asks her whether she is scared of hiding something.

D.M. says to her three older children “that they told me you guys can talk to her but to make sure that I’m actually in the room so that [K.M.R.] is not getting manipulated in family court”. D.M. was, in effect, accusing her three older children of trying to manipulate their youngest sister. M.W.M. responds to his mother by saying that she has, in fact, manipulated them. [ 170 ] D.M. told her children that C.R. threatened to take away all of her kids from her because she exposed his abuse.

She also said that J.K. phoned and threatened to take K.M.R. away from her. [ 171 ] K.M.R. was not allowed to see her siblings or other members of her family during the August 2021 visit to Alberta. J.K. only found out from D.W.R. that K.M.R. was in Alberta in 2021, and she did not get a chance to see her. K.M.R. had a phone call with her sister, D.W., when she as in Calgary in August 2021. D.M. testified that K.M.R. wished her sister a happy birthday over the phone, even though both of them were in Calgary and could have met in person.

D.M. testified that she did not let K.M.R. visit with any of her older siblings because “no body contacted me”. D.M. explained that her relatives are very toxic, and she does not want that toxicity around K.M.R. [ 172 ] D.M. limited D.W.R.’s contact with his father when he was younger. At para. 13 of his affidavit, D.W.R. attests “In 2018 I was not allowed to see my father or have contact with him for a period of time”. His evidence is corroborated by J.K. During a visit in Calgary, sometime around 2017, she took D.W.R. swimming and had a conversation with him.

D.W.R. mentioned that he can’t call his father because his mother would get mad at him. She told her grandson that when he turns 18 years old, he can call whomever he wants, but until then, he has to be respectful. When they got home, she got the nastiest text from D.M. She did not tell D.M. what D.W.R. said. Rather, she said that they discussed D.W.R.’s future and what they can do in the future. She acknowledged that C.R.’s name came up and explained that D.W.R. should be able to hear his father’s name.

Interfering with communication [ 173 ] M.W.M. testified that D.M. had rules for them as children, and one of those was an expectation not to talk at all. It was imbedded

in them that they can’t talk about what is happening at home because it is private and no one else’s business. If they said something, it felt like the end of the world, because they were not supposed to talk at all. [ 174 ] I find that D.M. did not tell any family members in Alberta that D.W.R. and K.M.R. were in foster care. [ 175 ] J.K. remembers that D.M. called her at the end of March and asked her if she can take the kids. She said yes, and was waiting for D.M. to call her back. After 48 hours, J.K. called her back and asked her whether she needed her to take the kids. She never heard back from D.M.

The lack of communication was not unusual for her. Both she and O.W. only found out from D.M. about a week before that she was leaving for Nanaimo again in 2017. [ 176 ] J.K. eventually got the call that the children were apprehended from C.R. because D.M. had gone to a doctor’s appointment with D.W.R. and C.R. got arrested and they took K.M.R. who had been with him. [ 177 ] J.K. offered to foster D.W.R. and K.M.R., and went through the process of being approved as a foster parent which included a police record check and social worker visit to her home.

She would have driven from Alberta to British Columbia to get them in an instant. The Ministry did not give her the children, but she was in touch with their foster parents. She talked to K.M.R. and described R.T. as a lovely lady. She thanked R.T. for taking care of her granddaughter. She travelled to British Columbia for a week in August 2020 and saw K.M.R. as much as the Ministry allowed her to. [ 178 ] While in foster care, D.W.R. reached out to M.W.M. separately.

They were playing games online, and while playing and chatting on their microphones, he told him that he had to get off soon because he was in a foster home and they did not let him play after a certain time. D.W.R. told M.W.M. that he and K.M.R. were separated and put into different foster homes, and it had been that way for almost two months before he confided in his brother. D.W.R. did not want M.W.M. to tell anyone, and was really hesitant on coming forward, but M.W.M. felt it was important to tell the family. M.W.M. contacted his A.W. and his siblings, D.W. and I.H., to let them know.

They were not sure what was going on. [ 179 ] A.W. found out that her nephew, D.W.R., was in foster care after he reached out to let her know. A.W. testified that D.W.R. told her, “Auntie, I am sorry, I was not allowed to talk to you”. A.W. described D.W.R. feeling like he had to apologize to her for not being able to talk to her. She told D.W.R. that it was not his fault, that he is family, and that he is cared for and loved. [ 180 ] The three older siblings decided to confront their mother.

A.W. testified that M.W.M., D.W., and I.H. called D.M. on Mother’s Day in May 2020, which was also [omitted for publication] birthday that year. They called from her home, and although she was not listening to the call, she heard bits and pieces. D.M. did not know that her children were aware that D.W.R. and K.M.R. were in foster care. They asked to speak with their younger siblings. D.M. lied to them and said that they were with her, that she had left K.M.R. with someone, because she had gone hiking with her girlfriends.

They then confronted her and told her that they knew the kids were in foster care. [ 181 ] In the surreptitious recording of February 2021, D.M. said “[D.W.R.] cracked and he called you guys”. D.M. testified that D.W.R. apologized to her for calling his other siblings. Withdrawing love or expressions of anger [ 182 ] D.M. is not financially supporting D.W.R., and she may not have the means to do so. There is no court order requiring her to. However, D.M. could have supported D.W.R. in other ways such as provided D.W.R. with love, affection, comfort, and emotional support.

D.M. has made a decision to reduce or terminate contact with D.W.R. after he expressed an interest to live with his father. In doing so, D.M. has withdrawn those ordinary supports. [ 183 ] In Chartier v. Chartier , [1998] S.C.R. No. 79, the Supreme Court of Canada discussed the parental obligations towards children by approving this statement from the Alberta Court of Appeal in Theriault v. Theriault

(1994) ABCA 199: Our society values parenthood as a vital adjunct to the upbringing of children. Adequate performance of that office is a duty imposed by law whenever our society judges that it is fair to impose it. In the case of the natural parent, the biological contribution towards the new life warrants the imposition of the duty … It is not in the best interests of children that step-parents or natural parents be permitted to abandon their children, and it is their best interests that should govern. Financial responsibility is simply one of the many aspects of the office of a parent.

A parent, or step parent, who refuses or avoids this obligation neglects or abandons the child. The abandonment or neglect is as real as would be a refusal of medical care, or affection, or comfort, or any other need of a child. [ 184 ] Failure to take responsibility for one’s child is neglect or abandonment. The refusal of affection or comfort has real negative impacts on a child: it causes harm. [ 185 ] D.W.R. made significant efforts to

schedule a summer visit with his mother. He provided a summer

schedule to his mother via text on June 9, 2021, where he outlined that he would be going to Calgary from June 28 to July 10, then to Richmond from July 10 to 16, and then he asked if he could come to Nanaimo to visit with her and K.M.R. from July 16 to 26. D.M. never confirmed the July 16 to 26 visit despite him asking again. He called and texted her while he was in Calgary, but she had disconnected the phone and did not pick up or return messages. [ 186 ] D.W.R.’s view is that his mother was unhappy that he was visiting extended family in Alberta because of her own negative relationships with them.

His view is corroborated by the evidence of D.M. who testified that her family is toxic and sabotage her time with her children. [ 187 ] I find that D.M. reduced contact with D.W.R. after he expressed an interest to visit his extended family in Alberta. Rather than facilitate a visit between her youngest children before D.W.R.’s departure on June 28, D.M. made herself unavailable. [ 188 ] D.W.R. wanted to see his mother the weekend of June 19 before he left for C

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