S.A. v. R.A. Date:, 2012 BCPC 480

Citation: S.A. v. R.A. Date: 20120426 2012 BCPC 0480 File No: Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.A. APPLICANT AND: R.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing in person: S.A.

Counsel for the Respondent: Denice Barrie Place of Hearing: Nanaimo , B.C. Date of Hearing: June 8, 9 & 10, Sept. 29 & 30, Oct.18, 2011 Date of Judgment: April 26, 2012 Introduction [ 1 ] The Applicant, S.A. (the “Mother”) and the Respondent, R.A. (the “Father”) have been before the Court since September of 2009, with a number of contested applications brought under the Family Relations Act involving child custody, guardianship, access, child support and spousal maintenance. Different forms of relief are being sought by the Applicant and the Respondent. [ 2 ] The Children subject of the applications are:

a) N.B.A born [DOB] who at the conclusion date of the hearing was almost twelve years of age (“N.B.A”)

b) E.P.L born [DOB], who at the conclusion date of the hearing was eighteen years of age (“E.P.L”). [ 3 ] N.B.A is the biological child of the Mother and the Father. E.P.L is the biological child of the Mother and the step-son of the Father. E.P.L’s biological Father is C.L. who has not been a party to these proceedings. N.B.A and E.P.L are collectively referred to as the “Children”. [ 4 ] The Father has another biological child, namely, T.S.A. born [DOB], who at the date of the hearing was approximately 18 years of age and was residing with M.A., his biological Mother and the ex-spouse of R.A..

T.S.A. is not directly the subject matter of these applications or of any of the relief being sought. T.S.A. lived with Mother and the Father along with N.B.A and E.P.L at a period of time when he was about 8 years of age. Significant evidence was lead regarding that family dynamic. [ 5 ] The hearing of viva voce evidence before me took place over a period of six days, namely: June 8, 9 and 10 of 2011, September 29 and 30, 2011 and was completed on October 18, 2011. [ 6 ] I requested and received written submissions from both parties between November 3 and November 22, 2011.

Background of Court Proceedings [ 7 ] The Application to Obtain an Order was filed by the Mother as Applicant, on September 4, 2009. In that Application the Mother originally sought the following:

a) The Mother to have sole custody of the Children;

b) The Mother and the Father to have joint guardianship of the Children;

c) The Father to pay child maintenance to the Mother for the Children;

d) The Father to pay spousal maintenance to the Mother. [ 8 ] In response, a Reply containing a Counterclaim (the “Reply”) was filed by the Father as Respondent, on September 30, 2009. In his Reply, the Father originally claimed the following:

a) The Mother and the Father to have joint guardianship of the Children; b) “Split” custody of the Children such that the Father would have custody and day to day care of N.B.A and the Mother would have custody and day to day care of E.P.L;

c) The Father to have reasonable and generous access to E.P.L;

d) Also in the Reply, the Father opposed the following claims of the Mother:

i) The claim for the Father to pay child maintenance to the Mother; ii) The claim for the Father to pay spousal maintenance to the Mother. [ 9 ] On December 17, 2009 the Father filed a Notice of Motion to seek and was granted an interim order on an ex-parte basis. That order made by the Honourable Judge Iverson on December 17, 2009 granted the Father interim sole custody and guardianship of N.B.A (the “First Interim Custody and Guardianship Order”). [ 10 ] A Family Case Conference was held on January 20, 2010. Issues remained unresolved. The matter was set over to February 23, 2010.

On February 23, 2010, the matter came before the Court and was adjourned to the Judicial Case Manager to fix a date for a hearing and pre-trial conference. [ 11 ] On April 14, 2010, the Mother filed an Application to Change or Cancel an Order and sought to cancel the First Interim Custody and Access Order. [ 12 ] The Court

Summary Sheets confirm a series of brief court appearances on April 27, 2010, May 4, 2010, and June 17, 2010. [ 13 ] On June 17, 2010 a consent order was made by the Honourable Judge Saunders (the “Second Interim Custody and Guardianship Order”). In

summary, it provides for shared joint custody and guardianship of N.B.A, for N.B.A’s primary residence to be with the Father, for specified access for the Mother to N.B.A, that a

section 15 Views of the Child Report be conducted with respect to E.P.L regarding access by the Father and ordered that N.B.A continue to attend his current school unless otherwise agreed upon by the parties. [ 14 ] On August 20, 2010, the Mother filed an Application to Obtain an Order prohibiting the Father from travelling outside British Columbia with the Child without the written consent of the Mother.

An interim consent restraining order was granted on August 24, 2010 by the Honourable Judge Saunderson (the “Interim Restraining Order”) which on a without prejudice basis to either party, prohibited the Mother and Father from travelling outside of British Columbia with the N.B.A. The Interim Restraining Order expired on August 31 st , 2010. [ 15 ] In a Reply with a Counterclaim filed August 30, 2010, the Father opposed the travel restriction set out in the Interim Restraining Order on the basis that there was no foundation for the allegation that he was about to flee the jurisdiction with N.B.A.

He then claimed sole custody and guardianship of N.B.A. The Mother’s Reply filed September 16, 2010 opposed that claim in favour of joint custody and guardianship. [ 16 ] On October 20, 2010, the Father filed a Notice of Motion seeking an interim order suspending the provisions of the Mother’s access to N.B.A contained in the Second Interim Custody and Guardianship Order until she was able to feed and house N.B.A during the access visits and further sought an order that the Mother provide the Father with up to date information on a on going basis about where access visits with the N.B.A were to take place.

In his supporting material, the Father alleged various safety risks and concerns about the welfare of N.B.A arising out of the access visits and a refusal by the Mother to provide information about N.B.A’s whereabouts during the access visits. The Mother filed a responding affidavit opposing the application. [ 17 ] On November 16, 2010 the Honourable Judge Saunders granted a consent order varying the terms of the Mother’s specified access to N.B.A contained in the Second Interim Custody and Guardianship Order on the following terms: 1.

Commencing as soon as the Applicant, S.A., has established a separate bedroom in her home for the child, and continuing until further Court order, S.A. shall have interim access to the child each Thursday from 2:00 pm (after school) until Saturday at 12:00 pm each week; 2.

The Applicant, S.A., will provide the Respondent, R.A. with up-to-date information about where access visits with the child will take place on an ongoing basis via e-mail correspondence. (the “First Interim Variation Order”). [ 18 ] On February 8, 2011 the Father filed a Notice of Motion seeking an order permitting him to travel with N.B.A on a family vacation trip to Hawaii from April 6 to April 15, 2011. In his supporting material he cited a lack of co-operation of the Mother in providing her consent to the planned trip.

An interim consent order was granted by the Honourable Judge Joe on February 14, 2011 permitting the travel and also providing the Mother with substituted temporary access as compensation for her lost access during the travel period. (the “Second Interim Variation Order”). [ 19 ] On September 12, 2011, following the commencement of the trial of this matter before me, the Father filed a Notice of Motion to proceed ex-parte on that date for a further variation of the Second Interim Custody and Guardianship Order, that would permit N.B.A to be enrolled in an new school and in a different school district without the consent of the Mother.

The Mother had initially not raised any objection to the Father about the new planned school enrolment commencing September of 2011, although these plans were only formally disclosed to her towards the end of August of 2011. Once the Child was enrolled in the new school in [deleted for publishing]

School District, she then proceeded to raise objections with the administration of the new school about the child’s enrolment thereby causing the school administration to decline to permit N.B.A to continue to attend school.

Based on the best interests of N.B.A and my conclusion that he should be attending school, I granted an ex-parte order on September 12, 2011, permitting N.B.A to continue to attend the new school without the Mother’s consent and also permitted her to bring back the matter before me on short notice (the “Third Interim Variation Order”). [ 20 ] On March 6, 2012, the Father brought on a further application to permit him to take N.B.A on a vacation trip outside of the Province of British Columbia without the consent of the Mother, when her consent was not forthcoming.

An order was granted on that date which dealt with that issue and settled the terms of spring access, and further extended the existing arrangements set forth under the Second Interim Custody and Guardianship Order, as varied, until my reasons for judgment in this matter had been rendered (the “Fourth Interim Variation Order”). [ 21 ] The existing orders that remain in force are hereinafter referred to as the “Existing Interim Orders”. [ 22 ] At an earlier stage of the pre-trial proceedings the Mother was represented by legal counsel. The Mother was self represented during the six days of proceedings before me.

The Father was represented by legal counsel throughout the proceedings before me and for most of the pre-trial proceedings. [ 23 ] At the commencement of the hearing of these matters, Father’s counsel provided a “Summary of Issues Not Finally Resolved”.

It sets out ten issues which it is submitted require determination. [ 24 ] Counsel for the Father informed the Court at the commencement of the trial, that one of the original issues, being reasonable and generous access to E.P.L, being the step-son of the Father, was being withdrawn by the Father. [ 25 ] The ex-parte application on September 12, 2011 giving rise to the Third Interim Variation Order granted by me and the evidence that I have heard at trial regarding the disputed fall school term registration of N.B.A also places the selection of N.B.A’s school before me.

Issues Before The Court [ 26 ] Therefore, based upon the evidence that I have heard and also based upon the submissions of the parties, I must decide the following: 1. Who should have custody of N.B.A? 2. Should custody be sole or joint and if joint, where should N.B.A primarily reside? 3. Who should have guardianship of the N.B.A and should that guardianship be sole or joint? 4. Is the Father required to pay child support for either N.B.A or E.P.L? 5. Is the Father required to pay spousal support to the Mother? 6.

Should the Father be prohibited from traveling outside British Columbia with N.B.A without the written consent of the Mother and should the Mother be prohibited from travelling outside of British Columbia with N.B.A without the written consent of the Father? 7. Should the non-custodial parent be required to provide the custodial parent with up-to-date information on an ongoing basis about where access visits with N.B.A will take place? 8. What access should be available to the parent who does not have day to day care of N.B.A? 9. What school should the N.B.A attend and with whose consent?

The Witnesses Who Provided Evidence [ 27 ] There were eight witnesses called at the trial. Testifying for the Mother were the following individuals: 1. The Mother who testified on her own behalf. 2. C.N. who has known the Mother and the Father for about 10 years, as a family friend, during which time she has also known N.B.A and his siblings; she has observed the family dynamics; she has formal training and a background in and has run a child day care; she was not presented as nor qualified as an expert witness. 3.

D.P. who is a friend of and has known the Mother, N.B.A and E.P.L for approximately 2 years; their friendship started after the parents’ separation and therefore she has not met the Father or his stepson T.S.A.; she has formal post secondary education and

qualifications in early childhood education with a specialty in special needs; she was not presented as nor qualified as an expert witness. 4. T.P. who is a friend and has known the Mother, N.B.A, and E.P.L for just over one year; she testified as to certain events involving N.B.A and E.P.L. [ 28 ] Testifying for the Father were the following individuals: 1. The Father who testified on his own behalf. 2. P.W.S. a younger brother of the Mother. He has known the parties together and during their separation for a period of about 12 years and has known N.B.A and E.P.L since their respective infancies.

He has observed the family dynamics for much of this period. 3. V.A. a friend of the parties who has known them and N.B.A and E.P.L for approximately 7 years and who has in recent years maintained a friendship with the Father and in the past has been hired by him to provide child care for N.B.A. 4. D.P.R. Who was N.B.A’s teacher at [deleted for publishing] during the 2010 academic year. Personal Background of the Child N.B.A [ 29 ] N.B.A is the biological child of the Mother and the Father.

He lived with his Mother and Father from his birth until their separation that occurred on May 31, 2009 (the “Date of Separation”). [ 30 ] N.B.A has two half brothers E.P.L and T.S.A.. Prior to the separation of his parents, N.B.A also resided with E.P.L, his half brother being his Mother's biological child, in the family home together with his parents. The Father's other biological child, T.S.A., also resided in the family home at various periods of time. [ 31 ] At the Date of Separation, only E.P.L and N.B.A resided with the Mother and Father.

It was agreed between the Mother and the Father that following separation, E.P.L would continue to live with the Mother and N.B.A would reside with the Father but subject to agreed access arrangements in favour of the other parent. [ 32 ] From his early years, N.B.A displayed a number of development and behavioural concerns. These concerns are summarized in an Autism Assessment Services Report dated December 2, 2008 which was completed by Dr. Tara Tunstall a clinical psychologist with the [deleted for publishing] Child Development Centre (the “Tunstall Report”).

N.B.A was almost 9 years of age at the time of that report. In completing her report, Dr. Tunstall reviewed a large number of other reports about N.B.A that were prepared by a number of different experts. The Tunstall Report confirms that N.B.A was in the Infant Development Program starting in June of 2001 in order to deal with fine motor skill and speech skill development issues. In 2005, N.B.A was further assessed by a speech pathologist due to concerns about poor auditory comprehension. [ 33 ] The Tunstall Report confirms that according to a Psychoeducational Assessment of N.B.A conducted by Dr.

Peter MacDougall, when he was just over 7 years of age, N.B.A was challenged academically in Grades one and two and his academic skills and performance were below his age level. He demonstrated significant behavioural issues and he could be unsettled and disruptive and refused to comply with instructions and rules, especially with teachers that he did not know, “often responding with animal noises or angry outbursts, other times seeming quite sad”. It was noted that “his mother had significant difficulties with him at home”. Two possible ticks were identified during cognitive testing.

It was reported that he had weaknesses in conceptualization, acquiring information and auditory memory. [ 34 ] The Tunstall Report further indicates at the end of January of 2008 N.B.A was referred for a CDBC Autism Assessment. It concluded that N.B.A had an attentional deficit disorder rather than an autistic spectrum disorder. [ 35 ] The Tunstall Report further recounts that in Grade 3, he had made academic gains but the administration and staff of his school, [deleted for publishing] Elementary, were very concerned about his verbal outburst and negative social behaviour towards both peers and adults.

The [deleted for publishing] Community Childcare Centre wrote to the Parents about “his unsafe and uncooperative behaviour” at the centre and threatened sanctions for any further episodes. [ 36 ] Various reviews, assessment and observations were completed by Dr. Tunstall in order to complete her report. In the Tunstall Report, she agreed with Dr. MacDougall’s conclusion that N.B.A did not have Autistic Spectrum Disorder but like a person with that disorder, N.B.A withdrew when he became overloaded. The diagnoses left open by Dr.

Tunstall, which were to be explored further included Sensory Integration Disorder, language processing difficulties, attentional difficulties (brought up by Dr. MacDougall) and anxiety and self-regulatory difficulties.

[ 37 ] Among the numerous recommendations in the Tunstall Report was the following key recommendation: “Family therapy to address the issues of family violence and tension in the home will be critical to N.B.A’s overall functioning. He will not stop acting out with authority figures for as long as there is aggression (even in language) regularly modelled at home. Nor can he stop being anxious if home does not feel safe. Any intervention that is going to be successful for N.B.A must be family based.” [ 38 ] In May of 2009, N.B.A was diagnosed with Tourette's Syndrome.

His symptoms include various involuntary physical movements in the form of ticks and twitching, various forms of animal sounds and vocalizations, throat clearing and finger sucking. Stress exacerbates a number of these symptoms.

Based upon the evidence that I have heard, there is no doubt that there was a huge level of stress in the family and between the parents in May of 2009, being the month in which they separated. [ 39 ] Furthermore, based upon the evidence I have heard and as confirmed by a letter from the Principal of [deleted for publishing] Elementary School dated April 30, 2010 which was entered as an exhibit, N.B.A had a very difficult start to his Grade four year in the fall of 2009.

As result of his verbal abuse of staff members and his defiance, he only attended school partial days in November 2009 and receive support from the school district's home homebound teacher outside of the school twice a week. [ 40 ] In January 2010, he began the transition to the Priority Entry Program also known as the PEP Alternate Program, since it was deemed that a typical classroom environment was not the most appropriate placement for N.B.A at that time.

That transition involved a transfer to [deleted for publishing] Alternative School in the spring of 2010 for part time attendance and as an introduction to the program. P.R. was his teacher. [ 41 ] In September of 2010, N.B.A again enrolled at the [deleted for publishing] Alternative School in [deleted for publishing], B. C. but on a full time basis. His teacher was again P.R. Although he was one of the youngest students in that school, N.B.A made excellent progress.

The report cards placed into evidence as well as the evidence of P.R. indicated that N.B.A thrived and improved both academically as well as socially and behaviourally during the 2010 - 2011 school year. P.R. only recalled one behavioural outburst that required removal from the class. There were no safety issues involving N.B.A during his attendance at that school. [ 42 ] P.R. confirmed that one of the goals the [deleted for publishing] program was to transition students back into the regular school program at an appropriate time and once growth and improvement had been achieved.

However, he did indicate that students who do not transfer back can and do graduate from the regular curricula (both academic and non-academic) and many academic program graduates go on to attend post secondary educational institutes. [ 43 ] In the summer of 2011, the Father enrolled N.B.A at [deleted for publishing] School in the [deleted for publishing] School District for the 2011/2012 school year. That enrolment became the subject matter of the Third Interim Variation Order. [ 44 ] The evidence is that N.B.A has adapted well to this change in schools and his progress continues.

I understand that he is in the regular school program at [deleted for publishing] and not in an alternate school program. He is in classes with his age peers. He has established positive friendships at that school with four or five new friends and reconnected with an old friend. [ 45 ] The Mother testified that N.B.A has allergies to dairy and to wheat and that she has instituted a dietary regiment to eliminate these from his diet, which the Father does not follow. The Father disagrees that N.B.A has these allergies.

The Mother testified that N.B.A’s behaviour becomes more challenging when he eats these foods and these foods make his ticks more pronounced. The Mother has shared her concerns about N.B.A’s allergies and the fact that she believes his behaviour and ticks were adversely affected by certain foods with a number of friends, whom of whom she called as witnesses. The allergy test results compiled by Dr. Edward G.

Coates, a specialist in Pediatric Allergies, which were admitted as an exhibit in the proceedings, indicate N.B.A only has a very slight sensitivity to wheat and dairy and a greater sensitivity to histamine and to cat, of which there is one in the Mother’s house. [ 46 ] An Occupational Therapy Consulation

Summary completed for School District dated June 19, 2009, by Occupational Therapist A.S. confirms an earlier psycho-educational assessment completed in 2007 that found that N.B.A “has the cognitive potential to be successful academically.” From their evidence in chief, both parents seem to agree that N.B.A is a creative and intelligent child. The Father believes he has the potential to pursue a professional career. Oddly, in her cross examination of the Father, the Mother suggested that N.B.A had been found to have a low IQ around that of E.P.L’s.

There is no evidence before me to support that suggestion. [ 47 ] Many of the witnesses agree that in social situations outside of the class room, N.B.A is a happy and likeable child. He is, however, prone to outbursts and tantrums in certain situations. Personal Background of the Child E.P.L [ 48 ] At the date of the hearing E.P.L was 18 years of age. [ 49 ] E.P.L is the biological child of the Mother and C.L. The Mother and C.L. separated in the summer of 1996 and divorced in 1997. C.L. is permanently confined to a wheelchair as a result of a disability which arose several years ago.

E.P.L has been in the custody of the Mother since the separation and the divorce of his Mother and C.L. [ 50 ] C.L. pays regular child support for E.P.L in the amount of $300 per month pursuant to a British Columbia Supreme Court order made in 1996. He pays regularly. Those payments will continue so long as E.P.L remains in school. There was no evidence of C.L’s income which I presume is some form of disability payment. Since about 2004, he and E.P.L have had limited personal contact other than by way of phone calls and some on line communications.

The Mother testified that contact between C.L. and E.P.L ceased due to alleged “stalking problems and pick up problems” involving C.L. and what she described as problems with his new wife. C.L.’s physical disability is also a limiting factor to his in person contact with E.P.L. The Mother apparently has a court restraining order against C.L. that remains in force. [ 51 ] E.P.L has very limited contact with his maternal side of the family since the Date of Separation due to the estrangement between

the Mother and her family. [ 52 ] During the period that the Mother and the Father were together with E.P.L and N.B.A as a family, the Father assumed the role of a father to E.P.L and supported him financially. The Father has therefore been a significant part of E.P.L’s life. [ 53 ] E.P.L attends [deleted for publishing] Secondary School in the [deleted for publishing] School District. At the date of the hearing, he was enrolled in grade 10 and grade 11 courses. Tests have indicated that he has an IQ level below 80. He requires individualized specialized assistance at school.

He has poor handwriting skills and trouble with organization. He was able to maintain a paper route for three years which he gave up when he moved with the Mother. He also volunteers at the same soup kitchen at which the Mother volunteers. [ 54 ] He has been diagnosed with a full range autism spectrum disorder. That diagnosis was made in 2007. He has also been diagnosed with sensory integration disorder. He has a high anxiety disorder.

He receives therapy for his disorders and participates in programs to deal with social interaction and social integration. [ 55 ] The evidence suggests that there are notable impulse control issues for E.P.L. He has been known to stroke his penis and grab his own crotch as a means of soothing himself in classroom situations. This has been an issue of concern at his school. He has been assessed because of this behaviour and the concern that it might be misinterpreted by others and result in E.P.L be viewed as a potential sexual predator.

He has not had any involvement with the police or the courts. [ 56 ] Although he apparently functions at a relatively high level, there is some concern that he may not be able to live independently in the near future without support in place. He is being assessed to determine whether or not he will qualify as a person with a disability under the provincial legislation. [ 57 ] E.P.L has established positive friendships. He participates regularly in Sea Cadets on a weekly basis and in their extended programs during the summer months. He assists his Mother with household chores.

He has hobbies and pets for which he provides care. The Mother takes a great deal of care to ensure that E.P.L has structure and routine in his life. He requires a great deal of guidance, mentoring, support and constant reminders from her. [ 58 ] A serious incident occurred in the period between 2008 and 2009. At that time, E.P.L was approximately 16 and N.B.A was approximately 8 or 9. The Mother entered a bedroom and discovered the two boys lying down, naked from the waist down and N.B.A positioned in front of E.P.L with his back to him in a “spooning position”.

E.P.L was apparently rubbing his penis against N.B.A. The Mother does not believe that E.P.L had an erection or was penetrating N.B.A with his penis. [ 59 ] The Mother informed the Father of the incident on the day that it occurred. The Mother referred the matter to Barb Gottfried, a sexual abuse counsellor. E.P.L received counselling on a weekly basis over a two to three month period. Part of the counselling involved teaching E.P.L about personal boundaries. [ 60 ] N.B.A also received counselling intermittently from March 2009 to June 2009. The Mother testified that his counselling consisted of 8 sessions.

According to a copy of an email sent by Ms. Gottfried to the Father, which was admitted as an exhibit, and based upon the viva voce evidence that I heard, the purpose of the counselling was to help N.B.A resolve issues relating to his sexual abuse experience and to provide him with sexual abuse prevention strategies and information. N.B.A was troubled by the experience but apparently expressed concerns about getting E.P.L in trouble. No report of possible sexual abuse was made to the authorities. After the file was closed by Ms.

Gottfried, N.B.A apparently continued to receive support from Jordan Gail, a behaviour management counsellor. [ 61 ] Steps were taken thereafter to ensure that the two boys were not left alone and that they had separate bedrooms. If there was an occasion where they might be alone, strategies were put in place to focus them on activities that would reduce the chance that a similar event might occur.

The Father has raised a concern that notwithstanding these issues, the Mother has allowed N.B.A and E.P.L to be alone and unsupervised. [ 62 ] There is no satisfactory evidence before the Court that this type of incident occurred on other occasions or that E.P.L has a pattern of inappropriate sexual behaviour. Personal Background of the Mother [ 63 ] The Mother is 45 years of age. She has Grade 12 education and took additional courses at a community college before she met the Father. She has completed a computerized accounting course.

She testifies that she has dyslexia with numbers. [ 64 ] At the dates of the hearing, she indicated that she was on medical leave due to stress. She says she has been diagnosed with Type I Diabetes for which she takes insulin. Stress aggravates her condition. She has no other current medical conditions. [ 65 ] She has applied for a provincial disability payment under the Provincial Persons With Disability Program, based upon her diabetic condition but a decision is still pending. [ 66 ] She presently receives social assistance from the Provincial Government and has so since October 29, 2010.

She occasionally uses food banks, the soup kitchen and obtains additional food vouchers from non-governmental charitable organizations. She collects and returns bottles for the deposit refund. [ 67 ] Her sworn financial statement of June 3, 2011 discloses her total social assistance payments of $8,886.96 per annum plus the $3,600 per annum support she receives for E.P.L from C.L. and the amount of $6,006.84 for the child tax benefit payment for E.P.L totals $18,493.80. The child tax benefit payment for E.P.L ceased on his birthday in June of 2011.

Disability payments for which E.P.L may be eligible are payable to him and apparently may be in the range of $800 per month.

[ 68 ] As a result of the loss of their family home of eight years a foreclosure action, both the Mother and the Father have an outstanding judgment against them jointly and severally for the deficiency on the sale, which is estimated to be in the range of $103,000. Their total joint indebtedness is estimated to be in the range of $141,300. The mortgage lender has not taken any action against either the Mother or the Father. Neither is making any payments on the judgment. [ 69 ] She and the Father have not settled on the division of the family assets.

She is of the belief that once outstanding loans are paid, there is negative equity in their ordinary vehicles and their recreational vehicles which have an estimated value of $85,000. [ 70 ] The Mother has possession of the 2009 family van which has an estimated value of $8,500. [ 71 ] The Mother has worked as a sales representative, a housekeeper in a resort and in a bakery shop, all of which she referred to as “entry-level jobs". During the course of her marriage with the Father, on occasion she worked part time outside of the home.

Her last job at the resort ended in January of 2010 from which she was required to take a medical leave on the advice of her family physician due to stress. At the time of the hearing of this matter she was working from to time as a volunteer at the local soup kitchen. In her evidence of June 9, 2011 she indicated that she had possible opportunities to work part time as a secretary in a chiropractic office. Her goal was to find about 32 hours of work per week which will meet with her physical capabilities and ensure adequate time available to attend to the needs of E.P.L and N.B.A.

There was no evidence of her potential projected income based upon this work scenario. [ 72 ] She previously underwent a mental health assessment which she said indicated she was fine. There were some concerns about depression and also about stress that elevates her blood sugar levels. It was recommended that she take anti-depressants. She presently does not take that medication stating that she had an allergic reaction to the medication and discontinued it on the advice of her family physician. She uses prescription sleeping pills. [ 73 ] She has participated in a number of counselling programs at various times.

These date back to 1986, when at age 19, she underwent counselling about her personal family dysfunction and the abuse she suffered in her childhood. She testified that her relationship with C.L. was marred by abuse. [ 74 ] Following her separation from the Father in the fall of 2009 she sought counselling and was wait-listed for a program. Since December 7, 2009, she has undertaken counselling through the Family Resource Association in [deleted for publishing]. She has participated in a program consisting of three separate 12 week group sessions, with a session held each week for two hours.

These are funded by Stopping The Violence Branch of the Ministry of the Solicitor General and Public Safety. According to a letter from the Family Resource Association admitted into evidence, The TLC Program (also known as Stopping the Violence Program) provides counselling for women who have been affected by sexual abuse, sexual assault, violence in relations and/or historical abuse. The letter authored by Gay-Lynn Farkas, B.A. B.Soc.

Sc., who is a Women and Children Counsellor, says the following about the Mother: “Since December 2009 until the present I have observed the commitment and tremendous amount of work Shari has been willing to do in order to make changes and take responsibility for herself and her family. Through the process Shari has become more competent, confident and has more clarity and focus about her life and her children." [ 75 ] Since the Date of Separation, the Mother has been very challenged in her attempts to find and maintain stable, long term accommodation.

Following the separation she continued to live in the family home. It was sold under a foreclosure action and she was required to vacate. She and E.P.L then slept in a camper from October 30, 2010 until November 29, 2010, which was parked on property owned by friends, who permitted them to use facilities within their home. From November 29, 2010 until April 30, 2011 she lived in a 2 bedroom home on [deleted for publishing], then she moved into a three bed room mobile home on [deleted for publishing], where she resided as at the conclusion of the hearing of this matter.

I am given to understand, based on the evidence before me at the hearing of the Fourth Interim Variation Order, that she and E.P.L have again moved to different accommodation in the [deleted for publishing] area, after the conclusion of the hearing at this case. [ 76 ] Her stated plan is to obtain provincial low income housing and has applied for it. She understands that 20 to 32 hours of employment each week would assist her in qualifying for this program.

She understands that she only qualifies for a 2 bedroom residence unless E.P.L’s assistance status changes. [ 77 ] The Mother is estranged from her family and in particular her own mother. This arose out of a violent, physical confrontation that she had with her own mother which apparently occurred around December 27, 2009. The argument between them related to her mother’s insistence on seeing and visiting with E.P.L. Physical blows were exchanged in the presence of E.P.L.

According to the Mother’s evidence she made a decision not to permit E.P.L to see his grandmother because of her support for the position of the Father in their dispute over E.P.L and N.B.A. She contends that prior to this incident it was E.P.L’s choice to limit his contact with his grandmother. [ 78 ] The Mother chooses to continue her estrangement from her family.

She says that E.P.L still has the opportunity to communicate with her family on line or by telephone however, my impression is that such contact, if any, is very limited notwithstanding the grandmother’s written correspondence to E.P.L every month or every second month in which she usually encloses a small monetary gift. [ 79 ] The Mother has a support network around her including several of the people who she called as witnesses. Personal Background of the Father [ 80 ] The Father is approximately 48 years of age. He is trained as an RV technician and has worked in that field since 2006.

He has not completed all of his courses for certification but has his propane certification.

[ 81 ] Prior to working as an RV technician, he worked in an auto body repair shop, in retail and then for a grocery store chain. He has generally experienced steady employment however when he testified on October 18, 2011 he stated that he had recently been laid off when the RV dealership for which he worked went bankrupt. He was in the process of seeking new employment in his field and was relying on Employment Insurance benefits in the amount of $377 per week. He has 24 weeks of entitlement.

He has no other sources of income. [ 82 ] He was previously married to M.A. the Mother of his other child T.S.A., who is now 18 years of age. They separated in June of 1996 when T.S.A. was age 3. They divorced in 1997. Since their separation they have been able to deal cooperatively with each other regarding their parenting of T.S.A. [ 83 ] Following the separation of the Father and the Mother, the Father resided with N.B.A in the [deleted for publishing] area, for about four months in the family’s fifth wheel RV, which was parked at an RV park.

He then had rental accommodation in a basement suite in that community for about one year. In or around June of 2010 he moved with N.B.A to rental accommodation in a two bedroom basement suite located in the [deleted for publishing] area. It is in close proximity to N.B.A's school at [deleted for publishing]. [ 84 ] Subsequent to the separation, he entered into a new relationship with D.F. around December of 2009. They do not live together but have taken vacation trips together including trips with N.B.A. She resides at [deleted for publishing].

They have purchased a 1984 speedboat together which is left at her residence. His share of the purchase price was $1,700. [ 85 ] The Father testifies that N.B.A and D.F. have bonded in a loving parent –child relationship. [ 86 ] In July 2010, he received an inheritance the amount of $38,000. He used approximately $19,000 to pay off credit card debt that he had incurred subsequent to the separation. He also utilized it for various living expenses during his periods of unemployment between August 2010 in March 2011, as well as for the acquisition of the speedboat.

He has not utilized it to pay off any of the family debts incurred prior to separation. [ 87 ] A GIC in the amount of $20,000 was cashed in by the Father and applied to family debts and obligations initially incurred prior to the separation. The amount was exhausted by October of 2009. [ 88 ] He recently collapsed his RRSP which had a balance of approximately $1,500 for living expenses. He has no savings. [ 89 ] The family vehicle in his possession is a pickup truck with an estimated value of $28,000. [ 90 ] He agrees that there is negative equity in the fifth wheel RV unit.

The loan outstanding on it totals about $38,000 and the market value is somewhere between $27,000 and $32,000. He testifies that the Mother will not agree to the sale of the RV unit and accordingly he continues to be required to make monthly payments of $322 on the loan. [ 91 ] According to the financial statements sworn by the Father on June 8, 2011, his annual income for child support and spousal support claims is $31,616. [ 92 ] This was based on his 2010 income. In 2009 his annual income was $37,771 and in 2008 it was $38,311.

He denies the Mother’s allegation that he has unreported income earned “under the table” by privately servicing RV units. [ 93 ] Since the Date of Separation, he has not been paying any child support for E.P.L or spousal support for the Mother. At present, he is not paying for any extra child care expenses for N.B.A. [ 94 ] The Father has suffered from some stress issues. He apparently was on medical employment insurance for stress during the period August of 2010 through September 2010. He testified that he lost his job due to stress during the period September 2010 through March of 2011.

There is no evidence as to the treatment that he is receiving for this stress.

There was no other evidence before me that indicates he has other health issues. [ 95 ] He agrees that he and the Mother have an outstanding judgment against them jointly and severally for the deficiency on the foreclosure sale of their former family home, which as noted above, is estimated to be in the range of $103,000 and that their total joint debts are in the range of $141,300. [ 96 ] The Father has facilitated communication and contact between N.B.A with his maternal extended family despite the estrangement between the Mother and her family.

I also understand that he encourages communication and contact with his own family. The Relationship of the Mother and the Father [ 97 ] Based upon the evidence, it is clear that the relationship between the Mother and Father while they were living together, was extremely strained and became increasingly dysfunctional following the birth of N.B.A and especially so in or around 2005 to 2006. Several of the witnesses that knew them as a couple found the situation to be very uncomfortable while in the presence of the Mother and Father together. There was great animosity.

There were frequent unpleasant verbal exchanges, bickering and arguments between the Mother and the Father. Often these exchanges and arguments occurred either in the presence or earshot of E.P.L, T.S.A. and N.B.A. The negative impact of this parental behaviour was not recognized by the Mother and the Father until after the separation. [ 98 ] There are allegations and counter allegations made by the Mother and Father including allegations of physical and emotional abuse. There is no useful purpose in apportioning the blame.

The evidence supports my conclusion that they must both accept responsibility for the failure of the relationship and the ongoing animosity. It was and continues to be a mutually abusive relationship. There is adequate evidence that supports my conclusion that that they continue to intentionally provoke each other in their on going relationship, which of course is now focused on N.B.A and E.P.L.

[ 99 ] While they lived together, there were frequent arguments over the Children and about the family's financial problems. At approximately age 8, the Father’s son T.S.A. began living with them. That also became a major source of conflict between the Mother and the Father. A physical altercation occurred between the Mother and T.S.A. This ultimately led to T.S.A.’s departure from the family home. [ 100 ] There have been incidences of physical violence between the Mother and the Father. The police attended the family home on two occasions. [ 101 ] The first occasion was during the summer of 2007 or 2008.

The Father called the police after the Mother bit him in the course of the altercation. E.P.L who was approximately 9 years of age at the time and N.B.A who was approximately 4 or 5 years of age at the time were both present and upset by the experience. [ 102 ] The second occasion of domestic violence between the Mother and the Father resulting in a police attendance at the family home occurred some time later. Again, both N.B.A and E.P.L were present and became afraid and upset. [ 103 ] No criminal charges were pursued in either incident by the police.

Again, both the Mother and the Father had mutual roles in these events. [ 104 ] Marriage counselling was attempted but failed. [ 105 ] Since their separation in May of 2009, the relationship has become more toxic with N.B.A and E.P.L at the centre of the disputes. [ 106 ] The Mother accuses the Father of stalking and harassing her since the separation. The Father denies that conduct. The whole of the evidence does not support the Mother’s allegation. [ 107 ] I have no doubt that since their separation both parents have over reacted to various situations and the behaviour of the other.

They expect the worse from each other and view every situation through that lens. They do not trust each other. Heated arguments between them continue. They are emotionally provocative with each other. Their consistent adversarial responses to each other heightens the tension between the two of them and has brought E.P.L and N.B.A into the vortex of continuing family dysfunction. [ 108 ] Both N.B.A and E.P.L have been somewhat empowered by this dysfunction and the fact that a great deal of attention is being bestowed upon them by the Mother and the Father since the separation.

Parental Relationships with the Children [ 109 ] There is significant contrast in the parenting style of the Mother and the Father. The evidence of this comes from both the parents as well as from the other witnesses who provided evidence. [ 110 ] The Mother is very strict disciplinarian. She utilizes and imposes a significant structure and routine on the lives of E.P.L and N.B.A while they are in her care. C.N. has observed this approach and indicated that in the Mother's parenting style everything has a rule and everything has its place. Regular chores are an expectation.

Restrictions on privileges are imposed for failure to abide by the structural expectations. [ 111 ] A great deal of her attention is focused on the challenges and special needs of N.B.A and E.P.L. She views herself as a vital advocate for her Children. She describes herself as passionate about it. Clearly it has been a major focus in her life. She is not particularly flexible nor open to alternate views or approaches than the one she has adopted with respect to the Children. [ 112 ] The Mother is prone to be quick to anger and in such situations yells at the Children.

She asserts that she no longer yells at the Children since the separation. The Mother admits that she has on occasion utilized spanking as a discipline tool for what she calls “outrageous conduct" on the part of the child. There is evidence from her brother P.S. of occasions where she was inappropriately physically violent and verbally harsh towards N.B.A. [ 113 ] In her own evidence she indicated that she was very hard on T.S.A. when he resided with her and the Father. Her relationship with T.S.A. was marred by significant conflict centred around power and control issues.

Some of this arose from her concern that T.S.A. was picking on and bullying E.P.L, both in an emotional and physical sense, and that the Father was not taking steps to prevent it. As noted above after their physical altercation incident, T.S.A. returned to live with his own mother. [ 114 ] Subsequent to the Date of Separation, the Ministry of Child, Family and Community Service (“MCFCS”) received and investigated separate anonymous complaints about the Mother regarding N.B.A and E.P.L and concerns that they may be in need of protection.

Following the two investigations, no further action was taken and MCFCS closed their files. [ 115 ] The Mother stated in her evidence that she is challenged by what she describes as N.B.A’s head strong behaviour. She considers him manipulative and less respectful of her. [ 116 ] The Father is much more relaxed and less demanding in his approach to parenting. C.N. observed that the Father is not a guideline oriented parent. She noted that he was more inclined to become “one of the kids” in terms of his interaction with them rather than providing parental guidance.

He denies using spanking as a discipline technique. [ 117 ] The Mother testified that the Father was a loving and attentive parent with both E.P.L and T.S.A. when they all lived together and took a lot of time with both of them, especially in the earlier years. The whole of the evidence suggests that the Father tended to be more attached to T.S.A. and N.B.A and harder on E.P.L.

[ 118 ] The Mother alleges that on one occasion the Fathers was physically abusive to E.P.L by grabbing him around the neck, picking him up and dropping him. The Mother did not observe the incident and bases the allegation on her discussions with E.P.L. The Father denies the allegation and says that there was only appropriate physical contact when he lifted E.P.L’s chin in order to make eye contact with him in a situation where E.P.L’s behaviour warranted his parental intervention.

I accept the Father’s version. [ 119 ] Evidence suggests that the Father was not supportive of either the Mother’s parenting approach when they resided together or many of her concerns about the Children. He did not positively intervene in the conflicted situation between the Mother and T.S.A.. [ 120 ] Both of the parents acknowledged in their evidence that a significant amount of their attention was devoted to E.P.L and T.S.A. during N.B.A's younger years. They have different views about how N.B.A was treated.

The Mother indicated that N.B.A was treated as the "prodigal prince" which I understand to mean he received special treatment from the Mother and the Father and particularly the Father. The Father testified that N.B.A got left aside from which I infer he did not receive as much positive attention as the other two boys. [ 121 ] Upon separation, the Mother and the Father agreed that N.B.A would live with the Father and that E.P.L would continue to live with the Mother. Each would have liberal access to the other child.

The evidence suggests that the arrangement worked for a relatively short period of time before issues arose between the Mother and the Father. [ 122 ] The Father’s relationship with E.P.L deteriorated following the separation of the Mother and Father. The Views of the Child Report ordered pursuant to

section 15 of the Family Relations Act completed October 27, 2010 ( the “Section 15 Report” ) summarizes E.P.L's view as follows: "E.P.L seems to have come to the decision on his own to terminate his relationship with his step-father. He agrees that he would like things to be different however he would like to be respected in his decision and to be given the time he needs before pursuing contact." [ 123 ] From the

Section 15 Report, it is clear that E.P.L has been adversely affected both by the separation as well as by the stress between the Mother and the Father. Bullying of E.P.L by T.S.A. and the perceived failure of the Father to intervene on his behalf to prevent it are some of the reasons mentioned by E.P.L as the basis for his decision. [ 124 ] The Mother and the Father entered into mediation regarding a co-parenting plan for N.B.A, following separation. A memorandum of understanding was entered into on June 10, 2010 (the “Memorandum of Understanding”). The parties were represented by legal counsel at that time.

The arrangements contemplated by the Memorandum of Understanding were fraught with continuing disagreement and a significant number of subsequent court applications soon followed. The Memorandum of Understanding did contemplate joint custody and guardianship of N.B.A in favour of both the Mother and Father with primary residence in favour of the Father. [ 125 ] According to the Father’s evidence, there have been instances where N.B.A has objected to visitations with the Mother and has voiced a strong preference for continuing to live with the Father.

Various aspects of the Mother's evidence suggests that this may have been precipitated by the parenting style utilized by the Father which is not supportive of her relationship with N.B.A. [ 126 ] The Mother contends that she had a reasonable basis for concern that it was the Fathers intention to take N.B.A outside of British Columbia and hence her application to obtain the Interim Restraining Order. With the advantage of having heard all of the evidence, I have concluded that her concerns were unwarranted.

She has been reluctant on other subsequent occasions to provide her consent in a reasonable and timely fashion for the travel arrangements made by the Father when they included N.B.A. [ 127 ] Both of the parents provided evidence as to N.B.A's upbringing and well-being when he is in their care. I have heard evidence about everything from health and dietary matters, personal hygiene, educational, social and extra-curricular activities. [ 128 ] The Mother expressed concern that he is often alone when in the care of the Father. N.B.A is often left alone because the Father is at work.

The Father contends that this period of time is short in duration and is not putting the child at risk. When N.B.A was younger, appropriate child care arrangements were put in place by the Father. [ 129 ] The Mother suggests in her evidence that she could arrange her

schedule in order to provide the more extensive full-time care that N.B.A requires. However, some her evidence also suggests that this may include child care arrangements in order for her to pursue employment. Positions of the Mother and Father [ 130 ] The Father’s position is that : 1. He should have sole custody of N.B.A based on a lack of a necessary level of cooperation by the Mother. 2. He should have sole guardianship of N.B.A based on a lack of a necessary level of cooperation by the Mother. 3.

Although he concedes that he stood in loco parentis to E.P.L during the cohabitation of the Mother and the Father, the prospect that E.P.L will receive designation as a Person with Disabilities and that he will continue to receive child support from C.L. and furthermore based on the fact that E.P.L has withdrawn from the Father’s parental control he should not be obligated to contribute to the support of E.P.L. 4. The Mother has failed to meet the test for entitlement to spousal support insofar as she has not been set back by the responsibility she

undertook during the marriage and she has an obligation to support herself, which she has not actively pursued. 5. There is no evidence to support a risk that the Father will be absconding with N.B.A and accordingly he should be at liberty to travel outside of British Columbia without the consent of the Mother. 6. The Father requires up-to-date information about where access visits with N.B.A will take place so that he can ensure access is being exercised in an appropriate environment and in case he needs to reach N.B.A or that N.B.A needs to reach him in case of emergency. 7.

The Mother should have access to N.B.A which is sufficient to support a safe and supportive ongoing relationship with her but defined as not more than every second weekend, Mother's Day, two weeks during July, two weeks during August along with alternating Christmas school vacations. 8. N.B.A should remain at [deleted for publishing] School where he continues to thrive. [ 131 ] My understanding of the Mother's position both based upon her evidence and her written submission is that: 1.

She should have sole custody of N.B.A or in the alternative there should be joint custody with her having primary care of N.B.A. 2. There should be joint guardianship of N.B.A. 3. Since the Father has been essentially the only father that E.P.L has known, the Father should pay child support for E.P.L until he completes his education in university. 4. She is entitled to and requires spousal support due to inability to work arising from the stress of the marriage and the continuing unresolved issues and the behavior of the Father towards her. 5. The Father should be paying her child support.

She submits that with N.B.A in her care and with a child support order in place and with her receiving the child tax benefit, she will have more money to be able to live more comfortably. 6. There should be a reciprocal order that both parents require the consent of the other to remove the child from [deleted for publishing]. 7. She is not supportive of the proposition that there need be a Court order requiring her to provide up-to-date information for the Father during the exercise of access to N.B.A. 8. If she has primary care of N.B.A then Father should have reasonable generous access to N.B.A 9.

N.B.A should be re-enrolled in full-time schooling at [deleted for publishing] which would occur if she had primary residence responsibilities and in any event, if the Father has primary residence then the child should attend school at [deleted for publishing] in order to permit her to provide necessary support for appointments and pick up of the child after school. Law [ 132 ]

Part 2 of the Family Relations Act , R. S. B. C. 1996,

Chapter 128, governs the issues of child custody, access and guardianship in this matter. Specifically

Section 24 provides as follows: Best interests of child are paramount 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(1.1) The references to "other persons" in subsection (1) (

c) and to "each person" in subsection (1) (

e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2). [ 133 ]

Part 7 of the Family Relations Act , R. S. B. C. 1996,

Chapter 128, governs the issues of maintenance and support obligations in this matter. Specifically, Section 88 (1) provides as follows: Obligation to Support Child 88

(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent. [ 134 ] Spousal support is governed by

Section 89 which states as follows: Obligation to Support Spouse 89

(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (

a) the role of each spouse in their family; (

b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (

c) custodial obligations respecting a child; (

d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (

e) economic circumstances.

(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse. [ 135 ] The provisions of both Sections 88 and 89 of the Family Relations Act are further defined by the Federal Child Support Guidelines, SOR /97 – 175 and Spousal Support Advisory Guidelines respectively. [ 136 ] Sections 2 and 5 of the Guidelines deal with a child the age of majority or older and the apportionment of child support between a child’s parents and stepparent or stepparents. The sections provide as follows:

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

a) The amount determined by applying these Guidelines as if the child were under the age of majority; or

b) If the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

(5) Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect that spouse, such amount as the court considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child. Analysis Health and Emotional Well Being [ 137 ] N.B.A is a child who has lived a great deal of his life in a very tumultuous family relationship. He has a number of specific challenges that have been identified by numerous experts.

His parents have been supportive of him obtaining assessments and expert advice and to him receiving outside support to overcome these challenges. [ 138 ] N.B.A's health and emotional well-being including any specific needs for care and treatment are a particularly important issue in these circumstances. [ 139 ] I have no doubt that both parents have been able to deal satisfactorily with his health, dietary and hygiene requirements. I do not

consider the dietary, juvenile weight gain, and allergy issues that have been raised by the Mother in her evidence, and which have allegedly occurred during the time that N.B.A has been in the Father’s care, to be particularly concerning. [ 140 ] However, of particular concern is the significant stress that has been caused to him by the family violence and tension in the home when the parents were living together and which unfortunately has continued in a different fashion since the separation. This stress has clearly had a negative impact on N.B.A both emotionally and contributed to his challenging behaviour.

The key recommendation of the Tunstall Report noted above in my review of N.B.A’s background is therefore extremely important and I must consider it and put significant weight upon it. [ 141 ] Since he has been living with the Father, he has not been subjected to the family violence but a very high degree of tension continues to exist between the parents. The Father has taken positive steps by enrolling N.B.A in the Children Who Witness Violence program. The evidence before me is that there have been marked improvements in N.B.A’s behaviour since the separation.

Anecdotally from the evidence, N.B.A’s Tourette’s Syndrome symptoms appear to be less pronounced than prior to the separation. [ 142 ] E.P.L continues to live with the Mother and that will likely continue for some time. E.P.L's special needs and the requirement for the Mother to deal with those special needs and to focus on providing guidance and structure to E.P.L clearly has also been a source of tension within the home.

That circumstance has certainly been absent from N.B.A's daily life since he started residing with the Father. [ 143 ] In my view, the sexual abuse incident between E.P.L and N.B.A remains a concern for N.B.A, both from an emotional as well as a safety perspective. The Mother initially acknowledged the seriousness of this issue and took appropriate steps to deal with it. But the conclusion that I have drawn from the evidence is that she has been inclined to downplay the significance of the matter as time has elapsed. It obviously remains a concern when N.B.A is in E.P.L's presence during access.

It is not a concern when N.B.A is living with his Father. Education and Training [ 144 ] When considering a child's needs for education and training, I cannot help but be impressed by the significant academic and social progress made by N.B.A in the past several months. He greatly benefited from the experience at [deleted for publishing] Alternative School and the mentoring he received from P.R. However, I am not convinced that the Father's decision to change schools and school districts to [deleted for publishing] was an inappropriate choice for N.B.A.

The evidence is that he has done well socially and academically with the school change and with the necessary transition. [ 145 ] The Father should have taken steps to consult the Mother at an earlier stage of the new school selection process but did not. I am not convinced he failed to do so as a provocative gesture towards the Mother. [ 146 ] However, it is clear that the dysfunction in their relationship and their history of strained and inappropriate communication came into play. She did not respond to his enquiries seeking her input, albeit on relatively short notice to her.

The Mother’s subsequent action of confronting the school’s administration and forcing N.B.A's withdrawal from [deleted for publishing] because she had not consented to the change, is a strong indication that she will often allow the relationship dysfunction to take precedence over N.B.A’s best interest. [ 147 ] Based upon the evidence before me, I can see no benefit in N.B.A undergoing another school change and returning to the [deleted for publishing] School District. [ 148 ] The Father appears to be more inclined to see N.B.A’s academic potential as promising while the Mother is more inclined to view his academic potential issue through the lens of N.B.A’s past challenges and problems.

The Father is conscious of N.B.A’s on going academic needs and is dealing with them in an appropriate fashion. That is a positive approach and it benefits N.B.A. Views of the Child [ 149 ] I do not have before me a View’s of the Child Report with respect to N.B.A. I have each parent’s version of what N.B.A has reportedly said to each of them. Given the significant long standing dysfunction within the family, I am disinclined to put much weight on those statements regarding N.B.A’s views. I have already noted that both E.P.L and N.B.A have gained a level of empowerment from this dysfunction.

In these circumstances that empowerment is not a particularly positive thing. The purported views of N.B.A must be considered in this context. Parental Capacity [ 150 ] I turn now to the difficult consideration of the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties and adequately. [ 151 ] I have no doubt that both parents love N.B.A very much, and wish to see him continue to overcome his various challenges and lead a full and productive life.

Both of them have taken positive steps at various times in order to assist him to thrive and succeed. [ 152 ] They have different personal circumstances. They have significantly different approaches to parenting when dealing with N.B.A. While I do not intend to criticize either of their parenting approaches, I am obliged to take those different approaches and their personal circumstances into account when I consider the matter of parental capacity. [ 153 ] It is clear on the evidence that the Mother has developed a highly structured and controlled parenting program that provides the

necessary guidance for E.P.L.

That type of approach has not been as successful with N.B.A and has resulted in growing tension betweenthem, particularly since the separation and in particular since N.B.A has lived with his Father, who uses a much different parentingapproach. [154] The Father's approach has benefited N.B.A as evidenced by the significant progress he has made both academically and sociallysince the Date of Separation. [155] N.B.A is clearly a different child than E.P.L and N.B.A has different parenting requirements. [156] Due to E.P.L's autism, there is a constancy of attention that the Mother is required to devote to him.

It has been understandablychallenging and stressful for her. Stress is already a significant issue for her particularly in light of her diabetic condition.

Based upon theevidence, the Mother also has had to deal with her own volatile nature, which no doubt is exacerbated by stress. [157] On top of this she has faced significant challenges in dealing with other emotional issues from her past as well as re-establishinga stable housing environment for herself and E.P.L. [158] Based upon the evidence that I heard, I have a significant concern whether she will be capable of resuming full-time care forboth E.P.L and N.B.A without some potential detriment to the progress that N.B.A has made in the last two years and to her ownpersonal health and well-being. [159] On the other hand, the Father has not had to deal with E.P.L’s issues on a day-to-day basis.

He has been able to focus more onthe needs of N.B.A. That has worked to N.B.A's benefit. Due in part to his better financial position, the Father's has been able toestablish a stable housing environment for himself and N.B.A. [160] N.B.A presently enjoys a positive and stable environment at home with his Father and at also at school; this was not the casewhen he was living with both parents and E.P.L. In my view it would not be as positive an environment if he were to now commenceresiding with his Mother and E.P.L. Accordingly, it would not be in his best interest to change that living arrangement.

Custody [161] The dysfunction between the parents raises a very significant concern in my mind about the advisability of a joint custody order. Our Court of Appeal in Robinson v.

Filyk (1996) (BC CA), 28 B.C.L.R. (3d) 21 has rejected the presumption thatjoint custody and joint guardianship are appropriate only where both parents are excellent parents, there is a history of co-operation withrespect to the parenting of the child and there is no valid reason to exclude a parent from having significant input in into raising of thechild. [162] The required analysis requires me to tailor an individual care arrangement for N.B.A.

In doing so, I am obliged to consider whatis in N.B.A’s best interest on the whole of the evidence. [163] The behaviour of the Father and the Mother towards each other since the separation as it relates to N.B.A and their obvious lackof ability to deal with each other on a civil and productive basis is one of many circumstances that must be taken into account as part ofthe required analysis. The Mother and the Father have had an opportunity to demonstrate that joint custody was workable and thereforein N.B.A’s best interest.

They committed to that by signing the Memorandum of Understanding in June of 2010. [164] It has not worked. This is evidenced in part by the large number of court applications that have been heard in this matter.

It isalso clear from the evidence before me that the prospect of any improvement in co-operation in the immediate future is highly unlikely. [165] Having taken all of this in account and given that it is in N.B.A’s best interest to continue in the stable environment he isexperiencing with the Father, I am of the view that it is in N.B.A's best interest that the sole custody be awarded to the Father and withthat the Father will have the primary responsibility for the day to day care of N.B.A and his primary residence therefore will be with theFather. There will be a final order accordingly.

Guardianship [166] Notwithstanding that I have concluded that it is in the best interest of N.B.A that there not be joint custody order, there iscertainly a benefit for him to have both of his parents involved in his life. This will of course be dealt with in part by the terms of theaccess order in favour of the Mother. [167] The Mother has demonstrated that she has always been a strong advocate for N.B.A. She has a significant amount of knowledgeabout his health, welfare and education; she has taken a great interest in these matters since his birth.

She has the ability and also thepotential to make a useful contribution to these types of decisions relating to N.B.A.

Much will depend upon the way that hersuggestions and contributions are made by her and the way that the Father receives, considers and acts upon those suggestions. [168] Although I do have significant reservations based on their past inability to productively and positively consult on issues of thisnature, there is a reasonable prospect that defined rights and decision making procedures laid out under the Master Joyce model of anorder for joint guardianship may be workable and beneficial for N.B.A.

Both the risk and the advantage is that the Court can be asked toreview decisions made by the Father. [169] If the Father were to die while N.B.A was still an infant and requiring a guardian, the Mother is likely the best choice to act asthe guardian. That is a benefit of a joint guardianship order.

[ 170 ] Accordingly, I am of the view that it is in the best interests of N.B.A that the Mother and Father share joint guardianship on the terms of the Master Joyce model of order. [ 171 ] Accordingly, there will be a final order regarding joint guardianship on the following terms: THIS COURT FURTHER ORDERS that R.A. and S.A. shall share joint guardianship of the child, namely, N.B.A, born January 8, 2000, with guardianship including the following rights:

a) the parents are to be joint guardians of the estate of the child;

b) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child;

c) R.A., being the parent who has sole custody and the primary responsibility for the day to day care of the child will have the obligation to advise the other parent, S.A., of any matters of a significant nature affecting the Child;

d) R.A., being the parent who has sole custody and is the primary care parent will have the obligation to discuss with the other parent, S.A., any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education religious instruction, and general welfare of the child;

e) S.A., being the parent who does not have sole custody nor primary care will have the obligation to discuss the foregoing issues with R.A. and each parent shall have the obligation to try and reach agreement on those major decisions;

f) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, R.A. as the custodial parent and the primary care parent shall have the right to make such decisions;

g) S.A. shall have the right under

Section 32 of the Family Relations Act to seek a review of any decisions which she considers contrary to the best interests of the child;

h) each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers. Non-Removal Order [ 172 ] There is little benefit in placing onerous restrictions on either parent travelling with N.B.A without first obtaining the consent of the other.

Therefore, there will be a further final order that neither parent shall remove N.B.A from British Columbia for more than 30 days without the other parent’s written consent, such consent not to be unreasonably withheld or without a Court Order authorizing such removal and further that any parent who intends to remove N.B.A from British Columbia for a period exceeding 96 hours will provide the other parent with reasonable details of the planned trip, including the destination and a contact telephone number, in writing or by email correspondence at least 36 hours in advance of the departure.

Access [ 173 ] I am satisfied that the Father is taking proper steps to ensure that the opportunity for love, affection and similar ties will continue for N.B.A and his extended maternal and paternal family. [ 174 ] Such ties must also continue to be fostered and enhanced between N.B.A and both the Mother and his brother E.P.L. Granting reasonable and generous access to the Mother will assist.

However, realistically for any access regime to succeed it will be necessary for there to be specified access until such time as the Mother and the Father can temper their on going hostility towards each other and come to an access agreement that will work for each of them, for N.B.A and for E.P.L. [ 175 ] The existing specified access is somewhat limited. In my view, it can and should be broadened. In the long term, that will be in N.B.A’s best interest. Some of the restrictions were imposed during the time the Mother was struggling to create a stable home environment.

She has made progress which must be recognized. [ 176 ] Therefore there will be a final order on the following terms: THIS COURT FURTHER ORDERS THAT S.A. shall have reasonable and generous access to the child, N.B.A, born January 8, 2000, including the following specified access:

a) overnight weekend access during the period that school is in session, every other weekend from Friday after school at 3:00 p.m. until the following Sunday at 1:00 pm during the child’s school year unless the following Monday is a school holiday in which case access will be extended until 1:00 pm on that Monday and provided that such overnight weekend access will be suspended, without compensation to the Mother, for any weekend that the child is scheduled to be with the Father during a Christmas school break or a spring school break pursuant to this Order;

b) in addition to the overnight weekend access, access from 9:00 am to 6:00 pm on every Mother’s Day, notwithstanding that it may fall on a day to which she is not entitled to have access pursuant to the other terms of this Order;

c) during the child’s school summer vacation, overnight vacation access during the first two week segment of such school summer vacation commencing on the first Monday thereof at 8:30 am and continuing for the following 13 days until the second Sunday at 8:30 pm whereupon the child will be returned to the Father and thereafter S.A.’s access will continue for a further two week segment commencing the Monday of the fifth week at 8:30 am and continuing for the following 13 days until the second Sunday at 8:30 pm whereupon the child will be returned to R.A. for the next two weeks and thereafter, any remaining weeks of the child’s school summer vacation up to the commencement of the fall term will be shared equally between the R.A. and S.A. such that the child will reside with each of them, overnight on an alternating weekly basis commencing with the Mother from the Monday at 8:30 am to the following Sunday at 8:30 pm at which time the child will be returned to the Father for his alternating weekly access;

d) equal portions of the entire Christmas school break and with each parent alternating to have the c

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