A.M.V. v. J.R.M., 2020 BCPC 35

Citation: A.M.V. v. J.R.M. 2020 BCPC 35 Date: 20200303 File No: [Omitted for publication] Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.M.V. APPLICANT AND: J.R.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: Davidson, S. Appearing on their own behalf: [Omitted for publication] Place of Hearing: Terrace , B.C. Date of Hearing: October 17, November 25, 2019, February 28, 2020 Date of Judgment: March 3, 2020 Introduction

Introduction [ 1 ] A.M.V. and J.R.M. separated in March 2016, after a 13 ½ year relationship. They have three children, C.O.M., who is now 15 years old, C.J.M., who is 13, and G.M.M., now 11. A.M.V. and J.R.M.’s parenting arrangements with respect to the children has changed more than once in the last four years. The parties have sought the assistance of the Court from time to time to resolve various parenting and support issues. On January 29, 2019, A.M.V. and J.R.M. entered into a comprehensive consent order with respect to parenting time, child support, spousal support and parental conduct.

As of that date, A.M.V. and J.R.M. agreed to share equal parenting time and responsibilities for the children. J.R.M. was to pay A.M.V. child support pursuant to a simple setoff formulae as well as spousal support. [ 2 ] On January 25, 2019, C.J.M. went to live full-time with J.R.M. after an altercation with his mother. On June 25, 2019, C.O.M. followed suit, and now lives with her father full-time as well. A.M.V. has had no parenting time with C.J.M. or C.O.M. since they decided to live with their father. A.M.V. and J.R.M. continue to share equal parenting time with G.M.M.

A.M.V. blames J.R.M. for C.J.M. and C.O.M.’s ongoing refusal to have parenting time with her. She seeks monetary penalties from J.R.M. for what she says are breaches of the January 29, 2019 order. Initially A.M.V. sought enforcement of the shared parenting arrangement and makeup parenting time but now concedes C.J.M. and C.O.M. will continue to live with J.R.M. full-time for the time being. [ 3 ] As J.R.M. now has two of his three children living with him full-time and one half-time, he seeks an order terminating the January 29, 2019 order.

He asks the Court to make new orders relevant to the present parenting time arrangement, with retroactive adjustments to child support and prospective adjustments to spousal support. A.M.V. acknowledges her obligation to pay child support prospectively, however, says to do so, she will require an increase in spousal support. Issues: 1. Has J.R.M. wrongfully denied A.M.V. parenting time with any of the children? 2. Should this Court penalize J.R.M. for breaching the January 29, 2019 order? 3. Should the January 29, 2019 order be terminated or varied? If so, 4.

How should parenting time be allocation between the parents? 5. How should parenting responsibilities be allocated between the parents? 6. Who should pay child support to whom and in what amount and from what date? 7. Should J.R.M.’s existing spousal support obligations be varied, and if so, how? Procedural History [ 4 ] This matter came before me for hearing in Terrace Provincial Court on October 17, 2019, November 25, 2019, and February 28, 2020. I heard oral evidence from A.M.V. and J.R.M.

I received into evidence the following documentation and exhibits: Court filed documents relevant to the current proceedings: a. Final consent order of Judge Struyk made January 29, 2019, and filed May 8, 2019 (the “January 29, 2019 order”); b. Application to Obtain an Order by A.M.V. filed July 22, 2019; c. Notice of Motion of A.M.V. filed July 22, 2019; d. Affidavit of A.M.V., sworn July 19, 2019, and filed July 22, 2019; and e. Reply of J.R.M. filed November 20, 2019.

Exhibits filed in these proceedings: Exhibit Document Exhibit 1 List of monies A.M.V. said she received from J.R.M. between December 31, 2018 and September 30, 2019 (1 page): Date Amount Month Dec 31 [2018] $1,310 Jan [2019] Feb 1 [2019] $1,364 Feb [2019] Feb 28 [2019] $1,517 Mar [2019] Apr 1 [2019] $1,745 Apr [2019] Apr 30 [2019] $1,364 May [2019] May 30 [2019] $ 964 Jun [2019] Jun 30 [2019] $ 26 Jul [2019] Jul 1 [2019] $ 157 Jul [2019] Aug 1 [2019] $ 307 Aug [2019[ Aug 30 [2019] $ 307 Sep [2019] Sep 30 [2019] $ 307 Oct [2019] Exhibit 2 Text messages between C.O.M. and A.M.V. sent Monday, September 23, 2019, at 8:54 PM (1 page).

Exhibit 3 Text message between J.R.M. and A.M.V. beginning July 19, 2019, at 6:02 PM and ending July 23, 2019, at 3:09 PM (3 pages).

Exhibit 4 Text messages between C.J.M. J.R.M. and A.M.V. (8 pages) sent August 2, 2019, between 1:36 pm and 1:41 pm. Exhibit 5 Medical consult report and records from Dr. Anita Adlam, pediatrician, dated July 30, 2019 (9 pages). Exhibit 6 Text messages between J.R.M. and A.M.V. sent May 30, 2019, at 10:29 PM (1 page).

Exhibit 7 Interact transfer receipts from Scotia Bank to J.R.M. advising him of electronic bank transfers of money deposited to A.M.V.’s account (10 pages) the following: Amount Date and Time Message $1,364 Feb 1, 2019, 7:54 AM support $1,517 Feb 28, 2019, 9:16 PM support plus C.O.M.’s swimming and G.M.M.’s Kitimat tourney $1,745 Apr 1, 2019, 8:15 AM support plus C.O.M.’s dentist $1,364 Apr 30, 2019, 6:49 PM support $ 964 May 30, 2019, 10:53 PM child support, alimony $ 26 Jun 30, 2019, 9:23 PM child support $ 157 Jul 1, 2019, 11:31 AM Alimony $ 307 Aug 1, 2019, 10:02 PM alimony $157 and retro child support $150 $ 307 Aug 30, 2019, 7:50 AM $150 retro child support $157 alimony $ 307 Sep 30, 2019, 8:34 PM alimony and retro child support Exhibit 8 Text message sent from J.R.M. to A.M.V. (3 pages) between 1:05 pm and 1:15 pm on January 24, 2019.

Exhibit 9 A Thanksgiving note from G.M.M. written at school. Exhibit 10 Text messages between J.R.M. and A.M.V. sent in 2018 at 1:59 pm to A.M.V. (2 pages). Exhibit 11 J.R.M.’s 2018 Income Tax Return

Summary indicating his Guideline income for 2018 was $83,388.10. Exhibit 12 J.R.M.’s T4 Statement of Remuneration Paid for 2019 from M. L. Ltd. indicating his employment income for 2019 was $78,515.26. Exhibit 13 Family Justice Counsellor Anne Reuvekamp’s s. 211 “Views of the Child” report dated September 18, 2017, and filed with the Court on October 17, 2017. [ 5 ] I heard from Mr. S. Davidson, A.M.V.’s legal counsel, on her behalf, and A.M.V. and J.R.M. on their own behalf.

By agreement I also received in camera recorded evidence from C.O.M., C.J.M. and G.M.M. in the presence of the Court clerk and the sheriff, but in the absence of A.M.V., her counsel and J.R.M. C.J.M.’s adult brother, C.M.K., sat as a support person with him during the judicial interview. [ 6 ] As this matter will continue beyond my decision today, I have included in my Reasons for Judgment a comprehensive review of its procedural history. As J.R.M. is self-represented, I have reproduced the relevant legislation and jurisprudence for ease of reference.

Background Facts [ 7 ] A.M.V. is 46, old having been born on [omitted for publication] J.R.M. is 49 years old, having been born on [omitted for publication]. [ 8 ] A.M.V. and J.R.M. began dating in October 2001. At that time A.M.V. lived and worked in Terrace, J.R.M. lived and worked in [omitted for publication], BC. [ 9 ] J.R.M. had been married previously and has three adult sons from that relationship. [ 10 ] A.M.V. and J.R.M. began cohabitating in October 2002 and separated permanently on March 8, 2016.

During this period they both lived in the Terrace area and continue to do so. [ 11 ] A.M.V. and J.R.M. are the biological parents of C.O.M., born [omitted for publication] 2005 (“C.O.M.”), C.J.M., born [omitted for publication] 2007 (“C.J.M.”), and G.M.M., born [omitted for publication] 2008 (“G.M.M.). I will refer to C.O.M., C.J.M. and G.M.M. collectively as the “children” and to A.M.V. and J.R.M. sometimes individually by their proper name and sometimes as the “parent” or collectively as the “parents”. [ 12 ] Both A.M.V. and J.R.M. have a high school education.

Both are gainfully employed full-time. [ 13 ] After they separated, A.M.V. and J.R.M. shared equally parenting time of and parenting responsibilities for the children. Initially this arrangement was by agreement, later it was formalized in court orders. [ 14 ] A.M.V. resides in a four bedroom duplex in [omitted for publication], BC. J.R.M. lives in a three bedroom house in [omitted for publication]. J.R.M.’s residence is the former family home.

[ 15 ] A.M.V. is the manager of [omitted for publication], a large [omitted for publication] store in [omitted for publication], BC. J.R.M. works for his father’s business, M.L. Ltd. in [omitted for publication], BC. [ 16 ] A.M.V. initiated these family law proceedings on August 30, 2016, seeking orders with respect to guardianship, parenting time, parenting responsibilities, spousal support, child support, a s. 211 FLA report and police enforcement of parenting time.

She also filed a Notice Motion on August 30, 2016, seeking an interim order for parenting time on a week on / week off basis and RCMP enforcement of the order. [ 17 ] A.M.V.’s Notice of Motion came on for hearing before Judge T. Wright on September 7, 2016. A.M.V. was represented by legal counsel, Mr. Brian Crampton, and J.R.M. was represented by legal counsel, Mr. Zachary Blanche. On September 7, 2016, Judge Wright formalized the parents week on / week off shared parenting time regime in an interim consent order.

It stated: A.M.V. (the “Applicant”) and J.R.M. (the “Respondent”) have agreed to a share care regime on a week on, week off

schedule for the children. The Respondent’s week with the children shall start on Sunday at 3:00 pm September 11, 2016. The Applicant’s week with the children will start at 3:00 pm on Sunday September 18, 2016. The parties will alternate their parenting time with children on this

schedule until further order of the court or agreement of the parties. [ 18 ] On December 1, 2016, J.R.M. filed a Reply agreeing to shared guardianship and a s. 211 FLA report. He disagreed with A.M.V.’s application for parenting time, allocation of parenting time responsibilities, spousal support, child support and police enforcement of parenting time. He counterclaimed for guardianship, parenting time, allocation of parenting time responsibilities, child support and retroactive support.

J.R.M. stated that he paid A.M.V. $600 per month in child support and for most of the children’s special and extraordinary expenses. [ 19 ] On February 6, 2017, A.M.V. filed a Notice of Motion seeking an order under ss. 61 and 62 of the FLA that J.R.M. had wrongfully withheld the children during her parenting time in the week of February 5 to 11, 2017. She also sought a RCMP apprehension order under s. 231 of the FLA . [ 20 ] A.M.V.’s February 6, 2017 Notice of Motion came before Judge T. Wright on February 14, 2017. At that time, Judge Wright ordered by consent on an interim basis: a.

Neither the father nor the mother shall discuss with the children or any of them in the presence of the children or in circumstances that discussions are likely to be known to the children the adult issues relating to the dissolution of the relationship, parenting responsibilities, parenting time or court appearances or any other issues associated to this court proceeding; b. Neither the father or mother shall speak negatively of the other or their parenting abilities or parenting styles in the presence of the children; c.

Neither the father or the mother shall attempt to persuade the children to alter the parenting time schedules; d. Neither the father nor mother shall refuse to return the children to the other parent upon the conclusion of the scheduled parenting time; e. Neither party shall be under the influence or intoxicated by alcohol or illegal drugs or allow anyone under the influence of alcohol or illegal drugs to be in the presence of the children during their parenting time; f.

In the event either parent is able to exercise their scheduled parenting time for more than four hours that parent shall immediately offer the other parent parenting time with the children; g. The parties will encourage the children to attend counselling as arranged for the children by parents; and h. The parties will complete the online Parenting After Separation Program within 45 days of the date of this Order.

They will provide confirmation of the completion to each other through counsel. [ 21 ] On February 14, 2017, Judge Wright also ordered a full report under s. 211 of the FLA with respect to all children. [ 22 ] On March 20, 2017, A.M.V. filed her Form 4 Financial Statement with the Court and on May 30, 2017, J.R.M. filed his Form 4 Financial Statement. [ 23 ] On July 7, 2017, A.M.V. filed a Notice of Motion seeking makeup parenting time with the children with respect to parenting time she claims J.R.M. withheld on June 29, 2017, when he tried to return the children to her that evening and she was not home.

A.M.V. describes this incident in para. 21 of her July 22, 2019 affidavit. [ 24 ] On July 13, 2017, A.M.V. filed a Notice of Motion seeking disclosure of third party records from the Ministry of Child and Family Development (“MCFD”). [ 25 ] A.M.V.’s July 7, 2017 Notice of Motion came before Judge Struyk for hearing ex parte on July 14, 2017. A.M.V. was represented by Mr. Crampton. J.R.M. did not appear in person or by agent or counsel. At the hearing, A.M.V. complained J.R.M. (or his father, G.D.M.) had taken the children to Haida Gwaii without her knowledge or consent. On July 14, 2017, Judge Struyk ordered: a.

A.M.V. shall have parenting time with the children from July 19, 2017, at 4:00 pm to July 24, 2017, at 4:00 pm; b. Upon being satisfied that A.M.V. has been wrongfully denied parenting time with the children by J.R.M., this Court orders under s. 231(4) of the Family Law Act that a police officer apprehend the children, C.O.M., C.J.M. and G.M.M., and take the children to A.M.V. if they have nor been returned to her care by July 19 , 2017 at 7 pm;

c. For the purpose of locating and apprehending the children, under s. 231(6) of the Family Law Act a police officer may enter and search any place he or she has reasonable and probable grounds for believing the children to be; d. This order terminates at 5 pm on July 24, 2017; and e. J.R.M. may apply to set aside this order with reasonable notice to A.M.V. [ 26 ] A.M.V.’s Notices of Motion filed February 6, 2017, and July 13, 2017, came before Judge Wright on July 24, 2017. A.M.V. was represented by Mr. Crampton. J.R.M. was represented by Mr. Blanche. At that time, Judge Wright made an interim without prejudice consent order for, among other things: (

a) allocating parenting time; and (

b) police apprehension of the children if parenting time is wrongfully withheld. [ 27 ] On October 17, 2017, Family Justice Counsellor Anne Reuvekamp filed her s. 211 report with the Court. Ms. Reuvekamp recommended the continuation of the shared parenting regime and counselling. In that report Ms. Reuvekamp makes some observations that are relevant to the matter before me: On page 4, Ms. Reuvekamp states: C.O.M. is described by her parents as a “little mother” who mothers her brothers. She suffers from anxiety and can panic quickly. She likes to do laundry, cleaning, and gardening.

She is raising chickens, likes to look after animals, is sensitive and acts older than her age. A.M.V. states C.O.M. is healthy although if she begins vomiting from anxiety it is difficult for her to stop. . . And on page 5: C.J.M. is described as being “very emotional”. He cries easy, is angry and doesn’t understand his parent’s separation. He loves biking and enjoys playing video games. He is healthy physically and emotionally he is fragile. G.M.M. is described as having a big heart. He wants to help everyone who needs help. He wants to help anyone who needs help.

He can be quiet at times and is close to his mother. . . [ 28 ] On July 27, 2017, when Ms. Reuvekamp interviewed each of the children separately and privately, C.O.M. indicated she wanted to live with her father and see her mother every second weekend. C.J.M. wanted to continue living with each parent on a week on, week off basis. G.M.M. said he wanted to live at this father’s home and see his mother for four or five hours after school on Thursdays, but not on the weekend. All the children expressed distress over their parents’ conflict. Ms.

Reuvekamp reports C.O.M. as saying it was “sad and hard to see her parents argue after they separated.” C.J.M. told Ms. Reuvekamp, he finds it hard, frustrating and scary when his parents argue and his one wish was his parents “wouldn’t argue and fight and could get along.” G.M.M. also heard his parents argue with each other. [ 29 ] Ms. Reuvekamp express concern about J.R.M.’s making negative comments about A.M.V. in circumstances where the children might overhear. J.R.M. believed that when he had this conversation with Ms.

Reuvekamp, the children were not within ear shot. [ 30 ] The family law matter came before Judge Struyk on October 11, 2017. A.M.V. was represented by Mr. Crampton. J.R.M. was represented by Mr. Blanche. At that time the Court made a further interim consent without prejudice order for, among other things: (

a) allocating parenting time between the parents; and (

b) police apprehension of the children if parenting time is wrongfully withheld. [ 31 ] This matter next came before Judge Struyk on November 14, 2017. A.M.V. was represented by Mr. Crampton. J.R.M. was represented by Mr. Blanche. At that time the Court made a further interim consent and without prejudice order for, among other things: (

a) allocating parenting time between the parents; and (

b) police apprehension of the children if parenting time is wrongfully withheld. [ 32 ] A.M.V. originating application (August 30, 2016) and J.R.M.’s reply and counterclaim (December 1, 2016) came before the Court on January 29, 2019, for the commencement of a two-day hearing before Judge Struyk in the Terrace Provincial Court. Both parents were represented by legal counsel, A.M.V. by Mr. Crampton and J.R.M. by Mr. Blanche.

At the outset of the hearing A.M.V. and J.R.M. entered into a comprehensive final consent order with respect to the outstanding issues between them, including guardianship of the children, parenting time, allocation of parenting responsibilities, child support, parental conduct and spousal support. The January 29, 2019 order included, among other things, the parents’ agreement as follows: Guardianship, parenting time and parenting responsibilities 1. A.M.V. and J.R.M. are guardians of the children; 2. A.M.V. and J.R.M. will inform each other of any significant matters affecting the children; 3.

A.M.V. and J.R.M. will consult with each other about important decisions to be made concerning the children; 4. A.M.V. and J.R.M. will share equally parenting time and parenting responsibilities for the children; 5.

A.M.V. and J.R.M. will share parenting time pursuant to a particularized parenting schedule, which included: a. each parent have parenting time on a week on and week off basis with transitions at 3:00 pm on Friday; b. the children would spend from Tuesday at 3:00 pm to 8:00 pm at the house of the parent not exercising parenting time that week; c. either parent may have the children for summer parenting time for two consecutive weeks provided he or she gives 45 days’ notice to the other parent of his or her intention to do so;

d. the parties will share parenting time during the Christmas school break on a rotating schedule; 6. A.M.V. and J.R.M. are free to vary the court-ordered parenting time regime through written agreement; 7. A.M.V. and J.R.M. will use their best efforts to encourage the children to follow the parenting time regime; 8. If one or more of the children are not following the parenting time regime for a period of more than four months, A.M.V. and J.R.M. will review the child support payable under the revised care regime; Child support 9.

J.R.M. is found to be a resident of British Columbia and imputed to have a gross annual income of $85,000 for 2019; 10. A.M.V. is found to be a resident of British Columbia and imputed to have a gross annual income of $45,000 for 2019; 11. Commencing January 1, 2019, and in consideration of the shared care of C.J.M. and G.M.M. and the fact that C.O.M. is currently living full-time with A.M.V., J.R.M. will pay child support to A.M.V. in the amount of $1,006 per month on the first day of each month thereafter until further order of this court or agreement of the parties.

This figure is based on the set off for all three children for J.R.M. in the amount of $1,715 per month minus the amount payable by A.M.V. for two children of $709, and recognized C.O.M. had been living primarily with A.M.V. since April 2018; 12. For the period of April 2016 to December 2018, J.R.M. owes A.M.V. arrears of child support in the amount of $8000; 13. Commencing February 1, 2019, J.R.M. is to pay A.M.V. a minimum of $150 per month towards the arrears; 14. J.R.M. will reimburse A.M.V. 65% of the children’s special expenses within 30 days of being provided with receipt of the expense; 15.

A.M.V. will reimburse J.R.M. 35% of the children’s special expenses within 30 days within 30 days of being provided with receipt of the expense; 16. Commencing in April 2020, A.M.V. and J.R.M. will exchange their respective financial information by May of each year and adjust their child support obligations accordingly; Spousal support 17. J.R.M. has paid to A.M.V. spousal support in the amount of $364 per month from October 1, 2018 to December 31, 2018; 18. J.R.M. will pay on going spousal support to A.M.V. in the amount of $157 per month commencing January 1, 2019, and continuing to September 30, 2026; 19.

Commencing in April 2020, spousal support will be reviewed and payable at the high end of the Spousal Support Advisory Guidelines with consideration of A.M.V. and J.R.M.’s respective incomes from the year before and the amounts of child support being paid, with the updated payment to begin being paid on April 1; Police apprehension 20. Until July 31, 2020, a police officer shall apprehend the children and take them to the party entitled to parenting time; 21.

Until July 31, 2020, the police may enter and search any place they reasonably believe the children may be for the purposes of locating and apprehending the children; Parental conduct 22. Neither parent is permitted to enter the other’s residence without the express invitation of the other; 23. Neither parent will make disparaging or negative comments about the other in the presence of the children nor allow others to do so in the presence of the children; 24.

Neither parent will discuss these court proceedings or the issues between the Parents with the children in any way including discussions involving money; Non-removal 25. The children are not to be removed from the community of Terrace BC by either Parent without advising the other Parent of the place they are going and an itinerary of the planned trip with contact and address information for where they will be staying.

This applies only to trips that include an overnight component in a community other than Terrace BC. [ 33 ] On January 29, 2019, C.O.M. was living with A.M.V. full-time, and had done so since March 27, 2018. C.J.M. was living with J.R.M. full-time since January 25, 2019. G.M.M. was the only one of the three children who lived with each parent one week on, one week off, transitioning on Fridays at 3:00 p.m. [ 34 ] C.J.M. continued to reside with J.R.M. full-time since January 25, 2019. Since then, C.J.M. has refused any parenting time with A.M.V.

He returned to her home briefly on one occasion in the spring of 2019 when he fell ill at school.

[35] C.O.M. continued to live full-time with A.M.V. until June 25, 2019.

Since that date she has lived full-time with J.R.M. andrefused parenting time with A.M.V., except that over Christmas she had a brief visit with her mother. [36] G.M.M. has equal parenting time with A.M.V. and J.R.M. as provided in the January 29, 2019 order. [37] On July 22, 2019, A.M.V. filed with the Court an Application to Obtain an Order, Notice of Motion and supporting Affidavit.A.M.V. seeks: a. enforcement of the January 29, 2019 order; b. an order that J.R.M. pay a penalty to and for the benefit of A.M.V. up to $5,000 per breach of the January 29, 2019 order,pursuant to s. 61(2)(g), of the FLA; c.

An order for compensatory parenting time pursuant to s. 61(2)(c); d. An order for a new ‘Views of the Child Report” pursuant to s. 211 of the FLA; e. A conduct order pursuant to s. 225 FLA the Parents communicate only in writing including text or email, and only about issuesdirectly related to the children. [38] On July 22, 2019, A.M.V. filed a Notice of Motion seeking an interim order under s. 216 or 217 of the FLA and an order toenforce the January 29, 2019 order. A.M.V. further seeks orders: a.

J.R.M. pay a penalty to and for the benefit of A.M.V. up to $5,000 per breach of the January 29, 2019 order, pursuant to ss.62(2)(g)(i), 238(c)(ii) and 230(2)(b)(ii); b. Make up parenting time pursuant to s. 62(2)(c); c. A new s. 211 report covering topics (a) – (

c) to be concluded; and d. A.M.V. and J.R.M. communicate only in writing, including text or email, and only about issues directly related to the children. [39] Section 211(1) states: 211

(1) A court may appoint a person to assess, for the purposes of a proceeding under

Part 4 [Care of and Time with children], one ormore of the following: (

a) the needs of a child in relation to a family law dispute; (

b) the views of a child in relation to a family law dispute; (

c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child. [40] At the outset of the hearing J.R.M. advised the Court that C.J.M. and C.O.M. preferred to attend Court in person and speak tome directly rather than participate in yet another s. 211 report. A.M.V. agreed, but asked that I interview G.M.M. as well. Given thelengthy delays in obtaining s. 211 reports in the northern region, I agreed to interview the children in the absence of the parents andcounsel, but in the presence of the court clerk and the sheriff.

I invited the parties to provide me with any questions they wished put tothe children with the caveat I would only do so if I thought it appropriate. It was not my intention to conduct a discovery or inquisitorialinquiry of the children, but only to get a sense as to their views on parenting time. [41] The children’s judicial interviews were recorded as an in camera voir dire. No transcripts can be made of those interviewswithout further order of this court.

I was guided by Justice Skolrood in M.H. v P.S.W, 2018 BCSC 1318 , wherein he states: [39] The judicial interview is not intended to be an evidence-gathering exercise or to give the child an opportunity to provide factualinformation about the dispute between his or her parents. Rather, it allows the court to hear from children directly in their own wordsabout their wishes and views. [42] On November 20, 2019, J.R.M. filed a reply opposing A.M.V.’s July 22, 2019 Application, and counterclaimed for thetermination of the January 29, 2019 order.

He sought orders with respect to the new parenting arrangements which the older children hadthemselves imposed. J.R.M. seeks changes to the allocation of parenting time and parenting responsibilities, child support, retroactivechild support and the termination or reduction of spousal support. Issue #1: Has J.R.M. wrongful denied A.M.V. parenting time with any of the children? [43] A.M.V. seeks an order under s. 61 of the FLA, for financial compensation for J.R.M. wrongly denying her parenting time withthe children.

A.M.V. also seeks some unspecified compensatory parenting time, albeit, no longer with C.O.M. and C.J.M. [44] The FLA provisions governing compliance with parenting time orders is set out in ss. 61 and 62, which I have reproduced belowfor ease of reference: Denial of parenting time or contact 61

(1) An application under this

section may be made only (

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

(

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

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court onapplication may make an order to do one or more of the following: (

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

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

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

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

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

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

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

g) require the guardian to pay (

i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000.

(3) If the court makes an order under subsection (2) (a), (

b) or (e), the court may allocate among the parties, or require one party alone topay, the fees relating to the family dispute resolution, counselling, service, program or transfer. [45] Before the Court can grant her application, A.M.V. must show she was entitled to parenting time which was wrongfully denied,and her application must be made within 12 months after she was denied parenting. The term “wrongfully denied” is defined in s. 62 byproviding circumstances of when it does not occur: When denial is not wrongful 62

(1) For the purposes of

section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is notwrongful in any of the following circumstances: (

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

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

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

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

e) the applicant (

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

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

(2) If, on an application under

section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfullydenied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting timeor contact with the child. Applicable Jurisprudence [46] In K.R. v. J.W., 2016 BCSC 225 , Justice Betton considered how ss. 61 and 62 of the FLA ought to be interpreted. Heheld (on para. 65): a. These sections are available to address discreet events of wrongful conduct, as well as more nuanced circumstances where thecumulative effect of a pattern of conduct results in a loss of parenting time;

b. When a child is resisting parenting time, the court must look at the source of resistance, and examine the parent’s response to suchresistance to determine if the parent has acted in a situationally appropriate manner. c. Where a parent is entitled to parenting time, and acquiesces or agrees to forgo that parenting time to avoid conflict, this does notabsolve the other parent of responsibility for wrongful denial. [47] In K.R. v. J.W., the father claimed the mother had actively and passively denied his parenting time with his 12 year olddaughter.

He argued the mother’s hostility resulted in his daughter’s reluctance to have parenting time with him, which the mother thenused to justify breaching the court-ordered parenting regime. The mother argued that the child was negatively affected by the father’sconduct and she could not ignore her daughter’s reluctance or reaction to parenting time. Justice Betton referenced Boychuck v.Singleton, 2008 BCCA 355 (at paras. 16-19) in which the BC Court of Appeal emphasizes the importance of a child havingsignificant parenting time with each parent unless there are exceptional circumstances.

Parenting time incorporated into a court ordermust be respected. If the order is not appealed or varied, the parents cannot view compliance with the order optional. [48] The Court in K.R. v. J.W. found that there had been a wrongful denial of parenting time. Since counselling and a sharedparenting

schedule were already in place, Justice Betton ordered the mother pay to the father $2,500 for the benefit of the child. [49] In this case, A.M.V. blames J.R.M. for alienating her two oldest children, C.O.M. and C.J.M. J.R.M. suggests they have becomeestranged from A.M.V. as a result of her own behaviour. In C.J.J. v. A.J., 2016 BCSC 676, Mr. Justice Blok states (at para. 1), “. . . theterms “alienation” and “estrangement” have specific psychological meanings as well as significance in terms of remedial action.” InWilliamson v.

Williamson, 2016 BCCA 87, at paras. 40-41, the Court adopted the legal meaning of parental alienation as stated in D.S.W.v. D.A.W., 2012 BCSC 1522: [40] In D.S.W. v. D.A.W., 2012 BCSC 1522, Mr. Justice Barrow thoroughly discussed some of the concepts relating to parentalalienation. At para. 64, Barrow J. stated that at the core of parental alienation is: … the notion that the child's decision to refuse to have a relationship with the targeted parent is without justification or withoutconvincing reason.

If there is a reason given by the child for taking the extreme step of refusing to have a relationship with a parent, itwill often be out of all proportion to the decision taken. The reasons for such decisions need to be assessed with the particular personalityand experience of the child involved. What may seem a thin or unconvincing rationale for one child may have a much more convincingforce in the context of the personality and experience of another child. [41] Barrow J. also observed that parental alienation must be distinguished from estrangement: D.S.W. at para. 28.

Courts have said thatthe difference between estrangement and alienation lies in the cause; estrangement occurs when the child understandably refuses contactwith a parent because of that parent’s behaviour, and there is a logical and rational reason for the child’s rejection of the parent.

In thecase of alienation, it is said there is little or no objectively reasonable cause for the child’s rejection of the parent: N.R.G. v.G.R.G., 2015 BCSC 1062at paras. 277-278. [50] The Court in Williamson held at paras. 47-48 that a finding of alienation is a serious allegation that must be supported by properexpert evidence. [51] I have considered below whether J.R.M. has wrongfully denied A.M.V. parenting time for any and all of their three children.Firstly, I will address specific incidents which A.M.V. said occurred in 2017, 2018 and 2019, and then I will address her application as itrelates to each of the children generally.

Incidents from 2017 [52] In para. 20 of her July 22, 2019 Affidavit, A.M.V. refers to an incident which occurred on February 5, 2017, and in paras. 21and 22 to an incident which occurred on June 29, 2017. At trial A.M.V. testified the year in her affidavit was misstated as 2017 when itwas actually 2019. I disagree. The February 5, 2017 incident, in which A.M.V. contacted the RCMP gave rise to her February 6, 2017Notice of Motion which was heard and decided by Judge Wright on February 14, 2017. On that date, Judge Wright made a number ofinterim orders by consent.

In para. 19 of her July 22, 2019 Affidavit, A.M.V. attaches as Exhibit “C” a calendar she created where shehad colour-coded the days on which J.R.M. had the children, she had the children, or J.R.M. withheld the children. The week ofFebruary 5, 2017, is coded red, indicating a period of time when says J.R.M. withheld the children. There is no red coding for the weekof February 5, 2019. [53] The June 29, 2017 incident referred to in paras. 21 and 22 of A.M.V.’s July 22, 2019 Affidavit, gave rise to her July 7, 2017Notice of Motion seeking interim parenting time.

It could not have occurred in June 29, 2019, as she suggests because on that date,neither C.J.M. nor C.O.M. were residing in her home. Also, in Exhibit “C” to her June 22, 2019 Affidavit, A.M.V. has colour-coded June29 and 30, 2017, in red to indicate a period of time when J.R.M. had withheld the children from her. There is no such coding for June 29and 30, 2019.

The July 7, 2017 Notice of Motion came before Judge Struyk for hearing on July 14, 2017, and again before Judge Wrighton July 24, 2017. [54] I conclude the incidents referred to in paras. 20, 21, and 22 of A.M.V.’s July 22, 2019 Affidavit occurred in 2017 as stated anddid not and could not have constituted a breach of the January 29, 2019 order. [55] A.M.V. also complains of a time in the summer of 2017 when G.D.M. (J.R.M.’s father) took the children to Haida Gwaiiwithout A.M.V.’s permission.

J.R.M. says A.M.V. had agreed to his having parenting time with the children while she was underinvestigation by MCFD for leaving G.M.M. home alone while he was ill. J.R.M. allowed his father to take the children on a vacation toHaida Gwaii. On July 14, 2017, A.M.V. attended court and obtained an ex parte order for compensatory parenting time and a policeassist clause.

G.D.M. was forced to terminate the children’s Haida Gwaii vacation short as a result of Judge Struyk’s July 14, 2018 order.I infer from this series of events that A.M.V. does not agree with J.R.M.’s version of events. [56] I find that all the 2017 incidents to which A.M.V. refers have been subject to previous Notices of Motion and dealt with by pre-

existing orders. Moreover, s. 61(1)(

b) requires an application to be made within 12 months of the denial of parenting time. A.M.V.’s application in this regard was made over two years after the incidents. I will not consider A.M.V.’s allegations made in paras. 20 to 22 of her July 22, 2019 Affidavit or the Haida Gwaii incident because firstly, they have already been judicially determined , and secondly, they fall outside the statutory time limit. Incident from 2018 [ 57 ] In the early summer of 2018, J.R.M. took the children for a camping trip in northern BC in the Watson Lake region. At the time, J.R.M. was working for M.

L. in [omitted for publication]. While up north, J.R.M. learned that because of forest fires, he would not have to return to work in the near future. There were no forest fires prior to his embarking on this trip. J.R.M. contacted A.M.V. and asked if he could extend their trip given he no longer had to return to work. Initially A.M.V. refused because it would encroach on her parenting time with the children. J.R.M. then asked A.M.V. if he could take his summer vacation time with the children. She refused because he had not given her 45 days’ notice as required under the January 29, 2019 order.

J.R.M. pointed out to A.M.V. that if he returned home immediately as she insisted, the children would simply be sitting at home while she worked. A.M.V. relented and agreed J.R.M. could have his holiday time with the children. I gather A.M.V. felt pressured to consent to J.R.M. having holiday time with the children because they were already up North and excited about continuing their adventure. [ 58 ] I don’t find J.R.M.’s attempt to negotiate holiday time with the children in the circumstances amounts to a wrongful denial of parenting time.

J.R.M. said if A.M.V. steadfastly refused his request to extend their vacation, he would have returned the children for her parenting time immediately, however inconvenient that may have been. Even if I were to find this 2018 incident constituted a denial of parenting time, which I do not, it occurred outside the 12 month limitation period set out in s. 61(1)(

b) of the FLA . [ 59 ] Mr. Davidson submits the 2017 and 2018 incidents illustrate a pattern of J.R.M.’s non-compliance with the terms of the January 29, 2019 order. J.R.M. says A.M.V. has also breached the January 29, 2019 order on various occasions, but he just lets it go. For example, he says upon returning from Watson Lake in 2018, A.M.V. had her compensatory parenting time, however, she subsequently denied J.R.M. parenting time as retaliation for his not providing her with sufficient notice of his intention to exercise his right to a summer vacation with the children.

G.M.M. [ 60 ] G.M.M. still adheres to the shared parenting regime which has been in place since his parents’ separation. A.M.V. makes no suggestion he is alienated or estranged from her. In fact the opposite is true: A.M.V. asserts G.M.M. has expressed his desire to reside with her full-time. J.R.M. says depending on the day, G.M.M. also expresses a desire to live with him, as the s. 211 report attests. [ 61 ] At A.M.V.’s request and with J.R.M.’s consent, I interviewed G.M.M. in the absence of the parents and legal counsel.

G.M.M. told me he was happy with the current arrangement where he spends one week with his mother and one week with his father. He enjoys the outdoor activities at his father’s house. I gather he enjoys the respite from his older siblings when he is at his mother’s house. G.M.M. described in detail his activities, including his use of electronic devices at both his father and mother’s home. [ 62 ] A.M.V. asserts J.R.M. has wrongfully withheld G.M.M. from her during her scheduled parenting last summer when J.R.M.’s father, G.D.M. , took G.M.M. and C.J.M. to Kinaskan Lake Provincial Park to go camping and fishing.

Although this outing was scheduled during J.R.M.’s parenting time week, it would necessarily encroach on G.M.M.’s Tuesday afternoon visit with his mother. If the camping trip was extended into the weekend, it would also encroach on A.M.V.’s parenting time scheduled for Friday and Saturday, July 5 and 6, 2019: see Exhibit “C” of A.M.V.’s July 22, 2019 Affidavit. J.R.M. understood that G.M.M. had sought and obtained his mother’s permission to go on this camping trip with his grandfather. G.M.M. did text her as the messages attached as Exhibit “B” to A.M.V.’s July 22, 2019 Affidavit attest.

A.M.V. says she did not agree. In fact, it does not appear that she responded to G.M.M.’s text message. [ 63 ] In cross-examination A.M.V. agreed that upon G.M.M.’s return from the camping trip, she received compensatory parenting time: Q. And when he came back that time was made up? A. After the fact, yes. Q. Yes, there was no issues in making up that time was there? A. No. Q. And did you request that the day that he left on the Tuesday which is actually a mid-week visit day that they be returned so you could have that visit? A. Maybe.

I'm not -- I don't recall. [ 64 ] J.R.M. says he genuinely believed G.M.M. had sought and received A.M.V.’s permission to go camping with his brother and grandfather at Kinaskan Lake.

It was not until later G.M.M. admitted to J.R.M. he did not obtain his mother’s permission because he wanted to go on the trip and she would have said, “No.” J.R.M. says he learned from this incident not to take his children’s word in these matters and to deal directly with A.M.V. [ 65 ] A.M.V. complains that in the summer of 2019, J.R.M. took G.M.M. to his family reunion in [omitted for publication] during her parenting time. (At this time, C.J.M. and C.O.M. chose not to have any parenting time with A.M.V.) J.R.M. says they discussed this outing in advanced and A.M.V. agreed G.M.M. could go with him and the other children to the reunion.

A.M.V. would have compensatory parenting time with G.M.M. the following weekend. J.R.M. returned G.M.M. as agreed and G.M.M. spent not only the following weekend with his mother, but the entire week which was supposed to be J.R.M.’s scheduled parenting time. Although A.M.V.

was over-compensated for her missed parenting time, she was nevertheless upset that J.R.M. not only went to the [omitted for publication] reunion but also made a side trip to Smithers. [ 66 ] According to Term 25 of the January 29, 2019 order, J.R.M. ought to have informed A.M.V. in advance of his plans to travel to Smithers. A.M.V. says that if there had been an emergency, she would not know of the children’s whereabouts. J.R.M. says he had no plans to travel to Smithers at the outset.

The reunion started in [omitted for publication] as planned, but because so many of his relatives were from out of the country, it concluded early in [omitted for publication] and continued for one day in Smithers. [ 67 ] J.R.M. claims A.M.V. has taken the children on trips to Prince George or 100 Mile House without letting him know or securing his consent. [ 68 ] I agree J.R.M. ought to have let A.M.V. know he and the children were leaving [omitted for publication] and spending a day in Smithers. Nevertheless, I do not regard this incident as a denial of parenting time.

As J.R.M. and A.M.V. ordinarily communicate via cell phone, I do not understand how being in Smithers as opposed to [omitted for publication] would frustrate her ability to contact the children in an emergency. [ 69 ] I do not find G.M.M.’s camping trip with his grandfather to Kinaskan Lake or for his side trip to Smithers during the [omitted for publication] family reunion constitutes wrongful denial of parenting time. C.J.M. [ 70 ] It is uncontested that on January 25, 2019, C.J.M. left A.M.V.’s residence after a physical altercation with his mother.

He went to live full-time at J.R.M.’s home and refuses parenting time with his mother. A.M.V. attributes C.J.M.’s refusal to the fact she has far more house rules than his father who she characterizes as a “Disneyland Dad”. J.R.M. says A.M.V.’s January 25, 2019 altercation with C.J.M. was her third act of violence against the child and C.J.M. has had enough. [ 71 ] J.R.M. says he has tried to encourage C.J.M. to spend time with his mother, but C.J.M. refuses. When he came and spoke to me in Court on November 25, 2019, C.J.M. cited a number of reasons why he does not want to go to his mother’s house: (

a) she has hurt him in the past; (

b) he does not feel comfortable at her house; (

c) he and his mother do not get along; (

d) whenever he is in contact with her, his mother pesters him to return to live with her; and (

e) he is happy living with his father, who is calm. He enjoys the outdoor activities in which he is engaged at his father’s house, which includes swimming, dirt biking, trampolining, and camping. He also enjoys his video games and spending time with his cousins who live nearby. Allegations of family violence against C.J.M. [ 72 ] J.R.M. cites three incidents of family violence against C.J.M. The first occurred in 2015, prior to A.M.V. and J.R.M.’s separation. J.R.M. describes A.M.V. as “having a fit”. A.M.V. lost her temper and began kicking C.J.M. while he lay on the bed in the foetal position.

She only stopped when J.R.M. intervened. [ 73 ] The second incident occurred in the fall of 2018. C.J.M. started screaming and A.M.V. placed her hand over his mouth to try and stop him. C.J.M. told his school counsellor that he could not breathe and his mother was trying to choke him. The counsellor reported the incident to the police who notified MCFD. Neither the police nor MCFD took any action as a result of this complaint beyond securing A.M.V.’s promise the incident would not repeat itself. [ 74 ] The third incident occurred on January 25, 2019.

It arose in the context of A.M.V. attempting to curtail C.J.M.’s personal time because he was falling behind in his school work. A.M.V. says C.J.M.’s teacher, Ms. O., told her C.J.M. was not completing his math and French assignments. A.M.V. decided to invigilate C.J.M.’s personal time until he had caught up with his school work.

A.M.V. determined that in interim, C.J.M. was to have no access to his electronics (cell phone or tablet) or participate in his school sports of basketball and volleyball. [ 75 ] On January 24, 2019, A.M.V. wrote a letter to J.R.M. about her decision to restrict C.J.M.’s activities, which is attached as Exhibit “A” to her July 22, 2019 Affidavit. In this letter, A.M.V. complained of C.J.M.’s poor attitude and performance at school. She states: So, I have told Ms. O. that C.J.M. does not get to play basketball unless he gets his work done in class.

C.J.M. will not have access to his phone nor his tablet while he is at my place. . . I think he should be in swim club to exhaust him. Teach him how to swim, and how to behave in a club-like setting. He does no physical activity at all. [ 76 ] A.M.V. did not discuss with J.R.M. beforehand her directive to Ms. O. that C.J.M. no longer play basketball until he caught up on his school work. A.M.V. did not explain why she thought C.J.M. ought to quit basketball and take up swimming instead. [ 77 ] On January 25, 2019, A.M.V. told C.J.M. her new restrictions on his activities. C.J.M. became upset and began screaming.

A.M.V. forcibly “dragged” C.J.M. upstairs to his room, but he continued screaming, so she forced him downstairs and outside, where he sat on her porch. A.M.V. sent J.R.M. a text telling him she had “lost her shit” on C.J.M. and kicked him outside. She told J.R.M., “Something needs to be done about this child.” J.R.M. told her he would pick up C.J.M. He drove to A.M.V.’s residence at 7:30 pm, which is a 10 to 15 minute drive. It was January and cold and raining and C.J.M. had been outside for 20 minutes without a coat or shoes. A.M.V.’s response [ 78 ] A.M.V. denies perpetrating any violence toward C.J.M.

She says C.J.M. has his facts wrong; others have cultivated his misconceptions; and C.J.M. may benefit from counselling.

[ 79 ] Mr. Davidson submits that J.R.M. failed to cross-examine A.M.V. on the first alleged incident of family violence in 2015, thereby violating the rule in Browne v. Dunn . This confrontation rule requires the opposing party give a witness an opportunity to explain evidence which will be called later to impeach the credibility or testimony of that witness. The confrontation rule is one of fairness - to the witness, the parties and the judge: R. v. Quansah, 2015 ONCA 237 [CanLII] .

It is fair to a witness whose credibility is under attack to be given an opportunity to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted. It is fair to a party whose witness is impeached to have notice of the precise aspects of the contested testimony so that party can decide whether or what confirmatory evidence to call.

Finally, it is fair to the trial judge, who, without the rule, would be deprived of information which might show the impeachment to be unfounded and thus compromise the accuracy of the verdict: Quansah , para. 77 . [ 80 ] I agree it wasn’t until November 25, 2019, J.R.M. raised the 2015 incident alleging A.M.V. lost her temper and began kicking C.J.M. Still, A.M.V. was present in the court room and represented by counsel. As J.R.M. is self-represented, I have presided over this case with as much informality and flexibility as fairness allows. On November 25, 2019, I invited Mr.

Davidson to recall A.M.V. to address various issues not raised in cross-examination. Mr. Davidson did not ask the Court to give A.M.V. an opportunity to respond to J.R.M.’s allegation of violence against C.J.M. in 2015. Nevertheless, I accept that had he done so, A.M.V. would have denied it. C.J.M. post transition to J.R.M.’s home [ 81 ] After the January 25, 2019 incident, C.J.M. went to live with J.R.M. and has not returned to A.M.V.’s residence.

Since then A.M.V. has texted C.J.M. occasionally, but for five months after he relocated she never contacted C.J.M. to speak to him in person. [ 82 ] A.M.V. provided J.R.M. with C.J.M.’s unfinished school work. J.R.M. says he did take steps to get C.J.M. back on track with respect to his school work. He sent A.M.V. a series of text messages explaining his efforts. These text messages were entered into evidence as Exhibit 8. [ 83 ] In her July 22, 2019 Affidavit A.M.V. states at paras. 6 and 8, in part: 6 . . . When I started enforcing these rules, C.J.M. stopped coming home.

I found why C.J.M. stopped coming home because on February 5, 2019, G.M.M. told me that C.J.M. told him he was no longer going to come to my house. . . . 9 I did not ask J.R.M. to send C.J.M. back to my house because I thought he was allowed to make those decisions at 12 years old.

I have since asked J.R.M. to send C.J.M. back and he has refused. [ 84 ] A.M.V. said she forced C.J.M. outside because he was screaming and she wanted to spare the young child who lived in the adjoining duplex the drama. [ 85 ] J.R.M. says that the following day (January 26, 2019), he advised A.M.V. that a result of the most recent altercation, C.J.M. decided he wanted to reside with him full-time. J.R.M. states he raised with A.M.V. concerns about her troubled relationship with C.J.M.

He told her that as they were scheduled to go to court in a few days and they should vary the court ordered parenting time arrangements to show C.J.M. was now primarily residing with him. [ 86 ] J.R.M. says C.J.M. relocating to live with him full-time was a contentious issue in his negotiations with A.M.V. at the January 29, 2019 hearing before Judge Struyk.

J.R.M. reluctantly agreed to the “four month” clause set out in Term 8 of Judge Struyk’s order in order to secure an agreement. [ 87 ] In early August 2019, prior to school recommencing for the 2019 fall term, A.M.V. sent J.R.M. a text in which she stated: So, C.J.M. had enough time to cool off, so I would like him to start going to my place again, starting this Friday. I can pick him up after work. C.O.M. can also spend the week here as well. [ 88 ] J.R.M. replied: Ya that won’t be happening, they are staying here by their choice so shake someone else’s money tree.

C.J.M. is going north to 40 mile flat above Iskut with the [omitted for publication] probably tomorrow for a week and a half maybe so your notified. [ 89 ] Exhibit 4 is an exchange of text messages between A.M.V. and C.J.M. sent August 2, 2019: A.M.V. C.J.M. When you come back I would like you to stay at my place Why Because you’re my son and I love u and miss u dearly. Life goes by too quickly. You’re growing up too fast. I don’t want to miss anything. But I chose to stay at dads I would like you and I to have a good relationship.

Well, I know you chose that, but I am your mother, and I would like to spend time with you too C.J.M. I feel that it is in your best interest to be with both your parents, not just one.

This is my home and my best friend that I’ve known since we were little lived just down the road and we play together every day. I don’t want to go to your house. I understand how u feel C.J.M., but I am your parent, so big decisions like that are made between your dad and I. In January, we signed a Court Order [saying] that all the children will be on a week on/week off schedule. I have been flexible with this the last few months because we needed a cooling off period. I understand that your best friend lives out there, so I will remain flexible until school starts again.

Come September, you will be at both places, Okay? No, I am 12 we and I’m allowed to make my own decision now just like C.O.M. and I chose to stay at dads house. It is not up to u, hun, to make that decision. It is up to the judge. C.O.M. will be coming back as well. If one of your parents was found to be unfit then the judge may let you be at one place, but both of your parents have no issues, so both places you will be at. I don’t like your house. So what can we do to change that? Your just trying to make me and C.O.M. to go back to your house so you can get money.

No amount of money is comparable to having my kids home. Dads lawyer said I am allowed to stay. You are not to be involved in ANY of that C.J.M. Any way I’m not going to your house Did you want to go to the library and look for that dragon series that u like? No [ 90 ] A.M.V. says this text message shows J.R.M. had been discussing their legal matters with C.J.M. contrary to Term 24 of the January 29, 2019 order. [ 91 ] A.M.V. says she had a scheduled surgery on September 24, 2019. She texted the children asking them to come and visit her while she was in the hospital after surgery.

J.R.M. brought G.M.M. to see her in the hospital. When he arrived, J.R.M. told A.M.V. that C.O.M. and C.J.M. were ill and would not be coming. [ 92 ] A.M.V. said she invited all the children for Thanksgiving dinner, but they declined, saying their father had already planned dinner at his home. Given Thanksgiving is a three day weekend, it is not clear to me why A.M.V. and J.R.M. could not have arranged to each have a Thanksgiving dinner on different days. [ 93 ] A.M.V. cites J.R.M.’s permissiveness as a reason for C.J.M.’s refusal to have parenting time with her.

One of the examples A.M.V. says illustrates J.R.M.’s undue leniency is an incident which occurred on February 13, 2019, where C.J.M. was accused of bullying a girl at school. A.M.V. referred to this incident on para. 7 of her Affidavit and in her oral evidence in court. She states she inquired with J.R.M. on the phone about how he was going to punish C.J.M. because she took bullying very seriously.

A.M.V. states in her affidavit J.R.M. refused to tell her how he “took care of it.” She does admit telling J.R.M. the girl was a “trouble maker.” J.R.M. says he did explain to A.M.V. the incident was not school-related; he told her what had happened and how he resolved the issue with the girl’s parents and there has been no problems since. Analysis of J.R.M. denying parenting time with C.J.M. [ 94 ] A.M.V. blames C.J.M.’s refusal to return to a shared parenting time to J.R.M.’s conduct and not to anything she has done.

She has said repeatedly that allowing a 12 year old boy (now 13) to decide which parent he wishes to live with gives the child too much power. J.R.M. and C.J.M. ought to simply comply with the terms of the January 29, 2019 order, even thought it was made after C.J.M. had already self-relocated to J.R.M.’s full-time care. [ 95 ] As children mature, their views on parenting time carry increasing weight. The law no longer renders children powerless pawns in their parents’ post-separation machinations.

As parenting time is the right of the child, C.J.M. is entitled to voice his concerns about spending time with his mother. Having said that, I am mindful the law requires the parents to do what is reasonably necessary to give effect to court-ordered parenting time arrangements. But there is a limit, and in my view the circumstances in this case are not comparable to that in those in Praught v. Praught (October 2, 2017) Terrace Docket 17140, (BCSC) or K.R. v. J.W. where the child has a benign objection to spending time with the rejected parent. [ 96 ] Clearly C.J.M. and A.M.V.’s have a very troubled relationship.

I agree that since January 25, 2019, J.R.M. has not made even a half-hearted effort to encourage C.J.M. to spend parenting time with his mother, but then, neither has she. I am not convinced J.R.M.

orchestrated the break down in C.J.M. and A.M.V.’s relationship or that he can fix it. I fear C.J.M. has become estranged from A.M.V.and she needs to find a way to reconcile their differences. [97] I do not find J.R.M. has wrongfully denied A.M.V. parenting time with C.J.M. under s. 61(2) of the FLA. A.M.V. withdrew herapplication for reinstatement of the shared parenting arrangement with respect to C.J.M. Even if she had not, I would not order itreinstated over C.J.M.’s protestations. I am guided by Justice Affleck comments in K.L.S. v.

K.M.S., 2017 BCSC 1315 , wherehe states that in a circumstance of parental estrangement, compelling an objecting child to resume a relationship with the estranged parent“is a recipe for getting nowhere.” C.O.M. [98] C.O.M. participated in A.M.V. and J.R.M.’s shared parenting arrangement from the time of their separation until late March2018, when she began living full-time with her mother. I have no evidence as to why this transition occurred other than it was C.O.M.’schoice to which J.R.M. reluctantly acquiesced.

In March 2018, C.O.M. would have been 13 years old. [99] In the spring of 2019, although she was only 14 years old, A.M.V. arranged for C.O.M. to obtain a job as a dishwasher at[omitted for publication] in Terrace. C.O.M. worked five hour shifts, three to four times per week, including during the school week. Itwas a fair commute to A.M.V.’s residence and the restaurant. There was no nighttime public transit from the restaurant to the area in[omitted for publication] where A.M.V. resides. [100] C.O.M. says she got up at 6:30 am to get ready for school and catch the bus.

After school she went to her swim club, and whenthat was over she worked a five hour shift at [omitted for publication]. Sometimes she worked as a hostess and other times, as adishwasher. C.O.M. returned home at 10:30 pm, at which time she walked her dog and did her homework.

She went to bed exhaustedsomewhere between 11:30 pm and midnight. [101] A.M.V. states in her June 22, 2019 Affidavit (para. 28) that her boyfriend at the time, D.C., picked up C.O.M. after she hadfinished work and spoke to her about “doing the dishes and keeping the house clean in general.” [102] On Tuesday, June 25, 2019, C.O.M. called her father after she had finished work and asked him to pick her up because hermother had made other plans and C.O.M. had no ride home.

J.R.M. went and retrieved C.O.M. and brought her back to his home.C.O.M. did not go to school the following day and never returned to A.M.V.’s house to live. [103] A.M.V. believes the only reason C.O.M. chooses to stay with her father is because A.M.V. enforces house rules and J.R.M. doesnot. According to A.M.V., C.O.M.’s dilatoriness in performing her assigned chores increased when she was working at the restaurant.

Iquery how much time C.O.M. had for household chores given her combined school, swim and work schedule. [104] A.M.V. acknowledges that she encouraged C.O.M. to get a job so C.O.M. could pay for luxuries she wanted which A.M.V.could not afford. With respect to picking up C.O.M. after work, A.M.V. states: I was going to start implementing her to take the bus, instead of me driving back and forth and picking her up. She would be off at 10o’clock. It was 10, which is kind of late for me because I start work at 7 am, so I usually go to bed at 9:30 and it was getting to be 10 or10:30 when she was done work.

My boyfriend would stay up and pick C.O.M. up from work. [105] A.M.V. testified as to a verbal dispute she had with C.O.M. on June 25, 2019, when she was driving her to work. A.M.V. wantedC.O.M. to buy her a Starbuck’s coffee and C.O.M. did not want to pay for it. A.M.V. testified: I said this is going to stop now C.O.M., you demanding me do things. You are going to have to start taking the bus. You are going tohave to start contributing. You are going to have to start paying for your own phone.

She was kind of quiet. [106] If there was no night-time bus service from downtown Terrace to [omitted for publication], I do not know how C.O.M. couldhave taken the bus home after work. [107] One of A.M.V.’s examples of J.R.M. being a “Disneyland Dad”, was his decision to buy C.O.M. a new iPhone 8. When C.O.M.moved out of her mother’s home, A.M.V. cancelled C.O.M.’s cell phone plan, but paid the $300 bill which was outstanding at the time.J.R.M. testified his cell phone broke and needed replacing. He was able to get C.O.M. and himself new cell phones on a shared plan.

Incross-examination, A.M.V. testified as follows: Q. . . . After C.O.M. had left your home did you not tell her that you'd be cutting off her phone? A. Yeah. So does it seem reasonable that being that her phone was an iPhone 6 with a bad battery that it needed to be replaced and wouldit be reasonable for me to buy her a new phone? A. I don't think it would be reasonable no, for a 14 year old to have a brand new phone. [108] A.M.V. cites as further example of J.R.M.’s inappropriate indulgence was permitting C.O.M. to have a belly-button ring.

Shesaid she would have never approved of C.O.M. having such a piercing therefore it must have been J.R.M. who permitted it. She states incross-examination: Q. You mentioned a few things about C.O.M. How would I allow her to have a belly-button ring, etc.? When was your trip to PrinceGeorge, or somewhere around May with C.O.M. and maybe one of her friends? A. The long weekend in May. Q. Was she living with you at the time, or with me?

A. Me. Q. Are you aware that that is the time that she got her belly-button pierced? A. No, because I did not sign for it. Q. She was in your care when she did that, not mine? A. I never saw it. She was in swim-club and everything. I never saw that. Q. Because you never saw it does that mean it didn't happen, or? A. I would never approve of her to have a bellybutton ring and you have to sign for approval. Q. Did you not accuse me of being a bad father in allowing her to do things like that and allowing her to get her way, get whatever she wants. And that was your example of allowing her to do such things? A.

Yes, your rules are way more lenient than mine would be. Q. Did you accuse me of that situation of allowing her to get that belly-button ring that actually happened on your time? A. I -- I guess I did. I was not -- I had seen her like in bathing suits and such and she had not had a belly-button ring. So unless she was taking it out so that I couldn't see it. I never signed for it. I don't know how she got it.

It's a – you have to sign permission for 14 to get a bellybutton ring. . . . [ 109 ] C.O.M. says her mother became really angry about the belly-button piercing because she didn’t know about it and A.M.V. invited comments from her Facebook friends on its inappropriateness for a girl of C.O.M.’s age. [ 110 ] C.O.M. has cited a number of reasons why she does not want to return to her mother’s home. Broadly speaking, C.O.M. says: a. A.M.V. spent little money on food or clothing for C.O.M. C.O.M. was expected to get a job and pay for her own clothes and food; b.

A.M.V. did not make lunches for any of the children and did not cook regular meals. C.O.M. bought her own lunches while at school and ate dinner at the restaurant where she worked; c. A.M.V. had boyfriends who drank and smoked a lot and who C.O.M. thought were creepy. C.O.M. resented A.M.V. sending her boyfriend to pick her up after work; d. A.M.V. spent many of the evenings going out drinking with her friends and boyfriends (D.S. and D.C.). They always brought alcohol into the home; e. A.M.V. focus and priority was on her boyfriend rather than her children; f.

When she was very ill, A.M.V. left her alone in the house without any medication. A.M.V. accused C.O.M. of being hung over. C.O.M. does not drink or use drugs and felt uncared for and alone; g. A.M.V. posts personal and private information about C.O.M. on her Facebook account and solicits comments from her Facebook friends, about C.O.M.’s dress, behaviour, choices or appearance; h. When C.O.M. removed her cat JY from A.M.V.’s residence, A.M.V. phoned C.O.M. and told C.O.M. if she did not return JY, A.M.V. was going to get rid of C.O.M.’s second cat, LX the next day and C.O.M. would never see her again.

C.O.M. went with her boyfriend to A.M.V.’s house and retrieved LX and A.M.V. yelled at C.O.M. to get out; i. C.O.M.’s cat JY was attacked by a dog and needed his leg amputated. G.M.M. told A.M.V. what had happened. A.M.V. called J.R.M. and left a voice mail message telling him that JY needed to go to A.M.V.’s house after surgery; j. A few months prior to C.O.M. attending court (November 25, 2019), A.M.V. sent C.O.M. a text message that she had separated from her boyfriend, D.C., and C.O.M. could now return to A.M.V.’s home because D.C. wasn’t living there anymore.

A few days later C.O.M. received a message that A.M.V. and D.C. were back together. [ 111 ] C.O.M. says that J.R.M. parents her and her younger brothers. He is always home, rarely drinks alcohol, and does not bring new partners into their lives. She enjoys living at her father’s home and the close proximity to her older brother and her cousins. [ 112 ] C.O.M. does not believe she or her brothers use electronic devices at their father’s home any more than they did at their mother’s place. [ 113 ] In cross-examination, A.M.V. admitted threatening to get rid of LX if C.O.M. did not return JY by the next morning.

A.M.V. said that JY was not C.O.M.’s cat but her cat she had rescued from the shelter when C.O.M. was two years old. [ 114 ] I note in the

Section 211 report, its author, Family Justice Counsellor Anne Reuvekamp, states on page 5 that, “At her dad’s home C.O.M. has her own bedroom, two cats named K. and J.Y., and 15 chickens.

[115] A.M.V. also agreed that she since C.O.M. left, she had texted C.O.M.’s friends to obtain information about C.O.M.: Q. Have you followed her friends Instagram accounts and various social media to try and keep track of C.O.M.? A. Yes. I'm her parent. [116] In sum, C.O.M. believes that while at her mother’s home, she had to be her own parent and a parent to her younger brothers. Shebelieves A.M.V. put her own wants above the children’s needs.

C.O.M. believes in his household, J.R.M. makes the children his priority.C.O.M. is reluctant to spend time with her mother because she feels pressured to return to live with her which she does not want to do. [117] I understand that over the Christmas holidays and more recently, C.O.M. has had brief visits with her mother. [118] C.O.M. is 15 years old. She has decided to live full-time with her father. In K.M.H. v P.S.W, 2018 BCSC 1318 ,Mr. Justice Skolrood had to grapple with a case involving the ongoing estrangement of a 14 year old daughter from her father.

JusticeSkolrood comments are apposite of the application before me: [52] The stark reality is that the court ultimately has limited capacity to intervene and resolve problems like the ones confronted bythis family. [119] Justice Skolrood concluded (at para. 55) in the case before him on the basis of expert evidence and his own interview of thechild, that two things needed to occur to progress and improve the child’s relationship with the rejected parent: (1) the child had to cometo terms with the issues she had with her estranged parent; and (

b) the parents had to resolve their ongoing acrimony and mistrust andlearn to coexist and co-parent their children. [120] I do not get the sense that C.O.M. is estranged from her mother to the same degree as C.J.M. Despite her shopping list ofA.M.V.’s shortcomings, I get the sense that with the passage of time, C.O.M. will re-establish her relationship with her mother. Issue #2: Should this court penalize J.R.M. for breaching the January 29, 2019 order? Penalty for wrongful denial of parenting time [121] A.M.V. seeks monetary penalties under s. 61(2)(

c) and (

g) FLA arising from J.R.M. breaching the January 29, 2019 order. Sherelies on Justice Punnett’s decision in Praught wherein the mother refused to deliver to the father their 12 year old son for his father’sscheduled parenting time because the child said he did not want to go. The child claimed he didn’t like his father fighting with his step-mother, but admitted to the s. 211 report writer he preferred his mother’s house because she allowed him to do whatever he wanted. Thefather was not as lenient.

Justice Punnett held that the mother’s failure make it clear to the child that it was not his choice whether tospend time with his father constituted a wrongful denial parenting time with the father. Justice Punnett ordered the existing sharedparenting arrangement resume forthwith and the mother pay to the father $3,000 for the benefit of the child within 60 days. [122] The Praught case is distinguishable from the one before me. Most significantly, for the reasons set out above, I do not findJ.R.M. has breached the January 29, 2019 order by wrongfully withholding parenting time from A.M.V.

As I noted above, A.M.V. hasalready received pre-arranged compensatory parenting time for the few times J.R.M. or G.D.M. had custody of G.M.M. during A.M.V.’sparenting time. [123] A.M.V. has persistently asserted the children prefer their father’s house because of his leniency. I do not accept that to be thecase. In my view C.O.M. and C.J.M. have refused parenting time with A.M.V. because of their own experiences living with her. Thereasons for their refusal are neither illogical nor irrational.

If J.R.M. was the truly the agent of their mother’s estrangement, then I querywhy C.O.M. chose to live with her mother up until June 25, 2019, or why G.M.M. is still happily spending his time with both parents.Accordingly, I decline to order any penalty under s. 61(2)(g). Penalty for breaching conduct orders. [124] A.M.V. also seeks compensation for J.R.M. breaching the parental conduct provisions of the January 29, 2019 order. Herapplication engages ss. 228(1) and 230 of the FLA which state: Enforcing orders respecting conduct 228

(1) If a party fails to comply with an order made under this Division, the court may do one or more of the following: (

a) make a further order under this Division; (

b) draw an inference that is adverse to the party, and make an order based on the inference; (

c) make an order requiring the party to pay (

i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees andexpenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non-compliance, or (iii) a fine not exceeding $5 000; (

d) make any other order the court considers necessary to secure compliance.

Enforcing orders generally 230 (1)Subject to

section 188 [enforcing orders respecting protection], an order under this

section may be made only if no otherprovision of this Act applies for the purposes of enforcing an order made under this Act.

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or moreof the following: (

a) require a party to give security in any form the court directs; (

b) require a party to pay (

i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees andexpenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by theparty's actions, or (iii) a fine not exceeding $5 000. [125] In A.J.F. v N.L.S, 2020 BCSC 26 , Justice Skolrood, considered s. 228, in the context of an FLA application in whichthe claimant sought a number of orders to address the respondent’s alleged “repeated, prolonged and unrepentant failures and refusals” toabide by multiple court orders.

Justice Skolrood states at para. 73: [75] In this regard, there can be no debate about the importance of complying with court orders. Compliance is not a matter of discretionor choice on the part of litigants. Rather, compliance is fundamental to the proper administration of justice and maintenance of the ruleof law. . . [Citations omitted] [126] Justice Skolrood went on to discuss ss. 228 and 230 of the FLA at paras: 83 to 87 [citations omitted in part]: [83] As noted by Master Bouck in C.A.L. v.

D.E.L., 2018 BCSC 772 at para. 43, s. 228 has been considered a limited number of times,but shares much of the same language as s. 213, which was discussed in J.D.G. v. J.J.V., 2013 BCSC 1274. Relying on J.D.G., MasterBouck said, “a robust application of the FLA’s enforcement provisions is necessary so that the parties can focus on resolving the truemerits of their dispute and not be bogged down in repetitive and costly pre-trial applications.” Like s. 213, s. 228 should be appliedcreatively in a manner sensitive to the particular issues before the court.

The court should focus on what measure will be most effectivein the circumstances: J.D.G. at para. 25. [84] In addressing s. 228, a court must also be mindful of the purposes of conduct orders as stated in s. 222 of the FLA: C.A.L. atpara.

Section 230 is linked to s. 228 in this case because its application is only triggered if no other provision of the FLA applies . . . [85] The measures set out in ss. 228 and 230 should be resorted to when, and only to the extent, necessary and appropriate to enforce andsecure compliance with orders made under the FLA . . .

Orders under ss. 228 and 230 may be necessary to impart on one or both partiesthat they are bound by the FLA and must comply with court orders . . . [86] Although compliance with the FLA and related court orders is critical, the FLA mandates a more holistic approach to resolvingfamily disputes that minimizes delay, formality and conflict between the parties: s. 199(1). The remedies available under ss. 228 and 230empower the court to provide progressively more serious responses as a particular case may dictate.

More importantly, a court’sobjective should be to fashion a remedy that ensures compliance while addressing the specific situation before the court . . . [87] Given the nature of the current conflict between the parties and its relation to the children, the Court must encourage the parties tofocus on the best interest of the children: FLA, s. 199(2). . . [127] A.M.V. cited the following incidents as breaches of January 29, 2019 parental conduct orders: a. On March 29, 2019, A.M.V. arrived at J.R.M.’s residence to pick up G.M.M., J.R.M. would not “let go of her truck” so she hadto back out of her driveway.

He did this while G.M.M. was in the vehicle. G.M.M. became upset and began crying. A week later, whendropping off G.M.

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