Nazarinia v. Amid-Nazarinia, 2024 BCSC 189

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nazarinia v. Amid-Nazarinia, 2024 BCSC 189 Date: 20240207 Docket: E210560 Registry: Vancouver Between: Reza Nazarinia Claimant And Shima Amid-Nazarinia Respondent Before: The Honourable Justice Fleming Reasons for Judgment The Claimant appearing on his own behalf: R. Nazarinia Counsel for the Respondent: G.K. Thomas Place and Dates of Trial: Vancouver, B.C. February 21–24, 27 and 28, March 1–3, 6, 7, 9 and 10, 2023 Place and Date of Judgment: Vancouver, B.C.

February 7, 2024 Table of Contents Introduction .. 4 Background .. 5 Admissibility of Recordings .. 11 The February Recordings . 12 Gun Threat Recording . 12 Throwing Meat Recording . 13 Third Recording . 14 Locked in the Office Recording . 15 Drop Off Recording . 17 School Recording . 18 Legal Framework . 19 Positions of the Parties . 20 Discussion . 21 Credibility .. 24 Legal Principles . 24 Statutory Framework .. 29 Parenting Arrangements .. 30

Legal Framework . 31 Discussion . 33

Section 211 Report 33 Interviews with R and A .. 35 Evidence of Ms. Warner 38 Further evidence of the parties . 39 History of the Children’s Care . 42 Parenting Time and Related Orders . 50 Guardianship and Parental Responsibilities . 53 Child Support .. 58 Claimant’s Guidelines Incomes . 60 Respondent’s Guidelines Incomes . 62

Section 7 Expenses . 65 Spousal Support .. 69 Legal Framework . 69 Entitlement 71 Quantum and Duration .. 72 Property and Debt Division .. 75 Legal Principles . 75 Safety Deposit Box Incident 76 Excluded Property Claim .. 78 Authorities . 79 Relevant Evidence . 80 Discussion . 82 Disputed Debt Claim .. 83 Former Family Home . 84 Occupational Rent 85 Dividing Other Property and Debt 88 Introduction [ 1 ] The parties to this family law proceeding are the parents of R and A, now nine and seven years old.

Married in 2007, they agree they separated in September 2020, although they continued to live together in the former family home until February 2021. [ 2 ] The main issues in dispute are the regular parenting schedule, final decision-making authority regarding some parental responsibilities, the parties’ incomes for child and spousal support purposes, and aspects of the division of property and debt. [ 3 ] The claimant’s property and debt claims include an excluded property claim related to what he identifies as a living inheritance received from his mother that he contributed to the purchase of the former family home and a family debt claim based on a renovation completed by his father. [ 4 ] Credibility is also a significant contested issue in this case. [ 5 ] Both parties make some allegations of family violence during the marriage.

Both say the other was verbally abusive. The

claimant alleges the respondent was also generally volatile and physically aggressive with him on two occasions. The respondent alleges the claimant was generally financially controlling. Neither has suggested, however, that family violence is a consideration in determining the parenting issues. [ 6 ] Aside from the parties’ testimony, the evidence includes an uncontested s. 211 report prepared by psychologist Dr. Michael Elterman based on his assessment of the parties and the children (the “Section 211 Report”).

The claimant also adduced several audio recordings, all but one of which I found admissible following two voir dires . The claimant’s partner, Ms. Abadi testified in a voir dire because she made one of the recordings. The claimant’s only other witness was his mother. The respondent’s witnesses included her sister and a neighbour. Each party also relied on volumes of documentary evidence. Background [ 7 ] The claimant is 46 years old.

Employed as a director of sale and business development with the Better Business Bureau (the “BBB”) since 2021, the claimant started his own business in April 2022, which he says has yet to generate any revenue. [ 8 ] The respondent, 41 years old, is a nutritionist who works mainly at St. Paul’s and Richmond Hospitals. [ 9 ] Both parties were born in Iran. The claimant has lived in Canada since he was a young child. [ 10 ] The respondent moved to Canada as an adult accompanied by her parents and sister in May 2007.

Her parents and sister returned to Iran for a period of time while her sister completed a medical degree.

Since then, all three have lived here Her sister is a licensed physician who works in Vancouver as a general practitioner. [ 11 ] Both the respondent’s sister and their parents were always very involved with the parties and the children. [ 12 ] Before immigrating, the respondent completed undergraduate and graduate degrees in soil science. [ 13 ] The parties met soon after the respondent arrived in June 2007 and married in July 2007. [ 14 ] At the time of the marriage, the claimant was working as a sales representative for a large manufacturer of dental implants and dental laboratory equipment.

He testified to owning a condominium in North Vancouver, a rental property in Surrey, and financial investments. The respondent suggested the condominium was purchased after they married. [ 15 ] Initially the parties lived in the condominium. In 2008, they moved to Toronto for several months to pursue a business opportunity. The claimant had purchased a carwash franchise with funds provided by the respondent’s parents. Unfortunately the business failed and resulted in civil litigation. [ 16 ] In or about December 2008, the parties returned to the Lower Mainland.

After selling the condominium, they lived in a rental apartment. [ 17 ] In 2009, the respondent began studying English and completing science courses at what was then Capilano College. In September 2010, she transferred to UBC. [ 18 ] Before deciding to become a nutritionist, the respondent considered a number of other educational/career options including a doctorate in soil science, dentistry and pharmacy.

She entered the food nutrition health program in January 2011, and graduated in or about May 2013. [ 19 ] The claimant completed an undergraduate degree in February 2012 and then a (part-time) executive MBA at SFU in May 2019 while working full-time. [ 20 ] From late 2008 to 2014, he worked as the national sales manager for another company that produces dental implants. From 2014 to 2017, he was a regional sales director for a large contact lens manufacturer. [ 21 ] During his MBA program, from 2017 until early 2019, he was the director of sales for a large pharmaceutical company.

In March 2019 until after the separation, he worked as the Vice-President for an industrial trades company. [ 22 ] In 2012, the parties bought their first house in Coquitlam. They bought the former family home in August 2016 after refinancing the Coquitlam house that same year, which they sold in 2017. While living in the Coquitlam house, the parties rented out the basement suite and also earned some income by hosting international students. [ 23 ] After working full-time as a nutritionist, the respondent started a maternity leave in December 2014. R was born in January 2015.

A was born only 15 months later in April 2016. The respondent remained at home with the children until December 2018 when she returned to work part-time. [ 24 ] The respondent alleges the claimant was too busy with work and his MBA program to be very involved with the children prior to the separation, although they were in his care on weekends once she starting working again.

The claimant describes himself as always actively involved with both R and A from birth. [ 25 ] Following their separation in September 2020, the parties continued to live together in the former family home until on or about February 17, 2021 when the claimant moved out. Before he left, on or about February 8, 2021, the claimant visited their joint safety deposit box, he says, to inventory the items. The respondent arrived soon after. Each of them took photographs of the items that had been kept in the safety deposit box.

Each denies taking a diamond necklace and bracelet that were missing by the end of the visit.

[ 26 ] The day before the claimant left the former family home, he made four audio recordings of interactions with the respondent. [ 27 ] Ms.

Abadi also made a recording on March 2, 2021 of the respondent’s mother berating her in the presence of her youngest child and then four year old A, at the elementary school attended by her older child and R. [ 28 ] The claimant complains the respondent severely limited his parenting time with the children once he was no longer living in the former family home, although they spent a great deal of time with and often stayed overnight with their grandparents. [ 29 ] The claimant filed a notice of family claim on March 5, 2021.

That same day, he obtained a without notice protection order that expired on April 6, 2021. The protection order prohibited the respondent from attending his home or his work place and from following him. In closing submissions, the claimant acknowledged a conduct order restraining the respondent and through her, her family members, from exposing the children to negative communication or conduct should have been sought instead. [ 30 ] In late March 2021, through counsel, the parties discussed the claimant moving his belongings and other items out of the former family home on March 31, 2021.

Arrangements for the move were much disputed between counsel. Before the move, the claimant’s then counsel wrote that he would be bringing a truck and co-workers to assist him. Counsel for the respondent took the position “there should be no one other than a police escort”. Counsel for the claimant responded that they had agreed to vacate the protection order, the claimant would not be attending with a police officer, and the police were only able to attend for a maximum of one hour.

Ultimately, the respondent arranged for police to be present. [ 31 ] Each party accuses the other of behaving badly during the move. The claimant and the respondent’s sister do the same. [ 32 ] On April 27, 2021, Master Elwood, as he then was, granted a consent order regarding the claimant’s interim parenting time that included after school on Mondays and Wednesdays until 7:30 p.m. and from Saturday mornings to Sunday afternoons.

In addition, the claimant was required to drive the children to school three mornings a week (the “Elwood Order”). [ 33 ] During the proceeding, the claimant took the position that close to equal, if not equal, parenting time with the children was in their best interest. [ 34 ] The respondent emphasized the claimant’s willingness to consent to much less time as provided for in the Elwood Order.

The claimant maintained that he was desperate to spend whatever time he could with the children. [ 35 ] The Elwood Order also included a number of conduct orders that required both parties to: 1. encourage the children to have a good relationship with the other parent and to speak positively and respectfully about the other parent, their partner and their family and not to disparage or speak ill of them in front of the children; and 2. not question the children about the other parent or the time spent with them beyond simple conversational questions or to discuss inappropriate adult or legal matters with them. [ 36 ] The conduct orders also precluded Ms.

Abadi from parenting the children or picking them up from school etc. [ 37 ] On May 18, 2021, the claimant was terminated from his job without cause. [ 38 ] On June 21, 2021, Master Dick made a summer parenting time and a without prejudice support order.

Based on Guidelines [1] incomes of $252,143 for the claimant and $27,051 for the respondent, the claimant was required to pay monthly child and spousal support of $4,341 and $3,364 (the “Interim Support Order”). [ 39 ] The Interim Support Order also required the claimant to “continue” collecting the “rental property income” and applying it to the mortgage payment on the former family home.

The respondent was responsible for one-half of the remaining mortgage payment each month. [ 40 ] The claimant did not pay support after the Interim Support Order. [ 41 ] In or about September 2021, he started his current job with the BBB, which pays a salary of approximately $90,000. [ 42 ] On December 21, 2021, Justice Mayer varied the Interim Support Order and reduced the claimant’s Guidelines income to $100,000 effective January 1, 2022. He also fixed the arrears of interim child and spousal support and ordered them payable forthwith.

Alternatively, however, Mayer J. permitted the arrears to be set off against the amount the respondent was required to pay the claimant for his interest in the former family home if an agreement was reached (the “Mayer Order”). [ 43 ] Justice Mayer also found the claimant in contempt of court for failing to pay child and spousal support and for failing to return the children to the respondent on October 10, 2021, as required by the parenting time

schedule in the Elwood Order. [ 44 ] Further terms of the Mayer Order included dismissing the claimant’s previously adjourned application for the sale of the former family home; and varying the Interim Support Order regarding the payment of expenses related to the former family home.

Under the Mayer Order, the respondent was required to apply the rental income to the mortgage and to pay various household utilities; and the parties were required to equally share other expenses including property taxes, home insurance, home security and gardening until the home sold. [ 45 ] On June 23, 2022, Justice Fitzpatrick dismissed the claimant’s application to vary his regular parenting time, but granted his application for equal holiday parenting time, on a specified schedule.

She also permitted him to travel to California with the children, where his mother and other family members live, and ordered the respondent to provide him with the children’s expired passports. [ 46 ] Self-represented by the time of the trial, the claimant was highly organized and well prepared. Understandably, his approach to

most of the contested issues was based on the respondent’s positions and allegations during interim applications and examinations for discovery, some of which changed or were not pursued at the trial. The respondent and her family members had alleged in affidavits, for example, that they were afraid of him and he abused alcohol, which he said was entirely false. Although the respondent complained to a limited extent about his drinking before separation, during her testimony, she did not give evidence that she was ever afraid of him. Her sister made neither allegation.

The respondent’s parents were not called as witnesses. [ 47 ] At the end of the trial, I granted a divorce order. By consent, I also granted a further interim order that provided for equal holiday parenting time during spring break and the summer and an order authorizing the respondent to purchase the claimant’s interest in the former family home on terms and without prejudice to their property and debt claims. [ 48 ] After I reserved my decision, the respondent made a request to appear before me that ultimately resulted in an application to re- open her case.

Filed September 27, 2023, in her application, she accused the claimant of neglect, alleging he failed to take A to the hospital after she fell and fractured bones in her hand or wrist on the school playground, resulting in significant pain. The respondent also alleged the claimant then unilaterally terminated the children’s counselling, which they had been attending since February 2022, because he feared them disclosing his neglect. [ 49 ] I allowed the respondent to re-open her case to address those two circumstances.

As a result, the trial continued for one more day on December 8, 2023. [ 50 ] At the conclusion of the continuation, I granted a further interim holiday parenting time order that addressed the specific

schedule for the children’s “Christmas” school break. Admissibility of Recordings [ 51 ] As I have indicated, the parties disputed the admissibility of six short audio recordings, along with translated transcripts of the Farsi portions of most of the recordings prepared and signed by a certified court interpreter adduced by the claimant. [ 52 ] The recordings, translated transcripts and related testimony were the subject of two voir dires . I ruled that all but one of the recordings, defined below as the Drop Off Recording, admissible.

Along with the five recordings, I admitted the voir dire testimony and the translated transcripts as evidence in the trial proper with reasons to follow. These are my reasons. [ 53 ] The claimant testified to making five of the recordings. Four of the five recorded conversations with the respondent in the former family home on or about the day before he moved out, which he identified as February 17, 2021 (“ February Recordings ”). He made the fifth recording, which includes the children, while dropping them off at the former family home, on or about March 10, 2021 (“Drop Off Recording”). [ 54 ] Ms.

Abadi testified to making a recording of the respondent’s mother at the children’s school at the claimant’s request. It depicts, as I have indicated, the respondent’s mother berating her, using deeply offensive and misogynistic language (“School Recording”). Although Ms. Abadi was cross-examined in the voir dire about a range of issues, which I do not intend to discuss, she was not questioned about allegations that involved her hitting her own children, which the respondent had made to Dr. Elterman and then again unpromoted in cross-examination.

The February Recordings [ 55 ] The claimant testified to making the February Recordings with his cell phone and providing them to the translator on a USB stick. He denied editing or altering them in any way. The claimant also testified that the respondent was aware he was recording her, stating they discussed the issue in the first of the four recordings and his phone was visible to her. Page 3 of the transcribed transcript confirms this. The respondent asks the claimant if he is recording her voice. He tells her that he is protecting himself, “because I don’t know what you could be capable of”.

He also says he learned this from her with reference to a recording she made previously. Gun Threat Recording [ 56 ] The claimant described the first conversation taking place after the respondent came into his office downstairs. The respondent talks about speaking to psychologists and then to his father at some length. At p. 5 of the transcript, she tells the claimant he is mentally sick. On the next page all of a sudden she states that she is scared, is calling the police and then, “I promise I say he has a gun; he is pointing it at my ehh [head]”. The claimant responds by asking her why she is lying.

The respondent says that she is not lying although she acknowledges his gun is upstairs. She also says, “have you not threatened me with a gun several times”. The claimant states, “you liar”. The respondent tells him, “if you act like a liar towards me, I can do the same towards you”. She also tells him, “if you play with me, I will play with you”. The claimant continues to call her a liar and ask her when he pointed a gun at her. He also says, “[y]ou injured my hands covered with blood several times”. The respondents responds, “… [y]ou didn’t give me a bruise like this?” The claimant states, “[w]ho, what?

So you wouldn’t beat me”. The respondent laughs. [ 57 ] After considerable back and forth, at p. 8 of the transcript, she acknowledges the claimant did not point a gun at her and says she will not tell the police that he did. [ 58 ] The respondent then states that the claimant threatened her that morning with not giving her a single cent. She asks him several times if she is a sponger, apparently referring to earlier conversations. At a certain point he says, “yeah because you don’t want to …”.

Moments later she tells him she wants all his financial statements. [ 59 ] The claimant testified to keeping all of his financial documents in his filing cabinet in the office. He tells her to pull them out; he will disclose all of them and he will no hide anything from her. She asks him a few times if he has a lawyer and who that lawyer is,

ending with, “who is your lawyer, stupid”. The claimant responds, “don’t act like that. You really aren’t stable”. She calls him stupid again. Throwing Meat Recording [ 60 ] The claimant testified the second recording began when he was walking up the stairs and the respondent blocked his path. The transcript starts with the respondent saying, “[w]hat is it? You want to beat me”. She also says she is scared if he gets close to her. She tells him to move aside, she is really scared and she will call the police. He responds, “how much of a liar are you? Didn’t you just throw the meat at me”.

She denies this, stating she threw it on the floor. She returns to telling him not to come near her. [ 61 ] During this recording, according to the claimant, the respondent threw a package of meat at him, which he had just bought, because it was not organic. After the respondent tells the claimant not to come near her, he states “… okay move aside and let me go the other way. You can’t block the doorway and tell me not to”. The respondent then refers to the claimant losing face in the bank and, “[g]od know[s] everyone in the bank knows what you did”.

At that point a young child, identified as R by the claimant, can be heard saying, “[w]hat are you doing?” The respondent comments about giving R the power to choose and “your dad is now well off”. The claimant responds, “… the kids are sleeping. By acting this way you’re just hurting the kids”. The respondent then says, “[s]o, why are you hurting the kids? You say you ( sic ) are discriminating between the kids. Are you so dumb? Stupid”.

After the claimant tells her to speak properly, she responds, “you speak properly, to tell the kid, before the kid that I am discriminating unintelligible”. [ 62 ] Regarding the reference to discriminating, during his evidence, the claimant explained he had some concern the respondent had been treating A and R differently based on gender stereotypes and A was becoming less outgoing and confident. [ 63 ] The parties return to arguing about the meat. Essentially the respondent acknowledges throwing it although not at the claimant.

The respondent also accuses the claimant a few times of stealing “the gold” and taking $30,000. She calls the respondent a loser and tells him she will cause trouble for him although she does not want to, because he stole all the gold. Finally she tells him to “get lost” and leave the home. Third Recording [ 64 ] The third recording is very brief. It begins with the sound of footsteps. The claimant testified he had gone downstairs was coming back upstairs again. He recalled he was bringing groceries such as a vegetable platter to put in the fridge.

The parties’ initial exchange includes: C: “Does anyone throw meat?” R: “Yeah” C: “Is it normal to do?” R: “Yeah, because” C: “Take your hands off my face” R: “Is it normal to take pictures and send to your dad? … I don’t let you put this in the fridge”. C: “What does it mean … R: “I don’t allow it” … C “Why are you acting this way?” … R: “… because you stole” C: “Liar” R: “Am I a liar. You called and cancelled the child’s class” C: Look the two kids are sleeping R: Why did you cancel the class … Why did you steal the gold? Why did you take the thirty-thousand dollars?

Tell the bungling lawyer of yours to at least help you, you loser! I don’t want to cause you trouble, but God knows I will. I really didn’t want to cause you trouble. Because you stole the fold (unintelligible). You stole all the gold. Get lost and leave the house”. [ 65 ] In cross-examination, the claimant testified the respondent had accused him of stealing and lying about things throughout the marriage. Locked in the Office Recording

[ 66 ] The claimant testified to making the fourth recording, which he said was the last of the four, after locking or barricading himself in his office. The sound of a door rattling can be heard, which the claimant identified as the respondent trying to get in. In English, the claimant asks her to leave him alone. He denied the suggestion that he staged this by playing with the door himself. As he points out, she never questions why he is trying to make it look like she is trying to break in. Instead, she implores him to open the door.

She tells him she trusted him and talks about him taking the gold, with reference to the safety deposit box incident. [ 67 ] Sounding tearful and intense initially, the respondent then sounds angry. The claimant cautions her that their tenants will call the police. She refers again to him calling her a sponger and saying she discriminates between the children along with making them “bipolar”. The recordings ends with her saying, “I honestly want to leave this life. I really got the best lawyer for this reason. I got the best lawyer for this very reason to know my rights. Am I an avarious ( sic ) person.

I don’t want to take anything from you”. [ 68 ] The respondent also testified about the recordings. Extremely unfocused and tangential at times, she referred to having text messages, not in evidence and a recording of her own that would support her version of events. When she was asked if she was aware she was being recorded during the February Recordings, she essentially acknowledged she was. [ 69 ] Addressing some of their content, the respondent denied throwing meat at the claimant.

Stating she “dropped it down” or threw it on the floor, the respondent also testified to being very upset because the claimant had cancelled her credit cards and her Costco card, which he disputed during cross examination in the trial proper.

The respondent also testified that when the claimant told her during the Third Recording to take her hands off his face, this was “for the recording”, stating it was not possible for her to reach is face because she is very small and he is very tall. [ 70 ] Asked if the translated transcripts match what the parties spoke about that day, the respondent identified a very minor error in one of the transcripts but alleged that only selective parts of ongoing conversations were recorded.

She also alleged that during those conversations the claimant said he was not going to give her a penny and he admitted to receiving $150,000 from her parents. According to the respondent, he called her a sponger and a freeloader many times. She also said that during the February Recordings the claimant was trying to “trigger” her, and she did not want to recall some things because they were “so disturbing to her”.

When asked about unrecorded threats the claimant had made, however, the respondent said it was just that he always called her a freeloader and he would not give her any money. [ 71 ] Cross-examined about whether she felt she was justified in threatening to call the police and falsely allege the claimant had threatened her with a gun, the respondent answered, “of course, if you act like a liar I can do the same thing”.

Later she attempted to minimize the significance of her threat by emphasizing that she never followed through on it. [ 72 ] Appreciating that surreptitious recordings are inherently self-serving, throughout much of the February Recordings, I would note the respondent sounds intense and agitated and the claimant calm and reasonable. Drop Off Recording [ 73 ] The Drop Off Recording is mostly in English and not transcribed. The claimant testified to arriving at the former family home to drop off the children. The respondent was not home but her mother was. R left the car and went inside but A did not want to go in.

The claimant tried to persuade her. He also went to speak with R at the front door. According to the claimant, the respondent’s mother pulled R inside and slammed the door on him. The claimant began recording when the respondent arrived. She can be heard talking to A. Over and over again, the respondent asks A to leave the car with her. A refuses. By this point R has returned to the car. He says his grandmother “slammed Bubba’s face and Bubba got hurt”. The claimant tells him to return to the house.

When the claimant offers to drive around with A until she falls asleep, the respondent tells him he cannot leave because she has called the police. One of the children begins to cry, stating, “Bubba is going to jail”. During his testimony, the claimant described the incident as an example of horrible parenting on both sides, although, he was trying to defuse the situation. School Recording [ 74 ] Ms. Abadi testified to making the School Recording outside the elementary school, attended at that time by her older daughter and R. Ms. Abadi and her younger daughter were there to pick up her older daughter.

While she was talking on the phone with the claimant, Ms. Abadi heard some profanity. She turned around and realized the respondent’s mother was yelling at her. A was with her. Ms. Abadi’s ex-husband was also present. [ 75 ] The claimant asked Ms. Abadi to end their call and record what was happening, which she did. Ms. Abadi said she asked the respondent’s mother to stop yelling but she continued. Ms. Abadi’s daughter was very upset and crying. After Ms. Abadi stopped recording and moved away, the respondent’s mother came toward her again. Describing the situation as very stressful, Ms.

Abadi said she tried to focus on her daughter. [ 76 ] In cross-examination, Ms. Abadi said she did not know if the respondent’s mother was aware she was being recorded, but she would have seen the phone. [ 77 ] Ms. Abadi’s account of the circumstances is consistent with the translated transcript and what can be heard in the audio recording. Together, they establish the respondent’s mother made profoundly offensive comments to Ms. Abadi about her involvement with the claimant and also disparaged the claimant, in the presence of her younger daughter and A.

Loud and angry sounding throughout, the respondent’s mother also accused Ms. Abadi of destroying the lives of four children and making them orphans. Ms. Abadi at one point tells her to be quiet. [ 78 ] Ms. Abadi testified that after the incident she had a hard time calming her younger daughter, who refused to go to the school for two days. She also described herself as very fearful of being verbally attacked whenever she attends the school. Ms. Abadi indicated she tries to avoid the respondent and her family members there.

[ 79 ] The claimant gave evidence about his text exchange with the respondent during the incident. He wrote, “[y]our mother is at the school swearing and causing a scene”. The respondent replied, “[y]our lover is very upset Awwww”. When he then stated, “I am concerned for my kids!”, the respondent said, “[a]wwwww Falls ( sic ) allegation! Then, “how you know? Your lover?! If you were really concerned, you didn’t cheat on me with my ex-friend…”. [ 80 ] Describing herself as emotionally distraught over the claimant’s relationship with Ms.

Abadi at the time, and her mother as over protective, the respondent emphasized that she ensured her mother did not to pick up the children at the school after the incident. [ 81 ] However, Ms. Abadi also described a subsequent incident at the school before the end of the school year in June 2021, involving the respondent that was not recorded. According to Ms. Abadi, the respondent swore at her using the same words her mother did. Her children and R and A were present at the time. Legal Framework [ 82 ] The recent case of C.C. v.

S.P.R. , 2022 BCSC 1057 , discusses the policy objectives and the legal principles that govern the admission of surreptitious recordings in family law cases. Reviewing the approach in BC, Justice Gibb-Carsley identified a tension in the cases between the strong policy reasons for discouraging the practice, and what the law recognizes as a limited discretion to exclude them. [ 83 ] His decision affirmed the four part test for admissibility articulated in Finch v. Finch , 2014 BCSC 653 at para. 62 : 1. The recordings must be relevant; 2. The participants must be accurately identified; 3.

The recordings must be trustworthy; and 4. The probative value of the recordings must outweigh their prejudicial effect. [ 84 ] Trustworthiness relates to whether the recording accurately represents what was said at the time. In other words the concern is whether the recording has been manipulated as opposed to being incomplete or selective: C.C. at para. 51 . [ 85 ] The issue of prejudice includes prejudice to the parties, the trial process and the reputation of the administration of justice: Matthews v. Matthews , 2007 BCSC 1825 .

Regarding prejudice to the opposing party, the necessary inquiry is the mirror image of the probative value inquiry. [ 86 ] If the evidence is incomplete or capable of manipulation, it will operate prejudicially. At the same time, the prejudice from excluding the evidence must also be considered: Matthews . It is recognized that excluding reliable evidence of abuse of a child, for example, would adversely affect the reputation of the administration of justice. [ 87 ] Prejudice to the trial process relates to the cost of admitting the evidence, namely the time involved.

Prejudice to the administration of justice arises from admitting improperly obtained evidence. While it is not impermissible to record communications with another person without their knowledge, the court does not wish to condone the practice in family law proceedings because it erodes trust and undermines the prospect of future cooperation between the parties, contrary to some of the objectives in family law such as reducing conflict between parents, spouses and children: C.C. at para. 28 .

Positions of the Parties [ 88 ] Arguing it is clear the respondent knew about the February Recordings and none of them have been altered or edited in any way, much like in C.C. , the claimant said he recorded his interactions with the respondent to protect himself from false allegations and to document her use of threats and abusive language even in the presence of the children. Consistent with this, her affidavit evidence and correspondence prior to trial, alleged that she and her family lived in fear of him.

The recordings provide important evidence that this was false and demonstrate her willingness to jeopardize him, as well as her own abusive behaviour. [ 89 ] The claimant identifies the Drop Off Recording as demonstrating his close relationship with the children and their wish to spend more time with him. When he made the recording, the respondent was offering him very little parenting time and refusing overnights based on the apparent need for consistency, although the children often stayed overnight at their grandparents’ home.

He also relies on the Drop Off Recording to show the respondent’s antagonism towards him and a pattern of inappropriately involving the police, which in this instance she did because A simply refused to get out of the car. [ 90 ] With respect to the School Recording, the claimant submits it corroborates his significant concern about the respondent’s parents’ negative influence on the children and their exposure to emotionally harmful conduct after the separation.

Absent the recording, he asserts, he would be unable to prove the appalling nature of the respondent’s mother’s behaviour in the presence of the children. This assertion is supported by not only the respondent’s text message to the claimant on March 2, 2021, but also a letter from her counsel dated March 3, 2021, denying “allegations” included in an email from the claimant to the respondent on March 2, 2021.

The claimant’s email had included: “[t]oday your mother went to [R’s] elementary school and caused a very embarrassing scene swearing and using profanities in an uncontrolled rage.… She used vulgar language in front of [R] and [A], who is only 4! Her actions are not acceptable in any situation, let alone in an elementary school and in front of all those young children.…” [ 91 ] The respondent primarily opposed the admission of the recordings based on the assertion that the February Recordings were staged, manipulated, and selective, or taken out of context for the purpose of creating a false narrative about her.

She also emphasized the family law policy concerns identified in C.C. including the importance of reducing conflict between parties.

Discussion [ 92 ] The test for admission applies to surreptitiously made recordings. Based on the translated transcripts of the February Recordings and the claimant’s evidence, I am satisfied the respondent was aware she was being recorded. I am not able to make that finding regarding the School Recording or the Drop Off Recording. [ 93 ] In any event, I will address the Finch criteria for all of the recordings. [ 94 ] The respondent has not disputed the relevance of the recordings. All of them are broadly relevant to parenting issues and the underlying determination of the children’s best interests. Among the most contentious issues is the

schedule for regular parenting time, although the parties’ proposals are not radically different, and the allocation of parental responsibilities. The dispute is fueled by a multitude of conflicting allegations about the parties’ behaviour during the marriage, as well as after separation. The School Recording is specifically relevant to a concern about the respondent’s mother’s negative influence on the children, a problem identified by Dr. Elterman during his assessment, and how the respondent dealt with this issue. [ 95 ] There is no dispute about the identity of the people being recorded.

Regarding the trustworthiness of the recordings, although the respondent argues they are incomplete, lack context, and the claimant staged the rattling of the door etc., she has not suggested they fail to accurately depict her words or how she spoke and sounded during the recordings. [ 96 ] The first three criteria for admission are satisfied. [ 97 ] Turning to the probative value versus prejudicial effect of the February Recordings, I view their probative value as obvious in the context of this case. Each of them show the parties accusing each other of lying and the respondent accusing the claimant of stealing.

She uses aggressive or denigrating language and demonstrates a lack of restraint and volatility, even in the presence of one of the children. Her threats to call police and make what she later admits were false allegations including the extremely serious allegation that the claimant pointed a gun at her head, are deeply concerning.

As the claimant points out, absent the recordings, he was particularly vulnerable to this allegation, given not only its seriousness but because he is a gun owner, although his firearm was safely stored at the time. [ 98 ] The February Recordings also support the claimant’s general allegations about the respondent’s behaviour toward him.

Excluding evidence of the respondent’s threats and behaviour, in the face of her own allegations and the wide spread, gendered problem of family violence in society generally, would in my view, undermine the reputation of the administration of justice and my determination of the children’s best interests. [ 99 ] I have also considered the potential prejudice to the respondent. If made surreptitiously, as Gibb-Carsley J. observed in C.C. , a recording can unfairly portray the party being recorded because they do not capture the entire conversation or a very different previous or subsequent conversation.

Here, however, I do not accept the claimant staged parts of the recording. Had he rattled the door, after locking himself in his office, I would have expected the respondent to comment.

Further, the respondent attempting to enter the office is entirely consistent with what she was saying at the time. [ 100 ] Leaving aside the threats and recognizing the February Recordings provide snapshots, what they also depict contradicts the respondent’s portrayal of herself as a particular loving and supportive spouse, and the claimant as verbally abusive during the marriage. [ 101 ] There is no prejudice to the trial process given the brevity of the recordings and the relevance of the testimony, which was admitted into the trial proper. [ 102 ] Regarding the School Recording, again its probative value is obvious.

There is no dispute the children have always spent a great deal of time in the care of their maternal grandparents. Again, neither testified. The claimant had an ongoing concern, substantiated by the

Section 211 Report that the respondent’s family members were speaking negatively to the children about him, Ms. Abadi and their relationship. By the end of the trial, the respondent remained preoccupied by feelings of not only betrayal but hostility and suspicion toward Ms. Abadi and continued to oppose her picking the children up from school. [ 103 ] There is no suggestion the recording unfairly captures only part of the exchange, or lacked context that might change the complexion of the respondent’s mother’s frankly appalling comments to Ms. Abadi, in the presence of her younger daughter and A.

I can see no meaningful prejudice arising for the recording’s admission and excluding it would prejudice the proper administration of justice. [ 104 ] My conclusion about the balance between the probative value and prejudicial effect is different with respect to the Drop Off Recording. In my view, the policy concerns that inform the analysis of prejudice are much more pressing given the children’s presence and the attenuated probative value of the recording.

Although unfortunate, the circumstances depicted are not at all uncommon in the early stages of separation when parents and children are understandably distressed. Further, there is other better evidence to substantiate the claimant’s assertion that he and the children have close and loving relationships and the School Recording provides direct evidence of the respondent’s mother’s negative behaviour toward the claimant.

Credibility [ 105 ] Determining many of the facts relevant to the parties’ disputed claims turns on my assessment of the credibility or truthfulness, and in some instances the reliability or accuracy of their evidence. Legal Principles [ 106 ] Credibility and reliability are not all or nothing concepts. A trial judge may believe some, all, or none of the testimony of a

witness and attach different weights to different part of their evidence: R. v. R. (D.), (SCC), [1996] 2 S.C.R. 291,[1996] S.C.J. No. 8 at para. 93. [107] The basic approach to assessing any interested witness was articulated many years ago in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 (C.A.) at 357, with these words: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [108] Bradshaw v.

Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, identified several factors that may be consideredwhen assessing both credibility and reliability, which I summarize as follows: the capacity and opportunity of the witness to observe andthe witness’s ability to recall the events at issue; whether their testimony reflects an ability to resist being influenced by an interest in theoutcome; internal and external inconsistencies in the witness’ evidence, meaning did their testimony change between direct and cross-examination, between prior statements, their discovery evidence and their evidence at trial; whether the witness’ evidence harmonizeswith or is contradicted by other evidence, particularly independent or undisputed evidence; whether their evidence seems unreasonable,improbable or unlikely, bearing in mind the probabilities affecting the case; and the witness’ demeanour, or how they presented whiletestifying. [109] Regarding the last factor, Faryna and other authorities have highlighted the danger of relying too heavily on the demeanour of awitness to determine their credibility, recognizing the risk of misinterpreting the testimony of the better actor as truthful, and conversely,the poor presentation of an honest witness as deceptive see: R. v.

Jeng, 2004 BCCA 464 at para. 54; R. v. Tyers, 2015 BCCA 507 atpara. 18. [110] Although trial judges are permitted, if not required, to use their common sense and life experience in assessing credibility, the lawprohibits unsupported stereotypical reasoning and speculation about human behaviour from impacting the assessment. [111] Finally, I remind myself of the relationship between the civil burden of proof, on a balance of probabilities, and the assessment ofcredibility, as described in F.H. v.

McDougall, 2008 SCC 53: [49] … In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than notthat an alleged event occurred. … [86] However, in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance ofprobabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well beconclusive of the result because that evidence will mean explicitly or implicitly that the other party was not believed on the importantissue in the case.

That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in thiscase. … [112] Applying this legal framework and assessing each party’s evidence in the context of the evidence as a whole, in general I find theclaimant was a credible witness, although some of his evidence reflected the influence of his interest.

In contrast, I have significantconcerns about the respondent’s credibility and conclude it unsafe to rely on her contested evidence unless it is supported by objectiveevidence or other evidence I have accepted. [113] Before discussing my separate assessments of the parties, I would highlight that each party presented as intelligent, confident,friendly and likeable. [114] As I have indicated, the claimant was self-represented by the time of the trial.

In addition to being highly organized he wasrespectful and polite, even when frustrated if not confounded by the respondent’s counsel. [115] Although both parties portrayed themselves positively and the other negatively during their testimony, the claimant’s evidencewas mostly factual, specific and direct. Significantly, it was also internally consistent and often aligned with the documentary orobjective evidence. His evidence related to the children struck me as especially genuine. Consistent with the

Section 211 Report, which Iwill come to, the claimant displayed considerable insight and sensitivity to their emotional and psychological needs. [116] Although I also found much of claimant’s evidence about financial matters quite straightforward, some of the evidence about hispost-separation financial behaviour was less well explained and struck me as strategic. [117] In addition undisputed evidence shows that at times the claimant’s responses to circumstances were inconsistent with hisdepiction of himself as reasonable and conflict avoidant.

I have in mind the claimant reporting the respondent’s sister to the College ofPhysicians and Surgeons based on an antibiotic prescription for A, discussed below. Accepting that he made the report at the height ofhis mistrust and fear of the respondent and her family, in my view his response was disproportionate and unreasonable. Certainly, heshould have and failed to consider the potential risk to his former sister-in-law.

Yet, the claimant appeared to struggle to understand this.Another much less significant example arises from his complaint at one point to the respondent about the school lunches she prepared forR, based on a concern about R gaining weight. [118] There is also the reality that the claimant paid no support after the Elwood Order until February 2022, when he began payingchild support.

Indicating he could not afford to, despite his job loss and much reduced income, I do not accept he could not have paidsomething, particular starting or about August 2021, when the respondent assumed responsibility for paying the mortgage.

[ 119 ] Far more polarized than the claimant’s, the respondent’s evidence displayed a serious lack of balance. Not only did she portray herself as superlative and the claimant very negatively, her testimony was riddled with unsolicited gratuitous comments despite my repeated interventions and directions that she limited herself to answering questions. Her comments sometimes included serious if not extreme allegations, casually delivered. During cross-examination for example, she offered (entirely unprompted) that the claimant had told her he would kill her one day and Ms. Abadi hits her daughters at times.

Represented by experienced counsel from the outset of the proceeding, I view it as significant that neither of these allegations were elicited in direct examination. [ 120 ] Throughout cross-examination, the respondent also attempted to control and dominate the claimant. [ 121 ] Even in direct examination, she struggled to respond to what she was being asked, and was often unfocused and tangential. There were also many internal inconsistencies in the respondent’s evidence.

Sometimes she contradicted herself from one moment to the next. [ 122 ] Despite being under oath, several times, the respondent attempted to emphasize her honesty on a particular point, by swearing on the lives of R and A that she was telling the truth. Along with violating the rule against oath-helping, this behaviour left me concerned about her commitment to being truthful throughout the entirety of her evidence. There were times when the respondent openly exaggerated.

For example, while one of her witnesses, Harriet Werner, was waiting outside the courtroom and there was some discussion about the need to delay her testimony, the respondent stated that Ms. Werner could not wait because she was an “old lady”. In fact Ms. Werner is not elderly and retired from her career as a flight attendant fairly recently. [ 123 ] The credibility of the claimant’s mother and the respondent’s sister was also challenged. [ 124 ] For both, the tone and content of parts of their testimony reflected their respective alliances with one of the parties.

Although the claimant’s mother also seemed straightforward and reasonable, there was a meaningful shift in her evidence during cross-examination related to what she identified as the respondent’s dislike of her and the extent to which she stayed with the parties during visits from the US. [ 125 ] The lack of balance in the respondent’s sister’s evidence was more pronounced. She not only described the respondent and their parents in unrealistically positive terms, she referred to the claimant as hurtful if not vengeful at times, entirely for or against people and overly strategic and manipulative.

In an apparent attempt to portray herself as objective, she also mentioned that she still loved him and had loved him like a brother but she struggled to provide meaningful examples in support of her criticisms. Cross-examined about whether the claimant was a good or bad parent, she stated he could be better and indicated he was not all that involved with the children.

Her negative comments about his parenting were inconsistent with the weight of the evidence. [ 126 ] Cross-examination also revealed the respondent’s sister and the claimant had shared a close positive relationship and he had been particularly supportive of her during her own separation and divorce, although she attempted to minimize his support or characterize his motivation as nefarious. During her testimony, it became apparent that some of the evidence had been discussed with her before she testified.

She seemed to make a point of highlighting some of the very same circumstances the respondent did, such as the importance of Thursday evenings for the respondent and the children, which coincided rather obviously with the claimant’s request for regular parenting time starting Thursdays after school. Statutory Framework [ 127 ] The parties’ pleadings seek parenting and support orders under both the Family Law Act , S.B.C. 2011, c. 25 [ FLA ] and Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) [ DA ] . In closing submissions, the claimant relied on the FLA only.

The respondent addressed both statutes but expressed no preference for the DA . [ 128 ] As a federal statute, the DA is paramount. However, neither party suggested any operational conflict between the DA and the FLA in the circumstances of this case.

I conclude there is none in relation to the orders I am being asked to make, although I recognize the grounds for varying orders under each statute are somewhat different. [ 129 ] Given the breadth of the jurisprudence that has developed regarding the parenting provisions under the FLA , and only the FLA provides for property and debt division, I prefer to conduct my analysis under the FLA . I am satisfied that had I applied the DA provisions instead, only the terminology would have changed.

Parenting Arrangements [ 130 ] By the end of the trial, the parties appeared to agree on equally shared holiday parenting time and consented to an interim order to that effect, but they continued to dispute the regular parenting time

schedule and how parental responsibilities should be allocated and disputes about decision-making resolved. [ 131 ] Regarding regular parenting time, as I have indicated, the claimant sought parenting time each week from after school on Thursdays until 2:00 p.m. on Sundays. The respondent proposed that he have the children from Fridays at 5:00 p.m. until Sundays at 2:00 p.m. and either Monday or Wednesday from after school to 7:30 p.m. [ 132 ] Regarding parental responsibilities, the claimant proposed the parties “share” or exercise all of them when the children are in their care.

In addition to having the obligation to discuss significant decisions with a view to reaching agreement, he proposed that he have final decision-making authority if they cannot agree. The respondent sought an order allocating parental responsibilities on the same terms as the Elwood Order except she would have final decision-making authority with respect to health issues for the children. [ 133 ] In her re-opening application the respondent expressly sought orders that the claimant’s parenting time be supervised and she be allocated all parental responsibilities.

At the continuation of the trial however, she asked for sole parental responsibly regarding

“medical, dental and counselling” and said she wanted weekend parenting time, complaining that she had lost all weekends with the children since the separation. Legal Framework [ 134 ] Under the FLA , parenting time is the time a child spends with a guardian. Enumerated in s. 41, parental responsibilities encompass all aspects of parental decision-making and other powers and obligations of a guardian with respect to a child. They include: … (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. [ 135 ] Parental responsibilities may be allocated to one or more guardians: s. 40(3). [ 136 ] Together parenting time and parental responsibilities constitute parenting arrangements. [ 137 ] Section 37(1) of the FLA requires only the best interests of a child to be considered in making orders regarding both parenting time and parental responsibilities. [ 138 ] To determine what is in a child’s best interests, the court must consider all of their needs and circumstances, including the non- exhaustive list of factors in s. 37(2) of the FLA : … (

a) the child’s health and emotional well-being; (

b) the child’s views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child’s life; (

d) the history of the child’s care; (

e) the child’s need for stability, given the child’s age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of the person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; (

i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being. [ 139 ] Significantly, s. 37(3) of the FLA provides that an order is not in the best interests of a child unless it protects, to the greatest extent possible, their physical, psychological and emotional safety, security and wellbeing. [ 140 ] With these principles in mind, I turn to consider the material aspects of the evidence relevant to the best interests of R and A. Discussion

Section 211 Report [ 141 ] I begin with the

Section 211 Report, which sets out Dr. Elterman’s unchallenged expert opinion evidence about what parenting arrangements are in the best interests of the children based on his psychological assessment of the children. [ 142 ] At the time of the assessment the claimant was seeking equal parenting time or a “solid block of time” rather than various different times during the week as provided for in the Elwood Order.

The respondent largely agreed that his parenting time should be consolidated to avoid the children going back and forth, but she proposed significantly less time for the claimant, from Saturday morning to Sunday afternoons while she was at work. [ 143 ] In completing his assessment, Dr. Elterman met with the parties a number of times and the children twice. He also observed the children with each party and spoke to multiple collateral contacts. In addition, he interviewed Ms. Abadi. [ 144 ] Dr. Elterman wrote the claimant presented as alert, relaxed and professional during his clinical interview.

He identified himself as generally happy growing up, apart from his parents’ bad marriage and lack of mentorship, also indicating he was healthy, very outgoing and involved in sports. The claimant reported no trauma or family history of substance misuse or psychiatric illness. [ 145 ] Addressing the respondent’s clinical interview, Dr. Elterman noted she was friendly and socially poised, but became visibly upset when discussing the claimant’s relationship with her former friend.

The respondent too described a generally happy, healthy childhood, her parents’ marriage as happy, her mother as supportive and her father as easygoing. At the same time, the claimant identified her mother’s overprotectiveness, a particular trauma and the near death of her father when she was 14 as problems growing up. [ 146 ] Responding to the respondent’s allegations of excessive drinking, the claimant told Dr.

Elterman he never used alcohol to cope and he drank only the occasional beer with dinner. [ 147 ] Much as he did during his testimony discussed below, the claimant identified the respondent’s parents’ intrusiveness and constant involvement as a problem from the beginning of the marriage. He expressed concern about the respondent “pawning off” the children on her parents when he was working. The claimant also complained about the respondent fighting with him and belittling him in the children’s presence, which he said was something her mother did with her father.

When he objected to aspects of the respondent’s parenting, the claimant told Dr. Elterman, she would tell him he was being controlling and during conflict she would escalate quickly. [ 148 ] The respondent described the claimant as a little bit narcissistic and his relationship with his own parents as not good. Portraying herself as the driving force behind his decision to attend university, the respondent said at first she admired that he was very supportive and sensitive “in an insecure way”. Asked about the deterioration in the marriage and any family violence, she told Dr.

Elterman that the claimant insulted her verbally. She referred to him calling her a freeloader and that he did all the work and said he was controlling because he always had to have his way. Stating they did not argue much about money, she said they did argue all the time about her parents and his view they were intrusive and over-involved.

She acknowledged her parents would just show up if they did not answer the phone because they were worried. [ 149 ] Asked about parenting conflicts, as indicated above, the respondent complained the claimant would not take the children to activities and classes which he denied, and he drank a lot, which she did not want the children to see. She also emphasized she did not want Ms. Abadi involved in parenting because it was too confusing for the children. [ 150 ] Both parties’ descriptions of the children, as recorded in the

Section 211 Report, reflect sensitivity and insight. Each of them also identified reasonable, if not laudable parenting priorities. The claimant spoke, for example, of wanting the children to feel “their curiosity” to learn and to be “well-rounded good human beings”. [ 151 ] The testing results for the parties, however, showed a highly defensive approach. Both seemed motivated to portray themselves as exceptionally free of common shortcomings that most people will admit. [ 152 ] There is no indication in the report that during his interview with Ms. Abadi, Dr.

Elterman asked her about respondent’s comment that she gets angry with her children quickly and hits them. As I have indicated, neither Ms. Abadi nor the claimant were asked about this in cross-examination and the respondent was not questioned about it in her direct evidence. Interviews with R and A [ 153 ] R was in Grade 1 and six years old when he met with Dr. Elterman. He expressed finding it difficult to make friends. Denying his dad has a girlfriend, R identified Ms. Abadi as his dad’s friend and her daughters as his friends.

He described both parties as good parents, also indicating his dad is fun and “not fussy”. R specified his mum takes care of him and his sister and is nice to them, but she is not nice to their dad. R indicated he sees his maternal grandparents “a lot” and sleeps at their house as much as he sleeps at the parties’ homes. Asked which parent gets mad “quickest”, he identified the respondent. [ 154 ] Asked if his parents say mean things about each other, R’s responses were mixed. During one interview, he said they both do “just a little” but “mainly” his mum said mean things.

In the other interview, he said neither parent says mean things about the other, but

he also said his mum asks a lot more about what happens at the other home. In terms of affection, he described his mum as the most affectionate during the first interview and both giving him equal hugs and kisses during the second. [ 155 ] In both interviews, R reported being happy when he is with each parent. He referred to the separation as making him sad. He understood his parents separated because they argued too much, which he heard. He wanted to continue seeing his dad every weekend.

R also stated if he had a problem, he would talk to his dad because it is easier to talk to him. [ 156 ] During A’s interviews, she conveyed it was easy to make friends. A described her parents in similar terms to R. Her dad is nice, funny and “not fussy”; her mum is “fussy” and has a lot of rules. Unlike R, she had advice for her mum that would make her a better parent: play with them more. A also said her mum “could be more healthy”. A had no advice for her dad. Again like R, A said her mum is the one that gets mad quickest and yells the most. Her dad gives the most hugs.

A denied that the parties say mean things about one another. If she had a problem she too would talk to her dad, because “I love him” and he does more “things” with them like playing tag, silly stuff and singing. [ 157 ] A identified Ms. Abadi as her dad’s girlfriend and described her negatively based on what she said her grandparents have told her: Ms. Abadi is not a “good girl”; she is a “bad girl” and she “took my dad away from my whole family”. A was also aware that her mum is sad about what Ms. Abadi did, and that the two of them were friends at one time. Related to this, A said that Ms.

Abadi is always there when she sees her dad and she “does not want her to come” because she “stole my dad … from me”. Asked if Ms. Abadi is nice, A responded she is not and her daughters “are bad too”, indicating one of them had pushed her. [ 158 ] Describing his observations of the parties with the children, Dr. Elterman noted that when the respondent was with them, R and A mostly interacted with each other. R took the dominant role. He teased A quite frequently and A was “quite passive and demure”. Dr. Elterman’s impression was this relationship dynamic between R and A was quite strong.

He also found R was “undisciplined”, commenting he threw a toy onto the floor and seemed to have no sense that he ought to pick up after himself. To the extent the children did interact with the respondent, she spoke to them gently and affectionately. At times she became quite animated and was also nervous about what they might do toward one another in the office. [ 159 ] In contrast, when Dr. Elterman observed the children with the claimant, they competed for his attention rather than interacting with each other.

Both children attempted to drape their bodies around him and he appeared more relaxed than he had during the interviews. Although, the respondent suggests their focus on him was because they see him less, Dr. Elterman also observed that R was less provoking towards A. Dr. Elterman commented that the claimant did a good job of balancing his attention between the two. At the end of the visit, the children cooperated when he asked them to pick up the toys. [ 160 ] Ultimately, Dr. Elterman recommended that the claimant have the children on alternate “weekends” as follows: 1.

During week one he would have the children from Thursday at 5:00 p.m. until Sunday at 2:00 p.m.; and 2. During week two he would have them from Friday at 5:00 p.m. until Sunday at 2:00 p.m.; and Mondays from 2:30 p.m. until 7:30 p.m. [ 161 ] Dr. Elterman also recommended equally shared holiday parenting time during Spring Break and Christmas Break, with the parties alternating the first and second half of each of those breaks. [ 162 ] In addition to sharing “joint guardianship”, he recommended the parties also share parental responsibilities.

Addressing conflicts related to the children’s activities and medical providers, he recommended each party

schedule activities during their own parenting time, but they choose one doctor and dentist for the children. In terms of intervention, the only counselling he recommended was for the respondent, related to her distress regarding the claimant’s relationship. [ 163 ] Significantly, Dr. Elterman identified each party as providing a high level of parenting to the children. He viewed each of them as motivated to be the best parent they can. [ 164 ] I turn now to canvass aspects of the other evidence relevant to the children’s best interest and the factors under s. 37(2) of the FLA .

I will not discuss some of the negative aspects of each party’s evidence about the other in as much detail as I otherwise might in light of Dr. Elterman’s unchallenged and favourable opinions about their parenting and the parties’ positions on parenting time, which include agreement to equally shared holiday parenting time. [ 165 ] In

summary, the

Section 211 Report and the parties’ positions prior to the respondent’s re-opening application, demonstrated that neither had any meaningful concern about the ability of the other to provide the children with ongoing care that meets the children’s need for emotional, physical and psychological safety and well being. Evidence of Ms. Warner [ 166 ] I begin with the entirely positive evidence of Ms. Warner, a neighbour who lives across the street from the former family home.

She spoke warmly and favourably about both parties, and the respondent in particular, indicating the two have become friends since the separation and her retirement. Describing the claimant as a friendly, helpful neighbour, Ms. Warner said that quite often she would see him and the children happily engaged outside before the separation. [ 167 ] Ms. Warner also recalled the children appearing confused, angry and upset initially after the separation. Now, she said, they seem happy and play very well together. Ms. Warner has never seen them arguing with one another.

She described the respondent as a wonderful mother who is attentive, considerate, takes the time to explain things, ensures they are well dressed, and provides them with healthy meals and snacks. Indicating the children always look well looked after, Ms. Warner also described the claimant bringing them home recently and carrying A to the sidewalk so her runners would not get wet.

Further evidence of the parties [ 168 ] Turning to the other evidence, unfortunately before R was born the respondent suffered from miscarriages. No doubt distressing, they impacted on the marriage. Much as he did with Dr. Elterman, the claimant described his in laws as always overinvolved and controlling, offering many examples such as his mother-in-law trying to enter the operating room when the respondent was undergoing a C-section. The claimant recalled he and his mother-in-law fighting after R was born because she wanted the respondent and R to stay with her and her husband for six months.

Indicating he and the respondent argued a lot about her parents and both of them grew up with lots of conflict, the claimant maintained that it was the respondent who instigated their conflict and he responded by trying to de-escalate and disengage. [ 169 ] The claimant also described the respondent as quick to anger and alleged two incidents that involved her becoming physically aggressive with him. One of them, which the respondent did not really dispute, occurred in their Coquitlam home, just before the respondent’s sister divorce. The claimant said the respondent threw a mug at him.

He raised his hand to protect himself. It was badly cut by the mug and required six stitches. The second, much earlier, incident involved the respondent scratching his arms and causing them to bleed and him grabbing hold of her arms to restrain her. [ 170 ] There is no suggestion the respondent engaged in any further acts of physical aggression, apart from the meat throwing allegation based on one of the February Recordings. [ 171 ] In any event, the claimant expressed more concern about the respondent regularly belittling and insulting him.

Aspects of the recordings and a long series of text messages sent on June 29, 2019 show the respondent speaking to him in derogatory terms. Along with calling him stupid and not a winner she referred to him eating like a cow.

She told him repeatedly that she hates him and she only stayed with him after they got married because she was sorry his parents were hurting him. [ 172 ] Clearly, exposing the children to this kind of communication could undermine their emotional well being. [ 173 ] I note that during this same series of messages, the respondent also complained the claimant has hurt her, been really rude to her and her parents, and bullied her, without saying how. [ 174 ] Testifying the claimant was always in charge of their finances, the respondent described him as controlling when it came to money.

She indicated he monitored her spending and complained, much as she did in the recording, that he called her a freeloader all the time because he was the one earning money, despite all that she contributed by caring for the children and managing the household.

Despite my concerns about the respondent’s credibility, given the claimant’s apparent view of the marriage as involving him doing “it all” essentially, I am inclined to accept the claimant used this kind of language with her on occasion. [ 175 ] Ultimately, bearing in mind the best interest factors related to family violence, I am not concerned that either party’s ability to provide direct care to the children or meet their needs, apart from the impact to past exposure to conflict and the potential for future exposure to further conflict during exchanges or verbal communication. [ 176 ] The claimant also alleged that during the marriage the respondent started to alienate him from his own family by speaking badly to them about him, and the respondent, her sister and her parents becoming a kind of united front against him. [ 177 ] He emphasized that the respondent’s sister’s boyfriend/husband raised the same issues and was subjected to the same dynamics.

He and his brother-in-law became very close and have remained friends. Unfortunately, the respondent’s sister was diagnosed with cancer that required significant treatment and her marriage ended quickly. When they separated, the claimant testified that his mother-in- law asked him to sell a Tag Watch that he had given his brother-in-law.

Although, the respondent’s sister denied keeping the watch during her testimony, the respondent was cross-examined about an affidavit in which she deposed to her sister having it. [ 178 ] After the respondent’s sister and his brother-in-law divorced, the claimant said that the respondent, her sister and her parents really retreated and he became an outsider.

The claimant identified the watch issue and the family’s response to his brother-in-law as contributing to his fear and mistrust after the separation. [ 179 ] The respondent’s sister testified it was the claimant who treated her parents badly, describing him as condescending and unappreciative of all they did in terms of caring for the children. The respondent gave similar evidence. [ 180 ] Both the respondent and her sister described their parents as very loving and highly supportive to them and the children.

They emphasized that the two of them and R and A are their parents whole world. [ 181 ] As I have stated, the claimant expressed significant concerns about the respondent’s parents’ level of involvement with the children and the respondent’s efforts to limit his parenting role after he left the former family home. One of his specific concerns was the children’s ongoing exposure to the grandparents’ relationship dynamic, which as he told Dr.

Elterman, involved the respondent’s mother belittling and insulting the respondent’s father. [ 182 ] As I recall, the respondent did not address the claimant’s concern about her mother’s behaviour toward her father or the wrongfulness of her mother’s comments in the School Recording apart from saying she stopped her mother from attending the school and describing her mother as overprotective.

The respondent also testified to being devastated for several months after the claimant left the former family home by his new relationship to explain perhaps what happened at the school, as well as the children’s frequent overnights with their grandparents. [ 183 ] As indicated, the claimant’s counsel sought and obtained a short term protection order when he filed his notice of family claim. During the trial, the claimant acknowledged he should have applied a conduct order limiting the respondent and her families’ communications in the presence of the children. History of the Children’s Care

[ 184 ] Both parties gave evidence that the claimant was involved in all aspects of R’s care as a baby, although he returned to work two weeks after R was born. The respondent referred to them learning together as first time parents. Born at full term, A remained in hospital for a period of time because of a health issue.

I accept the claimant was also engaged in providing care to A, as well as R, when he was home. [ 185 ] At home full-time from 2015 to late 2018 it is clear the respondent was the primary caregiver to the children. [ 186 ] In his director of sales positions, the claimant travelled a great deal and sometimes worked in the evenings.

A was only 18 months old when, in addition to working full-time, he started his MBA which involved attending classes every other Saturday as well as completing assignments, etc. [ 187 ] Once the respondent returned to work part-time, however, she typically worked Saturday and Sunday shifts, as I have indicated, as well as long weekends, which meant the claimant was consistently, if not frequently, solely responsible for the children. He gave detailed evidence about providing for all aspects of their care. Text communications indicate this included taking them to medical and other appointments.

A multitude of photographs depict the claimant and the children

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