L.E.T. v. R.M.L., 2024 BCSC 252

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.E.T. v. R.M.L., 2024 BCSC 252 Date: 20240214 Docket: E230397 Registry: Vancouver Between: L.E.T. Claimant And R.M.L. Respondent Before: Associate Judge Robertson Reasons for Judgment Counsel for the Claimant: M.E. Guy Counsel for the Respondent Appearing on his own behalf: R.M.L. Place and Date of Hearing: Vancouver, B.C. January 8, 2024 Place and Date of Judgment: Vancouver, B.C. February 14, 2024 Table of Contents Background .. 4 Legal Framework and Analysis .. 12 General 12 Supervised Parenting . 14 S. 41 Responsibilities . 21 Travel with the Child . 25 Conduct Orders . 26 Fines and Costs . 27

Summary of Orders Made .. 29 [ 1 ] There are various cross applications before the court, with the specific applications and relief being sought at this hearing being:

a) an application by the respondent filed November 22, 2023: i. that the respondent’s supervised parenting be terminated; and ii. that the respondent be relieved from the obligation to pay the fine in the amount of $2,000 ordered on November 7, 2023,

b) an application by the claimant filed September 11, 2023: i. permitting her to travel with the parties’ child to the US without further agreement or consent of the respondent (which is amended from the specific relief set out in the application itself, given a change in circumstances since the application was filed);

ii. that the respondent pay a fine of $3,000 within 14 days; and iii. that the claimant be awarded costs of $2,000 in respect of their July 18, 2023 court attendance where the court ordered that t he parties will bear their own costs but if any of these issues need to be revisited by the court, the issue of the costs of could be revisited.

c) an application by the claimant filed October 25, 2023: i. that she have all of the s. 41 parental responsibilities for their child; and ii. for conduct orders regarding the respondent’s communications and interactions with their child’s daycare.

d) applications for both parties for costs of their respective applications. Background [ 2 ] The parties began dating in October 2020 and began living in a marriage-like relationship on May 1, 2021, after the claimant became pregnant with their child, born August 12, 2021 (the “Child”). They separated on December 29, 2022. [ 3 ] Following separation, the respondent says that the claimant insisted that the respondent’s parenting time be supervised.

The respondent argues that this supervision has never been necessary, and arose as a result of a dispute between the parties in May 2023 when he refused to advise the claimant as to the specific park he was planning to take the Child.

The claimant argues that it became necessary as a result of the respondent’s family violence in the form of harassment and intimidations, primarily in the context of angry outbursts, and concern for his mental health. [ 4 ] On June 1, 2023 the parties attended a judicial case conference at which conduct orders were made as to the parties’ respectful communications with each other, a supervised parenting plan being put in place, an order made for the exchange of financial statements, and an order for a s. 211 report to be prepared by Dr. Elterman.

This order has not yet been entered. [ 5 ] By order pronounced July 18, 2023, a further parenting order was made which included supervised parenting time by the respondent on Wednesdays from 3:15 p.m. to 6:15 p.m., and Sundays from 9:00 a.m. to 4:00 p.m. This order has not yet been entered. [ 6 ] The supervision of the respondent’s parenting has been carried out by friends of the respondent as agreed to by the claimant, and not professional supervisors. As such, there is not the usual concerns regarding costs.

However, the respondent says that it has become more inconvenient for these friends to continue providing supervision on a regular basis. For example, one of the supervisors is a nurse who works night shifts, and is finding it too exhausting to make the morning exchanges. The respondent argues that not only does the limitations in the supervisors’ availability mean that he has had to lose, and risks further loss of parenting time, mostly the Wednesday parenting, but it effectively frustrates any ability for him to transition to equal parenting which is his ultimate goal.

He deposes that efforts to find more supervisors, as difficult as that has been, has not worked because the claimant will not provide consent for any new people he has proposed. [ 7 ] The parties have not been able to transition to a healthy co-parenting structure.

There is significant conflict between the parties, and a lack of ability to communicate in a mature and respectful manner that puts the best interest of the Child ahead of their own grievances. [ 8 ] While the claimant points to numerous instances in the correspondence between the parties where the respondent appears to be the one instigating conflict, the respondent argues that there have been many instances where the claimant is the one setting the tone. [ 9 ] As I commented to the respondent during his submissions, in an ideal and functional co-parenting regime aimed at the best interests of the Child, each parent should strive to be better than the other, rather than be content to lower themselves to what they view as the other’s sub-par level.

If both did that, then conflict could likely be avoided or, at the very least, significantly minimized. It is incumbent on both parties to strive to be better, not worse, than the other. [ 10 ] Notwithstanding the respondent’s general agreement with that concept, the conflict between the parties continues. [ 11 ] Some of the issues that continue to cause the most conflict include:

a) the ability of the claimant to obtain consent to travel with the Child. The claimant has a long-standing friend who lives in North Carolina who she has tried to get consent to visit. She has also tried to obtain consent to take the Child to Palm Springs for a vacation. In both cases, consent was not forthcoming and the claimant had to bring applications, with consent ultimately being given at the last moment, or the trip abandoned.

b) the Child’s attendance at daycare. The respondent says that the claimant unilaterally enrolled the Child in a particular daycare without consultation and without providing him with any information. A dispute then arose as a result of the supervised parenting order being misconstrued by the daycare’s principal. Specifically, after the respondent was provided with the name of the daycare he reached out to them directly, but the daycare refused to put him on file as an emergency contact, citing the supervision order. The respondent believes this was at the behest of the claimant.

The claimant has taken the court to the respondent’s communications with the daycare when this dispute was at its height, and argues that the communications with the daycare were rude, harassing and put the Child at risk of being ejected from the daycare which would be very prejudicial given how difficult it is to find daycare spots.

c) respectful communications. There were various examples of an inability to convey information in a respectful and useful manner for the purpose of co-parenting. For example, on one occasion the Child was ill. After the parties carried out the parenting exchange the claimant asked the respondent to provide particulars of when he had last given medicine to the Child and the dosage given. In giving his answers the respondent, on any objective basis, sought to obfuscate and be non-responsive. After various texts where exchanged, which

should have been unnecessary, the respondent stated that he had given the medicine “in accordance with the instructions”, with no particulars as to what that was. On the other hand, the respondent had examples where the claimant sought to use the supervisors as “go- betweens” to convey or get information in a way that he felt was not appropriate.

d) failure to consult or consider the other’s wishes as to the Child. The daycare issue above was one example of this. There were other instances from the respondent where he wished to have information and felt that the claimant refused to give it.

From the claimant’s perspective, the respondent asks for information that he should not be concerned about, and uses the requests as a way to harass her, or uses the Child in a way to cause conflict, an example of which was when the respondent decided to cut the Child’s hair himself and did so in a way that is perplexing, leaving a shaved outline of hair midway up the back of the Child’s head in a large “U” shape. It is hard to believe that the respondent did this thinking that the claimant would find it fun or amusing, as he suggested.

e) parenting exchanges. There were various examples between the parties where there was conflict during the parenting exchange. The respondent deposed as to instances where he felt the claimant was rude and rough with the child during transitions, or was combative with a raised voice. One such incident in May 2023 was witnessed and commented upon by the parenting supervisor in an affidavit filed in support of the respondent’s application.

Specifically, despite the claimant’s characterization of the respondent starting the conflict, the supervisor deposed that the respondent did not raise his voice, but that the claimant did and was noticeably upset, and ended the conversation by slamming the door in an aggressive manner. The supervisor’s evidence was that, later at the exchange back to the claimant, the claimant “violently” pulled the child from the respondent’s arms. The claimant denies that characterization and accuses the respondent of harassing and intimidating behaviour.

Both allege that the other parent exchanges the Child with a dirty diaper, causing diaper rash. [ 12 ] There are other issues that each have raised that, although not detailed herein, have been considered by me in the overall context and history between the parties as is relevant to the considerations before the court on this application.

For the most part, these fall into what I would describe as incidents where the other is accused of actions which would indicate that they are using the Child, or the parenting of the Child, as a weapon against the other party with each suggesting that the other’s need to fight is greater than the desire to co-parent in a healthy manner. There also appears to be a failure to appreciate each other’s triggers, namely the fear of the respondent that he is being kept out of the Child’s life by the claimant, and the fear of the claimant that the respondent does not respect her.

I mention this because, as is summarized below, there is a recommendation made by Dr. Elterman that the parties themselves engage in a form of counselling where they can discuss parenting issues on a regular basis in a guided and neutral manner. Neither party sought such an order at this application, however I would encourage them to consider this option. [ 13 ] In addition, there is some evidence of family violence between the parties.

The claimant says that there was one occasion where the respondent pulled something out of her hair, and another when the claimant alleges that the respondent threw something at her. The respondent says he was assaulted by the claimant when, during an argument about the Child’s hair cut, the claimant used clippers to shear part of his hair in a violent manner, cutting him. He filed a police report in respect of this incident. [ 14 ] The claimant alleges that the respondent has unresolved anger management issues and, on at least one occasion, called the police because of his angry outburst in front of the Child.

Given that, she argues that supervised parenting should remain in place until such time as the respondent finishes anger management with Moose Anger Management, or a similar program, and that he continues counselling given mental health concerns. [ 15 ] In this respect, since January 2023 the respondent has been undergoing counselling on a weekly basis, offered through the Department of National Defence (“DND”), Veteran Affairs.

The respondent was in the reserves, during which he completed a kinesiology degree, and then full time with the army for 8 years, posted in Canada and Israel, until 2008, and therefore is able to make use of their services free of charge. [ 16 ] The claimant argues that this is not sufficient to meet Dr. Elterman’s recommendations. While there was no evidence of this, when the respondent was asked by me during his submissions if his DND counsellor was aware of Dr.

Elterman’s findings and had seen his report, the respondent advised that she was, and had seen the report, and that she was providing anger management counselling. His evidence as to the counselling is detailed further below. [ 17 ] The claimant has also raised concerns about the respondent’s alcohol use and overall mental health given incidents where suicide was referenced by him, if not overtly threatened, although the respondent does deny any suicidal ideation.

On one occasion, in April 2023, he was admitted to the hospital for a 48-hour assessment given what he says was an unintentional overdose of Ativan, but was not a suicide attempt. [ 18 ] In his October 10, 2023 report, Dr. Elterman notes as follows with respect to the respondent:

a) At page 16: The respondent is verbally impulsive, which he explains as being a result of the heightened emotions from the stress of not being able to see the Child as much as he would like.

b) At page 19: The respondent’s testing suggests a defensive profile when portraying himself to be free of the common shortcomings to which most individuals will admit. Despite the level of defensiveness, however, there are areas where he describes problems of greater intensity than is typical for parties who are defensive, such as failures in close relationships, inflated self-esteem and poor control over anger.

c) At page 22: Dr. Elterman confirms that he interviewed the respondent’s counsellor who felt that the fear of not being able to see the Child is what is most distressing to the respondent.

In terms of his alcohol use he acknowledged that, at times, it was “a bit much” and that on at least two occasions he said that the stress from this dispute was getting to him and he was drinking too much and needed to cut back. [ 19 ] Given the scope of the applications before the court today as to the respondent’s supervision, I am not referencing the comments regarding the claimant, however my lack of comment is not meant to suggest that there were no comments made that may be relevant to any final parenting orders in that respect.

[ 20 ] Dr. Elterman’s findings include the following … for [the respondent] the situation involving [the Child] hits a raw nerve when he says that he felt discarded as a child and when he feels deprived of time with [the Child] it is like he is that helpless child again.

This may or may not be related to his reaction earlier in 2023 when his counsellor says that he was overwhelmed more than depressed at the prospect that he may have lost contact with his child. (at p. 28, second paragraph) I note that both parents are on medication for depression although [the claimant] says that hers is for menstrual cycle dysphoria. He asserts that he did not drink to excess when they were together and that when he did drink it was under stress relating to not seeing [the Child]. I do note that his narrative to his counsellor was along similar lines.

With regard to suicidal behaviour, he says that while he denies suicidal threats, I thought that he largely downplayed the whole situation …. both he and his counsellor say that it was his feeling overwhelmed that led to his feeling desperate. (at page 28, last paragraph to page 29) [The respondent] presented as a person under stress. During the interviewing and also throughout the assessment he has said that he feels that he has been compromised in spending time with [the Child] by [the claimant]. The psychological testing suggests a defensive profile where he was reluctant to admit minor faults.

There may have been a minimization of difficulties in certain arears. The testing suggests a feeling of failure in close relationships, inflated self-esteem and difficult controlling anger. The testing suggests that his interpersonal style has a strong need for positive regard which may lead to sometimes uninhibited behaviour that may be seen as attention-seeking. Behaviour intended as sociable may be seen as somewhat overbearing by others. (at page 29, second paragraph) In my observations of [the Child] with each of the parents I found them both to be dedicated, involved, and highly motivated to be his parent.

I did not note any behaviours that were of concern although I did see that commensurate with the time that [the Child] spends with [the claimant], he is more accustomed to her day-to-day care. (at page 29, last paragraph) My recommendation in this case if for the parents to share joint guardianship. With regard to day-to-day parenting responsibility I would recommend that [the claimant] have this duty because a shared decision-making arrangement is likely to result in considerable disagreement and conflict.

As [the Child] is only 2 years old it is my opinion that he is not old enough to have an equal time arrangement as has been proposed by [the respondent]. At this age I believe that there needs to be a primary residence particularly where one parent works from home and the other works away from home. At this stage I want to state that my recommendations regarding parenting responsibility are relatively short-term to the extent that I think in terms of the period from now until [the Child] leaves preschool years and enters kindergarten.

At that point, depending on how things proceed, this would change. (at page 30, last paragraph) With regard to the actual day-to-day parenting arrangement I would recommend that [the claimant] continue to have primary residence. It would be my recommendation that [the respondent’s] parenting time be unsupervised but that the transfer before and after have a form of monitoring.

Some of the access services do provide the ability for the parents to use their cameras on their phone to Facetime with the supervisor who would remain at a remote distance and can be part of the exchange of [the Child] between the parents in order to monitor. This is not as expensive as private supervision but provides a measure of accountability to both parents that both of them will have their cameras turned on and that a third party will [sic] on a split screen to see what each of them is doing and have a record of this.

I believe that Access Supervision Services does provide this particular form of monitoring. Along the same lines I would recommend that both parents do a 12 hour course online called “Parenting Without Conflict”… (at page 21, first paragraph) I would also recommend that [the respondent] attend an anger management program such as the one at Moose Anger Management in Vancouver which offers both individual and groups to assist people to learn skills to regulate their emotions when they feel provoked.

I think it is important that [the respondent] sign a written undertaking that he will not consume any alcohol during the time that he has [the Child] in his care. My understanding from his counsellor is that they have spoken about this and that he has expressed a willingness to make this commitment. (at page 31, second paragraph) It would be my recommendation, therefore, that [the respondent] have [the Child] for the day on Saturday between 10:00 a.m. and 5:00 p.m., as well as for the day on Wednesday between 10:00 a.m and 5:00 p.m.

He can choose to have [the Child] in daycare on the Wednesday or he can also choose to take the day for just himself and [the Child] and not put him in daycare but spend the day with him. At the point when [the Child] is 3, I believe that they should start with a single overnight such as Saturday from 10 am until Sunday at 10 am weekly. The Wednesday visit would then be from 1 p.m. until 5 pm. They would then continue this until [the Child] enters kindergarten at which point there could be an update done and a re-evaluation of the parenting arrangement.

Should [the claimant] decide that she wasn’t to go away for a full weekend with [the Child] that she should be able to do this once every 8 weeks and she would then give [the respondent] a month’s notice that this is her intention. (at page 30, last paragraph to page 31) My final recommendation is that the parents select a counsellor who is not known to either of them at this point but is a skilled experienced counsellor who can meet with them for an hour every two weeks in order to talk about [the Child]. The meeting would be

run like a business meeting where both parties can put items on the agenda for discussion. Minutes will be kept and the counsellor will serve as the chair of the meeting. I think that this form of communication will assist them in developing a more civil form of communication such that it is not the only time that they come into contact when they are doing the transfer. (at page 31, second paragraph) [ 21 ] The respondent has now taken the Parenting Without Conflict course.

During submissions he made various references to what he has learned through that program, although at times he seemed to do so to point out continued flaws in the claimant’s parenting that he viewed as not being consistent with the program. [ 22 ] Given the difficulties with co-parenting, and consistent with Dr. Elterman’s recommendations, the claimant seeks to temporarily be able to exercise all s. 41 responsibilities, and to have blanket authorization to travel with the Child to the US.

The respondent sees that request by the claimant as a further indicator of what he suspects is the claimant’s ultimate goal – to cut him out of the Child’s life and minimize his role as a parent. [ 23 ] As a final comment, I note that since separation, the respondent has also not paid any child support. When questioned during submissions about why he has failed to do so, the respondent’s answers were unsatisfactory.

While he stated that it was not intentional, but rather the result of having to respond to too many other applications, and his hope that at some point he would transition to equal parenting, it is important that he recognize that the right to child support is the right of the Child, and that the obligation to pay child support is not dependent upon whether or not a parent feels that they should have more parenting. I hope that a further application will not be necessary on that issue.

Legal Framework and Analysis General [ 24 ] In making any decisions as to parenting, the primary consideration for the court is the best interest of the Child, which includes a consideration of the various, non exhaustive, factors as set out in s. 37 of the Family Law Act, S.B.C. 2011 c. 25 . For the purpose of these Reasons, where I refer to a legislation

section it is in respect of the Family Law Act , unless otherwise stated. [ 25 ] The s. 37 factors include: (

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 the person's responsibilities; (

g) the impact of any 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 a person responsible for family violence indicate that the person may be impaired in the person's 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. [ 26 ] Further, as noted in s. 37(3), an order will not be considered to be in the best interests of a child “unless it protects, to the greatest extent possible, the [C]hild’s physical, psychological and emotional safety, security and well-being.” [ 27 ] While each factor is of importance, those which are of greater significance in this matter are the Child's health and emotional well-being, the nature and strength of the relationships with the Child, the Child's need for stability, given his young age and stage of development, the ability of the parties to exercise parenting and parental responsibilities, and how any orders will require the parties to cooperate or whether doings so will increase conflict. [ 28 ] With respect to factors (a), (

c) and (e), the evidence supports that the Child is healthy and emotionally stable with a strong relationship with both parents, notwithstanding that the claimant has a greater role in the parenting at this time, largely due to the age of the Child. [ 29 ] With respect to (

f) there is no evidence to support that the respondent is not capable of parenting, however given some of the issues raised, having regard to s. 37(3) some conditions to ensure that parenting remains healthy may be appropriate. [ 30 ] With respect to the factors in (

g) to (

h) relating to family violence, the claimant relies heavily on the allegations of family

violence as against the respondent. While the claimant acknowledges that her reports of family violence generally are ones that involveher, and not the Child, she argues that it must be considered with the relief being sought as such family violence, particularly when it isin the form of harassment, intimidation and verbal abuse as alleged here, is the type of family violence that can be easily inflicted duringparenting exchanges and communications regarding parenting issues, including travel, i.e. is relative to factor (i).

She also argues that theinstances of family violence as alleged are such that they evidence a “lack of mental stability and an inability to control anger” that willnegatively impact the Child. [31] The other factors were either not a significant factor, or were neutral, in this case. Supervised Parenting [32] The respondent initially agreed to have his parenting supervised, although says that it was only to ensure that he was able tocontinue with parenting given the threat of parental withholding otherwise. [33] In F.K. v.

M.K., 2010 BCSC 563 the court accepted that an order for supervised parenting requires evidence of exceptionalcircumstances, citing V.S.J. v. L.J.G., (ON SC), [2004] OJ No 2238 (QL) at para. 147, given that it is just one smallstep away from a complete termination of the parent-child relationship. [34] There is no evidence of exceptional circumstances to justify supervised parenting, nor did the claimant argue that there was. [35] Therefore, the claimant agrees to the suspension of supervised parenting time.

However, does so only if the respondent meetscertain preconditions, namely that he “demonstrates a serious commitment to improvement by providing proof that he has completed the12 hour “Parenting Without Conflict” course and proof that he has completed the Moose Anger Management Program as recommendedby Dr. Elterman” before it be lifted, and that he continues to attend regular counselling afterwards. [36] She also seeks an order that the transitions occur at a public location, such as the Royal Canadian Mounted Police (“RCMP”) detachment at 147 East 14th Street, North Vancouver BC, with specific terms.

The respondent would prefer to use the monitoring app orfacetime monitoring service as recommended by Dr. Elterman, with the exchanges to be in a “middle ground” location, although he wasunclear as to where such a middle location would be. He also expressed his concern as to the message it is sending to the Child that theexchanges are at a police department. Given the Child’s age, I do not see that as a significant concern.

As an alternative, he ultimatelysuggested that the exchange be at the Vancouver Police Department (“VPD”) detachment at the intersection of 2120 Cambie Street,North Vancouver. [37] As to the concern for counselling programs, as noted the respondent has now attended the “Parenting Without Conflict” course.He deposes that he completed that course on January 5, 2024. It is his view that the counselling that he is obtaining through DND issufficient as an anger management program, noting that Dr. Elterman specifically referenced a program “such as” the Moose AngerProgram, not only the Moose Anger Program.

Further, he did not make it a pre-condition to the lifting of suspended parenting. [38] The respondent’s sworn evidence is that he completed a US Department of Veteran Affairs online Anger Management course inNovember 2023, and that since January 27, 2023 he has been attending weekly counselling sessions through DND to deal with “amultitude of issues arising from this family law matter, not limited to, managing “anger” and “stress”’. [39] The claimant attached to her affidavit materials printouts from the DND website regarding the anger management coursesreferenced as being used by the respondent, which read as follows: What is the “Managing Angry Moments Course” The “Managing Angry Moments” course is an interactive, educational tool to help you identify situations in your daily life that causeanger.

You will also learn how to apply new skills on how to safely address these situations. This course is designed as a prevention tool and is not intended to be used for anger-management counselling or treatment. The “Managing Angry Moments” course consists of 7 two-hour modules filled with information and strategies to manage anger: 1. Understanding Anger 2. Anger, stress and mental fitness 3. Trigger thoughts, coping thoughts and strategies 4. Reframing thinking errors 5. Assertive Communication: Resolving conflicts while managing anger 6. Managing anger with forgiveness 7.

Maintaining positive changes [emphasis added] [40] The website from the US Department of Veterans Affairs website which was also appended to the affidavit materials filed by theclaimant specifically includes disclaimers that: Although you may find these courses helpful, they are not intended to replace treatment by a healthcare professional…

This court does not offer a “certificate of completion” and is not designed to fulfill court requirements. [41] In addition to disputing that the steps taken by the respondent are sufficient to meet the recommendations of Dr.

Elterman, theclaimant does not agree with the fact that he set these out as recommendations rather than specific pre-conditions for the termination ofsupervised parenting. [42] In this respect, the claimant specifically argues that the findings of a s. 211 assessor are not determinative, relying upon M.F.W. v.M.A.H, 2020 BCCA 284: [22] There are several decisions of the Supreme Court of British Columbia that demonstrate that the Court is not required to followthe recommendations of the appointed “expert” and indeed, that the Court should not “abdicate” its role in favour of an assessor’srecommendations: see King v.

Borserio 2018 BCCA 308at para. 76. As observed in A.P. v. J.C. 2018 BCSC 1381: The context under s. 211 is not comparable to that of an expert retained by a party in a non-family case. As observed by Parrett J.in Goudie v. Goudie, (BC SC), [1993] B.C.J. No. 1049 (S.C.), at para. 33: [33] …The procedure anticipated by s. 15 is one in which the investigator interviews the people involved, observes the relationship andinteraction between the spouses and the children and reports those observations, facts and impressions to the court.

In the truest sensethese individuals act as the courts eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built intothe process include the early delivery of the investigation reports, the opportunity to call the investigator to the witness stand and theopportunity to respond to the report generally by other evidence. FRA s. 15 reports were not governed completely by the evidentiary rules which would be in effect when dealing with reportsrequisitioned by one of the parties from an expert: Wu v. Sun et al, 2006 BCSC 1891, at para. 3.

Similar legal principles can be applied toboth s. 15 FRA and s. 211 FLA assessments or reports: K.B. v. J.B., 2015 BCSC 704, at para. 6. The s. 211 author may provide an opinion, but it is for the court to decide the matters at issue: Johnson v. Skillen, 2009 BCSC 209, atpara. 8; I.J.G.P.G. v. K.M., 2016 BCSC 1072, at para. 100; A.L. v. L.W.,2017 BCSC 964, at para. 8. The court must not abdicate its rolein favour of the recommendations made: King v. Borserio, 2018 BCCA 308, at para. 76.

Regardless of the information that goes to thereport writer, the court ultimately has the discretion to review the background information presented in the report, carry out anindependent assessment based on the evidence at trial, and come to a different conclusion as to the best interests of the child: K.B. v.J.B., 2015 BCSC 704, at para. 10, citing T.C. v. S.C., 2013 BCPC 217, at paras. 143–144; Plant v. Kempton, 2011 BCCA 171, atpara. 11. In the same year Fawcett was decided (1999), in the trial decision in Van de Perre, T. P. Warren J. declined to follow therecommendations of Dr.

Korpach pursuant to the s. 15 FRA report, that custody of the child should go to the father and his wife. Hegranted custody to the child’s mother. This illustrates both that the practice of s. 15/s. 211 report writers making recommendations isnothing new, and that judges can and do disregard such recommendations. The trial decision was reversed by the Court of Appeal, andrestored by the Supreme Court of Canada. [At paras. 116–121; emphasis added.] [43]

Section 211 reports do have a particularly important role on interlocutory applications. As has often been noted, on suchapplications the court is not in a position to resolve conflicts on the evidence, that being a matter better left for trial, but rather does itsbest at achieving rough justice with, in the case of applications concerning parenting, serving the best interests of the children byensuring their health, well-being and safety are protected.

A s. 211 report, where the assessor acts as the “eye and ears” of the court, is aninvaluable tool in such circumstances. [44] Here, it is clear that, for the most part, the claimant is accepting of Dr.

Elterman’s findings, and disagrees not with the overallfindings from his interviews with the parties and their collateral witnesses, or his conclusions about their parenting, but rather only thisone aspect: his failure recommend counselling specifically with Moose Anger Management, and only them, as a pre-condition to theremoval of supervised parenting. [45] For the purpose of this application, the respondent is willing to accept the recommendations in the report on this interim basis,even those he does not entirely agree with, and is somewhat frustrated with what he sees as the claimant’s selective acceptance of onlythose portions she agrees with.

The respondent submitted that he was led to believe that a s. 211 report would provide some level ofcertainty for the parties, and that it would be a tool to guide them as to the necessity of what, from his perspective, was a unilateralimposition of supervised parenting, so that they could resolve much of their conflict leading up to trial. This is precisely why, he says, heagreed to it notwithstanding the costs. As such, he argues, there is no reason to impose a condition Dr.

Elterman did not make, and seesthe claimant’s position as an illustration of her bad faith or ultimate motive to reduce his involvement in the Child’s life. [46] While there are procedural issues that could enable the court to resolve this one area of conflict as to these recommendations,such as providing the parties with some opportunity to cross examine Dr.

Elterman on his report, as referenced by this court in Ellis v.Alvarez, 2023 BCSC 544 given concerns as to the acceptance of s. 211 findings in interlocutory applications, I do not find that either stepwould be proportionate given the delay it would cause, the cost for such a step, and the level of agreement, or acceptance for thepurposes of this application, on the majority of the report. [47] Ultimately, Dr. Elterman’s recommendations are just but one factor in the court’s analysis.

The steps already taken by therespondent to put into place the counselling recommendations generally, which is deposed to by the respondent, is another. [48] On this latter evidence, the claimant is skeptical that the steps taken are having any effect, arguing that the same day that therespondent advised that he had completed these courses was the same day he threatened to call Canadian Border Services and Homelandsecurity on the claimant, when embroiled with one of their disputes as to the claimant’s plans to travel to the US with the Child.

As is thecase with many of the apparent outbursts of the respondent, it occurred after an altercation on a decision being made about the Child. [49] In this respect, during his submissions it was evident that the respondent becomes easily frustrated when he feels that he is not in

control of the parenting of the Child. While that level of frustration may be understandable to a degree, that it translates into inappropriate communication or outbursts is not acceptable. The evidence supports that this type of instant reaction to lash out is being addressed in his counselling.

Even if it has not yet been completely eliminated, I accept the respondent’s evidence that he is working hard on those shortcomings. [ 50 ] I am satisfied that the supervision requirement is no longer necessary, as there are no exceptional circumstances to warrant it. [ 51 ] I am also satisfied that there be no pre-condition for the cessation of supervised parenting. However, appropriate ongoing counselling ought to be a general condition. As such, I order that:

a) the requirement for the respondent’s parenting to be supervised, including as ordered on June 1, 2023 (as many of the orders remain unentered, it is not clear which orders included this requirement), is set aside;

b) within 30 days of these Reasons, the respondent shall arrange for his DND counsellor to provide to the claimant, through her counsel, a letter confirming that she has read a copy of Dr. Elterman’s report and these Reasons, and that she is satisfied that the steps taken and her ongoing counselling are, in her view, geared towards addressing the respondent’s anger management issues; and

c) if no such letter is provided, or the sufficiency of any letter is disputed, the parties have liberty to reappear before me to address if further terms are necessary. [ 52 ] As to the exchanges, I agree with the claimant that it is not necessary that the facetime monitoring of the exchanges be undertaken, as arranging for that comes with an unnecessary cost, may complicate the exchanges and have the unintended effect of extending the time for them to occur, for example if either party has to wait for the monitor to join, which may increase the possibility of conflict.

However, I also agree with the respondent that the location for exchanges should not be solely ones that put him to greater inconvenience. [ 53 ] As such, I order that:

a) at the beginning of the respondent’s parenting time the exchange shall be at the RCMP detachment at 147 East 14 th Street, North Vancouver, B.C.;

b) at the end of the respondent’s parenting time the exchange shall be at the VPD detachment at 2120 Cambie Street, Vancouver, B.C.; and

c) for all exchanges, except for when the parties are within the RCMP or VPD building itself, the parties will not interact with each other and will remain a minimum of 10 meters apart, including while outside of the buildings and in the parking lots. [ 54 ] The claimant also sought a term requiring the respondent to confirm 24 hours prior to each parenting block as to his intention to exercise his parenting right, failing which he will forgo his parenting right for that time period. The parties did not make oral submission on this point.

However, I suspect that to the extent there have been issues with the unreliability, they have arisen as a result of the issues the respondent has had in continuing to arrange supervisors. Given the orders made herein, that should no longer be an issue. [ 55 ] However, that should not be taken as approval to not attend at scheduled parenting times.

It goes without saying that if parenting is not going to be exercised, the appropriate and respectful approach to that is to give ample notice. [ 56 ] In addition, the claimant sought to have an order included that she had liberty to apply to reinstate supervised parenting without any material change in circumstances. The parties fully argued this application on the merits. I decline to make such an order. If the claimant wishes to seek an order to reinstate supervised parenting, it ought to be on the basis that there is evidence of exceptional circumstances to warrant it.

Section 41 Responsibilities [ 57 ] Generally, if parties are joint guardians, as they are here, they share joint parenting responsibilities. However, the court may, pursuant to s. 40(3)(a), allocate the parental responsibilities as set out s. 41 to one guardian over another, the purpose of doing so was described by the Court of Appeal in K.P.B. v. K.E., 2019 BCCA 152 : [22] A provision granting one parent final decision-making authority is not uncommon, particularly in high conflict relationships.

It provides a mechanism whereby the parties do not have to apply to the court to determine every parenting issue on which they may disagree. The purpose of the provision is to minimize the negative consequences of ongoing litigation. An alternative measure sometimes employed is the appointment of a parenting co-ordinator pursuant s. 15 of the FLA ; however, that is at a cost to the parties and may not always be an affordable option. [ 58 ] The claimant relies upon C.W.C. v. L.A.W. , 2021 BCSC 1774 , where the court found as follows: [68] I find that civil discussion or consultation between Mr. C. and Ms.

W. as joint guardians is so unlikely that co-parenting on anything approaching an equal time basis is not possible, and therefore unreasonable, given their toxic relationship, so under s. 40(3) of the Act it is necessary to allocate the parental responsibilities set out in s. 41. [ 59 ] By making orders under s. 41 to allocate responsibilities to one parent over another it also operates as a type of gate keeper to the parties bringing applications that seek to ask the courts to determine the minute details of a child’s life every time such a disagreement or conflict arises, which is not something that the courts should be asked to do. [ 60 ] The respondent opposes the claimant having sole s. 41 responsibilities.

In his response he states:

The claimant states that she has experienced difficulty co-parenting with the respondent, yet she is the one that has withheld the [Child] unlawfully and without merit. Her assertion that the respondent is unwilling to work with her is another bold-faced lie.

Any attempts to parent and communicate with the claimant is ignored unless it is information that she wants. [ 61 ] The claimant argued that the respondent is an obstructionist who refuses to address any parenting decision or uses it as a weapon for intimidation and harassment, whereas the respondent argued that decisions are being made unilaterally which, when he confronts the claimant with the need to consult with him, results in the allegation of him being harassing.

One of those two is the likely cause, the other the effect, of the parties’ inability to effectively communicate so as to co-parent. [ 62 ] It is not entirely evident on the record before the court which is which.

It is rarely possible for the court to resolve such conflicts in evidence on interim applications such as this, where such determinations are better left for trial. [ 63 ] The disagreements between the party that were highlighted by both during submissions support that the level of disagreement and conflict between the parties makes it unlikely that they will be able to reach a consensus on any major decision without significant conflict which also has the potential to seep its way into the Child’s life and mental wellbeing.

The disagreement with the daycare, even accepting the respondent’s account of the disagreement, is but one example of that. The inability to reach an agreement about travel in any timely way is another. [ 64 ] However, I must have regard to the allegations that the claimant is using her role as primary care giver to unilaterally exercise parenting authority at this time, without a court order in place to giver her such sole responsibility.

If a parent is engaging in post- separation conduct with a view to alienating the other parent or, as the respondent alleges here, to effectively minimize the other party’s role as a parent, then the court ought to consider if providing them with such sole decision making authority will be exercised in an abusive manner. [ 65 ] As indicated above, in his s. 211 report Dr. Elterman recommended that the claimant be allocated all parental responsibilities given the level of conflict.

His reason for choosing the claimant appeared to be one more of logistics arising from the age of the Child and that the claimant is, as of now, the primary care-giver, rather than a finding that the respondent was not capable of making such decisions. He also emphasized that any such allocation ought to be temporary, until the Child leaves pre-school. This is one of the areas where the respondent disagrees with Dr.

Elterman’s recommendations. [ 66 ] Having weighed the evidence, I am satisfied that much of the claimant’s conduct, which is seen by the respondent as highhanded and disrespectful, is reactive to the ongoing conflict. [ 67 ] During submissions, the respondent stated that he could see that future of being a dad coaching his son’s sport’s team and cheering him on from the sidelines, which is the future he hopes for, being taken from him as a result of the ongoing conflict between himself and the claimant and their inability to co-parent.

Having a period of time where one parent has sole decision-making authority will, ideally, bring about a cooling off period in which the areas of conflict can hopefully be reduced allowing the parties to learn to communicate with one another in a respectful manner, so that that future can remain a possibility. My hope is that the respondent sees the orders that I am making are meant to enable that, and not as a punishment, which they are not. [ 68 ] I agree with Dr. Elterman that, given the Child’s age and current parenting

schedule that the parent that ought to have that authority is the claimant, but that it will be on interim basis only, and specifically subject to review on the earlier of any order, or agreement, for equal parenting or when the Child commences pre-school. [ 69 ] The allocation is, as noted, to enable the parties to remove a source of conflict until such time as they are better equipped to cooperate with one another, during a time when the Child is at an age that he will not understand who is making these decisions on his behalf such that there is little risk that it will have the effect of undermining the respondent’s role in his life, which is a reasonable concern of the respondent. [ 70 ] Put another way, it is hoped that the respondent will be able to focus on spending time with and building his bond with the Child at this tender age, and for both parties to increase their trust with each other, so that increases to parenting time can be considered, fostered and restrictions removed.

It is not meant to be a criticism of the respondent’s ability to make these decisions himself, or of his role as a parent. [ 71 ] As such, although the claimant will have sole authority, it does not mean that the respondent should be kept unaware of the decisions made in respect of the Child.

This is not meant in any way to be a mechanism to minimize the respondent’s important role in the Child’s life, which the claimant should continue to respect. [ 72 ] Accordingly, I make an order that the claimant shall advise the respondent as to all significant decisions made in respect of the Child, including without limitation, as to daycare and education including the particulars of any enrollment in same, participation in extracurricular activities, including the nature, extent and location of such activities, any medical treatment and updates as to his health status and growth milestones and seven days’ notice of any overnight travel with the Child outside of the Greater Vancouver Regional District, including the Lower Mainland, Fraser Valley and Squamish-Lillooet districts including the itinerary for such travel, locations being visited, and confirmation of valid health insurance for any travel outside of Canada. [ 73 ] I will also make an order that the respondent is entitled to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party care givers.

However, this order is premised on the conduct order I will address further below. Travel with the Child [ 74 ] In her application filed September 11, 2023, the claimant seeks a blanket order that she be permitted to travel to the U.S. with the Child, without any need for consent or further court order.

[ 75 ] In his filed response, the position of the respondent is set out as follows: Granting a carte blanche travel order will only further alienate the [Child] from the respondent and is again without merit. The claimant will run afoul of the justice system and only empower her to act without considering the [Child] or the respondent’s rights. … The claimant has stated time and time again her willingness and her means to travel and live int eh United States as she can work abroad and has significant resources by herself and her parents.

The claimant has yet to provide make up parenting time from her previous trip and did not fulfill the promised video calls with the respondent aside from one on his birthday. [ 76 ] The ability to make travel decisions seems to create the same level of conflict between the parties as does the making of s. 41 decisions. For the same reasons set out above, namely to remove a cause of conflict, I agree that the claimant ought to have authority to travel with the Child.

However, again, such travel should not be done without the respondent being given appropriate notice and information about the travel. [ 77 ] I note that the order of October 10, 2023 approving an upcoming travel plan included various terms for such travel. Those terms are reasonable and ought to not only continue but be augmented so as to ensure that there are not unreasonable infringements upon the respondent’s parenting time.

In addition, the respondent ought to be able to exercise missed parenting time from the November 2023 trip, if it has not yet been accommodated as appears to be the case, although the reason for that is in dispute. [ 78 ] Specifically:

a) the claimant shall provide notice of any such travel within 24 hours of making her flight reservations, but no later than seven days prior to any such travel;

b) prior to travelling, the claimant is to provide the respondent with a copy of her flight itinerary, contact information as to where she will be staying, and proof of out of country medical insurance;

c) for any such travel, the respondent will be entitled to make up parenting time to occur within 14 days after the claimant’s return from such travel. The respondent shall, prior to the trip, propose two alternative dates for such make up parenting time as will be missed during the travel, and the claimant shall choose between and facilitate make up parenting on one of those times;

d) if make up parenting time has not yet been exercised in respect of the travel that commenced November 30, 2023, within 14 days of this order, the respondent shall propose two alternative dates for such make up parenting time as was missed during that travel, and the claimant shall choose between and facilitate make up parenting on one of those times; and

e) the claimant shall not exercise any such travel that will interfere with the respondent’s parenting time more frequently then once every three months. Conduct Orders [ 79 ] In her application filed October 25, 2023 the claimant is seeking a conduct order that the respondent will:

a) maintain polite, respectful communications with the owner and staff of Lil Bloomer’s Childcare Centre;

b) refrain from using any insulting or abusive language, and avoiding negative or hostile criticism directed at the owner and staff of Lil Bloomer’s Childcare Centre; and

c) refrain from public criticism of the owner and staff of Lil Bloomer’s Childcare Centre and remove or delete any such public criticism where already published. [ 80 ] While the respondent acknowledged that the exchanges with Lil Bloomer’s were heated, he minimized his role in elevating the conflict. This was an example of him allowing his frustration to be expressed inappropriately. [ 81 ] The court has jurisdiction to make conduct orders, generally, as to speech between the parties. As commented upon by the Court of Appeal at para. 188 of A.B. v.

C.D., 2020 BCCA 11 , conduct orders are a “tool that allows the court to ensure that a proceeding such as this is conducted in a manner that strives to minimize the conflict between the parties”. [ 82 ] However, it is not entirely clear if the scope of such orders extends to the publication of public criticism in respect of third parties.

However, the respondent did not specifically oppose the conduct order being made. [ 83 ] Given that I have ordered that he be entitled to information from third parties, such as Lil Bloomer’s, in order to ensure that communications remain appropriate and that the Child’s spot at the childcare centre not be put at risk, it is appropriate that the order as sought be made. Fines and Costs [ 84 ] In his November 22, 2023 application, the respondent seeks relief from payment of the $2,000 fine imposed by him by order of November 7, 2023.

[ 85 ] The claimant opposes the relief from the previous fine, arguing that there is insufficient evidence before the court that such a fine is causing hardship. In this respect, the claimant submits that the court very clearly informed the respondent that any such application would require full financial evidence of financial hardship to support such relief.

Although no transcript of that hearing was before the court. [ 86 ] In her September 11, 2023 application, the claimant also seeks an order that the respondent pay a further $3,000 fine (para. 3), and costs for that application and the July 18, 2023 application (paras. 4 and 5). [ 87 ] For his part, the respondent advised the court that he believed that this particular hearing date was only secured to address the parenting issues, so he was unprepared for arguments regarding the fine sought by the claimant and costs being sought with respect to the July 18, 2023 hearing.

This understanding is supported by the requisition filed by the claimant which only referenced para. 1 of her notice of application filed September 11, 2023 being adjourned to this date. [ 88 ] I am satisfied that the respondent was not prepared for and did not have a sufficient understanding that the financial penalties were going to be addressed today.

Further, there is insufficient financial evidence in the record to address these issues. [ 89 ] As such, I order that paras. 3, 4 and 5, of the claimant’s application filed September 11, 2023, and para. 3 of the respondent’s application filed November 22, 2023 are adjourned generally. [ 90 ] With respect to the costs of this application, the respondent was largely successful in the termination of his supervised parenting, without pre-conditions, and the claimant was largely successful as to the other matters that, for the most part, were put in place to provide the parties with a period within which they can focus on their individual parenting of the Child, rather than on areas that only serve to create a source of conflict. [ 91 ] Given the divided result, the parties shall bear their own costs on each of the applications.

Summary of Orders Made [ 92 ] In

summary, I make the following orders: Respondent’s Notice of Application filed November 22, 2023

a) The term in the interim orders, including that pronounced June 1, 2023, that the respondent’s parenting time be supervised is set aside;

b) Within 30 days of these reasons, the respondent shall arrange for his DND counsellor to provide to the claimant, through her counsel, a letter confirming that she has read a copy of Dr. Elterman’s report dated October 10, 2023 and these Reasons, and that she is satisfied that the steps taken and her ongoing counselling are, in her view, geared towards addressing the claimant’s anger management issues;

c) If no such letter is provided, or the sufficiency of any letter is disputed, the parties have liberty to reappear before me to address if further terms are necessary;

d) At the beginning of the respondent’s parenting time the exchange of the Child shall be at the RCMP detachment at 147 East 14 th Street, North Vancouver, B.C.;

e) At the end of the respondent’s parenting time the exchange of the Child shall be at the VPD detachment at 2120 Cambie Street, Vancouver, B.C.; and

f) For all exchanges, except for when the parties are within the RCMP or VPD building itself, the parties will not interact with each other and will remain a minimum of 10 meters apart, including while outside of the buildings and in the parking lots; and

g) The application at para. 4 of the respondent’s application filed November 22, 2023 for relief from paying the fine imposed by order of November 7, 2023 is adjourned generally. Claimant’s Notice of Application filed September 11, 2023

h) On an interim basis pending further agreement or court order, the claimant is permitted to travel with the Child to the United States of America without the agreement or consent of the respondent on the following terms: i. The claimant shall provide notice of any such travel within 24 hours of making her flight reservations, but no later than seven days prior to any such travel; ii. Prior to travelling, the claimant is to provide the respondent with a copy of her flight itinerary, contact information as to where she will be staying, and proof of out of country medical insurance; iii.

For any such travel, the respondent will be entitled to make up parenting time to occur within 14 days after the claimant’s return from such travel. The respondent shall, prior to the trip, propose two alternative dates for such make up parenting time as will be missed during the travel, and the claimant shall choose between and facilitate make up parenting on one of those times; iv. If make up parenting time has not yet been exercised in respect of the travel that commenced November 30, 2023, within 14 days of

this order, the respondent shall propose two alternative dates for such make up parenting time as was be missed during that travel, and the claimant shall choose between and facilitate make up parenting on one of those times; and v. The claimant shall not exercise any such travel that will interfere with the respondent’s parenting time more frequently then once every three months.

i) Paras. 3, 4 and 5, of the claimant’s application filed September 11, 2023, are adjourned generally. Claimant’s Notice of Application filed October 25, 2023

j) On an interim basis, and subject to review on the earlier of the Child commencing pre-school or there being equal parenting either by court order or agreement of the parties, the claimant will have all of the s. 41 parental responsibilities for the Child under s. 40(3)(a);

k) The claimant shall advise the respondent as to all significant decisions made in respect of the Child, including without limitation, as to daycare and education including the particulars of any enrollment in same, participation in extracurricular activities, including the nature, extent and location of such activities, any medical treatment and updates as to his health status and growth milestones and seven days’ notice of any overnight travel with the Child outside of the Greater Vancouver Regional District, including the Lower Mainland, Fraser Valley and Squamish-Lillooet districts including the itinerary for such travel, locations being visited, and confirmation of valid health insurance for any travel outside of Canada;

l) The respondent is entitled to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party care givers; and

m) The respondent shall: i. maintain polite, respectful communications with the owner and staff of Lil Bloomer’s Childcare Centre; ii. refrain from using any insulting or abusive language, and avoiding negative or hostile criticism directed at the owner and staff of Lil Bloomer’s Childcare Centre; and iii. refrain from public criticism of the owner and staff of Lil Bloomer’s Childcare Centre and remove or delete any such public criticism where already published. Costs

n) the parties shall each bear their own costs of this application. “Associate Judge Robertson”