A.P. v. S.C. Date:, 2015 BCPC 423

Citation: A.P. v. S.C. Date: 20150831 2015 BCPC 0423 File No: F10904 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.P. APPLICANT AND: S.C. RESPONDENT ORDER OF THE HONOURABLE JUDGE JARDINE Appearing in person: A.P.

Counsel for the Respondent: D. Klassen Place of Hearing: Chilliwack , B.C. Dates of Hearing: July 20-23, August 14, 18, 27, 28, 2015; Date of Order: August 31, 2015 [ 1 ] THE COURT : These are my oral reasons for judgment in this hearing. Introduction [ 2 ] I have heard in these eight days of evidence and argument a sordid history of blameworthy conduct on the part of both these parties.

What is most sad about this conflict is that the lack of trust and the failure to communicate courteously and respectfully has escalated to the point where the child they share has become embroiled in their angry conflict, and her recent behaviours demonstrate the level of her upset. The conflict has been detrimental to her emotional and psychological well-being. [ 3 ] In my view, each of the parties has played a

part in escalating the conflict. The applicant, Mr. C., has a new partner, Ms. S., who was solidly supportive of him and who has been the subject of negative interaction between she and the respondent, Ms. P., and the child, I. Ms. S. has also engaged in antagonistic, sarcastic and demeaning exchanges with Ms. P. and the maternal grandmother, Ms. M., in the courthouse. [ 4 ] Ms. M. is equally supportive of her daughter, Ms. P., and Ms. M., Ms. P. and Ms. S. have each made destructive, negative, hostile, disparaging comments one to the other.

The initial interaction was hostile, and the feelings of hostility and dislike continue and border on contempt. The feelings have manifested themselves at court, at exchanges, and in email communications. This has led Mr. C. to take the side of his new partner, Ms. S., and to engage in inappropriate conversation with I. involving I. in adult matters of dispute, and pitting the position of I.'s mother in opposition to his new partner. I am of the view that this is particularly detrimental to I. and her sense of security, well-being, health, and psychological well-being. [ 5 ] The result is a situation where Ms.

P. does not want I. alone with Ms. S. at any time. Given the practical and logistical problems with that position and the creation of an effective parenting time schedule, the crafting of an order which adequately protects I. from further distress is a difficult task. [ 6 ] There has, however, been a glimmer of cooperation during the two days of argument following exchanges between the Court and counsel, and the Court and Ms. P., who is self-represented. [ 7 ] Those exchanges have refined some of the issues, such that Ms.

P. has prepared a draft of the order sought by her which reflects a reasonable compromise directed at Mr. C. having increased parenting time. The increased time, should he use it wisely, may enable him to repair the damage done since February 2013 to his father-daughter relationship with I. Moreover, contrary to the pleadings, Ms. P. has realistically conceded the guardianship issue, and seeks that both parents remain guardians with primary residence with Ms.

P. [ 8 ] In addition, the parties have resolved the financial issues to vary the child support order of January 27, 2010, to set the arrears of special and extraordinary expenses and s. 7 expenses, as well as the arrears in terms of child support and other payments that have not been made. I have, therefore, been able in the conclusion and the order which I have drafted, subject to further submissions from counsel and Ms.

P., been able to resolve the financial issues in accord with the agreements of July 21 and August 28, 2015. [ 9 ] In my view, the principal issues remaining are the division of parenting responsibilities and the creation of a workable parenting time plan. Subordinate issues have included the guardianship and the establishment of a conduct order to attempt to alleviate the hostilities. The development of a workable parenting plan is hampered by the mutual distrust and dislike which is readily apparent in the four principal adults in I.'s life.

There is a struggle for control and a concomitant resistance from the opposite view. [ 10 ] Prior to this hearing, the positions of the parties were polar opposites and quite, in my view, unrealistic depending on how one looks at what has transpired from 2009 to 2013, and then from 2013 to this date. It is my hope that these proceedings have proven to be a reality check for both Ms. P. and Mr. C. I am convinced they both want this child to be happy and healthy, physically and mentally.

Their failure to see how the lack of communication, cooperation and compromise would help I. reflects how mired in the conflict they have become. [ 11 ] It is my hope that during the course of these reasons I will be able to touch on some issues, and raise some planned conduct order terms and conditions to assist them in resolving that problem. Background to the Litigation [ 12 ] I.R.A.P. was born on [D.O.B.]. I will refer to her in the judgment by the initials I.R.A.P., or simply I.

I am anticipating that someone is probably going to order the transcript and this is an oral set of reasons, so I have, as a matter of course, included the fact that I will edit the grammar, but I will not change the reasoning or the tenor of any of my findings. [ 13 ] Present at her birth were her mother, A.P., born [D.O.B.], and her maternal grandmother, R.M. The conflict between her father S.C., born [D.O.B.], and her mother was evidenced during their volatile dating relationship. [ 14 ] Mr. C. and Ms. P. met at work at a Honda dealership in 2007. Mr.

C. was in the throes of his separation and divorce from his first spouse, D.P. In September of 2008, Ms. P. and Mr. C. mutually decided to end their relationship due to a number of irreconcilable

differences. Ms. P. discovered within a month and a half of the breakup that she was pregnant. [ 15 ] The extent of their discord was demonstrated in the interaction between Mr. C. and Ms. P. the morning I. was born. Mr. C. went to the hospital, because he could not find out how the birth was going. He was angry because he had not been included, and was not allowed to be present at the birth. He sent to Ms. P. a number of text messages. One of the text messages read: I'm never going to forgive you. I've told you you're a loser, you're always going to be a loser. [ 16 ] Ms.

P. received that while she was in labour. She was upset and crying after reading the text. A nurse treating her also read the text. The nurse was attending to Ms. P. when Mr. C. arrived, and was heard to say, "I want to see my baby. I have a right to be here. This is my baby." The nurse and Mr. C. had words. She said something to the effect "I'm doing an examination. You have no right to be here and you must leave immediately." Mr. C. responded, "This is my baby. If I want to be here, I can be here." The nurse: "If you don't leave, I'm going to call security." Mr. C. left Ms.

P.'s room, and was escorted from the hospital by members of the security. [ 17 ] During the course of this proceeding, I am of the view that each of the parties has provided evidence of repeated conflict as I have outlined above. Court Orders and Litigation [ 18 ] A recounting of the orders in this case provides insight into the nature and extent of the animosity between these persons. Although he had asserted that he was the father on his attendance at the hospital, on November 25, 2009, an order was sought and obtained before me for paternity testing. One can only wonder why – since Mr.

C. asserted he was the father on the morning of her birth – this was a necessary step. It is the type of thing which leads to long-term antagonism and hostility. [ 19 ] On January 27, 2010, the Honourable Judge MacKay made an order with respect to child support and maintenance. That order has been in place, there have been other proceedings under the Family Maintenance Enforcement Program ("FMEP"), there have been other steps taken, and there are significant arrears in respect of child support, and arrears in respect of special and ordinary expenses, which are the subject of garnishment orders and Mr.

C. [ 20 ] There was some parenting time afforded Mr. C., but as at October 18, 2010, at the request of Ms. P. and Ms. M., supervised access of exchanges and a consent order without counsel for Mr. C. was reached so that he could have an opportunity to see his daughter. At that stage, Mr. C. was clearly in a position where he felt that all of the power was in the hands of Ms.

P., and that the only way that he was going to be able to see his daughter was by agreeing – consenting – while he was without counsel to such an order. [ 21 ] On January 27, 2012, before the Honourable Judge Raven of this Court, with counsel for Ms. P., and Mr. C. still a self- represented litigant, there was an order with respect to access by consent. There was also the ordering of a Views of the Child Report. [ 22 ] The next relevant order to this issue is the order of August 29, 2012, before the Honourable Judge Dickey of this Court. At that time, Ms. P. had Mr. Nudel acting, and Mr. C. had Mr. Panchmatia.

There was an order at that time with respect to joint guardianship, and the Honourable Judge Dickey seized himself of the file which was, at that time, being conducted pursuant to the Family Relations Act . [ 23 ] On December 5, 2012, following a hearing at which Dale Pedersen was acting for Ms. P. and Mr. Panchmatia continued acting for Mr. C., there was a determination made that there should be enhanced parenting time, such that overnight visits should commence for Mr. C. Ms.

P. was not happy with that decision, and during the course of the continuation of these reasons, I will deal with her response to the December 5, 2012 order. The Applicable Legal Principles [ 24 ] I will start with best interests of the child. Section 37(2) of the Family Law Act sets out a non-exhaustive list of factors which the Court must consider in making an order in relation to parenting arrangements for a child. [ 25 ] The legislation commences with s. 37(1), and there is a change between the Family Law Act and the Family Relations Act in this regard.

Prior to the Family Law Act coming into force and effect, in making an order under this part, the Court would consider the best interests of the child as one of the paramount principles. Section 37(1) reads: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [ 26 ] To that extent, this Court in making this decision, must look to its findings with respect to the best interests of I., and not be as concerned about the other factors. To a certain extent, that explains the decision to which I have come. [ 27 ] Under s. 37(2), the Court is:

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

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. [That is sometimes enclosed under the heading "ParentalCapacity"]; (

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

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability tocare 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 familymembers. [That is particularly significant in this case because of the nature of the interaction between these parties and the length of thatconflict.

It is for that reason that at the conclusion I have the view that a conduct order and an order restricting certain means ofcommunication to emails alone is a significant step to try and alleviate some of the tension, anxiety and stress in I.] [28] We do not need to worry about (j), because we are not there, nor do we have to worry about s. 37(3), but I must acknowledgethat in s. 37(4) that: "in making an order under this Part a court may consider a person's conduct only if it substantially affects a factor setout in subsection (2) and only to the extent that it affects that factor." That is significant for both of these parties. [29] Let me explain that.

The conduct of a parent is only relevant if it substantially affects a factor in subsection (2) and only to theextent that it affects that factor. In this instance, I am going to be dealing with issues under s. 1, the definition of family violence, s. 38,the assessment of family violence, and considering s. 184(1) as to a protection order, given the request of Ms. P. [30] However, I am of the view in respect of both of these parties that there is a way for them, should they comply with the conductorder, to make things significantly better.

It is going to take time but in respect of the legislation, the legislation gives us some tools to beable to try and do that. [31] An expansive

interpretation of family violence is contemplated in the Family Law Act ("FLA"), and the Court is required togive latitude for an at-risk family member's perception of risks. However, as was observed in J.R.E. v. D.J.E. et al., 2013 BCSC 2038,subjective perceptions alone may not suffice. There must be objective evidence of family violence before a reasonable inference orconclusion may be made that family violence may occur in the future. [32] I am also mindful in my consideration of the applicable legal principles of s. 199 of the Act.

Section 199 provides for arelaxation of the strict rules of evidence. In the context of this case, I have also considered it in imposing this oral decision on the Courthere in Chilliwack, in order to deal with this in a timely fashion. That is for two reasons: 1. School is about to begin. 2. Secondly, I. is about to commence Grade 1. [33] She needs to have this resolved, at least to some extent, and I will pause to say, so do Mr. C. and Ms. P. It is important foreveryone that we start on a process providing for more comfort, security and stability for I. [34]

Section 199 provides: 199

(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to (

i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict betweenthe parties. [35] I have attempted to do that throughout the proceedings. I have attempted to draw the attention of the parties to what I havefound to be matters of conflict between them, and I am in a position where I am, in these reasons, entreating them to act differently intothe future. [36] I am of the view that this

section may be construed to permit a relaxation of the strict rules of evidence in FLA proceedings. Iagree with my colleague, Skilnick, P.C.J., in S.M.A. v. R.E.W., 2015 BCPC 34 , 2015 BCPC 0034 at paras. 56 to 60, where heopined such an

interpretation. However, where there are issues of credibility to be determined, it is my view a more restrictive approachis warranted. To permit the admission of hearsay, the Court must be able to determine not only relevance but also reliability. Withoutcross-examination, and without first person knowledge, reliability is very difficult to ascertain.

[ 37 ] Where one is considering a young, emotionally vulnerable and impressionable child of six years of age, negative behaviour, negative conduct or negative comments directed at the other parent will affect the child's view.

It is for that reason that repeated acts of parental alienation by either party may provide grounds for a change in residence or in termination of parenting time, because the harm which may be occasioned by a change in residence, or by a diminution, or enhancement of parenting time, is outweighed by the long- term harm to the child that will result if the child is permitted to remain in the primary care of the alienating parent. [ 38 ] It is for that reason that I have drawn the attention of the parties to the decision in the British Columbia Court of Appeal in A. A. v.

S.M.A . , which is at 2007 BCCA 363 , and particularly, those parts of the decision of the Court wherein the Court laid out the principal analysis for setting aside the trial judge's order. In A.A. , the trial judge had found there had been parental alienation by a parent who was "intransigent and highly manipulative," and whose actions were injuring the child's relationship with the non-custodial parent. I have drawn to the attention of the parties this case to assist Ms.

P., because, in my view, she should be made aware of this decision and what can transpire if there are no changes in the current course of conduct. [ 39 ] If the behaviours which have placed I. in the middle of these parties continue, then I see this being a live analysis and determination downstream.

We are not there, at present, in my view of the facts of this case, but it is a circumstance where both parties should be aware of the nature of the response of the Court of Appeal to parental alienation. [ 40 ] The theory is that such negative behaviour is very harmful and abusive to the child's health and emotional well-being, and the principles embraced by this decision in the British Columbia Court of Appeal provide that the difficulties of a change in a child's residence or parenting time are secondary to the child's long-term interests. [ 41 ] If I conclude that the status quo is detrimental to I.'s long-term interests, a change is preferable on the analysis in this case.

Paramountcy must be given to the child's long-term interests over a problematic short-term adjustment required by change in regimen. It can be seen that this focus, in this decision, is on "the child's best interests only", and that expresses the legislative language of s. 37(1). [ 42 ] A similar analysis was utilized by Justice Pearlman in D.N.L. v. C.N.S. , 2014 BCSC 1417 . In that case, the Court determined the behaviour of the father to be family violence, and gave him an opportunity to subordinate his own interests to that of the child.

In other words, there were months between the initial termination of the family violence, and there was an order put in place for the father to embark on a change of behaviour. The father in that case could not do so. He insisted on exercising his rights ahead of acting in his child's best interests. The father engaged in cross-parental alienation (see para. 35), and I am of the view that the analysis and findings of the Court from paras. 67 to 73, outline the reasons and the rationale of Justice Pearlman, and his reasons for decision should be required reading for fathers in high conflict situations.

I would plead with Mr. C. to read that portion of Justice Pearlman's decision carefully. [ 43 ] Conduct orders are considered in the language of s. 37 and in the language of s. 38, as well as in ss. 222(

b) and 224(1)(b). I am satisfied in respect of this matter, for instance, that if counselling is to be arranged as part of the conclusion and order, that that order can be construed within the language of s. 224(1)(

b) to provide for counselling to be arranged as part of the extended health package of Mr. C., and a report can be ordered to be provided by January 15, 2016 from such a counsellor. That would not be a s. 211 report. It would be an individual report dealing with the relationship between Mr.

C. and I. [ 44 ] I am also of the view that the language of ss. 225 and 228 are significant considerations in terms of the applicable legal principles in this case as well as the language of s. 147(1) as it relates to the duty to provide child support. [ 45 ] An additional legal principle is that outlined in this case and related to this case by the August 29, 2012 decision of the Honourable Judge Dickey.

I am of the view that the transition provision of s. 251(1) of the Family Law Act is one which would incorporate and provide that guardianship, as decided in 2012 under the provisions of the Family Relations Act , would transmit to the present Family Law Act circumstances. [ 46 ] I am further strengthened in that view by the argument on behalf of Ms. P., made by her when she agreed in her submission that guardianship should remain in Mr. C. It is my view that her position is sound legally and factually, given the language of Mr. Justice Punnett in J.W.K. v. E.K. , 2014 BCSC 1635 at para. 41 .

A very high test for trial judges was set by the Court. Paragraph 41 reads: [41] Termination of guardianship should be a final recourse only and then only where no other means of protecting the best interests of the children (particularly, by reallocation of parenting responsibilities) is available. The Positions of the Parties [ 47 ] These proceedings have, in my view, been positive in the one sense. The initial positions of the parties have been modified as the evidence unfolded.

S.C., during his testimony, acknowledged that this hearing is, at this stage for I., too early for his stated desire about shared parenting coming into place. I agree with that. In fact, I am even further down the line in terms of the position of the parties. I am aware of the significant forensic skills of Ms. Klassen on behalf of Mr. C., when she outlined at the outset of his testimony, and then cleverly was able to take us into a proposal for parallel parenting.

She was also capable of making another move to increase parenting time, with a view to having the Court look realistically at what has transpired since 2013 in terms of the reaction of I. to the conflict. [ 48 ] I am also of the view that Mr. C. has clearly defined what he wants, and has done so in a realistic fashion, when he stated his desire to have shared parenting, but only following significant counselling with both he and I. in place. He desires increased time with her, I am satisfied that he loves her; he has demonstrated that he is a loving and caring parent.

In the past, he has such a relationship with S. and E., and it is clear that despite the hostility between he and Ms. P., she is not attempting to block him from any contact with I. She is trying to limit that until I. is more comfortable. [ 49 ] A.P., during her oral submissions, moved from an antagonistic stance to her affirmative and alternative argument, which was both conciliatory and a compromise to her initial position during S.C.'s case. One need only look at the tenor of the cross-examination of both Mr. C. and Ms. S., and then look to the terms of the orders being sought by Ms.

P., to see how she has modified her position. That modified position, however, has also a parallel requirement for her, because the conduct order which is going to go in place is going to

require a change in the approach. I will deal with that during the course of my further reasons. [50] At the commencement, Ms. P. wished Mr. C. to be removed from guardianship. Currently, she has modified her position andshe wants to have a child-centred and child-guided parenting time

schedule put into place, along with counselling and a further Views ofthe Child Report. [51] This is an appropriate time for me to thank both Ms. Klassen for her careful preparation of this case and the numerousauthorities which she provided, as well as her stick-handling through the financial issues, a circumstance where Mr. C., you did not assistyour lawyer. She needs the paperwork. As I have said to you during the course of the proceedings, a lawyer is only as good as theinformation the lawyer has got. [52] I should also like to thank Ms.

P., because during the course of the proceedings, from time to time, she has found it exasperatingand frustrating. There have been times when her eyes have flashed, and her temper has flared, and that is understandable. But the degreeof preparation that she has placed on particularly the final two days of this proceeding, is one which is to be admired and respected. Andone which she might be very, very effective in instructing articled students in learning how to prepare and to present a case.

To thatextent, the Court would like to thank her for that degree of preparation. [53] I will turn next to the evidence, the findings of fact, and the application of the legal principles which I have outlined. [54] I have made reference to credibility. [55] Triers of fact, whether judges or members of a jury, are not able to look into a witness’s mind to see whether the witness isspeaking the truth. We must try to discern, if we can, where the truth lies. [56] In assessing a witness's testimony there are a number of facts that I find helpful in this determination.

They include, in noparticular order, the following: 1. The attitude and demeanour of the witness. Is the witness evasive, belligerent, inappropriate in response? 2. The existence of prior inconsistent statements or previous occasions in which the witness was untruthful. [57] In the context of this whole case, there is really only one aspect of the evidence which would go to establish that, and Ms. S.knows what I am going to refer to, in that she was found to be untruthful by Judge de Couto many years ago in a circumstance whereinone can understand why she would have been bending the truth.

It was a spousal assault setting in a long-term setting and relationship,in which, clearly, she either said one thing to the police and a different thing to the Court, or a different thing to the Court and one thingto the police. One of those circumstances might have been untruthful. That is a circumstance which trial judges, police officers, victimservices workers see daily in these courts. [58] It is a very significantly difficult area for the women in those kinds of relationships, and I pause to note that this is where Ms. P.must also understand that Ms. S. was the object of the restraining order.

She was the person to be protected. The person who is thesubject of the restraining order, who was restrained from having any contact with Ms. S. and his children, was the male person, C.P. So,a restraining order is not a negative to the person who is being protected by it. Nor is it evidence from which family violence may beinferred or considered, and the line of cross-examination of Mr. C. and the line of cross-examination of Ms. S. on that was unfortunate,but it was as a result of, again, a person who is self-represented acting. [59] The extent of the preparation in that area, however, was to be admired.

The understanding and the aspect of it to be used by mein an assessment of credibility is of minimal weight in this case. [60] I look next to the external consistency of the evidence: 3. Is the testimony of the witness consistent with independent evidence which is accepted? How does the evidence fit with theother evidence in the case?

What is this harmony or lack of harmony when considered in the light of the accepted independent evidenceand a preponderance of probabilities disclosed therein? [61] What we are really talking about is, how does the testimony of this witness fit with the other evidence in the case which isaccepted by the trier of fact? That language is language from the late 1940's in a case called Faryna v. Chorny. It is a decision of theHonourable Mr. Justice O'Halloran (as he then was), and Faryna v.

Chorny is at (1951), (BC CA), 4 W.W.R. 171, andthe portion of the judgment that is particularly significant for the instruction of a person is at the bottom of pp. 174 and 175. What thatcase tells us is that you do not just look at whether or not the witness looks like they are telling the truth.

You look at all of the othercollateral details in the extraneous matters in an assessment of whether or not the witness is believable. [62] In this case, I am satisfied that subject to issues of bias, that there was no one that was not truthful or trying to be accurate, andthat each of the persons who testified in this case was trying to recall accurately and properly what it was that occurred. [63] In fact, when you examine the evidence carefully, it dovetails very well. When you look at the recall of Ms. M. and Ms. S. interms of what I will call the courthouse exchange, their recall is very close.

When you look at the recall of Ms. P. and Ms. S. in terms ofthe mail delivery events, and you look at the events of the Sun Run interaction, what is recalled is essentially the same thing. There isvery little that differs, and those differences are likely the result of the person's ability to record the event in memory and recount it intestimony. [64] I look to the internal consistency of the testimony. Does the witness's evidence change while on the stand? Are there self-contradictions apparent in the testimony of the witness? Is there evidence which conflicts with the present testimony?

I look to themotive to lie or mislead the Court, aspects of bias, prejudice, advantage. Is there evidence of stakes, motives or interest? Are they partialdue to kinship, hostility, a pecuniary interest, or some other factor?

[ 65 ] This factor is one which is readily apparent in the testimony of Ms. S. on behalf of Mr. C. The testimony of E. on behalf of Mr. C. and, as well, the testimony of Ms. M. and Mr. M. in support of Ms. P. Of them, the most objective witness is someone sitting in the back of the court, Mr. M., whose evidence was very carefully given with great objectivity. [ 66 ] Finally, I look to the ability of the witness to originally observe, to record in memory, and to recall the event. A witness's testimony should be assessed having regard to its veracity, in other words, its truthfulness, its objectivity, and accuracy.

What was the quality of the observation? What was the duration of the observation? What was the attentiveness of the person? Was there something about the event which made it easy to remember? Did the person make notes? Does the person have an ability to recall collateral details, time lag or influences? Is there evidence of reconstruction? What was the mental condition of the witness at the time of observation? What was their emotional state? What was their state of sobriety? [ 67 ] We do not have any issues here with respect to intoxication or drug use.

These are frequently issues that we see when we are trying to assess the testimony of a witness. [ 68 ] I heard from, in respect of Mr. C.'s case, three witnesses. I heard from Mr. C., I heard from Ms. S., and I heard from the child, E. I was impressed by the child E. She is clearly someone who is biased but her evidence was, for someone of her age of 14 at the time, 15 now, someone who was self-possessed and trying to be direct and honest. Really, the only thrust of her evidence is to describe how Mr.

C. is in the household which they share today, and she indicates that he is both loving and caring and part of the family. To that extent, it goes to his parenting capacity and not much else. [ 69 ] Ms. S. was, in my view, trying to be truthful. She was relatively accurate; she was a fierce advocate on behalf of Mr. C. It is clear that she is biased, as she said the two of them are there for each other. That was her characterization of her perspective. She has been at all of the court appearances where Mr.

C. has been engaged in this, whether it is a monetary setting dealing with financial issues, or whether it is this particular proceeding, which I have articulated as being focussed on parenting responsibilities and parenting time, as well as a conduct order and a resolution of the financial affairs. I did not find her to be someone not to be believed. [ 70 ] For Ms. P., there was her mother, Ms. M., and Mr. M. I have already commented on Mr. M. Ms. M., in my view, was being very, very clear.

She had good recollection and she was, in respect of her comments on the case, someone that you could in her factual recount rely upon. [ 71 ] In terms of her assessment, however, of I. and her assessment of Ms. P., I am of the view that she demonstrated her bias to the extent that I can place little weight on her testimony. [ 72 ] With respect to I., her characterization of the child was that she was amazing, very bright, extremely bright, unbelievable vocabulary, active, loving, caring, very funny.

She was involved in all types of activities including dance, sort of, tap, musical theatre, singing lessons, tried a number of things, swims a lot, she is an amazing swimmer, she has been involved in gymnastics, soccer, cooking class at school, and she has a significant relationship with her mother and with her grandma. [ 73 ] With respect to Ms. P., she described her as a great person, extremely kind, very athletic, well-educated, hard worker, great daughter, great mom, fantastic as a single parent. She could not be more proud of her job as a single parent.

Every single need of I., both emotionally and financially, was being met; that "She has never come to me or my ex-husband now for financial support." [ 74 ] The difficulty I have with evidence like that, from the perspective of assessing what weight to be put on it, is that it is not an objective analysis providing for any critical assessment of where things were not quite so perfect.

To that end, she was cross-examined, and during her cross-examination, one would have expected her to be a little bit more objective in terms of what she had observed in a significant number of the emails in terms of the language being used, particularly by both Mr. C. and Ms. P. [ 75 ] Where she was particularly useful, however, is in describing the interaction with I. and the fact that I. is a struggling little girl.

The fact that she is confused, that she is upset, that she is asking her grandma about a number of issues in terms of the interaction with the parents, such that I have no doubt that this child was being engaged in inappropriate adult matters in conversation by Ms. P. and by Mr. C. and Ms. S., as well as the young girls in Mr. C.'s house, S.C. and E.P. In that context, Ms. M.'s evidence was helpful to me. There is no need for me to go into any more depth in terms of the evidence of Ms.

M. [ 76 ] I will turn now to what is the real issue in dealing with what I will call the family violence issues, the best interests of the child assessment under s. 37, and in that context, the s. 1 consideration, the definition of family violence, and the assessments set out under the Family Law Act in s. 38. [ 77 ] I had intended, after my review of all the evidence on both Saturday and Sunday's writing, to go through some of the 85 emails, and to read from them in order to give the flavour of them to anyone reviewing these reasons.

I have determined that if I were to do that, I would need the better part of the day, and therefore I am going to summarize it. [ 78 ] The emails are a particularly significant aspect of the conflict, because it has been the emails which have been the means of communication of these parties.

I found in addition to the texts received on the morning of I.'s birth, a number of emails which were hurtful, demeaning, sarcastic, critical, negative, and that contained hurtful statements and accusations going both ways. [ 79 ] Why adults dealing with a six-year-old, would resort to such vitriol, can only be explained by emotions of anger and hurt. I have already characterized Mr. C. in terms of how he is found, in the context of his household by a young teenager, as being loving and caring. There is no question that he loves I.

One would wonder why he would place himself in a position of interacting with negativity with Ms. P. when he is asking to increase his parenting time. [ 80 ] Ms. P. is protective, she is persistent, she is frustrated, she is very, very articulate, but she, too, although verbally adroit, has resorted to criticisms bordering on demeaning, denigrating comments about Mr. C. and his abilities as a father. [ 81 ] The one area where one can see the position of Ms. P. is in respect of the child support. It is difficult to see how someone can,

in the context of this case, say on the one hand that they love their child, and then on the other hand not provide for the child. [ 82 ] I note Ms. P. is organized, detailed, industrious, somewhat stubborn to the point of intransigency from time to time, but one cannot in any way criticize the sincere and genuine belief she has that she is protecting her child.

She has little insight in how she presents when she is frustrated or angry, and she presents in a fashion that can only be called a fierceness of demeanour, but she sees herself as her child's advocate and she sees herself as acting in her child's best interests. [ 83 ] Mr. C. on the other hand, seems to be a happy-go-lucky person who does not keep track of his paperwork and lives from day-to- day, moment-to-moment interacting, almost careening through life, dealing with problems only when he must. He ignores things. He persistently refuses to follow court orders.

He has placed himself in a position of having seven defaults in terms of child support payments, which is not a happy place to be. His wages are garnished, but he is not exactly someone who does not care, because otherwise, where would the stress and the time lost from work have come from? He has had some health issues, but one has to look at it as whether or not he is avoiding responsibility or accountability, or he is avoiding being fiscally responsible, or is it just that he has trouble keeping track? Yet, he is a mechanic.

I do not know that I want him fixing my car necessarily. [ 84 ] It is difficult to see that person, who I found when he testified not verbally adroit, certainly more relaxed in demeanour than what was going on inside, because from time to time he would flush, but it is clear that there has been an emotional toll and stress on him and that he, too, in response to Ms. P.'s fierceness, resorts to berating criticism as a manner of communication.

Perhaps that is a fabric of the fact that these two at no time lived together as husband and wife, and that they have never had a real loving commitment one to the other, given the circumstances of the means by which I. was conceived. [ 85 ] That said, the evidence of conflict informs the best interests of this child, and I am of the view that the characterization by Ms. P. of Mr. C. being unresponsive for periods of time during the early stages of I.'s life, as well as his lack of attention to the financial responsibilities, was a significant factor in Ms. P. becoming hostile and antagonistic.

There were comments in 2012 which demonstrate that, and there were further actions in 2012 which demonstrate where Ms. P. was, all of which culminate in 2013 with the Sun Run conflict, and I am going to deal with those factors in terms of how I found the facts, before I enter into the analysis of the best interests, and the capacity of parenting, and how I see the determination of this proceeding concluded. [ 86 ] In 2012, there was a text which Ms.

P. received during the course of angry exchanges between the two of them which read to the effect, "You are like a nightmare that never ends…" and then the name of Ms. P. [ 87 ] During 2012, there was the interaction at the courthouse. The Courthouse Exchange – I do not have a date for it because there were two of them – one of them was at a setting where Ms. S. was at the courthouse, and she was at that stage trying to support Mr. C., and there was an exchange between she and Ms. P., and Ms. M. That exchange, which I have characterized as the Courthouse Exchange Number 1 was to this effect: Ms. P. said to Ms.

S., "You're the next victim, you should get out," or, according to Ms. M., "Be careful, you might be next." It is a characterization of the same kind of message. Ms. S. responds in kind, "I'm not paying for her. You pay for her," according to Ms. M. According to Ms. M, the characterization was in response to that, "You better be careful, you might be next," and according to Ms. M., it went on with Ms. S. saying to Ms. P. repeatedly, "Get a job." [ 88 ] It does not matter to me who is telling the truth or not telling the truth.

What matters to me is that this kind of exchange was taking place in the context of parties leaving the courtroom. It is the fact that they even engage in that kind of interaction which is telling in the context of I.'s circumstances. [ 89 ] The next, September 7, 2012, same year, which I will call the "Mail Delivery Exchange" and in this particular analysis, it is significant to consider that there has already been the Courthouse Exchange. [ 90 ] Ms. P. is delivering mail to the residence rented by Mr. C., Ms. S. and the children. She is aware of that. Ms. S. calls her name. Ms.

P. says, "I'm doing my job, leave me alone." She says she repeated that several times. Ms. S. agreed. Ms. S. said, "I just want to talk to you." Ms. P.'s response was, "I'm doing my job, leave me alone." She repeated it and raised her voice. Ms. S., according to Ms. P., said words to the effect of, "You're evil." Ms. S. denied saying that. Ms. P. said she said, "I have a child. She has a dad. Issues to do with her are between me and her dad. It's none of your business." Ms. S., trying to placate in my view, said as follows: "I know what it's like. I've been there. I just want to talk to you." Ms.

P.: "I don't want to talk to you. This has nothing to do with you." Each of them has described raised voices in the other. [ 91 ] Ms. P. said that she became embarrassed due to the raised voices, and that as a result of that, she called her supervisor and the Royal Canadian Mounted Police. Ms. S. followed her to the street and asked her in the street, "I want to talk to you." Ms. P.'s response, "I've told you before, I'm trying to do my job, you're harassing me." Ms. S., "I just want to have coffee with you." Ms. P., "Look, I've called the RCMP, I've made a complaint to the RCMP." Ms.

S., "My parents are RCMP." Ms. P., "Oh, is that how you met [S.C.]?" Ms. S., "You don't even know me." Ms. P. has her phone in her hand. Ms. S. says, "Go ahead with your phone, I'm recording this too." "Why would I want to know you when you behave like that," says Ms. P., and there is then the characterization, "You are a loser." [ 92 ] Now, what is significant about that is not only the initial entreaty which was testified to by Ms. S., that she tried to get Ms.

P. to engage her, because she, too, had been a single mom, dealing with someone who was not being helpful, and that she wanted to try and have some form of interaction. There was nothing in the language at the outset of that which was in any way hostile, critical, or indicative of something untoward. It is the response of Ms.

P. that is telling, and the response is one of anger, upset, embarrassment, uncomfortableness, to the point where phone calls are made to the police in the context of a circumstance where one could just simply have walked away. [ 93 ] I find that concerning in the long-term analysis of whether or not Ms. P. is going to be able to change her behaviours in accordance with the conduct order which I am going to impose.

I articulated it to her during the course of argument as being, "It is going to be interesting to see whether or not you are going to be able to place yourself behind your child's needs and best interests that you interact positively with the other persons who are adults in her life." [ 94 ] To this point, there have been applications for a protection order, there have been responses which in my view are overreactions

and reflect the hypersensitivity to interaction which is not helpful to I. [ 95 ] The Sun Run event of April 21, 2013 is also of significance in this regard. There are other issues raised in terms of events in 2011 involving some sandals where there is a dispute about what transpired. There is, as well, the Exhibit 15 email in terms of the characterization of the August 29, 2012 approach of the Honourable Judge Dickey, and there is the characterization of the Custody and Access Report, Exhibit 1, which is independent of these interactions and the testimony.

I am going to turn next to Exhibit 1, because that is the only independent document that I have. [ 96 ] The problem with this Custody and Access Report from the perspective of the Court making a determination on parenting time and parenting responsibility is that it is too old. It is a report prepared by the only independent person assessing these parties, that is, Sonia Carnduff. It is a report dated February 22, 2013, and it is a report with which I agree the assessment of Ms. Carnduff was accurate, and that her perspective, as articulated at that time, defined what then ensued. Ms.

Carnduff wrote as follows at p. 3, first full paragraph: It is [A.P.]’s perspective [S.C.] communicates with her in an intimidating, bullying way, often by resorting to inflammatory comments in their communications. She admits she has raised her voice during some of their interactions but for the most part sees herself as a mom who is trying to work with the child's father in a cooperative way. Angela says she attempted to engage [S.C.] in mediation years ago and he showed no interest. [A.P.] believes [S.C.]'s partner, [Ms.

S.] is contributing to the hostility and tension which has included one incident between the two of them while A.P. was performing the duties of her job as well as at least one heated exchange at court requiring the Sheriffs to intervene. Over time, P. has become increasingly frustrated by Mr. C.'s lack of response in their email communication and his unwillingness to share information with her and seek information from her related to I. Ms. P. feels the court process is placing more emphasis on Mr. C.'s requests for access than what is best for I. Ms.

P. believes the best possible outcome regarding access is a three phase gradual plan that follows an every other weekend

schedule would culminate to every other weekend from after daycare on Friday afternoons, drop off at daycare on Monday morning. The perspective is in respect of a child not yet four. [ 97 ] The response from Mr. C. was one involving a characterization of Ms. P. being angry and hostile. He took the view that he did not understand why, because he believed that he was approaching things in a cooperative and respectful manner.

Well, the emails do not indicate that, nor does his failure to pay child support, so I am not going to read that portion of the report. [ 98 ] However, there was, in terms of the Views of the Child, matters which are relevant to the s. 37 issue here, and I agree with Ms. Carnduff's characterization that, although I. is now 6 in four months, and about to start Grade 1, that the Views of the Child cannot be given significant weight as expressed by the child, whereas, what I will call the behaviours of the child, provide more significant and weighty evidence.

She wrote at the bottom of p. 4, continuing to the top of 5: Given I.'s young age and it was not feasible to canvass her views on her family relationships in much detail as this report was specifically regarding access, I. was observed in her dad's home only. Not surprisingly for a young child with a vivid imagination, I. was more interested in playing make believe games than sharing her opinions on her family relationships.

She did talk about how she enjoys getting to see and play with S.C. when she is with her dad which was evident during the home visit. [ 99 ] The only aspect of the Views of the Child which are significant here, Ms. Carnduff wrote: The only mention I. made of any other person in either of her homes was to let me know that her mom does not like her dad's girlfriend, Ms. S. [ 100 ] At p. 6 of Exhibit 1: Parental capacity is not a concern in this situation. Mr. C. is providing a clean and child-friendly environment for I. and is not lacking in his ability to adequately care for her.

It appears the root of the problems stem from two factors related to parental relationships: (1) the almost total absence of trust and cooperation between the parents; and (2) each party's unwillingness to bear some responsibility for how their own behaviour is contributing to the ongoing conflict. [ 101 ] I agree. She continued: Mr. C. also seems to be lacking insight into how his tone and approach may be adding fuel to their dynamic. Ms. P. expresses immense frustration at the lack of information being shared by Mr. C. which in turns leaves her feeling uninformed and anxious as a parent.

There were glimpses of insight where Ms. P. was able to recognize she finds it a challenge to let go of control when I. is in Mr. C.'s care in part because she is used to deciding all aspects of I.'s environment, big and small. However, Ms. P. is quick to criticize Mr. C. if he doesn't do things the way she would which is likely causing Mr. C. to limit what he shares to avoid criticism. [ 102 ] She continued: The crux of the problem is not simply that the parents are not able to agree on an access

schedule for I. At the heart of the conflict is that Ms. P. and Mr. C. have little to no trust between each other as parents and minimal ability to communicate about I. in a productive, mature way. The result is they argue, not just about the schedule, but almost everything related to I. Neither party has much faith in the other parent's intentions. As a result, both parents assume the other is acting in a way that is contrary to I.'s best interests.

Unfortunately for I. until her parents decide they want to work together and not against each other, she will continue to live in the middle of her parents' conflict. [ 103 ] In fact, that is where we find ourselves today. We find ourselves dealing with a child who is speaking by her behaviours, particularly on July 26, 2015 when she refused to go with her dad for parenting time. [ 104 ] There are significant aspects of inappropriate involvement of I. in adult matters. It came out during the cross-examination of Ms. P., it came out during the testimony of Ms. M., it came out in the context of the testimony of Ms.

P. when she utilized the phrase, "These

are the type of difficulties that I and I. have been having with Mr. C.," and she was referring to a manner of communication. [ 105 ] It came also in terms of Exhibit No. 1, p. 8, in terms of that portion of the report in which Ms. P. expressed with I. that she is concerned about how one interacts with other people. Ms. P. said this in terms of I.'s interaction with others: "I tell I. it is okay to love anybody that she wants to love. I have been supportive of her relationships. I make kind comments and gestures." She continued: "I even include Mr.

C. and his partner and their children." [ 106 ] That was a telling answer in terms of the cross-examination that she was being asked about. That is particularly telling in light of that portion at p. 5 of Exhibit 1 that Ms. Carnduff wrote. [ 107 ] In cross-examination, Ms. P. said in answer to questions from Ms. Klassen, "Do I have to answer that?" She was then asked, "What did you tell I.?" She said, "I tried to break it down to:

(1) I don't have to have a friendship with Ms. S., and

(2) I don't have to communicate with people I don't like." As to the timing and the context of that interchange with I., Ms. P. explained that the context of the conversation was in the fall of 2012. She says that the topic of Ms. S. still comes up, that sometimes she does not answer, sometimes her answer is, "I'm sorry to hear that," sometimes in respect of comments by Ms.

S. as to clothes or care, such as the conversation about her work, she does not answer at all. [ 108 ] The last aspect of the conflict which informs my decision is that involving the Sun Run and the events of April 14, 2013, as well as April 21, 2013. The email is at Exhibit 17, Tab 2, the April 14, 2013 email, which was a week before the Sun Run in which Ms. P. advised Mr. C. that I. was going to be late for the parenting time on April 21 st . She did not tell Mr. C. why, she described it as an activity. That was a telling lack of forthrightness and transparency in my view. [ 109 ] The description by Ms.

P. of the event does not differ that much from the description of Mr. C. or Ms. S. She does provide some background information, and my notes reflect that the following occurred. This was the first exchange that Ms. M. was not part of over the course of the six month period from the fall of 2012 to the spring of 2013. [ 110 ] The Vancouver Sun Run was on April 21 st . Present in the vehicle being driven by Ms. P. was her friend, R.B., and I. They were late for the exchange. At the time that they arrived to the exchange it was after the Sun Run and after Ms.

P. had run the some ten kilometres with I. in a stroller. There was a short conversation during which Ms. P., when they were close enough as they were passing window to window, rolled down the window and said, "I. is sleeping, what would you like me to do?" Mr. C. said words to the effect of, "I want to see my daughter," or "I want to spend my time with my daughter. Wake her up.", or words to that effect. Ms. P. drove to a spot approximately half way down the lot, and said that she then started to try and wake up I. [ 111 ] Mr. C. and his older daughter, S.C., approached the vehicle.

They were approximately a metre away, and Ms. P. described herself at that stage as feeling stressed that they were there. She was feeling uncomfortable, and she did not like that she had to wake I. up with Mr. C. and S.C. in close proximity. She expressed that her view is that I. is a very sensitive child, and that Ms. P. was feeling pressured because she had to wake her up and hand her over to Mr. C. [ 112 ] At that point, walking towards the rear of the van was Ms. S., and Ms.

P., characterized it this way in her testimony: "I made the mistake of trying to reason with her, but she did not stay away as she has been asked to do." Ms. P. said, "I said, 'We do not need an audience for our exchanges.’" Ms. S. described it as Ms. P. saying, "What are you doing here? We don't need an audience." There is not a lot different in that exchange. Ms. S. says, "I answered, 'I was asked to come.'" Ms. P. said Ms. S. said, "I was invited to be here." Again, there is not much difference. The meanings are exactly the same. Ms. P. says that she then said to Ms.

S., "Well, you're not welcome." All of this is in front of the child, S.C., and in front of the child, I. [ 113 ] Ms. P. then returned to the vehicle. By that time, Mr. C. had I. in his arms. Ms. P. was very upset that she did not get an opportunity to say good-bye. I. was reaching out to her. S.C. was walking beside her dad as he was walking away with I. in his arms. Ms. P., because she was not able to give a hug or a kiss, then said, "I don't recall what I said word for word, but I said words to the effect of, 'Have a good visit.

Mommy will see you soon,'" and then she said, "No, it must have been 'I'll see you tomorrow,'" because it was to have been for an overnight visit. [ 114 ] Ms. P. said Ms. S. says, "Look at you. What's wrong with you? You look ill." The response from Ms. P. was, "I've just ran a ten-kilometre race with a stroller." Ms. S., "No, you look ill. There's something wrong with you." Ms. P. says, "I was embarrassed, I felt I was being insulted, and I said, 'Give her back to me. Give her back to me', at least twice." Ms. P. said, as agreed with by Mr.

C., "I'm not letting my daughter go away from me like this, that's it then, I'm taking I." Ms. P. said she was then told by Ms. S., "You're crazy, you're mental, you should go and get medication and see a psychiatrist," and at that point, Mr. C. handed I. back to her along with a good Anglo-Saxon pejorative word, "F you, A." Mr. C. did not deny that, however, the characterization was that there had also been an equivalent expression involving that Anglo-Saxon F word from Ms. P. in the context of her coming forward and taking I. from the arms of Mr.

C. [ 115 ] The evidence of conflict will be part of my consideration as I turn to an analysis considering the testimony, the circumstances, and the applicable legal principles in this case. Analysis [ 116 ] In my view, on the evidence in this case there is no question but that Mr. C. loves his daughter, misses her, and wishes to be in her life. He wants her in his life. [ 117 ] I am of the view that under the maximum contact principle the Court should provide that the child have as much parenting time with each parent as is consistent with her best interests.

I. needs stability, consistency, safety, and a secure, nurturing environment in all aspects of her life. [ 118 ] Ms. P. provides her, with the assistance of Ms. M., with consistent emotional support, reassurance in routine through the school

week. She also provides cultural and physical activities by scheduling and arranging those activities which she and grandma M. encourage and plan. [ 119 ] I must, in my consideration of the best interests of the child, consider whether there has been conduct on the part of Mr. C. and Ms. P., Ms. M. and Ms.

S., which can be found to come within the definition of family violence within the meaning of subsections 1 and 38 of the Family Law Act , and if so, how it has impacted I. in terms of safety, security, or emotional well-being. [ 120 ] I. is an active, curious, physically healthy child, who is displaying stress and anxiety. It is important to her long-term emotional and physical well-being that she develop a healthy and stable relationship with her father. Ms. P. agrees with this, due to her own family of origin issues, and her loss of contact with her biological father when she was a very young girl.

But that awareness has not in any way modified the behaviours in this case. [ 121 ] The conflict between the adults in I.'s life, when she should be the first consideration, has caused I. distress. There is much work to do to encourage her on her mother's part, and to have her understand that she should have a stable, caring relationship with her dad. [ 122 ] My assessment of the dynamic of the interaction between these adults is that Ms. P. is hyper-sensitive to the mean, disparaging comments that she sees coming, and that she is in that position for a number of reasons, but mostly because Mr.

C. has not treated her throughout their interaction with courtesy and respect. Particularly galling has been his failure to assist her financially, such that her credit rating has been tarnished, and that she has had significant financial difficulties to the extent that – and I am sure this is particularly galling, given her factor of pride – that she had to top up her Employment Insurance payments with Social Services top up. [ 123 ] In the context of this highly emotionally-charged conflict, I am of the view that Ms. P. has overreacted, because she is so frustrated at Mr.

C.'s complete refusal to provide for his children. [ 124 ] As part of her assessment, Ms. P. has utilized her knowledge that she gained while she was there when Mr. C. and his first spouse separated, and when Ms. P. witnessed his treatment of D.P. She has referred to that in the emails. [ 125 ] I am of the view that his failure to fulfil his financial obligations to Ms. P., and his subsequent failure to comply with the January 27, 2010 order respecting I., are major conflict points for Ms. P. His attitude and demeanour towards his duty to provide child support for I. is very difficult for Ms.

P., and it is also very difficult for the Court to understand. In my view, should Mr. C. fulfil his financial obligations to I. in a lawful, consistent, and timely manner, it would go a long way towards easing some of the animosity. [ 126 ] From the foregoing review of the evidence and the findings of fact and application of legal principles, there are many examples of conduct which are lacking in courtesy or civility.

In my view, should the parties decide to change that dynamic, it would go a long way towards alleviating the stress and anxiety being presented by I. [ 127 ] These parties do not have long-standing disputes over education, health or religion. The dispute between them can be limited by courteous communication, compromise, conciliation, and yes, even cooperation. [ 128 ] This is not a case where parenting time is being withheld, or where Mr. C. has repeatedly kept I. beyond the agreed parenting time, nor has I. ever been removed from the jurisdiction to preclude any contact with the other parent.

It is not a case where false allegations of abuse have been made. The parties have not resorted to extreme tactics but to persistent, heavy, verbal sniping and angry or disparaging remarks. That may sound like I am being negative or critical, but if you look at the juxtaposition of those two points, what I am saying is these are small things in the context of where Ms.

Klassen and the Court have seen parents who abscond with children, who deliberately withheld children who are in a position where they over-hold, and there have to be retrievals involving police. [ 129 ] All of those disparaging remarks, all of the activities, are, in my view, clearly within the broad definition of family violence as has been named in s. 1 and the assessment factors in s. 38, because there have been repeated events. [ 130 ] You look at all the emails, and you say to yourself, "This is not happy," and I re-read them all this weekend.

It was not a happy time at the dining room table; that is one of the reasons why I am not reading them all out in these oral reasons. But that positive spin that these are not major issues, apart from the financials, leads me to the conclusion that a conduct order which the parties followed, would enable them to move towards more positive interactions, and demonstrate to I., by their conduct, that the adults in her life love her enough to put aside their personal feelings, and act in her best interests. This would, in my view, go a long way to making her feel more stable, and provide her with a sense of security.

They would, therefore, assist in her health and emotional well-being. [ 131 ] My assessment of the evidence and the recent in-court conciliatory movements of each of the parties leads me, inescapably, to the conclusion that a parenting coordinator, combined with counselling, would have enabled these parties to achieve far better outcomes than the deterioration since February, 2013, that we have seen in I. The reality is there are not sufficient financial resources to permit that option. Were it available, it would assist all of you. [ 132 ] Therefore, in

summary in the analysis, I am of this view: I find that Mr. C. loves his daughter. He has the time, the interest and the capacity to meet his daughter's needs, but he needs to arrange one-on-one time with her to give her his undivided time and attention, so as to repair the tenuous bond they presently have. That is up to you, Dad. He has not yet reached an understanding, in my view, that it will take time and patience on his part to build and establish an enduring relationship with I. Because I do not think you see yet, Mr. C., how involving I. in your conflict with Ms.

P. is not only contrary to her best interests, but also subvert your own best interests by making her feel she has to choose between Ms. P. and Ms. S., and between Ms.

P. and you, which puts her in the middle, increasing her stress and anxiety, and causing her to decide, "I don't need this, so I don't want to spend time with you." I cannot get into the mind of a six-year-old, but it seems to me that her behaviours, as exhibited over 2014 and into 2015, and her current response, says that loudly and clearly, and it is up to you as the adult to modify your behaviour and allow her to feel that you are focussing on her. [ 133 ] I told you on Friday you were not going to like parts of this, Ms. P., and so here is one of those parts. [ 134 ] For her part, I find that Ms.

P. has contributed to the deterioration of I.'s relationship with Mr. C. I understand why you are

angry with him, but Ms. P. is very angry with Mr. C. and Ms. S. She has consciously engaged I. in the conflict with Ms. S. She has consciously or unconsciously contributed to I. feeling she did not have to put effort into her relationship with her dad. Her hostility and animosity was demonstrated in front of I., and I. could not help but mirror it. [ 135 ] Look at what happened April 21 st . No one in the adult interaction should be proud of what happened that day, but particularly, it was initiated by Ms.

P., and one really has difficulty understanding how uncomfortable she could have been, or how afraid she might have been, given the fact that Mr. B. was sitting in the right-front passenger seat of the van. It was done in front of S.C. and I. [ 136 ] Thus, though Mr. C. is of the view the deterioration is the result of parental alienation and Ms. P.'s undermining conduct, and on the other hand, Ms. P. is of the view the deterioration is due to Mr. C.'s conduct and divided attention, I find it is much more complex than that, and that there is more at work here.

Each of them needs to modify their behaviour, and when I say that, I am referring to all of the four adults that are at the crux of this. Each of you has a responsibility to conduct yourself courteously in act and in word, so that I. can feel that there is compromise and cooperation, and that she is loved by all. [ 137 ] Despite the glimmer of cooperation in the last two days of this hearing, I am of the view that the parents are still mired in the conflict between them. The next few months will provide a litmus test to provide evidence of whether they can achieve a measure of courteous cooperation.

It will be difficult for all of them, because I. is very upset and stressed by the numerous events she has witnessed, and by the deep-seated anger her parents have disclosed they have each for the other. [ 138 ] I am not overly optimistic that the terms and conditions of the conduct order which I am going to impose will be scrupulously followed. Both parents have not followed the orders of earlier decisions. Mr. C. openly does not comply with child support orders, or his legal obligations to file current financial information either with the Federal Government or with the Court. Ms.

P. was openly opposed to the parenting time set out by Judge Dickey. She articulated it in writing, she stated it orally in court. She may have appeared to follow it, and she has expressed lip service that Mr. C. should have imposed it, but left it open that he understood that she would not bring the child, or would file immediate applications to terminate parenting time should he try to enforce the overnight portion of the order. That does not bode well. [ 139 ] At the same time, there is a challenge for you, Mr. C. The window of opportunity for Mr.

C. to build a healthy relationship with his youngest daughter is shrinking. The longer the conflict continues and she is witness to it, the more unlikely it will be that their once bonded relationship described by the Family Justice counsellor will be repaired. It can only be done by you. The Views of the Child [ 140 ] I. is now six years, four months old. She is about to commence formal school, having met all of her developmental goals in kindergarten (see Exhibit 18). She has exceeded expectations in her use of social language, "cooperate with others, and solve problems".

She showed age appropriate maturity and compassion with her peers. She was less open in the third term, and was reluctant to demonstrate the extent of her knowledge. [ 141 ] In my view, the bond described in Exhibit 1, which existed in February of 2013, has been negatively impacted by the turmoil created by the high conflict. Currently, the relationship between I. and her dad is fragile and there is much work to do to build trust, understanding, and a sense of security in her.

Exhibit 19 reflects her confusion and misunderstanding of what is happening. [ 142 ] I have not had the benefit of a current report, and practically speaking, one is not, in this case, likely to be produced inside of a year. What is apparent from Exhibit 19 is the parents are engaging her in their conflict by asking questions about what is happening at the other's house. This questioning of her is causing stress and anxiety. It is detrimental to her emotional and psychological well-being.

As a result of her feelings, this child who needs stability, continues to experience distress as a result of the disputes, arguments, and involvement of her in the adult matters. The result of her being placed in the middle of this anger, hurt and disagreement is that her relationship with her father remains tenuous. She should not have been made aware so graphically of the intense dislike between Ms. P. and Ms. S., nor should she be argued with about whether C.P. is a good or bad man. These are topics and matters about which she could have no understanding at four, five, or six years of age.

The damage is obvious, as expressed by her fighting for control and expressing no desire to go to Mr. C.'s house. [ 143 ] In my view, the least reliable source of the views of a child in a case like this is each of the parents. I. is painfully aware of the anger, hurt, and confrontational behaviour in communication. She is bright, sensitive, and aware, such that she looks to her maternal grandmother and step-grandpa for comfort and calm advice. One need only look to the evidence of Mr. M. and the evidence of Ms.

M. that she was asking for, "How do I handle it?" [ 144 ] The best evidence, independent of the parties, was the report, Exhibit 1, from Sonia Carnduff. The problem is the report is two and a half years old and not current. It tells us how the interactions were displayed at the time when I. was almost four years of age. At that time, I. was comfortable in C.'s home and comfortable with S.C. and E.P. and Ms. S. [ 145 ] I am, in the circumstances, of the view, I can place little weight on the expressed views of I.

What is of importance in the analysis is her distress exemplified by her physically acting out, crying, kicking, struggling, and her refusing to go with her dad. These actions speak loudly and eloquently that there is much to be done to rebuild a sense of safety, security, and well-being when she is with her father. [ 146 ] That is the views of the child. I will deal next with parental capacity. Parental Capacity [ 147 ] There is no issue as to this heading with these two parents.

They have vastly different personalities and philosophical views, but they both love I., and the other significant persons in their respective lives. I find they are both capable of parenting, though their styles are different. I share the view of Ms. Carnduff, in Exhibit 1, when she wrote, and I have already read out that the parental capacity is not a concern in this situation.

[ 148 ] Notwithstanding the rhetoric from Ms. Klassen and Ms. P. the last two days of the hearing, both Ms. P. and Mr. C. find it difficult to accept responsibility for the conflict. It is still a competition and that has got to end. [ 149 ] Each of them has failed to come to terms with the fact that they are angry, emotional conduct directed at one another is taken on by their child. I. needs to be able to love both of her parents, without having a feeling of being disloyal to one when she is with the other, or of having to choose between them.

Having to make that choice at six years of age is detrimental to her emotional and psychological well-being. Both of her parents have much to do to enable them to give her a sense of comfort. Conclusion [ 150 ] Yes, I finally got there. The only trouble is, the conclusion is eight pages. [ 151 ] I have concluded that the parenting responsibilities and parenting time order in this case should be one that: 1. recognizes the primary care, support and stability of Ms. P. and encourages that to continue. To that extent, I share the view of Ms.

M. that she has done all that should be done in the sense of being a single parent primary care to I.; 2. provides for some shared parenting responsibility and sufficient parenting time for Mr.

C. to repair, rebuild, and establish an enduring relationship with I.; 3. sets clear rules for the parents and the collateral adults in I.'s life in terms of their interactive conduct; and 4. provides clear rules on the means and manner of communication about I. and logistical matters of exchange. [ 152 ] I am satisfied it is not in I.'s best interests for there to be overnights or for the December 5, 2012 order to continue. For the foregoing reasons, I make the following orders: 1. The respondent A.P. and the applicant S.C. are the guardians of the child, I.R.A.P., born [DOB]. 2.

The respondent A.P. shall have the parental responsibilities listed in s. 41 with modifications as follows: (

a) making day-to-day decisions affecting the child and having day-to-day control and supervision of the child, except when Mr. C. is exercising parenting time when he has that responsibility; (

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 extra-curricular activities, including the nature, extent and location, except that there shall be consultation by email informing S.C. of the location, time, and place of activities, and seeking agreement to them. There is your consultation point, Ms. Klassen; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage with consultation with S.C. by email; (

f) is in accord with the statute; (

h) is in accord with the statute; as is (k). [ 153 ] And then there is a proviso. It is following (k). I have this in the order: 3. Provided that the applicant and respondent shall share the parental responsibility listed under subsections (g), (i), (j), and (l), such that both shall be entitled to request and receive information about the child's education or health from their parties or government agencies. 4. Conduct Order [ 154 ] Having considered that family violence has been perpetrated by both parents, I am of the view that the conduct order in this case should be worded as follows: Each party will: (

a) put the best interests of the child before his or her own interests; (

b) encourage the child to have a good relationship with the other parent; (

c) make a concerted effort to maintain respectful and polite communications between each other in the best interests of the child; (

d) refrain from any and all destructive, negative or hostile communications, criticisms or arguments in front of the child; (

e) speak to the child about the other parent in a positive, respectful, honourable, and constructive manner; (

f) not speak negatively about the other party or that party's partner to the child or in the child's presence; and (

d) abide by an appropriate bathing and eating routine for the child.

[ 155 ] Now, that is the positive steps in the order. [ 156 ] Here is something not to be done: (

a) the parties shall not interrogate or badger the child regarding the time spent with or information about the other party beyond normal questions; (

b) discuss with the child any inappropriate adult, court, or legal matters; and (

c) this is the one that is going to be hard – denigrate, demean, blame, criticize or disparage the other party to the child in any manner regardless of their concerns. [ 157 ] Again we are back to positives: Each party will: (

a) encourage their respective families to refrain from any negative comments about the other parent or their extended family or any discussions in front of the child concerning family issues or litigation; and (

b) explain to their respective families the importance of facilitating a positive relationship with the other parent and their family. [ 158 ] Again, in a high conflict setting, these are difficult tasks. [ 159 ] The fifth portion of the order is that portion of the order restricting communication, having regard to s. 225 of the Family Law Act . 5. The parties are to utilize email communication to facilitate parenting time and to consult on parenting responsibilities.

Each party will reply to email communications within 36 hours of receiving the email, unless they are out of town, in which case, they shall reply within 36 hours of their return. 6. The parties are to utilize telephone contact in matters of emergency or urgency respecting pickup and drop-off, or health or medical issues. The parties will assist the child to make telephone contact with the other party during their respective parenting time. S.C. shall have telephone contact twice per week, on Tuesday and Friday, between 6:15 and 6:30 p.m.

So, what we are doing is we are having telephone contact within a 15-minute window, because we are dealing with a six-year-old. That should be a relatively short call involving her activities on those days. 7. The parties shall maintain medical insurance and extended health coverage for the child as provided through their employment coverage. The parties shall provide photocopies of the current medical insurance card, extended health benefits forms, information bulletins, booklets and forms, to permit access to health insurance providers and health and dental service providers. So, that goes both ways, folks. 8.

Pursuant to the July 21st, 2015 consent, and with an undetermined Guidelines income for the year 2014, the parties agree the child support payable for I. is $606.00 per month. 9. Child support arrears are by consent set at $4,300.00, from 2012 to July 21st, 2015. 10. Special and extraordinary expense arrears are by agreement, as at August 27th, 2015, set at $5,342.67. You will have already the term of the order in respect of the fact that it will be payable $75.00 for each paycheque in the amount of $150.00 per month,

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