M.G. v. J.R., 2020 BCPC 261

Citation: M.G. v. J.R. 2020 BCPC 261 Date: 20200904 File No: F35556 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.G. APPLICANT AND: J.R. RESPONDENT DECISION OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Applicant: N. Kulusic Counsel for the Respondent: U. Dhaliwal Place of Hearing: Surrey , B.C. Dates of Hearing: February 26, May 30, June 21, August 23 and August 29, 2019; March 9, 10 and 11, 2020 Date of Judgment: September 4, 2020

Table of Contents ISSUES 3 BACKGROUND 6 LEGAL BACKGROUND 6 Best Interests Of The Children 6 Assessment of Evidence 7 GENERAL HISTORY 9 General Family History 9 2014 – 2018 10 Summer – 2018 10 September – December 2018 11 2019 – 2020 11 PROCEDURAL HISTORY 12 1 October 2018 12 4 October 2018 12 16 October 2018 14 February 2019 14 February 2019 to March 2020 – Hearing Dates 14 WHICH MATTERS ARE ACTUALLY BEFORE THE COURT? 15 4 October 2018 – Mr. R’s Reply and Counterclaim (Respondent Application) 15 26 February 2019 – Mr.

R’s Application to Vary an Existing Order 16 Procedural Fairness and the Best Interests of the Children 17 ANALYSIS 20 DID MR. R WRONGFULLY DENY MS. G’S PARENTING TIME? 21 “Failure to Obtain Medical Care” 21 “Inappropriate and Distressing Situations” 22 “Family Violence (Physical and Mental)” 27 “Fear and Anxiety” 33 MCFD Social Worker’s Evidence 34 Moskal Report 36

Section 211 Report of Mr. Finlay 38 Findings – Whether Mr. R’s Denial of Parenting Time was Wrongful 40 HAS MR. R ESTABLISHED A MATERIAL CHANGE OF CIRCUMSTANCES? 55 Preliminary Issue – Which Test Applies? 55 Material Change in Children’s Needs or Parent’s Ability to Meet Those Needs? 58

REMEDY – BEST INTERESTS OF THE CHILDREN 74 Legal Framework 74 Application – Best Interests of the Children 76 REMEDIES 85 WRONGFUL DENIAL 85 MATERIAL CHANGE – VARIATION OF 2014 ORDER 86 IS A PROTECTION ORDER NECESSARY? 88 CONCLUSIONS – THE ORDER 88 A Corrigendum was released by the Court on January 11, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] [Omitted for publication] year old LR-G (“LR-G”) and her brother, [omitted for publication] year old AR-G (“AR-G”) have been at the center of a series of legal motions and applications for the past two years. I will also refer to them collectively as the “Children”. [ 2 ] Their mother, M.G. (“Ms. G”) seeks to enforce an interim consent order made on 27 January 2014 (“the 2014 Order”). Following that order, the Children resided primarily with her. Ms. G exercised most of the parenting time and parenting responsibilities. Their father, J.R. (“Mr.

R”) exercised parenting time largely on extended weekends three times a month, and around his work hours. [ 3 ] The parties appear to have co-parented very well until early Fall 2018, when the co-parenting relationship began to break down. Mr. R now lived in [omitted for publication]. He reported her and her common law spouse to the Ministry of Children and Family Development (“MCFD”) in September 2018. He continued to comply with the longstanding parenting arrangements, but then eventually refused to return the Children to Ms. G at the end of September 2018. [ 4 ] The parties accept that Mr. R denied Ms.

G’s parenting time when he refused to return the Children. This denial also caused a significant change in the parenting arrangements, which Mr. R wants to make permanent. This denial effectively transferred the Children’s longstanding primary residence and school from [omitted fpr publication] to [omitted for publication]. The Children have remained in his primary care since late September 2018. [ 5 ] I must examine the reasons why Mr. R denied Ms. G’s parenting time before I can decide whether to enforce the 2014 Order. In general, Mr. R argues that Ms. G and (more largely) her common law spouse, Mr. H. (“Mr.

H”), exposed the Children to unacceptable behaviour and family violence. [ 6 ] He initially sought a Motion for a Protection Order against both Ms. G and Mr. H. At the hearing, he sought a Protection Order only against Mr. H. Also during the hearing, Mr. R sought a different parenting arrangement from those in the 2014 Order. He wants the Children to reside with him in [omitted for publication], with specified parenting time for Ms. G and with associated orders for the new arrangement. He also seeks to have Mr. H supervised in the presence of the Children.

ISSUES [ 7 ] This hearing was initially supposed to deal only with Ms. G’s Motion to enforce the 2014 Order and Mr. R’s Motion for a Protection Order regarding the Children. [ 8 ] For reasons that I explain more fully below, I reluctantly allowed Mr. R to lead evidence beyond his initial Motion as this hearing progressed because I found that it was in the best interests of the Children. [ 9 ] In order to determine whether the 2014 Order should be enforced, I must examine the reasons why Mr. R denied Ms. G’s parenting time. In order to decide whether to issue a Protection Order against Mr.

H, I must also examine Mr. R’s alleged reasons for wanting the Protection Order. [ 10 ] His alleged reasons for denying Ms. G’s parenting time and seeking a protection order overlap.

He also argues that his reasons for initially denying her parenting time and seeking the Protection Order have expanded since October 2018, as he continued to receive further information from the Children and other sources that troubled him. [ 11 ] Due to the information overlap concerning the issues in this case, the fundamental question I have to decide is whether the Children should remain in [omitted for publication] with their father or return to [omitted for publication] with their mother. Consequently, I must decide the following legal issues: 1. Has Ms. G satisfied me that Mr.

R wrongfully denied her parenting time? In deciding this issue, I must determine whether: a. Mr. R believed that his denial was justified; b. Whether Mr. R’s belief was objectively reasonable at the time it occurred, in all the circumstances.

2. Has Mr. R established, on a balance of probabilities, that there has been a material change of circumstances, requiring a changeto the 2014 Order? In deciding this issue, I must examine: a. Whether there has been a material change to the Children’s needs or a parent’s ability to meet those needs, in a fundamentalway; b. If so, whether those material changes were foreseeable when the 2014 Order was made. 3. What remedy is required, in the best interests of the Children, if I find that Mr. R wrongfully denied parenting time, or if I finda material change of circumstances since the 2014 Order was made? 4. Has Mr.

R established that a Protection Order is required regarding Mr. H’s involvement with the Children? In deciding thisissue, I must assess: a. Whether it is likely that Mr. H will cause physical, emotional or psychological harm on Children; or b. Whether it is likely that the Children will be exposed to such harm by Mr. H’s conduct; [12] I have received and reviewed the evidence called in this matter: 1. testimony of Ms. G (mother); 2. testimony of Danielle Sevin [social worker with the Ministry of Children, Family, and Community (“MCFD”)]; 3. testimony of Mr. H (step-father); 4. testimony of Mr.

R (father); 5. two books of documents containing school records and a four page report dated 17 February 2019 from Dr. Rosemary Moskal; 6. Mr. R’s text messages and photograph(

s) concerning LR-G’s leg; 7. Optometry prescription for AR-G; 8. Facebook photographs and entries regarding the birthday party of Mr. H’s friend; 9. The court-ordered s. 211 Views of the Children report by Mr. Bob Finlay. [13] Ms. Kulusic, counsel for Ms. G, referred to the following cases in submissions: 1. Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 2. Williamson v. Williamson, 2016 BCCA 87 3. K.W.S. v. K.D.S., 2018 BCSC 1261 4. Seibel v. Davis, 2017 BCSC 232 5. L.J.G. v. N.B., 2017 BCSC 250 6. J.W. v. J.S., 2018 BCPC 232 7. L.T. v. S.M., 2016 BCPC 124 [14] Ms. Dhaliwal, counsel for Mr.

R, provided the following cases: 1. H.V. v. G.I.H., 2019 BCSC 1528 2. O.V.M. v. G.W.S., 2018 BCSC 238 3. G.I.H v. H.V., (4 June 2018), Abbotsford File No.13746 (B.C.P.C.) 4. J.A.F. v. J.J.F., 2016 BCSC 300 5. K.R. v. J.W., 2016 BCSC 225 [15] I have also considered the following cases: 1. R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 2. R. v. Khan, (SCC), [1990] 2 S.C.R. 531 3. Fitzgibbon v. Fitzgibbon, 2014 BCCA 403 4. de Rooy v. Bergstrom, 2010 BCCA 5

5. J.F.K. v. J.D.F., [1988] B.C.J. No. 278 (Q.L.) at p. 8 (BCCA) 6. S.K.B v. D.S.B., 2017 BCSC 2569 7. N.D.T. v T.F.T., 2016 BCSC 134 8. B.K. v. B.J., 2015 BCSC 1481 9. Shaw v. Shaw, 2014 BCSC 984 10. Morgadinho v. Morgadinho, 2014 BCSC 192 11. D.A.M. v. D.M.T., 2013 BCSC 359 12. K.G. v. E.B.V., 2018 BCPC 208 13. J.D.G. v. H.M.L.M., 2014 BCPC 390 14. K.L.L. v.

D.J., 2014 BCPC 84 BACKGROUND LEGAL BACKGROUND Best Interests of the Children [16] In making decisions regarding parenting arrangements, the overriding legal principle that I must apply is the best interests ofthese Children: Family Law Act (“FLA”) s. 37(1).

It is the only consideration. [17] I am mindful that a court order is not in the best interests of the Children unless it protects, to the greatest extent possible: thechildren’s physical; psychological; and emotional safety, security and well-being: FLA s. 37(3). [18] In determining the best interests of these Children, I must consider all of the general needs and circumstances of each child: FLAs. 37(2). [19] In addition to their general needs and circumstances, there are a series of specific considerations that I must consider bothindividually and, ultimately, as a whole [FLA s. 37(2)(a-i)].

These considerations will be discussed later in the analysis that follows. [20] I am permitted to consider a person’s conduct only if it substantially affects a factor relating to the best interests of the Children,and only to the extent that it affects that factor: FLA s. 37(4). [21] I note that the law does not require me to reach a specific factual conclusion about what has occurred while the Children havebeen in their parents’ care before I make an order regarding parenting arrangements: N.D.T. at para. 103, citing L (B.J.) v.

L. (E.J.)(1983), (BC CA), 54 B.C.L.R. 164 (BCCA); [1983] BCJ No 2213 (QL) at para. 13. [22] Given that no parent is perfect, and parenting skills continue to evolve for every parent, I do not intend to examine each andevery concern provided in court. Therefore, I will discuss only those concerns that appear to be most significant to the identified legalissues and the best interests of the Children. [23] It is important to note that children learn most of their parenting skills and attitudes from their own family circumstances.

It isclear that both parents here involved the Children in their family dispute to an unacceptable level. [24] I do not presume that any particular arrangement for parental time or responsibilities (individual, shared or equal) is in the bestinterests of the Children: FLA s. 40(4). The law recognizes the substantial advantage to a child who has a good relationship with bothparents.

Assessment of Evidence [25] Throughout this conflict and in court, the parents and others have reported what the Children told them. [26] When someone reports what the Children have said, that person is providing “hearsay” evidence (what they “heard” the Childrensay outside of the courtroom). Usually, I cannot accept “hearsay” evidence as true. However, the courts generally try to avoid receivingchild testimony, unless necessary, in order to protect their best interests, and shield them (if possible) from further exposure to the legalconflict.

I may decide how to receive the Children’s evidence, including their hearsay, if I find the evidence to be sufficiently reliable,further to

Section 202 of the FLA: Court may decide how child's evidence is received 202 In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following: (

a) admit hearsay evidence it considers reliable of a child who is absent; (

b) give any other direction that it considers appropriate concerning the receipt of a child's evidence. [27] In any legal proceeding, I must always assess the “reliability” and “credibility” of any evidence. When assessing “reliability”, I

must assess whether the witness or other evidence is able to offer accurate information. When assessing “credibility”, I must assesswhether the witness or other evidence is providing truthful information. [28] In matters of credibility, reliability or conflicting evidence, I am required to assess the evidence in order to determine whatweight, if any, I can attribute to that particular evidence. I may accept – or reject – some or all of any witness (or other) evidence. [29] It is important to understand how I may decide what weight to give any witness or other evidence.

The Honourable Judge Doulisin her decision in K.G. aptly observed: 75 As the Supreme Court noted, this exercise is more of an art than a science. It is particularly daunting when two witnesses' testimonyis diametrically opposed and there is no independent corroborating evidence: R. v. S. [R.D.], [SCC]. 76 It goes without saying witnesses cannot reliably testify to events which they did not personally witness. This is why hearsay ispresumptively inadmissible.

To be clear, hearsay is an out-of-court statement offered to prove the truth of its contents in the absence of acontemporaneous opportunity to cross-examine the declarant. [30] I must carefully scrutinize hearsay evidence and assess several factors when deciding if evidence is reliable and credible. Myassessment focuses on the original speaker, and the person or document reporting a statement made outside the court.

Generally, thosefactors include: 1. the timing of the statement; 2. whether the statement was made spontaneously; 3. the demeanour, personality, intelligence and understanding of the child who made the statement; 4. the possibility of mistake or exaggeration; 5. the presence or absence of a motive to fabricate or lie; 6. whether there was corroboration by real evidence; 7. consistency over time; 8. whether the statement was in response to non-leading questions; 9. whether the person who reports the statement has or does not have a motive or bias; 10. the presence or absence of suggestion, manipulation, coaching, undue influence, or improper influence; 11. the memory or perception of the person reporting the statement; and 12. whether the statement is equally consistent with another hypothesis or alternative explanation. [31] These summarized factors emerge from D.A.M., at paras. 115-116; Khelawon, at paras. 2, 53; Khan, at paras. 30, 34; and J.F.K.,at p. 8.

GENERAL HISTORY [32] Based on all the evidence before me, I find the following facts concerning the general history of this family. General Family History [33] Briefly, the history of this family can be summarised as follows: • 2008 The parties met. • 2009 LR-G was born on [omitted for publication]. • 2010 AR-G was born on [omitted for publication]. • 2011 The parties separated. • 2013 Ms. G gave birth to another son, A, and also entered a relationship with Mr. H. A is not the biological child of eitherMr. R or Mr. H.

Interim Consent Order – 2014 [34] The 27 January 2014 Order was an Interim Consent Order reached at a Family Case Conference. The parties agreed that LR-Gand AR-G (then aged [omitted for publication] yrs. and [omitted for publication] yrs., respectively) would live primarily with Ms. G,with the following parenting arrangements: 1. For the first six months of the Order, Mr. R was granted three extended weekends per month. 2. Beginning in September 2014, Mr. R’s parenting time occurred on 3 regular weekends per month.

3. The parties shared, as equally as possible, any professional development days, long weekends, and statutory holidays. 4. The parties alternated bi-weekly during the summer holidays. The exchange of the Children was to occur in a neutral location. 5. The 2014 Order also permitted any other parenting time as the parties agreed from time to time. 6. Neither party was permitted to remove the Children from the jurisdiction without the consent of the other party. 2014 – 2018 [ 35 ] The parties generally complied with the 2014 Order. They coordinated appropriately and were flexible with the parenting time. Mr.

R was a generally involved father. Ms. G exercised most of the daily activities and most of the parental responsibilities. Summer – 2018 [ 36 ] Ms. G and Mr. H lived together with four full-time children plus another child who lived part of the time at the home: • Ms. G’s children with Mr. R: LR-G (then [omitted for publication] yrs. old) and AR-G (then [omitted for publication] yrs. old); • Ms. G’s child from another relationship: A (then [omitted for publication] yrs. old); • Mr.

H’s children from another relationship: M(1) (then [omitted for publication] yrs. old) living full-time with her father; and M(2) (then [omitted for publication] yrs. old) living part- time with her father. September – December 2018 [ 37 ] 23 September 2018 : Mr. R made a complaint to the MCFD about Ms. G’s and Mr. H’s conduct. [ 38 ] 25 September 2018 : Social Worker Danielle Sevin interviewed Ms. G, Mr. H, and then separately interviewed the four children residing full-time in Ms. G’s home. She determined that there were no child protection concerns. [ 39 ] 30 September 2018 : Mr.

R refused to return the Children into Ms. G’s primary care. [ 40 ] 1 October 2018 : Mr. R changed the Children’s school from [omitted for publication] to [omitted for publication]. [ 41 ] 23 October 2018 : Upon Mr. R’s insistence, Ms. Sevin re-interviewed LR-G and AR-G at their [omitted for publication] school. The further information provided by the Children did not raise any child protection concerns. [ 42 ] 3 November 2018 – 23 January 2019 : The Children received counselling from a psychologist in [omitted for publication], Dr. Moskal. 2019 - 2020 [ 43 ] 11 January 2019: The MCFD closed its file regarding Mr.

R’s complaint. [ 44 ] 17 February 2019 : Dr. Rosemary Moskal produced a psychological report regarding the Children (“Moskal Report”) specifically for court. [ 45 ] 26 February 2019 : This hearing started. [ 46 ] 18 August 2019 : Mr. Bob Finlay produced a court-ordered s. 211 Views of the Children Report (“Finlay Report”). [ 47 ] 11 March 2020 : Final Submissions concluded on this hearing. PROCEDURAL HISTORY [ 48 ] This case unfolded in an awkward and disjointed manner. The initial two Motions for Enforcement of the 2014 Order and a Protection Order were supposed to be narrow.

Unfortunately, the initial one day hearing lasted 5 days in 2019 (February 26, May 30, June 21, August 23, and August 29) and 3 days in 2020 (March 9, March 10, and March11).

The protracted nature of this hearing resulted in the Children remaining primarily in [omitted for publication] for close to 2 yrs. [ 49 ] At various points, I expressed strong concerns to the parties about the protracted nature of the proceedings and the additional information offered at different times to the court on various continuation dates. [ 50 ] I find that it is necessary to outline the complicated procedural history to better understand why, as the proceedings continued, I reluctantly permitted this hearing to receive further information and proceed on expanded parenting issues impacting the best interests of the Children. 1 October 2018 [ 51 ] After Mr.

R’s denial of Ms. G’s parenting time on 30 September 2018, three main things happened on 1 October 2018 (not necessarily in this order): 1. Mr. R transferred the Children’s school to [omitted for publication].

2. Ms. G filed an emergency Motion, without notice to Mr. R. This is called an Ex Parte Motion. She sought to enforce the 2014 Order, with police enforcement. She indicated that Mr. R was not answering her calls. 3. Ms. G’s Ex Parte Motion was set for an Urgent Hearing on 4 October 2018, with notice to Mr. R. On 2 October 2018, Mr. R was personally served with the Order for the Urgent Hearing. 4 October 2018 [ 52 ] On 4 October 2018, both parties attended court, albeit for different reasons. Several things happened (again, not necessarily in this order): 1. The Urgent Hearing on Ms.

G’s October 2018 Motion, was supposed to occur. It did not. 2. Mr. R filed an Ex Parte Motion for an Interim Protection Order against Ms. G and Mr. H, regarding the Children. He wanted to suspend her parenting time and prohibit any form of contact between them and the Children, amongst other related terms. 3. Inexplicably, Mr. R sought to have his Motion heard without notice to Ms. G. However, Mr. R also knew she would be at court and that he was supposed to attend her Urgent Hearing on that day. 4. Ms. G was unrepresented by counsel at this point. Ms. Dhaliwal represented Mr. R. 5.

The Honourable Judge Ferriss canvassed both Motions in a hearing room. 6. I have reviewed the court recording of that court appearance. After making inquiries, the Honourable Judge observed that Mr. R’s Motion affected Ms. G’s Motion. She noted that Ms. G had just received his documents at court and needed an opportunity to consider them. 7.

The Honourable Judge Ferriss also expressed her concern that the Children were no longer attending their longstanding school in [omitted for publication], and urged the parties to find a way to have them attend their longstanding [omitted for publication] school while these issues were before the court. 8. Later that day, as the parties scheduled their hearing date, the Honourable Judge Ferriss permitted them to attend a very early Family Case Conference prior to their hearing date.

Based on the trial scheduling notes and the very early Family Case Conference date, I infer that the Honourable Judge Ferriss granted this permission on a one-off basis only and upon their request. 9. The Family Case Conference was scheduled for 16 October 2018. The hearing on the two Motions was scheduled for one day on 14 February 2019. [ 53 ] Also on 4 October 2018, Mr. R filed a “Reply” in Form 3 to Ms. G’s October 2018 Motion, with a Counterclaim. He disagreed with her Motion and provided similar allegations to those underlying his Motion for a Protection Order.

His counterclaim sought to reverse the parenting arrangements. 16 October 2018 [ 54 ] On 16 October 2018, t he Family Case Conference occurred on Ms. G’s Enforcement Motion and Mr. R’s Protection Order Motion. As a court mediation process, the parties were required to attempt a resolution. Before the Honourable Judge Chettiar, the parties both appeared with counsel and agreed to an interim order, without prejudice to either party. This interim order dealt only with Ms. G’s interim parenting time, which could not occur in Mr. H’s presence.

Both Motions were adjourned to the hearing date of 14 February 2019. [ 55 ] Also on 16 October 2018, Ms. G filed a Reply to Mr. R’s Counterclaim. She disagreed with each element of his Counterclaim. February 2019 [ 56 ] 14 February 2019 : the one-day hearing was adjourned as Ms. Dhaliwal and Mr. R were unable to attend court in Surrey due to poor weather. [ 57 ] 26 February 2019 : the one-day hearing started before me on both initial Motions.

At this point, the Children had been living with their Father and attending their new school in [omitted for publication] for 5 months. [ 58 ] Also, at some point on 26 February 2019, Mr. R filed an Application to Vary the Existing 2014 Order, with essentially the same terms sought in his October 2020 Counterclaim. February 2019 to March 2020 – Hearing Dates [ 59 ] At the start of the hearing and during the hearing, counsel for Ms. G was Ms. Bulatovic (whom I will now refer to as Ms. Kulusic). Ms.

Kulusic took the position that the scheduled one-day hearing was not a full trial on all the parenting arrangement issues. She had prepared for a hearing on the two Motions filed in October 2018. She called the Ministry Social Worker (Ms. Sevin) who investigated in September and October 2018. She also questioned Ms. G on the evidence relating to the two Motions. [ 60 ] Counsel for Mr. R identified the issues differently. At the start of the hearing and during her cross-examination of Ms. G, it became clear that Mr.

R was expanding the information used to justify his decision to deny parenting time and support his Motion for a Protection Order. In court, he sought the parenting time limitations and arrangements identified in his October 2018 Motion, his October 2018 Reply and Counterclaim, and February 2019 Application to Vary an Existing Order.

[ 61 ] In court, he sought: 1. a Protection Order with regards to Mr. H and the Children; 2. primary residence of the Children; 3. a s. 211 Views of the Children Report; 4. transfer of the file to [omitted for publication]. WHICH MATTERS ARE ACTUALLY BEFORE THE COURT? [ 62 ] It is clear that the Motion to Enforce the 2014 Order and the Motion for a Protection Order are before the court. However, the Motion for a Protection Order significantly impacts the 2014–2018 parenting arrangements.

It would effectively transfer the Children’s lives to their father’s home in [omitted for publication], which is some distance from their mother’s home. What has complicated matters is Mr. R’s filings in response to Ms. G’s Motion. 4 October 2018 - Mr. R’s Reply and Counterclaim (Respondent Application) [ 63 ] Mr. R filed a Reply in Form 3 to Ms. G’s Motion for Enforcement. His Reply form also contained a

section permitting the party replying to file a Counterclaim, which is described on the Form 3 as “Counterclaim (Respondent’s own application)”, in which he sought the following: • to change the Children’s primary residence to his home; • to assume all parenting responsibilities; • to vary the October 2014 Interim Order to limit Ms. G’s parenting time; and • a s. 211 Views of the Child Report. [ 64 ] This “Reply” with attached Counterclaim (Respondent Application) was a procedural irregularity.

There is no provision in the BC Provincial Court (Family) Rules (“the Rules ”) for a party to file a “Reply” to a Notice of Motion. [ 65 ] The Counterclaim contained in the “Reply” was, in law and fact, an Application. However, before the parties can appear in a courtroom on such an application, Rule 5 of the Rules requires that a person making an Application filed in the Provincial Court Family Registry (Surrey) comply with certain procedures. The Registry is required to refer the applicant to a Family Justice Counsellor to attempt dispute resolution.

The applicant in this case must also complete a Parenting After Separation course, given that four years has passed since the last family court order. [ 66 ] It is unclear to me whether Mr. R complied with Rule 5 after filing his Reply and Counterclaim (Application). By including the Counterclaim (Application) to the “Reply” to the Motion, the Registry was not able to place the Application properly before a judge because Mr. R does not appear to have satisfied these requirements. No court date was ever assigned to this Counterclaim (Application). 26 February 2019 – Mr.

R’s Application to Vary an Existing Order [ 67 ] In this Application to Vary an Existing Order, Mr. R essentially sought the same sort of terms as his October 2018 “Reply” and Counterclaim (Application), with some modifications and additions: • Joint guardianship; • Primary residence of the Children with Mr. R; • Shared parental responsibilities with Mr. R to make final decisions; • Parenting time for Ms. G on alternating weekends, with extended weekends and holidays, but not in Mr.

H’s presence; • A conduct order regarding the matters that should not be discussed when the Children were present or nearby; • Child support, retroactive child support and special / extraordinary expenses to reflect the changed primary residence of the Children; • A Protection Order against Mr. H regarding the Children; • A s. 211 Views of the Children report; • Transfer of the file to [omitted for publication]. [ 68 ] Mr. R filed this application on the first day of the hearing. Through Ms. Dhaliwal’s opening remarks, cross-examination of Ms. G, and production of additional materials, Mr.

R actively pursued some of the content of this application regarding the parenting arrangements. [ 69 ] However, the normal family court procedures require that a new application follow a different, separate path than any existing applications or motions. A new application might be joined, eventually, with other current applications or motions, if the court agreed that it is appropriate. In the H.V. decision, the Honourable Judge Mundstock also found that it was not proper procedure for both an

Application and an Application to Vary an Existing Order to be filed simultaneously, regarding the same consent order: at para. 3. I note that the Honourable Judge Mundstock was dealing with a final consent order, not an interim consent order. Procedural Fairness and the Best Interests of the Children [ 70 ] It became clear to me that this litigation, however it might be characterized by the parties, was grounded in this central question: Where, in the best interests of the Children, should the Children live?

Their primary residence is the core issue of the Motion for Enforcement, the Motion for a Protection Order; the purported “Reply” and Counterclaim (Application); and the Application to Vary the Existing Order. [ 71 ] When new information arose during the hearing that could be relevant to the best interests of the Children, further evidence was offered to the court. [ 72 ] I have not ignored that Mr. R provided much of this information and extended the hearing, over Ms. G’s objections.

On more than one occasion, he did not provide the information to his own counsel until very close to the hearing or continuation dates. I have also not ignored that Mr. R has benefited, at Ms. G’s expense, from the extension of this one-day hearing into an eight-day hearing over the course of a year. Mr. R must have been aware that the Children were settling more and more into his home, his community, and their new school as time passed. [ 73 ] Whenever Mr. R sought to put additional information before the court to support his preferred parenting arrangements, using other materials or eliciting testimony, Ms.

Kulusic properly objected. He was attempting to deal with his Application to Vary the 2014 Order, but had only filed it on the 1 st day of the hearing. [ 74 ] During the course of this hearing, I heard much more evidence than is usual on Notices of Motion. Besides the testimony of the parties and Mr. H, I heard the testimony of the MCFD Social Worker, and received binders of documents and school records.

Throughout this hearing, several parenting issues were canvassed due to the amount and nature of all the evidence provided to the court. [ 75 ] After some consideration and submissions of counsel, I indicated to the parties that the need to consider the best interests of the Children required that I permit Mr. R to provide further information.

For the same reason, I had to consider the ultimate residence of the Children, which impacted the other parenting arrangements. [ 76 ] In making my rulings about admissible evidence during the hearing, I wrestled with two competing principles. [ 77 ] The first principle arises from the two official Motions before the Court (the Motion for Enforcement and the Motion for a Protection Order). Ms. Kulusic appropriately prepared for those motions. To permit the proceeding to be expanded beyond the two Motions could be unfair to Ms. G. She is entitled to a fair process.

I expressed concern about this issue on the first hearing day and afterwards, as the hearing progressed. I reluctantly permitted Ms. Dhaliwal to provide further evidence to the court. [ 78 ] The second principle is the overriding, most significant principle in family law: the best interests of the children. I cannot ignore the general needs and circumstances of each child involved in this case: FLA s . 37(2). Proceedings should generally be limited to issues initially raised in motions or applications properly scheduled before the court.

Unfortunately, the passage of time after the filing of motions or applications and, indeed, after the start of a protracted hearing, may reveal information that is relevant and significant to a child’s safety and wellbeing. It is difficult to ignore such information. [ 79 ] Consequently, I have the discretion to address the Children’s ongoing best interests, even after a hearing starts.

As mentioned earlier in this decision, s. 37(3) of the FLA reminds judges that a court order is not in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. I must examine evidence of the past but also consider evidence of current and potential future circumstances.

Accordingly, I retain the discretion to be flexible about what evidence can be produced during a hearing, when it is necessary to ensure the best interests of the children. [ 80 ] The situation was not assisted by last minute disclosure or notice about documents. Last minute disclosure or notice can impact trial fairness, if the other party does not receive sufficient time to prepare. Ms. Kulusic and Ms. G were more affected by this late disclosure (except on one occasion, which was quickly remedied). [ 81 ] However, on the first hearing date, and on most of the continuation dates, Mr. R raised new allegations.

Not all were relevant or significantly affected the issues in this case. I did not permit counsel to raise some of the new information. However, I did permit Ms. Dhaliwal to elicit some new evidence that might impact the best interests of the Children. [ 82 ] The late disclosure of materials or information to Ms. Dhaliwal continued just before most of the continuation dates. When she received materials or information late, she was unable to provide sufficient notice to Ms. Kulusic and Ms. G. As a result, when Ms. Dhaliwal attempted to produce and cross-examine Ms. G on a psychological report update from Dr.

Moskal on 21 June 2019, without any notice to either Ms. Kulusic or Ms. G, I did not permit it. I was concerned about the lack of notice to Ms. Kulusic, and its reliability. Instead, I ordered the s. 211 Views of the Children Report because of the conflicting evidence. I sought to minimize any reliability issues. I received that report quickly in the midst of the proceedings. [ 83 ] Ms. Kulusic was unable to prepare properly, or receive instructions from her client when new materials or alleged incidents were raised in court, with minimal notice to her. I addressed the imbalance by permitting Ms.

Kulusic to discuss the new materials or information, and obtain instructions from Ms. G, even though she was still under cross-examination at various points. The Views of the Children Report was also prepared after Ms. Kulusic initially concluded her examination of Ms. G. Therefore, I also permitted Ms. Kulusic wide latitude when re-examining her client on issues and materials raised by Ms.

Dhaliwal, as well as new direct examination on the Finlay Report. [ 84 ] Overall, I determined that the need to remain focused on the issues before the court could not outweigh the need for some flexibility, in the best interests of the children, in how the proceedings unfolded. Given the duration of this dispute (1.5 years), I was

unable to ignore completely the current circumstances or concerns regarding the Children during the ongoing hearing. ANALYSIS [ 85 ] Because Mr. R is the parent who denied parenting time and argued that there was a material change since the 2014 Order, it is important to understand the timing and content of his concerns. [ 86 ] Mr.

R provided information about his concerns at four key stages: • 23 September 2018, in his complaint to the MCFD; • 4 October 2018, in his court documents; • 1 August 2019, in his interview with Bob Finlay for the Finlay Report; and • 23 August 2019 – 10 March 2020 in his court testimony. DID MR. R WRONGFULLY DENY MS. G’S PARENTING TIME? [ 87 ] Ms. G must establish that Mr. R’s denial of her parenting time was wrongful. I may only consider events that occurred in the 12 months before 30 September 2018: K.R. at para. 57 ; Shaw at para. 21 .

I must only examine his reasons at the time he denied her parenting time, not any reasons he disclosed after the fact: D.N.L. at para. 81. [ 88 ] Mr. R stated that he received information from the Children in Spring through Fall 2018. He reported Ms. G to the MCFD on 23 September 2018. He then contacted the Office of the Child Advocate when he was not satisfied with the MCFD’s investigation. [ 89 ] His September 2018 MCFD complaint and October 2018 affidavit each provide a contemporaneous record of his reasons for denying parenting time. [ 90 ] 23 September 2018 : According to the MCFD Social Worker, Mr.

R complained about the following: 1. Inappropriate name calling; 2. Inappropriate physical discipline; 3. Adults vomiting at a party; 4. Children being forced to watch horror movies; 5. Yelling in the home. [ 91 ] He outlined his reasons for denying Ms. G’s parenting time, at the time of his denial, in his 4 October 2018 affidavit (“Affidavit”) in support of his Motion for a Protection Order. He expressed concern about more issues in his affidavit than in his complaint to the MCFD.

He indicated that he was concerned for the safety and wellbeing of the Children for a number of reasons, which follow. “Failure to Obtain Medical Care” [ 92 ] At the time he denied parenting time to Ms. G, Mr. R alleged that Ms. G failed to obtain medical attention for the Children when required on two occasions. First, he alleged this failure when M(1) hit LR-G on the head. Second, he alleged this failure occurred again when AR-G fell from the top bunk of his bunk bed and hit his head on the floor. Mr. R’s Affidavit [ 93 ] In his Affidavit, Mr. R made the following statements. 1. April 2018 : Ms. G told Mr.

R that Mr. H’s daughter, M(1), hit LR-G on the head. Ms. G did not seek medical treatment for LR- G. The Children did not tell him about the incident at the time. 2. June 2018 : LR-G told Mr. R that AR-G fell from his top bed bunk and hit his head on the floor. AR-G became unresponsive. Mr. H called a nurse to attend and move AR-G to the couch. No one sought medical attention nor told Mr. R. When Mr. R saw AR-G three days later, his son was dizzy and complained about a head injury. Ms. G’s Testimony [ 94 ] Ms. G testified as follows regarding the allegations concerning health care: 1.

April 2018: Regarding the alleged April 2018 incident, Ms. G testified that she was not aware of an incident where M(1) hit LR-G on the head. 2. June 2018: AR-G did fall off the top bunk and hit his head. Ms. G was not at home but testified that Mr. H was present. Ms. G’s friend, a registered nurse, attended. Ms. G was told that AR-G was responsive. The registered nurse assessed him. There were no signs of a concussion, and he was able to answer questions. Ms. G stated that she told Mr. R that AR-G fell off the bunk bed when Mr. R picked up the Children on the weekend. She later learned from Mr.

R that AR-G now said he was feeling dizzy and his head hurt. She encouraged Mr. R to take him to be seen (presumably by a doctor), given AR-G’s comments. She researched the issue and learned that

concussion signs can show up later. However, AR-G was fine when Ms. G returned home on the day he fell off the bunk. Mr. H’s Testimony [ 95 ] Neither party questioned Mr. H about any of Mr. R’s medical care concerns. “Inappropriate and Distressing Situations” [ 96 ] Mr. R alleged that the Children told him that they experienced inappropriate and distressing situations. [ 97 ] First, he alleged that the Children described seeing their mother (and Mr.

H) extremely intoxicated, to the point where Ms. G vomited and urinated on herself. [ 98 ] Second, he alleged that Mr. H forced the Children to watch horror films, and then denigrated them when they reacted fearfully and refused to watch. “Intoxication, Vomiting and Urination” Mr. R’s Affidavit [ 99 ] On 15 September 2018, the Children told Mr. R about attending a party with Ms. G and Mr. H that occurred on 8 September 2018. At the party, Ms. G got heavily intoxicated, vomited and urinated on herself, according to the Children. The Children said Mr. H was also drunk and he joked crudely about Ms. G’s behaviour.

The Children were then required to sleep with Ms. G after witnessing these things. Mr. R was concerned that Ms. G is not stable regarding alcohol, becoming intoxicated in front of the Children, which he viewed as dangerous. Mr. R’s Testimony [ 100 ] Mr. R’s testimony was somewhat different from the allegations in his affidavit. LR-G told him that, “people were vomiting”. The Children told him that, “everyone was drunk”. He testified that the Children told him that Ms. G “ peed in her pants”. However, unlike in his affidavit, he now said the Children told him that they did not actually see Ms.

G throw up or urinate on herself. They told him that they were at the home of Ms. G’s friend. The Children told him that they felt scared when this happened. [ 101 ] When he asked Ms. G about what the Children had told him, she responded apprehensively and was not truthful. She eventually admitted that she had two or three drinks and urinated on herself. Mr. R did not mind that they were at the party, but did not like that she was untruthful when discussing the matter. [ 102 ] Mr. R considered the Children’s report of this drunken party and Ms. G’s behaviour to be the last straw. Mr.

R felt he should do something. He did not withhold the Children at that time because he was still assessing what to do. He retained counsel on 2 October 2018. [ 103 ] Mr. R said that he is concerned about Ms. G’s and Mr. H’s use of alcohol because he feels they get carried away, and they neglect the Children. In his view, they do not realize what it is doing to the Children. Ms. G’s Testimony [ 104 ] Ms. G testified that it was a birthday party, where both adults and children were present. There was food and cake. Ms. G, Mr. H, and their children slept over. It was not a “rip-roaring” party, as alleged by Mr.

R to the social worker. Some adults were drinking, but not to the point of intoxication. Ms. G was drinking that evening but did not become intoxicated. [ 105 ] Ms. G testified that, generally, she does not drink much. She does not drink in front of the Children. She may have one or two drinks in an evening. She is a social drinker. [ 106 ] The Children slept on an air mattress in the living room, while Mr. H slept with A on a couch. Ms. G had her own couch. The Children were asleep by 9:30 or 10:00 p.m. Ms. G stayed up talking until approximately 12:30 a.m. Mr.

H had already gone to sleep. [ 107 ] The next the morning, Ms. G felt unwell and threw up in the toilet. She did not vomit on herself. She did urinate a little in her pants. She unexpectedly urinates at times when coughing or sneezing, due to body changes after giving birth to three children. She was upstairs in the bathroom when it happened; everyone else was downstairs in the kitchen/living room area. [ 108 ] She told Mr. H what happened. Mr. H made a joke about it. She believes the Children were in the vicinity and may have heard Mr. H. They were not present in the bathroom when she was sick.

Their family left shortly thereafter. Mr. H’s Testimony [ 109 ] Mr. H testified that the birthday party at his friend’s family home occurred much earlier, between April and August 2018. It was a dual birthday party for his friend and a child. He got tired and went to bed around 11:00 p.m. All the children were in the living room, like a camping trip. He slept with M(1) on the couch. A, AR-G and LR-G slept in their own little beds. He said that she slept with LR-G, AR-G and A that night. [ 110 ] She did not vomit due to excessive alcohol; she just did not feel well. There was a lot of food that night.

He did make a joke about her peeing on herself that he did not think the Children heard. He stated that he now understands that they Children must have heard him. [ 111 ] Under cross-examination, Mr. H stated that, generally, Ms. G barely drinks. Ms. G perhaps had two or three drinks at the birthday party; she was not intoxicated. Aside from the birthday party, she may have one or two drinks during an evening, but not around the

Children. [ 112 ] He initially testified that he drank three beers at the birthday party before he got tired. Under cross-examination, after shown a photograph of the special whisky that people were drinking at the party, he testified that he did not recall exactly what he drank. He stated then that he drank a shot of whisky and a couple of beer. He acknowledged that he is prohibited from drinking around M(2) due to a (without prejudice) consent family court order, that also prohibits M(2)’s mother from using drugs. It is an old court order. “Horror Films and Denigration” Mr. R’s Affidavit [ 113 ] Mr.

R deposed that, on 22 September 2018, AR-G told him that AR-G was scared and anxious about sleeping in his room alone. AR-G told Mr. R that Mr. H “forces” LR-G and AR-G to watch violent movies. The Children both told Mr. R that Mr. H calls them “pussy” and “little vagina” when they express their concern about watching violent movies. He believed the Children felt terrified and unsafe. Mr. R’s Evidence [ 114 ] In his testimony, Mr. R added that both Children told him that Mr. H “forced” them to watch scary horror movies or parts of those movies. Mr.

H called them names like “pussy”, and sent them to bed if they did not want to watch the horror films. AR-G told Mr. R that AR-G was “forced” to watch a scary movie called “Chucky”. Ms. G’s Testimony [ 115 ] Ms. G testified that Mr. R talked to her about a few things concerning the Children. One topic was about Mr. H calling AR-G a “pussy”. She said it only happened once, as a very bad joke. She did not ever recall Mr. H calling LR-G a “vagina”. She stated that, to her knowledge, Mr. H had not called the Children names on previous occasions.

She indicated that she had never heard him call the any of the other children names or talk to them inappropriately. Mr. H’s Testimony [ 116 ] Mr. H denied forcing the Children to watch the horror films; he was simply watching them at the time. Mr. H testified that he made a bad choice by letting the Children watch horror films on television. He described it as a “couple of scary movies”. He used to watch horror films as a child. He told them that they could watch, or they could go to their rooms, since they have televisions in their rooms. [ 117 ] Mr.

H acknowledged that he “would play around” and call them “scaredy cat” if they did not want to watch the films. He said he let them do their own thing. Mr. H stated that he used the term “little pussy” only once, when it slipped out. It occurred when AR-G and A were fooling around. He denied ever using the term “little vagina”. He did not use the term “pussy” maliciously, he said. He called them “chicken”, and other “playful” names. He was not angry, and did not berate them. He denied daring the Children to watch the horror films. “Family Violence (Physical and Mental)” [ 118 ] Mr.

R alleged that the Children reported that they experienced aggressive behaviour, were hit on their heads and legs, and subject to angry yelling at their mother’s home. [ 119 ] I note that Mr. R’s 2018 court documents accused both Ms. G and Mr. H of committing violence, aggression, mental abuse, and physical abuse. At the hearing, Mr. R focused on Mr. H as the perpetrator, not Ms. G. [ 120 ] I will state at the outset that, based on all the evidence, there is absolutely no evidence that Ms. G committed any family violence . I find that the statements made in the court documents regarding Ms.

G committing any violence, aggression, mental abuse, and physical abuse are unfounded and untrue. [ 121 ] During this hearing, Mr. R’s concerns focused on Mr. H’s and M(1)’s conduct. First, he alleged that LR-G reported that her younger stepsister, M(1), physically abused her by hitting her and throwing objects at her. Second, he alleged that the Children reported physical and mental abuse when Mr. H hit them on their heads and legs; and when Mr. H was angry, mean, and yelled at them. His conduct allegedly caused them anxiety and stress. “ Physical Abuse by M(1)” Mr. R’s Affidavit [ 122 ] In his affidavit, Mr.

R deposes that LR-G told Mr. R that she fears M(1), who has hit LR-G on multiple occasions. Mr. R’s Testimony [ 123 ] In his testimony, Mr. R described what the Children told him. LR-G reported that Mr. H’s daughter (M(1)) threw a book at her that hit her while LR-G was sleeping. At that time, M(1) was [omitted for publication] yrs old, the same age as AR-G. The girls shared a bedroom. Ms. G’s response was to stagger their bedtimes, but keep the girls in the same bedroom. I am uncertain whether this alleged incident is different from the incident described by LR-G to her father in April 2018. Ms.

G’s Testimony [ 124 ] Ms. G described the relationship between the Children, and their stepsister, and half-brother. I pause to note that, while I may

refer to the other children by their legal relationship to LR-G and AR-G, the Children have told Ms. G (and others) that they consider M(1) and A to be full family members. They do not see the distinction. [ 125 ] LR-G, AR-G, M(1) and A all grew up living together. There is conflict between LR-G and M(1); common sibling conflicts about property, etc. AR-G and A share a room and get along well. AR-G defended M(1) at school. There is the odd fight between siblings, but nothing excessive. [ 126 ] LR-G, AR-G and M(1) are competitive and have arguments. Ms. G witnessed a fight between M(1) and LR-G in the kitchen.

M(1) threw LR-G’s book to the floor. It did not hit LR-G. They both escalated to the point where M(1) came at LR-G with swinging arms, and LR-G hit M(1) in the face. This occurred in approximately 2018. Otherwise, Ms. G was not aware of any other fights between them. The girls had disagreements. [ 127 ] Although they may not always get along, LR-G, AR-G and M(1) love and care for each other. The Children have told her things that suggest their relationship with Ms. W’s daughter can be strained, at times. The Children have told Ms. G that Ms.

W’s daughter is younger, immature, and throws tantrums if she does not get what she wants. They have sibling-type conflicts. Mr. H made similar comments in his evidence. [ 128 ] Ms. G sat LR-G and M(1) down, and told them why they should never use physical violence. “Physical and Mental Abuse by Mr. H” [ 129 ] As mentioned earlier, Mr. R alleged that Mr. H physically abused the Children by hitting their heads and legs. The alleged mental abuse centered on his alleged anger, meanness, and yelling at them. Mr. R’s Affidavit [ 130 ] Mr.

R stated in his Affidavit that, on multiple occasions, the Children have told Mr. R that Mr. H was “violent” and “aggressive” towards the Children. According to the Children, Mr. H often hit the Children at the back of their heads and on their legs, while laughing and making fun of them. They said that Ms. G did nothing to prevent this conduct. [ 131 ] The Children also told Mr. R that Mr. H yelled and swore at them. Mr. R believed that Mr. H had a long criminal history. According to Mr. R, the Children said that Ms. G did not stop Mr. H from harming the Children. Mr. R’s Testimony [ 132 ] Mr.

R testified that he was only aware of one criminal conviction for Mr. H, an assault charge against M(2)’s mother. Mr. R was also aware that Mr. H had beaten up the then boyfriend of M(2)’s mother. Mr. R said he felt “threatened” when he learned this information, and tried to speak to Ms. G about it “every now and then”. He did nothing further. Under cross-examination, he testified that he did nothing further because he trusted Ms. G’s judgement at the time. [ 133 ] Mr. R testified that, after learning about the party where Ms. G “peed herself”, he started to talk more to the Children.

In September 2018, the Children reported that Mr. H hit them, called them names, and yelled at them. Both Children reported that Mr. H hit them on the back of their heads. Mr. H said it was a “game”, but the Children did not like it. The Children told him it hurt. Mr. R testified that he also roughhoused with his siblings as a child. He stated that things could become abusive if a child does not like it, and the games continue. [ 134 ] Under cross-examination, I found Mr. R was not candid when Ms. Kulusic suggested that the roughhouse play only occurred a few times, according to the Children.

Throughout his evidence, Mr. R left the impression that the Children told him about it several times, and that it occurred several times, this “hitting or punching”. In the end, Mr. R did not know. Based on his words, unease and hesitancy during this cross-examination, it appears he never asked the Children. [ 135 ] Mr. R reported that AR-G was hysterical and crying when he told Mr. R that Mr. H “tapped” him on the back of the head. AR-G was unable to talk because he was overwhelmed. Mr. R understood that he could have called the police and reported the assaults. He did not.

He testified that, on the day the Children were hysterical, he did not realize that it was an option to call the MCFD to attend right away. He returned the Children to Ms. G’s care, although he was conflicted. Ms. G’s Testimony [ 136 ] Ms. G testified to witnessing physical games between Mr. H and the various children. They played games like wrestling, Charlie Horse, and dog piles. The various children like to get very excited and jump on each other, or onto Mr. H’s back and tackle him. [ 137 ] M(1), A and AR-G are mostly involved. LR-G sometimes “gets into it”, but has “no real interest”.

Some of the games involve punching. AR-G may not have mentioned that he disliked the games, but his facial expression told her that he did not want to play. She did not see any bruises on his leg because of the games. [ 138 ] Ms. G initially testified that Ms. G and Mr. H discipline the Children by taking away privileges, or sending the Children to their rooms. They withhold games or computer tablets, etc. She stated that they do not use physical punishment. She never witnessed Mr.

H use physical punishment on the Children. [ 139 ] She was aware that he yelled at the Children for disciplinary purposes, but denied that he yelled aggressively. She was aware that Mr. H and Mr. R spoke about Mr. H’s conduct. LR-G told her that Mr. H gets mad at them and yells. [ 140 ] She considered Mr. H as stern, which the Children do not like. They also disliked discipline by another person. She testified that the Children struggled with Mr. H’s sternness in the past, but she did not feel it was a “very” serious concern.

[ 141 ] Later, however, when she was asked if she had ever talked with Mr. H about how he disciplined the Children, she responded, “ahhhh, a bit, we’re a bit different, but yeah, I would say we have talked about things like that”. I found this answer to be hesitant and oddly worded. It is not a resounding nor clear response. It does not enhance my confidence that their discussions were productive or fulsome. This tells me that Ms. G understood that Mr.

H could improve his disciplinary style. [ 142 ] She later acknowledged that they were a bit different in their styles, but that they talked about how to coordinate on discipline, as well as how to ground a child and remove privileges. He listened to her suggestions but had his own style, which she did not consider aggressive. She never saw Mr. H use a belt on any of the children (all four children) to discipline them. [ 143 ] Ms. G stated that the Children never told her that Mr. H hurt them. [ 144 ] Ms. G testified that she was aware of the gist of Mr.

H’s criminal history and charges, which occurred before their relationship. She considered his criminal history as dated. She said that there was no criminal activity in the years after their relationship started. She knew about the assault charge and his driving prohibitions. She believed his last conviction was in 2011. Mr. H’s Testimony [ 145 ] Mr. H stated that he and Mr. R used to have a friendly, open relationship before September 2018. Mr. R knew about Mr. H’s criminal convictions. Prior to moving in with Ms. G, Mr. H pled guilty to assaulting M(2)’s mother in 2007 or 2008.

He was convicted of uttering threats to burn or destroy property, also in 2007 or 2008. In 2010 or 2011, he pled guilty to the assault with a weapon on the boyfriend of M(2)’s mother. Also in 2011, he was convicted of Driving While Prohibited. In the past, he was convicted of driving without due care and attention. [ 146 ] He was cross-examined in August 2019. He denied any anger management issues. At that point, he had read parts of the Finlay Report. The week before his testimony on 23 Aug 2019, he enrolled in anger management and parenting skills courses through the Options Program.

He decided “why not, everyone can benefit from a course or a parenting course”. He still did not believe it was an issue for him. He was on a waiting list at that point. He denied seeking the programs because of this litigation. [ 147 ] In September 2018, he and Mr. R discussed Mr. R’s concerns (that Mr. H was not treating the Children properly) for twenty minutes on the telephone. He thought they were going to meet up to discuss it further, but then the social worker attended. He was aware that Mr. R was concerned that Mr.

H yelled and screamed at the Children. [ 148 ] He explained that he was “stern”, so the Children could interpret that as yelling or screaming. If Mr. H had to ask the Children three times to do something, his voice got louder. He was “very stern” and tried to give structure to the Children. He did not speak in anger, “nothing like that”. His instructions dealt with the Children brushing their teeth, going to bed, etc. He disciplined the Children by sending them to their room for a time out, or to read a book. He testified that he raised his voice a little when disciplining the Children.

He treated all the children in the house the same way. [ 149 ] Ms. Kulusic asked Mr. H about physical punishment in her direct examination. He responded that he “tapped AR-G on the butt, but not hard”. He informed Mr. R right away, and Mr. R agreed with Mr. H, telling Mr. H that Mr. R “wouldn’t bat an eye”. This occurred three to four years before his testimony. Since, Mr. H said that there was not another incident. He stated that he, “never had to use force or anything”.

He denied he used any other form of physical discipline, or the threat of physical discipline on the Children or the other Children. [ 150 ] Under cross-examination, Mr. H testified that he had “tapped the children” on their butt to get them going, but “that’s about it”. He denied hitting LR-G on the back of her head. He also denied hitting A with a belt. [ 151 ] He stated that he had made “empty threats” to A and M(1) regarding physical punishment with a belt or spoon, if they did not listen to Mr. H. He did not do so all the time.

He used the empty threats as a form of discipline, which he experienced as a child. He did not use an angry tone, but his voice got progressively louder. He never used empty threats on LR-G or AR-G, however, they heard him; they were present. He never intended to follow through on his empty threats. He never intended to frighten the Children. He only wanted them to realize for themselves that they do not want punishment and, accordingly, correct their behaviour. [ 152 ] He learned that Mr. R was concerned about the “horseplay” from Ms. G. Mr.

H explained that he grew up with horseplay, meaning a game where one person hits the leg of another person “a little bit”, “not hard”. He played this game when he was a child. He played it with M(1) and M(2). He saw that AR-G was “a bit iffy on horseplay” the second time or so. As AR-G is more sensitive than the others, Mr. H stopped involving AR-G after the second time. Mr. H did not play the game every day. It was a rare thing. He played it with the Children maybe three times. The last time he horse played with the Children was closer to the beginning of 2018. “Fear and Anxiety ” [ 153 ] Mr.

R alleged that the Children are scared, anxious, bedwetting, and did not want to return to Ms. G’s residence. Mr. R’s Affidavit [ 154 ] Mr. R deposed that the Children were wetting their beds at night, due to the prolonged exposure of physical and mental abuse that Ms. G and Mr. H caused. They developed anxiety and panic attacks when he returned them to Ms. G. Mr. R’s Testimony [ 155 ] Mr. R’s evidence was somewhat different from his affidavit. He testified that, in Spring 2018, the Children would “always cry” when he dropped them off at Ms. G’s home and Ms. G’s vehicle was not in the driveway.

They did not want to be alone with Mr. H. The Children told him that they were scared and did not want to be there. He initially interpreted it as separation anxiety.

[ 156 ] In Summer 2018, LR-G told him that they did not want to be alone with Mr. H. He described LR-G as “anxious” and “nervous” about returning to her mother’s home. She told him that she was sick during the week and had “stomach aches”. He said that LR-G was always worried about something in Ms. G’s household. [ 157 ] In June 2018, AR-G’s teacher told Mr. R that AR-G was “withdrawn” at school. Mr. R testified that he felt “shocked” by this information. However, he stated that he never asked AR-G nor Ms. G about it at the time, even though AR-G primarily lived with her. Ms. G’s Testimony [ 158 ] Ms.

G did not make similar observations about anxiety in the Children concerning Mr. H. She indicated that LR-G had expressed sadness to her, and that she missed Ms. G when Ms. G was not around. Mr. H’s Testimony [ 159 ] Mr. G testified that AR-G and A had occasional bedwetting when they drank water before bed. He found the boys harder to potty train than the girls. They used “pull ups” but, if they ran out, he awoke the boys a couple of times during the night to urinate. AR-G still had accidents. He did not recall AR-G wetting his bed during the summer 2019 while Mr. H was present.

MCFD Social Worker’s Evidence [ 160 ] 25 September 18 : When Social Worker Danielle Sevin separately interviewed the four children residing full-time in the home, they provided her with the following information: 1. The children discussed watching horror movies. 2. The children indicated that they were hit on the head while playing with Mr. H; they were not injured and it did not hurt. 3. None of the children said they were afraid of Mr. H. 4. One child said that he or she did not feel safe because Mr. H went to the store, leaving the children alone, and because he smoked in the vehicle. 5.

She learned that, on the occasion when Mr. H went to the store, the eldest child was present. The eldest child had a certificate in babysitting. 6. She also learned that Mr. H used to smoke in the old car, but does not smoke in the new one. [ 161 ] 23 October 18 : When Ms. Sevin re-interviewed LR-G and AR-G at their [omitted for publication] school, the Children provided the following information: 1. The Children said that they were “not forced” to watch horror movies; they had the opportunity to go into a bedroom with television. 2. The Children felt safe with Mr. R. [ 162 ] Afterwards, Ms.

Sevin had no concerns about inappropriate discipline, sexual abuse, or emotional harm that arose from her investigation. [ 163 ] Later , Ms. Sevin spoke several times with Ms. G on the telephone; Ms. G updated her about the status of the children. Ms. Sevin did not speak with Mr. R after that point. [ 164 ] Ms. Sevin’s final determinations were as follows: 1. She did not require a safety plan for the family; 2. She never told Mr. R to keep the Children; 3. She never told Ms. G to keep Mr. H away from the Children; 4.

After conducting interviews, a vulnerability assessment, a safety assessment, and contacting collaterals (teachers) – she determined that the family posed a low risk for vulnerability and safety issues; 5. She recommended counseling for all the Children to deal with the various separations and movement between family homes; 6. She recommended that Ms. G take a particular parenting program because she concluded that Ms. G needed support; 7. She closed the file. [ 165 ] Ms. G testified that the social worker said there was a program called “Options” and other programs if Ms.

G felt they needed them (parenting programs or counselling for the Children). Ms. G described them as things they could join if they felt they could benefit from them. [ 166 ] Ms. G stated that the social worker advised her that movies should be age appropriate, and that the Children should not be able to watch from around the corner; the adults needed to watch the movies in private. The social worker told Ms. G that they needed to watch for cues that the Children might not be enjoying horseplay.

Moskal Report [ 167 ] Dr. Moskal was a psychologist located in [omitted for publication]. Dr. Moskal’s role was to counsel the Children. I pause to note that a psychologist who provides therapy has a different professional role than an expert who conducts an independent assessment of the Children. That said, I note that Ms. Moskal received information from the Children that is detailed in her report. [ 168 ] At the first appointment on 3 November 2018, Dr. Moskal received information from Mr. R and, for some inexplicable reason, Mr. R’s girlfriend (now his partner), Ms. M.W. (“Ms. W”). Ms.

W had just moved in with Mr. R two weeks prior to the first interview. Mr. R testified that he only provided a brief history of their families, explaining who their parents were, “that was it”. The Moskal Report contradicts this statement. Dr. Moskal details Mr. R’s allegations against Ms. G and Mr. H. in the report. [ 169 ] I am puzzled why Dr. Moskal did not seek out information from Ms. G at the outset of the therapeutic process, or during the process. It is insufficient to say that Ms. G did not make efforts to provide information. Dr. Moskal was prepared to receive contextual information from Mr.

R and, for some reason, his girlfriend. Surely, it was reasonable to assume that their information concerned only half of the context. While the therapeutic process may require the therapist to accept their patients’ comments at face value, the same does not apply to the information provided by Mr. R and Ms. W. In order to understand and assist the Children with their situation, it was reasonable for the therapist to seek out collateral information from their mother. [ 170 ] It does not appear that Ms. G contacted Dr. Moskal before the psychologist wrote her report in February 2019. Ms.

G has since sought and obtained some information about how the Children’s counselling is progressing, so she can discuss it with Mr. R. I infer that she was understandably wary of counselling arranged by Mr. R after he had denied her parenting time, and refused to co-parent with her. [ 171 ] I am also puzzled and concerned why the Children, then [omitted for publication] and [omitted for publication] years old, announced to the psychologist in January 2019 that they wanted to “write a note to the Judge”. The Children told Ms. G that it was Ms.

W’s idea that they write a letter “to the judge” at the counsellor’s office to explain where they wanted to live. It certainly shows how they have been inappropriately involved in this legal proceeding to an unacceptable degree. [ 172 ] The courts have recognized that hearsay evidence of a child, as reported to an independent professional witness, has certain assurances of reliability, as long as others have not influenced the child. Such reliability may not be present when an interested party in a court case provides evidence about what children have said: K.G. at para. 78 . [ 173 ] I also note that Dr.

Moskal made a recommendation about where the Children should live, at the end of her report, in the “best interests of the children”. I place no weight on her recommendation, given that she did not seek out any information from Ms. G. As a counsellor, she was entitled to describe what the Children told her, as well as their emotional or mental state as therapy progressed.

In this case, she was not in a position to conduct an impartial assessment, nor make recommendations on the “best interests” of the Children. [ 174 ] With these limitations, I am prepared to consider the information provided by the Children in the Moskal Report, but only because the best interests of the Children require me to consider such information. I am unable to ignore it. However, I am unable to give some of the information as much weight as the information in the s. 211 Finlay Report. Mr.

Finlay was required to seek out more information, so that the Children’s views could be placed within the full context. [ 175 ] The Moskal Report clearly shows that the Children love their mother and father equally. They considered each parent as caring and kind. However, the Children considered Mr. H to be an angry and threatening individual. They described Mr. H as a person who “really gets mad” at them a lot. According to LR-G, Mr. H got mad at AR-G more than at LR-G. The Children reported that Mr. H got mad at Ms. G a lot, too, and the adults had many arguments.

They considered him an unhappy and mean person. [ 176 ] Notably, the Children stated that they “don’t like his punching [them] in the arm or back of [their] head when he’s fooling around”. One child stated that the child felt safe at Ms. G’s home when Mr. H was not present.

Section 211 Report of Mr. Finlay [ 177 ] Mr. Finlay interviewed Mr. R on 1 August 2019 and Ms. G on 6 August 2019. He interviewed each child on both of those days. He produced his report shortly thereafter. [ 178 ] As a court-ordered report, this s. 211 Views of the Children Report focused on the Children’s feelings and thoughts regarding parenting time, and their relationship with each parent. It also investigated the Children’s views on their current lifestyle. In a s. 211 Views of the Children report, Mr. Finlay may provide his

interpretation of their views and any signs that their views have been influenced by others. The Finlay Report also provides statements made by Mr. R and Ms. G regarding the issues before the court. Parents [ 179 ] Mr. R’s statements to Mr. Finlay echo his statements in his affidavit and testimony. Ms. G’s statements are also similar to her evidence in court. She denied throwing up at the party, and said there was only a tiny wet spot on her clothes, because she has a bladder leakage issue when she sneezes or coughs. She described both her and Mr. H as social drinkers. She told Mr.

Finlay that she does not drink around the Children, and that Mr. H might occasionally drink socially when the Children are present. LR-G [ 180 ] In his first interview with LR-G, Mr. Finlay asked LR-G about her understanding on why she was speaking with him. Mr. Finlay noted that she responded, “Because my step-father yells at us and he isn’t very nice. He has hit me on the back of the head. He has threatened to hit me with a belt. I am scared of him.” She then told Mr.

Finlay that she does not want her mother present during her interview because LR-G does not want her mother to question her about what LR-G just said, and why LR-G does not want to live with her mother.

[ 181 ] LR-G continued, telling Mr. Finlay that, “When I am nervous, I don’t say anything. [Mr. H.] isn’t nice to [A], either. He drinks a lot and, one time, he fell asleep on the kitchen floor. Once he gets to drinking 4-5 beers, he starts to turn lovey and would say to his friends that I am his daughter.” [ 182 ] Later on, LR-G told Mr. Finlay that Mr. H acted like someone who did not like her and, “He hits me on the back of my head and, if I cry, he will send me to my room. He calls my brother a ‘pussy’ if he cries. I don’t tell my mom in case she tells [Mr. H.]”. [ 183 ] Mr.

Finlay asked LR-G how her father reacted when she told him. LR-G stated: “He was a bit upset. He doesn’t push us to say things. He told us we could tell Robert Finlay.” [ 184 ] Mr. Finlay then noted that LR-G spontaneously said: “[Mr. H] shows us scary movies like Chucky, there are guns and knives, and choking, and they were scary. I have American Dolls and these Dolls remind me of the Chucky movie, and I get scared to play with those dolls because they remind me of the movie. He also showed us Scream, where there was a guy with a scary mask, and an axe, and killed people.

We watched them with A, [AR-G], and [M(1)].” [ 185 ] LR-G continued, “My mom went to work every day and [Mr. H] was in charge. I told my mom about the movies, but she said they aren’t real. I am afraid to say no to [Mr. H] because he has yelled at me and grounded me.” [ 186 ] LR-G stated that she becomes quiet, and does not talk openly when Mr. H is present. She feels she can be more open with her father. Both Children are afraid of hurting their parents’ feelings. However, if something bad happened in one home, they felt comfortable telling the other parent. AR-G [ 187 ] Mr.

Finlay described AR-G as a quiet, reserved, and thoughtful child. He also described AR-G as a child with some deep sadness. [ 188 ] When Mr. Finlay asked AR-G about why AR-G believed he was speaking to Mr. Finlay, AR-G replied in a similar fashion to LR-G: “Because [Mr. H] was yelling at us, and I didn’t feel comfortable there. My dad said we need to come here to talk about [Mr. H]. My mom didn’t really say anything.” [ 189 ] AR-G stated that, “I have watched Chucky, It, The Grudge, Lights Out, and Scream, and the Punisher. I get scared watching them. I don’t watch them anymore, but they are stuck in my head.

That is why I don’t like moving dolls. I keep all my action figures in a case because they scare me. It is only my Lego that doesn’t scare me. I saw the movies at mom’s house. We saw them when mom was at work. [Mr. H] said either watch the movie or go to bed. My mom stood up for me and said I could play on my iPad or Lego…I was too scared to play Lego by myself.” Findings - Whether Mr. R’s Denial of Parenting Time was Wrongful Legal Test [ 190 ] Generally, the courts have emphasized that parents must respect orders or agreements that include parenting time.

Parents cannot consider compliance with court orders or agreements as “optional”. If a parent is dissatisfied with a parenting time order, that parent must appeal, or apply to vary that order: K.R. at para. 57 . [ 191 ] Sections 61 and 62 of the FLA deal with a parent’s legal obligation to comply with court orders or agreements. As mentioned earlier, no one disputes that Mr. R denied Ms. G’s parenting time. The main issue is whether his denial was wrongful. Section 62(1) provides a non-exhaustive list of when a denial may not be wrongful. [ 192 ] The legal test is that I must be “satisfied” that Mr.

R has wrongfully denied parenting time: s. 62 FLA ; K.R . at para. 56 . [ 193 ]

Section 62 contemplates possible circumstances that are “all quite narrowly circumscribed, and relatively serious”: S.K.B. at para. 32 . The best interests of the Children remains the only consideration: K.R. at para. 56 . [ 194 ] When determining whether a denial of parenting time is justified, the court must decide if the reason for denying parenting time was reasonable: K.R. at para. 49 . 1. I must determine if the withholding parent genuinely believed the allegations that lead to the denial: J.D.G. at para. 20 . 2.

I must then determine if the withholding parent’s belief is objectively reasonable: J.D.G. at para. 20 . 3. If the parent’s belief is not reasonably held, the parent has wrongfully denied parenting time: J.D.G. at para. 20 . [ 195 ] Only certain terms of s. 62(1) of the FLA might apply to Mr. R’s denial in this case: 1. Mr. R reasonably believed the Children might suffer family violence if Ms. G exercised her parenting time, presumably because Mr. H would be present: s. 62(1)(a); 2. Mr. R reasonably believed that Ms. G was impaired by drugs or alcohol when Ms.

G was supposed to exercise her parenting time: s. 62(1)(b); 3. Other circumstances that I consider to be sufficient justification for his denial: s. 62(1)(f). What Mr. R Believed [ 196 ] Mr. R testified that he was generally uneasy about the Children when he noticed changes in their behaviour in September 2018.

They were not their “regular” selves. The triggering event, for him, was the information he received from the Children about Ms. G getting drunk, vomiting, and urinating on herself. At that point, he started to look deeper into what was going on. He tried to speak to Ms. G about some of his concerns, but she was not responsive, and appeared to be evasive or untruthful. [ 197 ] I accept that Ms. G could be defensive about her ability to parent the Children. I have no doubt that they were both somewhat short and upset with each other at this point. [ 198 ] I also accept that Mr.

R believed that his Children were unhappy and anxious. When a child tells you that someone it hitting them, a parent’s protective instincts rise up. Unfortunately, Mr. R continued to interpret all the information he received through that lens. [ 199 ] From his own testimony, Mr. R admitted that he was unhappy, if not angry, about the results of the MCFD investigation. In September and October 2018, he had no faith in the MCFD process. He believed that Ms. Sevin lacked professionalism by telling Ms. G that Mr. R was seeking legal counsel in September 2018, and interviewing the Children when Ms. G and Mr.

H were in the house. He said that Ms. Sevin “did not do her job properly” by failing to investigate the Children’s school records further. [ 200 ] I note that Mr. R did not refer to her second interview with the Children at their [omitted for publication] school, after they started living with him, when the Children directly contradicted some of the information he provided in his testimony months later. [ 201 ] Under cross-examination, he admitted that he was not happy that the social worker did not substantiate his concerns. As a result, Mr.

R testified that he took matters into his own hands by removing them from Ms. G’s care. Despite the MCFD not substantiating his claims, and closing their file in January 2019 without requiring either parent to enter a safety plan, Mr. R testified that he kept the Children in his care. Whether Mr. R’s Beliefs were Objectively Reasonable [ 202 ] I have assessed Mr. R’s reasons, both individually and collectively, for denying parenting time to det

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