B.W. v. J.W. Date:, 2017 BCPC 430

Citation: B.W. v. J.W. Date: 20170727 2017 BCPC 430 File No: F36891 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.W. APPLICANT AND: J.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR

Counsel for the Applicant: S. Robinson Counsel for the Respondent: R. Dueckman Place of Hearing: Surrey, B.C. Dates of Hearing: November 8-10, 2016; March 20-23, 27,28,31, 2017 June 6,9,13-15, 23,27, 2017 Date of Judgment: July 27, 2017 INTRODUCTION [1] B.W. (“Mr. W.”) and J.W. (“Ms. W.”) seek a final court order regarding the parenting arrangements for their three youngestchildren aged between four and 12 years old. They each seek the primary residency and the bulk of the parenting time for thesechildren. Mr.

W. seeks shared parental responsibility but wants the final decision-making on medical and dental matters. Ms. W. seeksall parental responsibilities and an adjustment to the existing protection order and/or conduct orders. [2] The parents have a total of five children. The eldest, B.M.W. (“B.”), is now an adult, 20 years old, and not subject to theseproceedings. P.D.W. (“P.”), the second eldest, was born on the [omitted for publication] and will be 18 years old this year.

He liveswith his mother and sees his father at his own discretion. [3] The three youngest children are C.L.W. (“C.”), N.S.W. (“N.”), and D.B.W. (“D.”). C. was born on the [omitted forpublication] and is now 12 years old. N. was born on the [omitted for publication] and is now ten years old. D. was born on the[omitted for publication] and is now four years old. [4] The parents separated after 18 years of marriage. The separation was acrimonious. Since that time, the relationship betweenthe parents has been difficult and toxic.

They do not communicate effectively, and both tend to over-react to the actions of the other. Ms. W. and Mr. W. accuse each other of family violence. Mr. W. also alleges that Ms. W. is, essentially, a bad parent. They disagreeabout most of the key events. It is apparent that they have very different parenting styles. The five children have their own perspectives. [5] At present, the parties are subject to the 7th of August, 2015 interim consent order of the Honourable Judge M. Gillespie,where Mr. W. has the primary allocation of parenting time with the three youngest children.

Amongst other terms, the parents were toshare the parenting responsibilities. [6] The following witnesses were called in Ms. W.'s case: Ms. W.; Dr. Ahmed, the children's family physician; B.W., the eldestchild; and P.S., Ms. W.'s friend. In Mr. W.'s case, the following witnesses testified: Mr. W.; T.T. (“Ms. T.”), his current partner; D.T.,Mr. W.'s neighbour; and M.C., Mr. W.'s and Ms. T.'s friend. [7] In rendering this decision, I have also reviewed all the documents provided by counsel, as well as the videos. Those documentsincluded court records, Mr.

W.'s February 2016 affidavit, Ministry of Children and Family Development reports by social workers;medical records from a variety of hospitals, clinics and doctors; counselling records; school records, as well as emails and social mediapostings. I have also reviewed the 4th of August, 2015 Views of the Child Report, and the 22nd September, 2016 Views of the Childand parenting assessment regarding C. I have also considered the case law provided by counsel, as well as other case law, although notall are cited in this decision. All references to legislation are from the Family Law Act (“FLA”).

ISSUES [8] I turn now to the issues. The evidence in this case is more complicated than the issues. The ultimate question is how theparenting time and parenting responsibilities should be allocated. The second question is to determine whether the current protectionand/or conduct orders should be adjusted. To answer these questions I must examine the following issues: (

a) Did family violence occur in this family? (

b) If the children were exposed to family violence, what was the impact of the family violence on the children? (

c) After examining the best interests of the children, how should the parenting time and parenting responsibilities be allocated? (

d) Are protection and/or conduct orders necessary, or does either require adjustment to protect either parent or the children? [9] I am guided by the following observation: “It has long been recognized, however, that in cases dealing with the wellbeing ofchildren, a court is not obliged to reach specific factual conclusions as to what has transpired while the children have been in theirparents' care in making an order respecting parenting arrangements”: N.D.T. and T.F.T., 2016 BCSC 134 at para. 103 citing B.J.L. andE.J.L. (1983), (BC CA), 54 BCLR 164 (BCCA). [10] It is more important that I make an order that advances the best interests of the children by protecting their physical,psychological and emotional safety, security, and well-being to the greatest extent possible: N.D.T. at para. 103; s. 37(4) FLA.

GENERAL FINDINGS OF FACT [11] I start by making general findings of fact. I will deal with specific findings when I discuss the relevant legal issues later in mydecision. I do not intend to refer to all alleged incidents or make findings of fact on all allegations. I have referred to evidence that

assisted me in understanding the complicated history of the family. [ 12 ] Mr. and Ms. W. met in 1995 and married in 1996. During the course of their marriage, they moved to numerous Canadian cities, usually to find work. They moved from Ontario to Calgary, approximately five years there. They spent some time in Saskatchewan and then moved to Toronto where they spent two years. After that, they moved to Halifax where they spent two years, and then New Brunswick where they spent six to seven years.

It is my understanding that they may have returned to Alberta after New Brunswick prior to arriving in Vancouver in December of 2013. [ 13 ] In August 2014, they separated when Mr. W. left the family and moved in with his current partner, T.T. Ms. W. had full custody of the five children until the end of September 2015, when they were placed with Mr. W. by the Ministry of Children and Family Development under a safety plan. Subsequently, B. and P. have resided primarily with Ms. W.

Since October of 2014, C., N., and D., have resided for longer periods of time with their father for a variety of reasons which will be examined throughout this decision. [ 14 ] I now intend to outline the significant events from the time of the separation. I will use point form or brief references to the various events. 2014 - July to August [ 15 ] It was apparent to the family that Mr. W. was seeing another woman, whom they later learn is Ms. T. Ms. W. was hospitalized due to complications arising from previous surgery and medical complications. Ms.

W. spent approximately 19 days in hospital over a one-month period in July and August. A week after her discharge in mid-August, Mr. W. informed Ms. W. that he was leaving the family. He moved in immediately with Ms. T. The five children were left with her. She was still attached to a catheter and urine bag at the time. 2014 - August [ 16 ] Mr. W. had access to the children. In late August, Telus workers attended Ms. W.'s home and subsequently contacted the Ministry of Children and Family Development to report the deplorable state of the residence.

The Ministry of Children and Family Development involvement began with this family. [ 17 ] Mr. W. filed court action for interim parenting time. The application was signed, dated and filed the 26th of August, 2014. The notice of motion was dated, signed and filed the 28th of August, 2014; however, the affidavit of service indicates that the notice of motion, which is its only exhibit, was served on the 27th of August, 2014. It clearly appends the 28th August motion as the document served. This is not possible since the notice of motion was only signed and filed the next day.

It makes me uncomfortable and doubtful about whether Ms. W. was properly served by Mr. W. about the September the 9th court date, which would only have been provided by the registry on the day the document was filed. 2014 - September [ 18 ] Mr. W,, only, attended court. Ms. W. transferred the children to Mr. W. while the Ministry was investigating, and Ms. W. was cleaning the home. The Ministry cleared Ms. W.'s home for the children's return. A few days later, at approximately the 30th of September, 2014, Mr.

W. took Danica to the hospital because he was concerned that she was malnourished and underweight, blamed Ms. W.'s negligence and a lack of proper nutrition in her home. The Ministry investigation with regards to "the failure to thrive" continued. 2014 - October [ 19 ] While D. was still in hospital, the children were removed (according to the safety plan) and placed with Mr. W. on the 3rd of October, 2014. On the 4th of October the Surrey Memorial Hospital confirmed with the Ministry that some of Mr.

W.'s concerns were incorrect. [ 20 ] On the 10th of October, C. was admitted to the Surrey Memorial Hospital for assessment of a possible kidney or bladder infection. She was discharged with the diagnosis of infection. Mr. W. obtained interim sole guardianship/parenting responsibilities and parenting time. Ms. W. was not present at court. I accept that she was served, based on the affidavit of the West Coast Title Search process server. [ 21 ] Although Mr. W. told everyone that he had sole guardianship afterwards, he did not.

The court ordered joint guardianship but gave him all parenting responsibilities on an interim basis. [ 22 ] Unclear how frequently Ms. W. visited the children afterwards. Mr. W. arranged for the children to change schools before the October court appearance, without notice to Ms. W.

School records the day after the court appearance, show that the children had been at school for at least a few days (at the new school). [ 23 ] At some point, the Surrey Memorial Hospital confirmed that D. did not suffer from failure to thrive, but she was monitored in the subsequent months. 2014 - November to December [ 24 ] At the beginning of November, Mr. W. reported Ms. W. to the Ministry of Children and Families about her home conditions. After dealing with Ms. W., the social worker told Ms.

W. that the Ministry did not have any immediate concerns for the children to be returned to the apartment, but that they wanted to conduct further inspections without notice over a continuous period of time. The social worker interviewed the children and inspected the home. According to Mr. W., the Ministry would not allow Ms. W. to have the children at home for visits, and that she had to have public visits. [ 25 ] There was an incident at the grocery store where Ms. W. and Ms. T. decided to keep the Child Benefit funds, and Ms. W. had

an inappropriate outburst where she hit Mr. W.'s chest. Ms. C. was a witness to these events. 2014 - December [ 26 ] I am still unclear exactly how much access Ms. W. had to the children over Christmas and New Year’s. Mr. W. suggests that she may have arranged but then cancelled some of the visits, which I accept. 2015 - January [ 27 ] Mr. W. completely denied Ms. W., B. and P. access to the youngest three children. Mr. W. denied Ms.

W. the opportunity to provide C. with her birthday present and would not permit her entry into the home on her birthday. [ 28 ] During this time, B. sent disturbing tweets that referenced his father. Either B. or Mr. W. wanted to meet to discuss what was going on. Mr. W. then called the police with regards to B. after receiving a distressed call in which B. voiced suicidal thoughts. I am concerned about Mr. W.'s reaction to this particular event.

Although he called the police to get an urgent reaction and did later explain to the social worker that he was extremely concerned about B., he made no attempt to go to his son to assist him. I note that in his discussions with the social worker afterwards, he blamed Ms. W. for not doing anything. I believe, but I am not completely certain, that it was around this time that Ms. W. attempted to attend a party of some sort for one of the children and caused a scene that embarrassed her children. 2015 - February [ 29 ] Mr. W. denied Ms. W., B. and P. access to the children. He rejected their Valentine's Day gifts.

On the 26th of February, 2015, the social worker confirmed that the Ministry was no longer involved. Ms. W.'s home was satisfactory, according to the Ministry. Mr. W. called the police on Ms. W. to "have a talk with Ms. W.". At this time, B. disturbingly showed up at Mr. W.'s door wearing a ski mask. 2015 - March [ 30 ] Mr. W. took N. to the paediatrician with autism concerns. One week after Ms. W.'s access resumed, Mr. W. took D. to the clinic. Two weeks after Ms. W.'s access resumed, Mr. W. reported Ms.

W. to the Ministry (this was on the 23rd of March), reported that N.'s clothing was dirty after the visits, N. was bed-wetting, C. was subdued, and D. was demonstrating possible, (and I am just going to paraphrase; it was not as overtly stated) possible sexual abuse behaviour. The social worker referred Mr. W. to the BC Children's Hospital for non-urgent assessment. A Ministry file was opened. [ 31 ] The Views of the Child Report #1, which is the August 2015 report, was ordered. A few days later, Mr. W. complained to the Ministry that D. was not eating properly at her mother's home.

I am disturbed that it did not seem to occur to Mr. W. that the behaviours that he observed may have been due to the children's adjustment to living in two homes. 2015 - April [ 32 ] By early April, the BC Children's Hospital indicated that it could not confirm any form of sexual abuse, either way. The social worker interviewed the children on April the 8th, 2015, and C. and N. indicated that there was plenty of food at their mother's home and that the residence was clean. The Ministry file was closed on the 30th of April and a letter was sent on June 4th, 2015. 2015 - May [ 33 ] On the 12th of May, Mr.

W. took D. to Dr. White prior to D.'s dental surgery. C. injured her arm while she was at her mother's home. A number of events occurred relating to that injury involving Ms. W. and C. attending late for the surgery, and during which time Mr. W. and Ms. T. had attended at the hospital and called the police on Ms. W. There was also an issue with regards to a stolen phone (B.'s phone). 2015 - June [ 34 ] On the 25th of June, Mr. W. contacted the Representative for Children and Youth because he was unwilling to accept the Ministry decision about Ms. W.'s parenting.

Photographs of the children, some of which were very intimate, were taken by Mr. W. at some point as proof of his concerns. 2015 - July [ 35 ] On the 25th of July, the Representative for Children and Youth confirmed that they were now involved due to Mr. W.'s complaint about Ms. W.'s care and his dissatisfaction with the Ministry's decision that there were no child protection concerns. His complaints related to D.'s diaper rash, bite mark and flea bites; C.'s bruised arm; and dirty clothing for the children. The BC Children's Hospital notified Ms.

W. that T.T. had, (at that time) now been removed from the records as the mother of D. This begs the question, how did the hospital obtain Ms. T.'s name as the mother unless either Mr. W. or Ms. T. provided it to the hospital? [ 36 ] The children are interviewed by S. Carnduff for the Views of the Child Report. The parents are interviewed over the phone. [ 37 ] On the 16th of July, Mr. W. took C. to the Surrey Memorial Hospital for a "wellness check", complaining about Ms. W.'s parenting and dirty clothing. C. denied any physical complaints and physical abuse. Mr.

W. requested that the Ministry social worker be contacted. On the 27th of July, Mr. W. took the three children for a so-called “wellness check” on C., to the family doctor. Nothing therapeutic was noted on that record. [ 38 ] By the end of July, the Ministry had re-opened its investigation because of Mr. W.'s complaint to the Representative for Children and Youth. I note that C. contradicted her father regarding her being injured in a particular fashion at her mother's home when

she spoke to the social worker on the 23rd of July. She also indicated at that time that she enjoyed spending time with her mother. 2015 - August [ 39 ] In August of 2015 the parties made a court appearance. That is the time of the Honourable Judge Gillespie's order. A week later, C. attended her mother's home. Upon her return to her father's home, C. began refusing to attend Ms. W.'s house. 2015 - October [ 40 ] Mr. W. texts C. during her mother's parenting time.

In and around the 29th of September, C. wrote a letter and was brought to court by her father so that she could tell the court that she did not want to live with Ms. W. On the 30th of September, C. ran away from Ms. W. after school, went to her father's next-door-neighbour and refused to go with Ms. W. Also during that period, on several occasions, Ms. W. brought lunch for N. and spent the lunchtime with him. C. was understandably hurt that no lunch had been provided for her. 2015 - November [ 41 ] Mr. W. called the police on Ms. W. with regards to concerns about C. The police attended Ms. W.'s home.

On the 6th of November, Ms. W. reported the police visit to the Ministry and complained to the Ministry about Mr. W. Ms. W. told the Ministry that she had concerns that C. was reporting that her father hits her, and that D. was yelling the name of her step-brother and touching her vagina in a manner that raised concerns about possible sexual abuse. [ 42 ] Ms. W. and B. attended to the police station and provided statements about past family violence. Near the end of the month, Mr. W. is arrested for domestic violence, assault and uttering threats. Mr. W. is not permitted to see the children. They reside with Ms.

W. Near the end of November, Mr. W. called the Ministry on Ms. W. with regards to C.'s absences from school. On the 30th of November, Ms. W. took C. to the family doctor about redness "rosea" diagnosis on her back and arms. A cream was prescribed. 2015 - December [ 43 ] The Crown declined to approve charges with regards to Mr. W. Mr. W. resumed access to the children. C. wrote the letter that was provided to Carol Ateah, in which C. stated she did not want to go to her mother's house. Mr. W. called the police on B. with regards to threats made against him.

On the 12th of December, C. was taken to a doctor (not the family doctor) by Mr. W., who diagnosed bedbugs. Mr. W. contacted the Ministry against Ms. W. The Ministry investigated and concluded that there were no issues with Ms. W.'s home. On the 14th of December, Mr. W. sought a meeting with school officials and obtained a letter from the school directing the parents not to exchange the children at the school. On the 15th of December, the family doctor was again consulted with regards to C. and diagnosed an allergic reaction.

On the 18th and 21st of December, the family doctor indicated that the rash was decreasing. 2016 - January [ 44 ] On the 12th of January, a mutual protection order is imposed. Mr. W. refused to allow Ms. W. to join an event where the children were present. Ms. W. caused a scene that embarrassed C. and N.. The Ministry file was closed with regards to Ms. W.'s complaint about suspected sexual abuse and Mr. W. hitting C., and attributed that complaint to the custody dispute. On the 27th of January, Ms. T. sent a note to Ms. W. about D. having the flu and that they took her to the doctor that day. Ms.

W. was unable to locate any medical records with regards to that visit. Mr. W. called the police again about B. because B. disclosed Mr. W.'s personal information on Twitter social media, again inappropriately. C. was interviewed by the police. D. was taken to the doctor with regards to another medical issue. 2016 - March [ 45 ] The Ministry informed Ms. W. that they were closing the file and would no longer be involved with C., N. or D. On the 22nd of March, Ms. W. expressed concerns to the Ministry worker about D.'s care by Ms. T.

She was told to report it formally to the Ministry. 2016 - April [ 46 ] D. was taken to Dr. Ahmed, the family doctor, with a cough. On the 20th of April, C. fell down and injured her hand and wrist. She was taken to the Surrey Memorial Hospital Emergency and they diagnosed an acute fracture. Sorry, I've misstated the date of the injury to her wrist. It's not when I referred to it earlier, it is, based on the medical record, the beginning of May 2016. 2016 - May [ 47 ] On May the 4th, Ms. W. took D. to the doctor for follow-up regarding D.'s dental surgery.

D.'s nutritional health improved since her teeth were extracted. On the 5th of May, C.'s wrist surgery occurred. Ms. W. and C. slept in and missed the scheduled time. Ms. W. and C. attended shortly thereafter and the surgery proceeded. It was day surgery. Mr. W. and Ms. T. attended the hospital earlier, contacted the police about Ms. W.'s non-attendance. The police attended to the hospital and tried to speak to Ms. W. and C. but could not do so because C. was just on the point of entering surgery. On the 13th of May, C. was back at the Surrey Memorial Hospital for post-operative care. 2016 - September [ 48 ] Mr.

W. took C. to the Langley hospital which diagnosed that she had a fatty liver and indicated that a lack of water intake had been causing her tummy upset, fatigue and headaches. 2016 - October [ 49 ] Mr. W. told Carol Ateah that the court had approved C. and N. re-attending counselling. That was not the case.

2017 - January [50] D. hit her head and sustained a cut to the back of her head that was initially examined by Mr. Streibel, who had a background inFirst Aid treatment. Mr. W. took D. to the Surrey Memorial Hospital Emergency Ward about the cut on the back of her head and it wasclosed with medical glue. Despite his report that it was two centimetres big, the photograph does not bear that out. It appears to be avery small gash. I note that the hospital's social worker described it as a one-centimetre cut. Mr. W. again notified the Ministry, as didthe hospital, about Ms. W.

FAMILY VIOLENCE [51] I now turn to the issue of family violence. Whether the children have been exposed directly or indirectly to family violence is acentral issue in this case. I must rule on this issue because the possible presence of family violence and its impact on the children is animportant consideration when I consider the best interests of the child:

Section 37(g), (h), (

i) and (j). [52] Family violence is defined in s. 2 of the Family Law Act and contains physical, financial, emotional and psychological harm orcontrol by a family member on another family member. [53] Given the allegations that have been made in this case, the following are the relevant aspects of family violence that I mustconsider: 1. I must consider whether there has been the physical abuse or attempted physical abuse of a family member, excluding the use ofreasonable force to protect oneself from harm. 2. I may consider whether the evidence demonstrates psychological or emotional abuse of a family member.

This type of abusemay include intimidation, harassment, coercion and threats respecting other persons. It may also include unreasonable restrictions on afamily member's financial or personal autonomy. 3. I may also consider a child's direct or indirect exposure to family violence:

Section 2(a), (c), (

d) and (

e) of the Family Law Act. [54] Ms. W.'s perspective is as follows: Ms .W. alleges longstanding and continuous physical, emotional and psychological abuseduring the marriage. Ms. W. also alleges that Mr. W. had, and continues to have, difficulty with anger issues. She alleges Mr. W. hascontinued the emotional and psychological abuse in different ways after their separation. She argues that his post-separation conductforms a pattern of controlling behaviour and undermines her ability to parent the children. [55] Mr. W.'s perspective is as follows: Mr. W. denies all the allegations of family violence.

He also states that he has never had,and does not currently have, anger issues. He alleges that Ms. W. emotionally abused him during the marriage. [56] From the children's perspective, Mr. W. is flatly contradicted by his four oldest children about his anger and his violentconduct. BEFORE THE SEPARATION [57] I have considered all of the evidence in this case pertaining to whether family violence occurred in the W. family before theseparation.

I do not intend to rule on each individual alleged violent episode. [58] I note that the evidence in family cases may often only suggest the truth and resist specific conclusions: (N.T.D. 2016 BCSC134, at para. 103; same citation to E.L.J. and B.J.L. (BC CA), [1983], B.C.J. No. 2213 (Q.L) (BCCA) at para. 13. Thisobservation readily applies in this case. Each parent and their supporting witnesses in this case demonstrate the divisive and embitteredpositions of the parents.

However, the determination centres, ...not so much whether specific allegations of misconduct...had been proven, but whether on the whole of evidence there arises a real riskto the children...without protection against that risk. The degree of risk can only be determined by carefully weighing all the evidenceand must necessarily involve the credibility of the witnesses and the judge's assessment of the character of the parties. E.L.J. and B.J.L., at para. 13. [59] After considering all the evidence, I find that Ms. W. was subject to family violence committed by Mr. W.

I also find that theyhad a volatile relationship in which they both expressed anger towards each other. However, I accept that Mr. W. threatened andintimidated Ms. W. during their marriage. Their four oldest children were exposed to Mr. W.'s violence and anger against their mother. Their two oldest sons experienced family violence committed by their father. All the children witnessed their parents' angry exchanges;however, I find that Mr. W.'s angry outbursts resonated more profoundly (than Ms. W.'

s) with the children. [60] I make these findings for several reasons. THE CHILDREN [61] First, Mr. W.'s evidence is clearly contradicted by the four oldest children in their information to various report-writers andsocial workers. B. [62] Although he is not a subject of this application, I have considered B.'s perspective on whether family violence occurred. Hetestified at this hearing, and also expressed his views to the Ministry social workers in November of 2014 when he was 17 years old, andto the Views of the Child Report-writer (August 2015 report) when he was 18 years old.

He was 19 years old when he testified duringthis hearing. He reported physical abuse by his father and witnessed the physical abuse of his mother, both regularly. He described

being hit or punched in the arm. He stated that he had been tied to bedposts with extension cords. He told the August 2015 report-writer that he recalled being placed in a choke hold by his father, and his father laying on top of him to keep him quiet. He observed his father kicking and punching his mother regularly. He referred to not missing his father's yelling, and his father making his mother feel worthless after the family broke apart. [ 63 ] I have been extremely cautious in accepting B.'s evidence on this point. He has clearly aligned himself with his mother.

Whether he was estranged from his father due to his mother's efforts or his father's own actions in committing family violence, leaving the family unit for Ms. T., or how Mr. W. dealt with B. after the separation, are all open questions. While he reported daily physical abuse by his father, on par with his mother's abuse, I am cautious about the accuracy of this recollection. I am also very cautious about the accuracy of his allegation concerning bedposts with extension cords.

I cannot discount, however, that his memory may have been impacted by his mother's trauma and her discussions about her own abuse. [ 64 ] However, I am not prepared to completely discount his evidence. B.'s reaction to his father's conduct has been to assume a protective role over his mother and siblings. His conduct between 2014 and 2016 demonstrated that he was experiencing trauma from his family experiences. As the eldest child, he was still in a position to make and articulate his observations about family violence to this court and previous interviewers. Although he denied that Mr.

W. hit P., I have accepted P.'s perspective on that point. P. [ 65 ] P. was 14 years old when he spoke to the Ministry social worker in November 2014. He initially stated that Mr. W. did not hit the kids; however, he clarified that he would not feel safe if the family was together again. P. was 15 years old when he spoke to the August 2015 report-writer. He recalled his father hitting his mother mostly. He told her that his father would also hit B. and him, P., occasionally. His father hit the younger two kids once or twice. His mother hit his father back to defend herself.

He observed that his father brought a lot of anger and hostility to the family. He spoke about his father's anger issues and difficulty remaining calm when he was living with them and after the separation. In November 2015, P. then told the police that he was not hit by Mr. W. I make the observation that P. was not a disclosive interview subject on any of these occasions. C. [ 66 ] C. was nine years old when she told the Ministry social worker that, "Dad hit Mom. Once he wanted her to make a special dinner. He got mad and would hit her with his fist." C. said she saw this happen a lot. She stated that Ms.

W. was never allowed to go out and "Dad would say bad words, swear words." Her father would yell but not swear at C. One of her wishes was that her father would not hit her mother. C. was ten years old when she told the August 2015 report-writer that her parents got along well until she was about five or six years old, then they started to argue a lot. Then she stated that "it turned bad". Her father would yell at her mother. Sometimes her father would get really mad and hit her mother. She sometimes saw her father getting mad and hitting her mother.

She described her father slapping, punching and kicking her mother. Sometimes her mother would hit back at her father; however, it was "always Dad hitting Mom". N. [ 67 ] In November 2014, seven-year-old N. told the Ministry social worker that, "Dad hit Mom. It happened a lot. He smacked Mom." N. said he had heard about the time with scissors. He described that his father yelled but did not swear. He stated that his father would be mad and told him, N., to stay out of it. He wanted his father to return to the family and to stop yelling.

N. was eight years old when he told the August 2015 report-writer that, "There was a lot of fighting- every single day! Some of the times my dad would hit my mom. One time Dad threw scissors and hit my mom in the eye." He also reported the scissors incident to Carol Ateah, the counsellor. [ 68 ] I am aware that the children were interviewed by the police in November 2015 regarding the assault charges against Mr. W. In mid-November, the police informed the social worker that the children were interviewed but there were some contradictions.

The police were concerned that they could not use the children as witnesses. [ 69 ] I have insufficient evidence to establish that the children were coached by B. or anyone else with regards to the information they provided to social workers in 2014, and to the August 2015 report-writer. Their evidence was similar. I know that the children were being interviewed for the third time in November 2015 on this issue. I am unsurprised that their information to the police was described as rehearsed.

Without the actual statements, I am unable to use the police view of the statements to diminish the weight of their earlier evidence. Aside from B., the other children did not seem to have an overt animus towards their father. Their rather matter-of-fact recounting of the information corresponded with their desensitized conduct in the videos, about which I will explain next. VIDEOS [ 70 ] Second, Mr. W.'s evidence is contradicted by the video evidence. At some points during the marriage, B. started to visually record disputes between his parents on his cell phone.

Three videos were shown in court relating to family violence. I reviewed them several times with headphones. Video #1 [ 71 ] The first video was filmed in November or December of 2013, before the family came to British Columbia. Ms. W. testified that she had gone in search of Mr. W.'s cigarettes. Upon her return, they argued and he slammed her hand in the door. Her hand was injured but she never sought medical attention. [ 72 ] Mr. W. testified that he had purchased cigarettes while grocery shopping. Ms. W. had got upset about him buying cigarettes. She tried to grab the cigarettes from his hand. They fought. Mr.

W. grabbed her wrist firmly to get the cigarettes from her. She crushed them and threw the cigarettes to the floor. He then went to lay on the couch. He testified that Ms. W. told the children that he had broken her arm. He was upset.

[ 73 ] In video tape # 1, the following can be seen: Ms. W. and Mr. W. are arguing loudly in the presence of the children while they are both in the living room. Ms. W. complained that he had asked her to go out and get something. Mr. W. said, "I asked you to get me smokes, not [indecipherable]." A young male child enters the room and said, "Dad hit her in the head and broke her hand," or "Dad hit her in the hand and broke her hand." Mr. W. responds, "Good. I'll break her fucking face next time." He then proceeded to mock her, and told Ms. W. that he had never asked her to go out in the first place.

B., who was filming, says on camera, "That's wife abuse." [ 74 ] This video contradicts Mr. W.'s evidence that he was the one who had gone out for his cigarettes. I do not accept his evidence that his behaviour was an aberration because he was tired and frustrated. The video contradicts his claim that he did not have an anger issue. His attitude to hurting Ms. W. and the statement that he would break her "fucking face" next time, in front of the children, shows that this was not an aberration. He never addressed or tried to explain that comment in his testimony.

The children appeared to be concerned for their mother, but then simply listened to this display. B. was obviously concerned sufficiently to film it. Mr. W. did not restrain himself, even after he could clearly see that B. was recording him. Video #2 [ 75 ] The second recording was filmed in December 2013 while the entire family was staying in a hotel room. Ms. W. testified that they were arguing about Mr. W.'s texting other women and his cheating on her, and she was asking him to stop. They were also arguing about his wanting cigarettes all the time, and her wanting to be treated as an equal.

She later said they argued about her wanting to be treated as an equal, not the texting or smoking. She stated that they, meaning the family, wanted to do something but all he was doing was answering texts from women. [ 76 ] Mr. W. testified that he had been texting one of his family members, possibly his mother. Ms. W. made him promise he would not text that person again, and he agreed. He testified that she wanted him to agree in writing. He was infuriated, after years of frustration, and responded by telling her that he would not speak to this person. [ 77 ] In video # 2, Ms. W. and Mr.

W. are loudly arguing while Ms. W. is breast-feeding D. While there are occasional indecipherable portions, I was able to hear substantial parts. I have only summarized those portions that were relevant to the trial issues. As the video starts, Mr. W. says, "That was it. No more." In the course of the argument that follows, which appears to be about his texting and Ms. W.'s concern about infidelity, Mr. W. said, "Why didn't you do anything?" Ms. W. replied, "Because I get equal, yes, I get equal to it. I get equal. I never get equal." Mr. W. stated, "Guess what?" Ms. W. then said, "All I'm trying to say --". Mr.

W. then forcefully yelled at Ms. W., "Fuck you. Fuck you. Fuck you," while he leaned towards her and extended the middle finger of his right hand in the hand gesture representing the words he was yelling. [ 78 ] At this point, C. is standing right next to her mother beside the bed and did not react in any way to what her father said. Mr. W. then yelled, "I'm getting up in the morning, I'm going down and I'm fucking filing for divorce." After Ms. W. made a remark about why did they come here, Mr.

W. replied, "I gave you the chance for a fresh start." She then responded, "But you're not doing the fresh start." [ 79 ] Mr. W. then sat down on the next bed beside Ms. W. They were both speaking loudly but not yelling. Mr. W. stated, "You are getting a fresh start you dumb ass." They continued arguing about his texting and Mr. W. told Ms. W., "You don't like it? Fucking fuck off." When she asked for his agreement and reached for his hand, he refused by saying, "I'm not touching you.

I'm never touching you again." [ 80 ] During this exchange, the children can be seen moving about as if ignoring the argument between their parents. It was clear that they had become desensitized to this type of exchange and their father speaking in this manner to their mother. [ 81 ] Later in Mr. W.'s evidence, it becomes clear that he had started to communicate with other women around this time or shortly thereafter. He began his relationship with Ms. T. within the next few months. I do not accept his evidence that he was simply texting a relative or his mother.

In this video, his disrespect and hostility towards Ms. W. is, again, apparent. He continued to speak to her in a denigrating manner, making derogatory gestures, and failed to restrain himself when a child made a comment during their argument. The fact that she was trying to breast-feed their infant at the time underscores his disdain for her. [ 82 ] The attitude of the children was disturbing, and demonstrated again that they had become desensitized to their father's treatment of their mother.

This alone tells me that this type of behaviour had occurred on a sufficiently-regular basis in the past such that the children were now almost insensitive to it. [ 83 ] I am unable to accept Ms. W.'s evidence that, for the first time while testifying, she now remembered that Mr. W. raised his fist in the video and touched D.'s head. I am unable to detect such movements in this video. Video #3 [ 84 ] The third recording was taken around the same time, or the next day, to video # 2 in the hotel room. Ms. W. testified that they argued about Mr.

W.'s infidelity, his lack of participation with the family, and his texting. She stated that he struck her, and demonstrated being touched on the left side of her face, close to her ear. [ 85 ] Mr. W. testified that they argued about his texting and her belief that he was not making sufficient efforts to locate housing. He wanted to end the argument and go downstairs, but she would not let him. He stated that he could not leave without doing what he was told. He denied striking her. [ 86 ] In video # 3, Ms. W. is again on a bed with D. laying in her breast area. P. is sitting up directly next to her on the bed.

Mr. W. is trying to leave the room, holding his cell phone. He told her to text him when she had written down what was necessary, and that she was not to talk to him anymore. N. can be seen walking about between them. When she told Mr. W. that he appears more concerned or interested in texting than his children, Mr. W. told Ms. W. that none of that had any relevance to it. She then stated that he was making it more important and that he was not part of their life right now.

[87] Mr. W. clearly transfers the cell phone from his right hand to his left hand, pulls back his right arm, clenched his fist, tilted hishead as he looked at her, and sucked in his breath. It is apparent that he was going to strike her with his fist, but then he looked over athis son filming the exchange and stopped himself. He then leaned his upper body over her with his pointed finger moving closer to herface. She leaned her upper body away from him and put her hand up as a barrier to his hand.

Within the next few words, he told her, "Soyou go fuck yourself." [88] P. never moved during this entire exchange. [89] This video contradicts Mr. W.'s testimony that he was somehow unable to leave the room without doing what he was told. Italso contradicts his evidence that he was not an aggressive, angry or physically violent person. His words continued to be disrespectfuland derogatory. His gestures, body language and words clearly communicated his intention to strike Ms. W. at one point. [90] Ms. W. testified that he did strike her when the camera was obscured.

From his last viewed aggressive position, very close toher upper body, I do accept that Mr. W. leaned over Ms. W. at that point. The audio recording indicated that something happened thenand the sound of rustled paper. The paper on the bed is seen at the end of the video on the opposite side of Ms. W. While it is possiblethat he struck her when the camera was obscured, there is insufficient evidence for me to draw that conclusion. MS. W. [91] Third, Mr. W.'s evidence is contradicted by Ms. W.'s evidence. Ms.

W.'s evidence about family violence is also somewhatcorroborated by the personality assessment/inventory assessment conducted in May 2016 by Mr. Finlay, the writer of the September2016 report. The assessment suggested that she likely experienced a disturbing or traumatic event in the past that continued to distressher and produce recurring anxiety episodes. [92] Ms. W. stated that there was no violence early in the marriage; the violence started after B. was born. It ranged from hitting herto speaking to her in demeaning ways, both in public and in private. Mr.

W.'s anger issues grew as B. got older, and he began to hit her. [93] I have accepted Ms. W.'s evidence that she was regularly subjected to hits, punches and kicks by Mr. W. I have also acceptedthat she was verbally subjected to angry outbursts as well as emotional and psychological degradation by Mr. W., which is a form offamily violence. Given Mr. W.'s reaction in video tape # 3 while Ms. W. was holding D., I accept that he may have struck Ms. W. whileshe was holding a child. [94] I accept that she was physically abused in the time period before her miscarriage in 2009.

I also accept that she was unable toobtain Mr. W.'s help when it occurred; however, I am unable to accept that Mr. W. directly caused the miscarriage without further,probably medical, evidence. [95] I note that Ms. W. told the social worker (November 2014) that the physical abuse had stopped a couple of years previously. The videos, however, demonstrate Mr. W.'s aggressive and intimidating behaviour. [96] I find that Ms. W. reacted to this abuse by becoming more withdrawn and fearful. I certainly note that the family violenceundermined her self-esteem.

I note from the videos that she engaged in verbal disputes with Mr. W. It has been suggested that she wasnot fearful, which undermines her allegations. However, I am mindful of the decision in R. v. Lavallee, (SCC), [1990] 1SCR 852 from the Supreme Court of Canada. Amongst many things discussed and accepted as social facts, the Supreme Court ofCanada cautioned against the pitfalls of stereotypical thinking about how abused spouses act and react. I do not consider Ms. W.'s verbalengagements with Mr. W. to support or undermine her allegations of family violence.

What I am most concerned about is that she waswilling to engage in these disputes in front of the children. POST SEPARATION [97] The evidence of Ms. W., Mr. W. and the children (all through the various reports) demonstrate that there has been no physicalviolence against Ms. W. or the children after the separation. Ms. W. [98] Post separation, Ms. W. stated that the violence has continued in verbal, emotional and psychological ways that demonstratesMr. W.'s continuing controlling behaviour. [99] It is interesting to note that Mr. W. told the Ministry social worker in September 2014 that Ms.

W. was a good mother but usingthe kids against him. He added that there was no cleanliness issue in the past, but sometimes there were dishes that needed to be washedor clothes not put away. This is contradicted by video # 4, which showed the deplorable kitchen conditions. [100] Mr. W.'s cutting off of all access to Ms. W. from January to March 2015 was extremely problematic and traumatic for thechildren. I do not accept any of Mr. W.'s contradictory evidence about his reasons for brutally terminating the access for Ms. W., B. andP. His contradictions impacted his credibility. Mr.

W. frequently testified that he took certain actions as directed or as suggested bychild care professionals. This was an effort to explain actions that the court may view negatively. When followed by his calling thepolice on Ms. W., B., and I believe, once on P. in 2015, I am disturbed by his attempts to deflect responsibility. [101] In November 2014, Ms. W. told the Ministry social worker that Mr. W. had said to her that she would be better off if she died. In the September 2016 report, Ms. W. related threats by Mr. W. that she would not see the kids again and that she would not be breathingmuch longer.

She alleges that he remains angry with her, which exacerbates her past trauma. She continues to find him intimidating. She also points to his constant reporting and complaints to the Ministry of the Children and Family, health care professionals, and thepolice. She has been investigated several times over the past two years. [102] She alleges that the police dealt with her harshly on at least two occasions concerning alleged contact with Mr. W. in violation of

court orders. On one occasion, she attempted to drop off gifts for the children. I believe this to have occurred in January or February of 2015. On the other occasion, she was trying to notify Mr. W. that C. had injured her wrist and/or arm. Mr. W. and Ms. T. or both testified about speaking to the police and deciding that Ms. W. needed "to be talked to" by the police. [ 103 ] I find that Mr. W. and Ms. T.'s attitude and willingness to call the police on Ms. W. in those circumstances to be counterproductive, an overreaction, and completely unnecessary in the circumstances. However, it did allow Mr.

W. to see how easily the authorities could be inserted into these circumstances to advance his position. I note that he frequently called the police when unhappy with Ms. W.'s parenting. [ 104 ] Over the past two-and-a-half years, Mr. W. has contacted the Ministry of Children and Family to directly or indirectly complain about Ms. W.'s parenting approximately ten to 13 times. He has called the police about B. approximately four times. He has called the police about Ms. W. approximately two to three times.

He has had both numerous valid but also numerous so-called “wellness checks” and unnecessary hospital and doctor attendances. [ 105 ] Ms. W. contacted the Ministry one time about possible sexual abuse allegations concerning one of her children and Mr. W.'s step-child. She contacted the police once, resulting in his arrest. [ 106 ] I agree that many, if not most, of his complaints occurred in and around court dates where custody matters were either discussed, disputed or arranged.

The succession of incidents and complaints after the October 2015 court date were striking. [ 107 ] I pause to note as well that throughout many of these complaints, Ms. W. was working as a health care practitioner while balancing her child care obligations. On the day before Ms. W. attended late for C.'s day surgery, Ms. W. had taken one of her other children to the doctor. Due to their health, neither Mr. W. nor Ms. T. work. After a rocky start, I accept that Ms.

W. was making best efforts by mid-2015 to meet her obligations. [ 108 ] The fourth videotape shown to me was taken before the separation, showing the absolute disarray and unsanitary conditions in the home in the early months of 2014. This video demonstrated to me that both Ms. W. and Mr. W. had poor cleanliness and sanitary habits prior to the separation. I also saw that, contrary to his assertions, Mr. W. was not overly concerned about the state of the kitchen. [ 109 ] Mr. W.'s actions at the school have also served to diminish Ms. W.'s standing by and at the school.

This has been augmented by her own outbursts at the school. B. [ 110 ] B. has noted that since the separation, Mr. W. has acted in an "extremely aggressive" manner towards him. However, B.'s conduct towards his father was extremely problematic. B.'s immaturity caused him to act out by posting disturbing photos and social media commentary. He covertly tried to antagonize his father when he and P. were denied access to the children in early 2015. I also note that his father covertly sought access to his social media account. B. also attended Mr. W.'s home while ski-masked, which alarmed both N. and Mr.

W., understandably. However, while Mr. W. initially attempted to obtain suggestions from a counsellor on dealing with B. and P., he made no real further efforts to deal with his eldest son who, in turn, never made it easy for Mr. W. P. [ 111 ] P. spoke about his father's anger issues after separation and difficulty remaining calm. C. [ 112 ] After the separation, C. observed that there was no hitting in her two homes. She also noted that they fought less than when they lived together, but they still now raised their voices and used angry words.

N. [ 113 ] N. was eight years old when he spoke to the August 2015 report-writer. He described his father as "part-time grumpy". After the separation, he said his parents argued a lot, which involved both of them using really bad words. [ 114 ] Overall, I find Mr. W.'s conduct after the separation caused emotional and psychological trauma to Ms. W. It comes exceedingly close to a pattern of emotional and psychological family violence. I am extremely troubled by the timing of his constant reporting of Ms. W. to the Ministry. However, I note that the high intensity of this behaviour may be reducing.

His emails appear to be polite and professional. The counselling appears to have attenuated his behaviour. [ 115 ] Mr. W.'s overreactions and insistence that Ms. W. parent his way will require improvement. Ultimately, I conclude that his behaviour has been very problematic, particularly as it impacted the children. His insistence that Ms. W. was a bad parent because she did not meet his standards, reflect an attempt to control her actions. However, I cannot conclude that he has deliberately engaged in a controlling pattern of emotional or psychological family violence.

I find that he made several errors in judgment based on a fundamental misunderstanding of co-parenting and the role of policing, Ministry and medical professionals. I will discuss the impact of his actions on C.'s estrangement and possible alienation from her mother later in this decision. [ 116 ] I also find that Ms. W.'s behaviour after separation was not sufficiently controlled over time. She overreacted in many situations as well, causing riffs between her and the people that are important to C., and embarrassing her children. She clearly needs further assistance in this area.

Her reactions clearly stem from the trauma she has experienced. However, she has allowed it to control her interactions now in a way that expose her children to detrimental conflict and has eroded her relationship with C. FAMILY VIOLENCE AND WITNESS CREDIBILITY

[ 117 ] I turn now to the impact of my conclusion on family violence upon witness credibility. I do not accept Mr. W.'s evidence about either his anger issues or family violence. His denial of committing family violence is flatly contradicted by his four older children who were capable of remembering life during the marriage. His children also contradict him about his anger issues. Both denials are also contradicted by the videos. These outright contradictions are central and material to my assessment of his credibility and reliability as a witness.

They also cast a long shadow on the credibility of his reports to social workers, medical professionals, school officials, counsellors, the police, the Views of the Child Report-writers and personal associates about his conduct both before and after the separation. [ 118 ] I note that Ms. W. has appropriately sought and received counselling for the trauma she received. However, I am concerned that her recollection of some events may have been impacted by the trauma she has experienced and the passage of time.

I am also concerned that her memory has been impacted and reconstructed each time she has recounted and explored traumatic episodes for other assessors, such as counsellors, social workers and family dispute assessment professionals. [ 119 ] This concern touches on some of the alleged aggravating aspects of the family violence. Over the past three years, Ms. W. has viewed many of her actions and Mr. W.'s actions through the lens of her trauma and her emotional reaction to his marital infidelity. I consider some of her evidence, particularly in describing Mr.

W.'s negative conduct, to be augmented or dramatized for effect. I also note that she appeared quite certain about some events, but was contradicted about how things unfolded. On one occasion she alleged that an email presented about the 2017 spring break was incorrectly edited or not presented in its original form. She was proven to be wrong. PARENTING ARRANGEMENTS LEGAL PRINCIPLES: BEST INTERESTS OF THE CHILDREN [ 120 ] I turn to the next issue, which is the parenting arrangement in the best interests of the children.

I start with the legal principles pertaining to the best interests of the children. [ 121 ] In making decisions regarding parenting arrangements, the overriding legal principle that I must apply is the “best interests of the children”: Section 37(1) of the Family Law Act . It is the only consideration. I am mindful 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 wellbeing: Section 37(3) of the Family Law Act .

I must consider the degree to which there are real and substantial risks to the safety, security and wellbeing of the children: N.D.T. at para. 103 .

I must also consider the risk of potential harm to the children and the possibility that the children's interests may be harmed by too broad an order: N.D.T. at para. 103 . [ 122 ] I am permitted to consider a person's conduct only if it substantially affects a factor set out below, and only to the extent that it affects the factor: Section 37(4) of the Family Law Act . [ 123 ] While it is common for parents to exercise parental responsibilities or decision-making in consultation with the other parent, I may determine that such consultation would be unreasonable or inappropriate in the circumstances: Section 40(2).

I do not presume that any particular individual shared or equal parenting time and responsibilities is in the best interests of the children: Section 40(4). As stated in A.B. v. C.B. 2015 BCSC 2134 at para. 35 : “The Family Law Act recognizes the significant advantage to a child of having a good relationship with both parents.” [ 124 ] In determining the best interests of the W. children, I must consider all the needs and circumstances of each child: Section 37(2) Family Law Act .

In addition to their general needs and circumstances, there are a number of specific considerations (both individually and ultimately as a whole) that apply to the W. children. They are found between s. 37(2) (

a) through (i). PARENTING ARRANGEMENT CONSIDERATIONS [ 125 ] I have applied the relevant criteria involving the best interests of the children, including those relating to family violence, to this family. It is important to note that: “Children learn the bulk of their parenting skills and attitudes from their own family circumstances.”: J.D.C. v. K.L.M.F.C. 2014 BCSC 2182 at para. 236 . [ 126 ] It is clear that both parents involved their children in their family dispute to a highly unacceptable level in this case.

While I detect some recent improvements in that area, I fear that the impact of their dysfunction may remain with their children for a long time. Health and Wellbeing of Children [ 127 ] First, I will deal with the health and wellbeing of the children factor. A good deal of this hearing has been consumed with the litany of complaints by each parent about their care of the children. I find that Ms. W. was in a state of chaos when Mr. W. left. She had been hospitalized for two long periods of time over one month. In the midst of this, when Mr. W. left the family, Ms. W. had not been in the home for several days.

She was recovering from her hospital stay. She was then left to deal with five children on her own, with no financial or other assistance from Mr. W. [ 128 ] Mr. W. moved into an already-established home with his current partner. The condition of Ms. W.'s home was extremely problematic before Mr. W. left the home. It degenerated further in the chaos when Ms. W. returned home. From August until October 2014, Ms. W.'s ability to parent the five children alone was off to a rocky start.

However, she improved her living conditions eventually such that the Ministry, who were entrusted to inspect her home, was satisfied. [ 129 ] Since that time, Mr. W. has made a series of accusations against Ms. W.'s ability to feed, clothe, clean and medically supervise the children. In the spring of 2015, all the children acknowledged the lack of cleanliness in their mother's home in the past, but indicated they now viewed the home as clean. They also indicated that they were properly fed, and then bathed at least once over the weekend.

From that point forward, as C.'s conflict with her mother increased, the more C. reportedly complained about the condition of her mother's home.

[ 130 ] I have not been provided with an October 2015 letter from C. to the court or any letter to her mother that cites bedbugs or threatening behaviour by her brothers. However, in her 22nd of December 2015 letter to her mother, which she left with Carol Ateah, she states that she is resisting visits with her mother "for now", and she provides reasons.

She expresses her dislike for always having to take care of D.; that her mother gets mad if C. does not take care of D.; insufficient privacy; that she feels that her mother tells her what to feel or say; not being able to call her father when she wanted to; that her mother talks "bad" about her father and Ms. T.; and that she does not like meeting or going with new people when she is at her mother's home. Nowhere does she mention any health, cleanliness or nutritional issues. [ 131 ] Each time Mr.

W. has contacted the Ministry of Children and Family, they have investigated and have found no child protection concerns, and closed the file. Each time Mr. W., and to a lesser extent Ms. W., have contacted all of these agencies, the children have been interviewed and re-interviewed. Most of the agencies dealing with the children note that the parents are heavily exposing their children to their conflict. [ 132 ] At this point, both parents obviously care for the wellbeing of their children. However, at various times, the health of their children became an offensive weapon in their dispute. Mr.

W. seeks to impose his parenting style on Ms. W. His approach is that if she does not meet his standards, then she must be a bad parent. However, different parenting styles can still benefit the children. The problem with Mr. W.'s approach is that it needlessly exposes their children to professional agencies and interviews.

The children are clearly tired of that. [ 133 ] When it comes to the health and wellbeing of the children, Carol Ateah made an excellent suggestion in her 21st of September, 2016 letter: both parents must have an understanding and agree that the other parent will have different rules for bedtime, mealtimes, homework schedule, house rules, values, et cetera. Each parent must keep their world separate and not ask their children about the other parent's world.

Most importantly, and I quote: Each parent will have to accept that a child may have fewer baths at one home, noisy homework environment, be given unhealthy food, keep a child from school, assign chores that are at a higher level of difficulty than age appropriate, or be given no chores, et cetera. While the above suggestion appears not to be in the child's best interest, what it can do is provide a way to reduce the conflict between the parents and help them to calm down and enjoy the children while in their home.

It gives the parents the opportunity to look lovingly into the eyes of their child and enjoy their special moments together. There is nothing more powerful for a child than to feel safe and seen by those whom they love. Child’s View [ 134 ] I turn now to the child’s view factor. Mr. W. dismisses the first Views of the Child Report as biased or somehow influenced by Ms. W. because the children were in her care when the interviews occurred. I reject this claim as unfounded. In the August 2015 report, P. preferred that both he and his siblings have very little contact with his father.

He saw that D. was confused and scared about the uncertainty of the family situation. C. preferred a week on/week off because it was easier for her. She considered their parenting abilities at that time to be equal. N. preferred to live with his mother and visit his father. He found that, as parents, his mother always did a good job while his father only sometimes did a good job. [ 135 ] In the September 2016 report, the writer refers to information from Carol Ateah. I note for the record that Carol Ateah was the counsellor for both Mr. W. and the children. Mr. W., N. and C. had 18 sessions over one year.

C. wrote a letter dated the 21st of December, 2015 that she provided to Ms. Ateah. In the letter, C. refused to attend at her mother's house for a variety of issues and conflict with her mother. She also told Ms. Ateah that she preferred to live with her father full-time. Nature and Strength of Relationship [ 136 ] I now deal with the nature and strength of the relationship between the child and each parent. D. [ 137 ] D. is now four years old. She has essentially grown up to age four in a divided home. She was too young to be interviewed by any of the agencies or the assessors involved in this case to date.

She appears to interact appropriately with both parents, though I note that she did experience adjustment problems when being passed back and forth between homes. N. [ 138 ] In April 2015, N. got along well with his mother. N. indicated that he had less in common with his father than his other siblings. He was more introverted and less sports-minded. It appeared that he had an easier relationship with his mother. His attitude to his parents is modified by their volatile relationship, of which he clearly disapproves. C. [ 139 ] I am now going to deal with issues of estrangement and possible alienation.

It is clear that C. is closer to her father and prefers to live with him. He also lives next door to her best friend, and she has become close to her step-siblings. She has experienced a difficult history with her mother, although it may be improving. The issue of estrangement or alienation has arisen. The second

Section 211 Views of the Child Report from September 2016 focused solely on C. and her parents. While I find some observations from that report helpful, this court received more information than the information provided to Mr. Finlay. Mr. Finlay concluded that C. was estranged but not alienated from her mother. He found that both parents contributed to this estrangement. He also found that this estrangement was also born from the existing close relationship between C. and her father. [ 140 ] I have closely examined the evidence on this point.

In particular, I have assessed the various factors of the estrangement and alienation spectrum as identified in the case of J.D.C. v. K.L.M.F.C. 2014 BCSC 2182 . The B.C. Supreme Court adopted the evidence of the clinical psychologist who provided expert evidence in neuropsychology, as well as child custody and access issues in matrimonial

disputes, amongst other things. Dr. Krywaniuk's apt observations reflect common sense. Like the court in J.D.C. , I accept Dr. Krywaniuk's observations generally, because they apply more generally and guide my assessment in this case. There is a continuum of alienation that ranges from complete attachment on one end to complete alienation on the other. Alienation can be advertent or inadvertent: J.D.C. at para. 178 . [ 141 ] I have asked myself the following questions.

Has the parent influenced the child in such a way that the child has become aligned with the parent against the other parent and is retreating from the other parent on the continuum of alienation? Answer: Yes. [ 142 ] Mr. W. has clearly influenced C. in such a way that she has become aligned with him against her mother. During the initial stages of the separation, it is clear that C. spent more time with her father. At that time, neither parent appropriately refrained from making derogatory comments about the other parent in the children's presence. Mr.

W. has also provided C. with the means and justification to withhold her affection from her mother. Example, allowing her to use the neighbour's home as a perceived safety refuge from her own mother. How has the relationship between the child and the parent changed over time? Answer: Significantly. [ 143 ] On the 8th of April, 2015, C. was interviewed by the social worker at Mr. W.'s home. C. told the social worker that she enjoyed visits with her mother and that they had a good relationship. C. and Ms.

W. had a more congenial relationship up to the spring of 2015 (when she interviewed for the August 2015 views of the child report.) This relationship deteriorated quickly over the summer and fall of 2015. C. maintained a stronger relationship with her father. The fall of 2015 was marked by drama and division. C. had retreated further from her mother by March of 2016, although there seems to have been some small improvement since. Ms. W. testified that she has seen some improvements, but I note her tendency to view her relationship with C. in a more positive light than may actually be the case.

Her assessment of their relationship in spring and summer 2016 was somewhat different from C.'s assessment during that time. Has the parents' conduct since separation significantly caused the realignment in the child's affections towards that parent and a corresponding rejection in the child's affection for the other parent? Answer: Yes. [ 144 ] In his 23rd February 2016 affidavit, Mr. W. described C. as having finally found the strength to stand up to her mother and tell her that she did not want to live with her in September of 2015. At that time, C. was eight years old.

Such a perspective clearly pitted the child against her mother. [ 145 ] I am disturbed that Mr. W. permitted or encouraged C. to write a letter to the court and brought her to court with the intention that she speak in court. (I think I might have her age wrong, I think she was 11 years old at the time.) I am somewhat prepared to accept that Mr. W. fundamentally misunderstood how family court matters operated on that occasion.

Nevertheless, his conduct directly inserted his young daughter into this family dispute on the 29th of September, 2015. [ 146 ] This conduct exacerbated the estrangement between C. and her mother, which was clearly demonstrated the next day on the 30th of September, 2015. C. refused to go with her mother after school, ran away from her mother and ran to her neighbour's house. This cast Ms. W. in the role of the bad guy until she capitulated and agreed that C. could remain at Mr. W.'s neighbour's home. This unnecessary drama involved an alarmed school staff who felt it necessary to alert Mr. W.; a dismayed Ms.

W.; a worried P.; a concerned P.S., Ms. W.'s friend; and neighbours willing to accommodate C. and Mr. W. Mr. W. watched the drama from his balcony and then the backyard. I find his efforts to improve the situation to be lacklustre. I agree that Ms. W. had no other recourse but to relent in the face of C.'s melodrama and the lack of appropriate parenting by Mr. W. in that situation. [ 147 ] Mr. W.'s friends, neighbours and his new partner, Ms. T., have played a role in the change of C.'s relationship with her mother. They have been understandably supportive of Mr. W.

They have made great efforts to integrate the children into their extended family and friends. [ 148 ] However, I adopt the words used by the B.C. Supreme Court in the decision of J.D.C. in similar circumstances: it is apparent that Mr. W.'s family and friends have not been sufficiently sensitive to Ms. W.'s role and the struggle regarding the loss of affection from C. Here is an example. At the hospital when a child was being attended to, Ms. W., Mr. W. and Ms. T. were present. When the hospital staff asked for the father and the mother, Ms. T. stood up. No matter her love for the children, Ms.

T.'s actions served to undermine Ms. W. and exacerbate the situation. [ 149 ] Most importantly, however, Mr. W. failed to appreciate that involving his extremely young child in the family court conflict was emotionally damaging to his child and her already fragile relationship with her mother. Between the 7th of August, 2015 and the 9th of March, 2016, C. missed a significant amount of parenting time with her mother, primarily because she preferred to be doing other things such as spending time with her best friend or simply refusing to visit her mother.

The text messages dated the 25th of October, 2015 that are described in the September 2016 report clearly show Mr. W. causing further divisions and conflict between Ms. W. and his daughter. [ 150 ] I also accept that he sought to obtain a legal advantage by encouraging conflict between C. and her mother. He also demonstrated, throughout these proceedings, a misunderstanding that C.'s short-term views overrode the long-term need for her to experience parenting time with her mother. Is that parent the sole cause of the current situation?

Answer: No. [ 151 ] To a lesser but still real extent, this retreat was also due to Ms. W.'s conduct with C. in front of others that embarrassed C., common mother/daughter conflict as a child enters adolescence, and C.'s dissatisfaction with the family's expectations when she stayed with her mother. Has the volatile relationship between the parents and their negative behaviour towards each other also contributed to the child's rejection of the other parent? Answer: Yes. Was the child obviously irrational and unpredictable on matters concerning the alienated parent?

Answer: Yes. [ 152 ] C.'s reactions have been intense and dramatic. It is clear that she enjoyed secretly communicating with her father while in her mother's care. Due to the actions of her parents, she appeared to have an "us", meaning her and her father, versus "them", meaning her mother and the rest of the world, attitude. In these circumstances, it was and is important for the child to understand that the parents are obliged to attend to the child's best interests, and her best interests may not align with the child's [C.’s] wishes.

Is there a concern that the other children may learn the alienated child's destructive behaviour, used by the child to manipulate the parents? Answer: I do not have sufficient evidence that this has occurred. [ 153 ] In the September 2016 report, C. indicated that she wanted to primarily live with her father and adjust the current parenting of one week on and off with each parent. She also wanted the other children to follow her preferred schedule. The intensity of her reactions combined with Mr. W.'s passive and encouraging reactions to her dramas concerns me. Children learn from the behaviour of their siblings.

They learn which limits their parents will or will not enforce. I note that Ms. T. informed the 2016 report-writer that Mr. W. was not a strong disciplinarian. In these circumstances, I am concerned that the other children might emulate C. as they get older. [ 154 ] Projecting to the children that it is "their choice" where they will spend their time is an abrogation of the parental role and creates a poor model for these children: J.D.C. at para. 238 . In the context of possible parental alienation, Dr.

Krywaniuk noted that a child can engage in manipulative behaviour of the parents: J.D.C. at paras. 170 -194 . [ 155 ] A child may assume the role of controlling his or her own circumstances as a way to reduce the child's own stress at being caught in the middle of the parents' conflict: J.D.C. at para. 170 - 171 . The child's belief that she is in control may influence the other children: J.D.C. at para. 172 - 175 . [ 156 ] The "easy way" for a parent is to accept the child's wishes at face value: J.D.C. at para. 174 .

This approach validates the child's strategy and ultimatums about running away if compelled to go with the other parent. While the agreeing parent may claim to simply "support" the child's wishes, this improperly permits the child to dictate his or her own parenting arrangement: J.D.C. at paras. 174 - 175 . This creates a risk that the other children may adopt this strategy with unhealthy consequences: J.D.C. at para. 175 . History of the child’s care [ 157 ] I have canvassed the history of the child's care, which is another factor under the best interests of the child test.

I have canvassed that history in the earlier portion of this decision. The child's need for stability given the child's age and stage of development [ 158 ] In the August 2015 report, all the children clearly indicated that they just wanted their parents to figure things out so they could have some stability. They were tired of talking about it. The ability of both parents to exercise their responsibilities [ 159 ] It is quite clear to me that both parents are capable parents, as long as they do not interfere with the other parent's world.

Nature and seriousness of the family violence: s. 38(a) [ 160 ] I have determined that the nature and seriousness of the violence was on the medium to medium-high end of the spectrum. It entailed physical, psychological and emotional violence. Recency and frequency of the family violence: s. 38(

b) and (c) [ 161 ] While I do not accept that it occurred as frequently as alleged by Ms. W. or B., I find that it was sufficiently regular that the children still remember it clearly. The studied indifference of the children on the videos was both sad and alarming. Psychological or emotional abuse constitutes or establishes a pattern of coercive and controlling behaviour directed at a family member: s. 38(d) [ 162 ] I find that the emotional and psychological aspects of the family violence have continued in a different form since the parties separated.

While it is exceedingly close to a pattern, I conclude that it demonstrates more Mr. W.'s fundamental misunderstanding about where to appropriately seek parenting help, and that his parenting style does not need to be imposed on Ms. W.

Impact on the children - the harm to the children's physical, psychological and emotional safety, security and wellbeing as a result of family violence: s. 38(g) [ 163 ] I conclude that the different children have suffered harm from their exposure to family violence in varying degrees. P. and C., on one end, have experienced more harm, while N. has been exposed to less harm. D. has been exposed to the least harm, only due to her young age. Nonetheless, the studied, matter-of-fact manner of the children towards the hostility between their parents is telling.

The reactions and deliberate non-reactions of the children in the videos both demonstrated that they had learned to live with family violence. The impact of the family violence on the children is pervasive and harmful. [ 164 ] It is clear that the children have been exposed to verbal and physical confrontations between the parents before separation. Since separation, both parents have failed to appropriately shield their children from their antagonistic and volatile relationship. Both parents' lack of insight on how their conduct impacts their children is very concerning.

Evidence of Emotional Impact [ 165 ] The next factor is the evidence of emotional impact, which I believe I have canvassed in other areas of this decision. [ 166 ] I note that none of the children expressed actual fear of their father. I consider the impact of their father's actions to be more subtle, but still emotional and perhaps subconscious. Mr. W.'s attitude and treatment of Ms. W. would necessarily affect the children's perception of their mother in both subtle and overt ways. This perception drove a wedge between Ms.

W. and C., and may drive a wedge between the children in the future. [ 167 ] It is reflected in how they walk on eggshells in dealing with each parent in matters that concern the other parent. It is clear to me that each of the children clearly tells each of the parents things that will lessen the child's stress and least interfere with what the child wants to do. Family Violence Directed at a Child or Exposed to a Child: s. 38(

e) and (f) [ 168 ] I have already dealt with family violence directed at a child, or the child being exposed to family violence, s. 38(

e) and (f). Any Other Relevant Matter [ 169 ] I turn to s. 38(

i) which is any other relevant matter. [ 170 ] I note that Ms. W. needs to recognize the impact of her outbursts on the dignity of her children. She has sometimes failed to recognize the children's need for social interaction with their peers. Both parents unacceptably involved their children in their conflicts, until more recently. I commend their improvements in this regard.

I am sure their children will appreciate these improvements, as well. [ 171 ] Regardless of whether the psychological and emotional family violence that has continued since the separation constituted a pattern of controlling behaviour, the emotional impact or damage on the children has been done. The best interests of the child is guided by the need to mitigate and repair, if possible, that damage in a way that still promotes a good relationship with both parents.

CONCLUSION: PARENTING TIME & ARRAGEMENTS [ 172 ] I now come to my conclusion with regards to parenting time and parenting responsibilities. [ 173 ] The issue of parenting time and parenting responsibilities are linked for this family, given the limited ability of the parents to communicate and cooperate. I note that: The court must be careful not to allow the parents' negativity towards each other because of the breakdown o

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