L.D.M. v. R.H.M. Date:, 2014 BCPC 98

Citation: L.D.M. v. R.H.M. Date: 20140331 2014 BCPC 0098 File No: F52218 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.D.M. APPLICANT AND: R.H.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Applicant: Christopher C. Rivers Appearing on their own behalf: R.H.M. Place of Hearing: Nanaimo , B.C. Date of Hearing: Jan.22, 23, April 11, 12, May 23 and July 12, 2013 Date of Judgment: March 31, 2014 Introduction [ 1 ] High conflict, hostile parental situations are not novel events in the court system. It is just such a circumstance that once again brings L.D.M. (the “Mother”) and R.H.M. (the “Father”) before this this court. At the centre of their continuing battle and caught between the combatants once more is their son, A.M.M., approximately 14 years of age (the “Child”).

Their continuing dispute now under the Family Law Act relates to guardianship, parental responsibilities, parenting time, and child support. Background of Court Proceedings [ 2 ] From a contextual perspective it is useful to review the extensive history of court proceedings between the Mother and Father (collectively the “Parents”) as they relate to the present matters to be decided by this court. [ 3 ] The Mother commence proceedings in this court by filing an Application to Obtain an Order under the Family Relations Act, R.S.B.C. 1996

chapter 128 (the “ FRA ”) on December 24, 2007. In it she sought an order for custody and guardianship of the Child, an order for child and spousal maintenance, an order for non-removal of the Child from School District 69, located in the Parksville Qualicum Beach area on Vancouver Island, as well as a restraining order against the Father from entering the family home and from molesting, annoying, or harassing the Mother or attempting to do any of the foregoing. [ 4 ] An ex parte interim order was granted by this court on December 24, 2007 (the “December 24, 2007 Order”).

In it the provisions concerning a restraint against any of the impugned behaviour was made reciprocal on both of the Mother and the Father and a non-removal order was granted, prohibiting either Parent from removing the Child from the Province of British Columbia unless by agreement or further order of the Court; the Father was also prevented from removing the Child from School District 69 on the same terms. [ 5 ] At the same time, again on an ex parte interim basis it was further ordered that the Father and Mother would share interim joint custody of the Child, with the Child being in day to care of the Mother and with the Father to have reasonable access, with his in-person access to be supervised; the Father was also granted reasonable email and telephone access to the Child between 8:00 AM and 8:00 PM.

The December 24, 2007 Order was set to expire on January 31 st , 2008. [ 6 ] By way of a Reply filed February 7, 2008, the Father sought by way of a cross application an order for the Father to have custody and guardianship, access to the Child and changes to the non-removal provisions contained within the December 24, 2007 Order. [ 7 ] A number of interim orders were made between January 2, 2008 and March 4, 2008 resulting in the Father gaining further access to the Child on a supervised basis.

The provision for a restraining order contained within the December 24, 2007 Order was extended but ultimately expired on March 31, 2008. [ 8 ] The Parents were before the court on April 2, 2008. At that time an interim, without prejudice order was made (the “April 2, 2008 Order”). The Mother and Father were granted joint custody and primary care of the Child was granted to the Mother.

Further provisions were made as follows: to permit the Father to have specified overnight access with the Child every weekend on Vancouver Island; for nightly telephone access calls between the Father and the Child between 7:00 and 7:30 PM; email access restrictions were place on any contact between the Parents except through legal counsel or to arrange access; an order was made for financial disclosure and the Father was required to pay Child support of $408 per month on annual guideline income of $44,000.00 pursuant to the Federal Child Support Guidelines (the “Guideline”) [ 9 ] On June 10, 2008 the matter came before the court again for a hearing to deal with the continuing problems of the Father’s access.

The Father sought to exercise access at his own residence in Greater Vancouver, which was being opposed by the Mother. She cited various concerns about the Child’s autistic condition and the interruption of his various treatments, if he were to be frequently travelling off of Vancouver Island; the Mother’s further concern was that the Father would not be as protective and mindful of the Child as she herself would be. [ 10 ] A detailed and comprehensive

schedule for the Father’s access on an every second weekend basis and also for other extended periods of access was established by the Honourable Judge Cowling in his reasons rendered on June 10, 2008. (the “June 10, 2008 Order”). Provision was made and responsibilities were allocated for the Child’s pickup, drop-off and transition meetings at the B.C.

Ferry terminals. [ 11 ] Parts of these ordered arrangements were based on the presumption of the availability and use by the Father of his flex day occurring every second Friday, which at that time, was a benefit made available by his employer, being a provincial government agency. Child maintenance was set at $460 per month on the Father’s Guideline income of $49,520. The issue of special expenses for the Child was adjourned generally on the basis that it may be brought back on application without further order.

[ 12 ] Unfortunately the various orders arising out of that that decision of June 10, 2008 were not reduced in writing to an approved final formal form of order until April 16, 2013. [ 13 ] As part of Judge Cowling’s reasons giving rise to the June 10, 2010 Order and which part was eventually incorporated to the approved form of order was a provision to the effect that: The parties may either agree to vary or apply to vary the access arrangements should more information become available, or there be a change in circumstances. [ 14 ] On December 20, 2010 the Father filed an Application to Change or Cancel an Order (being the June 10, 2008 Order) seeking alternating Christmas Day access and specified telephone access.

An order was granted on December 21, 2010 giving the Father Christmas 2010 access. The remaining matter was referred to mediation before a Family Justice counsellor, pursuant to Rule 5 of the Provincial Court Family Rules . Apparently this was not successful.

As I understand it, the Family Justice Counsellor determined that the very high level of conflict between the Parents in this matter made it inappropriate for that type of mediation. [ 15 ] On September 17, 2012 the Father filed another Application to Change or Cancel an Order (being the June 10, 2008 Order) and a Notice of Motion seeking “interim access” and “joint custodial custody and guardianship” and extended parenting time in the summer and alternating Christmases.

Based on the materials filed in support, the Father expressed concerns about what he alleges were steps taken by the Mother to frustrate his ability to obtain school information about the Child, to impede his regular telephone access with his son, and to impede his in person access to his son every second weekend (the transitions being made more difficult by a change in his work

schedule and loss of his flex days). He also sought a police enforcement provision. [ 16 ] An interim order for access was made in favour of the Father on September 17, 2012 (the “September 17, 2012 Order”). [ 17 ] The Mother filed a reply on October 1, 2012 opposing the relief sought by the Father and brought a cross application for sole custody, sole guardianship, access by the Father at the discretion of the Mother, child maintenance, special expenses and for a FRA

section 15 views of the child report. [ 18 ] On October 1, 2012 an order was made by this court for a Custody and Access Report to be prepared pursuant to

section 15 of the FLA with a “views of the child component” (the “October 1, 2012 Order”). Due to a purported error contained in the written request received by the Provincial Custody and Access Assessment Service only a “views of the child” report was prepared on November 16, 2012 and thereafter submitted to the court and the parties (the “Views of the Child Report”). [ 19 ] Based on the contents of the Views of the Child Report, the Mother sought and was granted an interim order on November 23, 2012, on a without prejudice basis (the “November 23, 2012 Order”).

In the Mother’s affidavit filed November 22, 2012 in support of her application, the Mother deposed as to her concerns that the Father would be angry and abusive towards the Child during the next access visit as a result of comments made by the Child to Lisa Bury, a Family Justice Counsellor, and the author of the Views of the Child Report. The Child’s comments appeared in that report. The November 23, 2012 Order suspended the Father’s in person access until the hearing of the application.

Provision was made in that order for the Father to have cell phone access three times per week to the Child with the direction that the Mother was to instruct the Child that he was to have the phone in his possession when the Father’s call was expected. [ 20 ] On January 22 and 23, 2013, the hearing of the cross applications filed by the Parents came before me. The

Section 15 Custody and Access Report had not been prepared. I dismissed the Father’s application for an adjournment but did so on the basis that each party would be entitled to re-open their cases upon receipt of the

Section 15 Custody and Access Report. Accordingly the hearing proceeded. [ 21 ] The suspension of in person access by the Father to the Child pursuant to the November 23, 2012 order was problematic for the preparation of the

Section 15 report. Therefore, I made an interim order on January 23, 2013 (the “January 23, 2013 Order”). In it I varied the November 23, 2012 order to facilitate telephone access between the Father and the Child, and made a provision to ensure that the Child’s cell phone was on and charged. I further permitted a supervised session of in person access by the Father to the Child to be held at least three weeks prior to the observation interview, necessary to complete the

Section 15 Custody and Access Report. The previous October 1, 2012 Order which ordered the completion that

Section 15 report was reaffirmed. I also ordered the Father to complete full and up-to-date financial disclosure no later than February 6, 2013. In addition, based on Guideline income of $59,687.62 the Father was ordered to pay child support of $552.60 per month to the Mother commencing February 1, 2013. [ 22 ] On April 11, 2013 the matter was back before me for a continuation of the hearing of the cross applications.

A further financial disclosure order was made (the “April 11, 2013 Order”) because of the continuing lack of compliance by the Father with the financial disclosure order contained within the January 23, 2013 Order. The Father ultimately complied with the new May 15, 2013 disclosure deadline. [ 23 ] The hearing of the cross applications continued on April 11 and April 12, 2013. [ 24 ] On April 12, 2013, Lisa Bury completed the report required by the October 1, 2012 Order and as reaffirmed by the January 23, 2013 Order. It was filed with the court on April 30, 2013.

That report (now being a “Section 211 Report” ) was completed and filed pursuant to

section 211 of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA” ) which came into force on March 18, 2013. The

Section 211 Report reflects the language and provisions of the FLA . [ 25 ] The hearing of evidence on the cross applications was completed on May 23, 2013. I made an order for written submissions to be completed within specified times with an outside deadline for the Mother’s reply being on July 11, 2013. I directed that the Parents have two weeks to come up with a mutually acceptable arrangement for the Father’s summer parenting time. I further directed that if an

arrangement was not reached by agreement then the Father was at liberty bring an application before me for a determination of this scheduling issue. [ 26 ] On July 12, 2013, by way of a Notice of Motion the parties were once again before me for the purposes of adjudicating on the Father’s interim parenting time for the summer months. The parties had been unable to resolve this issue on their own.

I made an order (the “July 12, 2013 Order”) that divided up the summer vacation from July 12, 2013 until September 3, 2013 and settled the arrangements for the highly contentious issue of the timing and method of transitioning of the Child between each of the parents. [ 27 ] At the same time I also made a further order for the Child to engage in six hours of counselling with the Father. The purpose of the counselling was intended to be a first step to healing the relationship between the Father and the Child. I ordered that Dr.

Janine Devyrie, a Child counsellor, be jointly retained by the Father and the Mother for this six hours of counselling and that the cost of the counselling, net of the amount payable by the Father’s extended health care plan’s contribution, be shared equally by the parents. [ 28 ] I understand that the parents are still engaged in litigation before the Supreme Court with respect to financial aspects of their relationship and the family home. Reference to that litigation was made in evidence at the April 2, 2008 hearing.

From the evidence before me I further understand that the sale of the family home, which continues to be occupied by the Mother and the Child, is a highly contentious, unresolved issue as between the Parents. Issues Before this Court [ 29 ] The issues before this court that must be decided are as follows: 1. Is the existing parenting arrangement created by the April 2, 2008 Order under which the Mother and Father were granted joint custody of the Child and with primary the care of the Child to the Mother still in the Child’s best interests; 2.

If not, what changes should be made to the existing parenting arrangements, having regard to the best interests of the Child; 3. Should there be an allocation of parental responsibilities for the Child beyond an equal sharing of those responsibilities between the Parents and if so what changes are required in the best interests of the Child. 4. If the Child remains in the primary care of the Mother then what parenting time should the Father have with the Child and specifically does that parenting time need to be defined by a court order.

Alternatively, if the primary care of the Child is shifted to the Father, what parenting time should the Mother have with the Child and specifically does that parenting time need to be defined by a court order. 5. What amount of child support should be paid by the Father to the Mother based on his change of financial circumstances, what amount of arrears are outstanding (if any) for child support and what should the sharing arrangement between the Parents be for special and extraordinary expenses, including past orthodontic care for the Child and the cost of medical premiums.

Relevant Provisions of the Family Law Act [ 30 ] For the benefit of the parties and ease of reference I have attached as Appendix A to these reasons the relevant provisions of the FLA along with certain regulations under the FLA to which I may make reference and rely upon in the course of my reasons as follows: •

Part 1 —

Interpretation “Definitions”; •

Part 2 - Resolution of Family Law Disputes and Division 1 “Resolution Out of Court Preferred” and Division 2 “ Family Justice Counsellors”; •

Part 4 – “Care of and Time with Children” and Division 1 “Best Interests of Child”, Division 2 – “Parenting Arrangements”, Division 3- “Guardianship”, Division 4 – “Contact with the Child”, and Division 5- “Compliance Respecting Parenting Time or Contact with the Child”; •

Part 7 “Child and Spousal Support” and Division 1-“Definitions”, Division 2- “Child Support”, Division 5- “General”, and •

Part 9- “Protection From Family Violence”; •

Part 10- “Court Process”, Division 4- “General Orders the Court May Make”, Division 5- “Orders Respecting Conduct” and Division 6-“Enforcement Generally” [ 31 ] Section 40 (2) provides that each guardian may exercise all parental responsibilities with respect to a child and must do so in the best interests of the child in consultation with the child’s other guardians, unless an order or agreement provides to the contrary. [ 32 ] No particular parenting arrangement must be presumed to be in the best interests of a child, including that parental responsibilities or parenting time should be shared equally or that decisions about a child should be made separately or by more than one guardian together. [See section 40 (4)].

[ 33 ]

Section 41 lists the parental responsibilities that may be allocated by agreement or court order such that they can be exercised by one or more guardians, each guardian acting separately or all guardians acting together. [See section 40 (3)]. [ 34 ] In

section 42 the term “parenting time” is stipulated to be the time that a child is with a guardian, as allocated under an agreement [see

section 44] or court order [see

section 45] and under section 45 (3) the court may order that parenting time be supervised. [ 35 ] During parenting time, subject to an agreement or court order that provides otherwise, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and will have day-to-day care, control and supervision of the child. [See section 42 (2)]. [ 36 ]

Section 49 provides that a guardian may apply to court for directions on an issue affecting the child. [ 37 ] Section 37(1) provides that the only consideration that the court must take into account in making an order or parties must take into account when making an agreement respecting guardianship, parenting arrangements or contact is the child’s best interests. In determining the child’s best interests, the list of factors set out in section 37(2) must be considered. The listed factors are non- exhaustive.

Section 37 (3) further stipulates that an agreement or order is not to be in the best interests of a child unless it protects to the greatest extent possible, that child’s physical, psychological and emotional safety, security and well-being. [ 38 ] The conduct of a person may be considered by the court only if it substantially affects any of the factors set out in subsection (2) and only to the extent that it affects that factor. [ 39 ] Two of the factors listed for consideration under section 37 (2) relate to family violence, as that term is defined in

section 1 of the FLA . Those subsections are: subsection (

g) requiring a consideration of the impact of any family violence on the child’s safety, security or well-being, whether directed towards the child or another family member ; and subsection (

h) requiring a consideration of whether the actions of a person responsible for family violence indicate that such person may be impaired in his or her ability to care for the child and meet the child’s needs; [ 40 ] Guidance is found under

section 38 when the court assesses family violence as a consideration in determining the best interests of a child. [ 41 ] Under section 37(2) (

j) the court and other decision-makers are required to consider the parties prior involvement in civil or criminal proceedings that may be relevant to the child’s safety, security and well-being. [ 42 ] The variation of a court order for parenting arrangements is governed by

section 47. The court may change, suspend or terminate an order for parenting arrangements if satisfied that there has been a change in the needs or the circumstances of the child. This includes any change in the circumstances of another person since the order was made. [ 43 ] Division 4 of the FLA deals with contact with the child. The time that a person who is not a guardian of a child has with that child is referred to as “contact”. This includes time for a parent who is not a guardian. The court may make an order that a person who is not a guardian have contact with a child [see

section 59] or the guardians may make an agreement about contact [see

section 58]. Again, the best interests of the child must be considered. The Witnesses Who Provided Evidence at the Hearing Witnesses for the Father [ 44 ] The witnesses for the Father were as follows:

a) the Father;

b) A.J.B. (the “Stepmother”) being current domestic partner of the Father and a ten year member and constable with a Lower Mainland Police Department, who at the time of hearing was on long term medical leave and was requiring extensive treatment for a serious disease; I have referred to her as the Stepmother although realistically that actual role was in the process of emerging when the Father’s access to the Child was being restricted. Witnesses for the Mother

[ 45 ] The Mother testified as the only witness in support of her case. Personal Background of Child [ 46 ] There is a significant amount of evidence about the Child from all of the witnesses including the information set out in the

Section 211 Report and the Views of the Child Report, both authored by Lisa Bury. [ 47 ] The Father, the Mother and the Stepmother testified about the Child in such a manner that I have concluded that he is a very affectionate, loving, caring and compassionate child. [ 48 ] He is described as by Lisa Bury as an “interesting and intelligent boy”, who can become anxious when in an uncomfortable situation.

He is also articulate and thoughtful when he is discussing an area of interest and feels secure in his surroundings. [ 49 ] The Child was professionally diagnosed in 2004 with autism spectrum syndrome level 6 and specifically Asperger’s syndrome at approximately age 4. The presentation of these syndromes in this Child are such that the Child apparently views things in very black- and-white terms. There apparently is no grey areas for him and matters are viewed by him in terms of absolutes such as “yes or no” and everything is “good or bad”.

The Child is susceptible or prone to anxiety which apparently peaks if things are not going well or in accordance with the Child’s perception of what is to occur. He finds structure and routine and predictability very comforting. He seeks to adhere to a routine in his

schedule including getting up at the same time every day, eating his main meals at the same time every day and retiring to bed at the same time in the evening. [ 50 ] The Child has received the benefit of working with several behavioural consultants over the past several years who have designed and implemented programs for the Child to target areas in which assistance is required. This includes skill building for the Child starting first with life skills, and then progressing through to communication skills and then to social skills.

As I understand it, the Child’s treatment centers around the use of the Lovaas Model of Applied Behaviour Analysis methodology (“Lovaas ABA”), described by the Mother as a positive reinforcement-based program in which negative behaviour is never re-enforced and in fact is ignored. The Mother has been instrumental in pursuing the diagnosis and seeking treatment for the Child and for learning about the Lovaas ABA methodology. [ 51 ] According to the

Section 211 Report and the evidence of the Parents, the Child is passionate and very enthusiastic about anything and everything to do with airplanes. He is described as an aeronautics fanatic. He apparently reads and watches as much as he can about the subject. His career goal, at this point, is to become an aircraft engineer. Attending the Comox Air Show on Vancouver Island is a highlight of the Child’s year and is a family tradition. [ 52 ] The Child was 13 at the time of the preparation of the

Section 211 Report and in grade 8 at a middle school in the Parksville- Qualicum Beach area. He is presently age 14 and is presumed to presently be in grade 9. [ 53 ] According to the Sections 211 Report, based upon the authors discussions with administrators at the Child’s middle school, the Child is regarded as an “above normal” student who is very cognitively capable. The

Section 211 Report records the school principal’s observations in the following terms: “The main areas of concern academically with [the Child] are when he gets stuck he will ‘dig in’ preventing himself from being able to move forward or focus. One of the strategies with [the Child] is to encourage him to go for a walk or to work in a quiet space. Another area where [the Child] is struggling is in his writing or scribing.” [ 54 ] The Child is reportedly receiving high levels of support and resources from the middle school including a designated support aide.

He is described as not having a large peer group but has one particular friend, described as his “best friend”, with whom he socializes both in and outside of school. The Child’s long-standing relationship with his school classmates has permitted “respectful relationships to develop”. The school principal reported to Lisa Bury about regular incidents where the Child became “agitated”, getting “very loud and aggressive with students” who would “give him his space and know not to react” because of their long standing knowledge of the Child. [ 55 ] The

Section 211 Report and the evidence of the Mother supports the notion that the Child has a close relationship with his stepfather, J.O., (“the Stepfather”) as well as his older stepbrothers. The

Section 211 Report and the evidence of the Father and the Stepmother supports the notion that the Child has also established close friendships with the children and families who are neighbours residing in the same complex as the Father and the Stepmother. The Child enjoys participating in a number of activities with them and is viewed as making a great contribution to the expanded family that these people represent. [ 56 ] The Mother speaks in terms of the Child now evidencing “typical teenage boy behaviour”. This is marked by “defiance” and “starting to speak his mind whether we want to hear it or not”.

The Mother, in particular, is pleased that the Child is demonstrating “typical behaviour” out of a Child that is on the autism spectrum. Personal Background and Financial Circumstances of the Mother Mother’s Personal Background

[ 57 ] The Mother is 49 years of age and resides with the Stepfather in Qualicum Beach, British Columbia, in the family home previously occupied by the Father and the Mother. [ 58 ] She has a grade 12 equivalent education and has been employed as a manager of a stand alone outlet for a specialty retail division of a building supply business in Courtenay, B.C for the last seven years. This requires her to commute a significant distance each day. The outlet staff that she oversees is relatively few in numbers at present time, given the poor local economic conditions.

Accordingly, the Mother’s duties require her to be at the outlet from 8 AM to 5 PM Monday to Friday and 9 AM to 4 PM on alternate Saturdays. She is responsible for opening and closing the store and her time at work may extend beyond the scheduled closing time to deal with customer demands. Her work

schedule and her commuting time require her to be away from home for long hours. [ 59 ] The Mother has been in a stable and supportive relationship with the Stepfather for the past couple of years. That relationship was established after the Stepfather and his two step children, aged 15 and 7, from his relationship with his deceased wife, had for financial reasons moved into the Mother’s residence following the death of that wife. Those step children now reside with their biological father. The stepfather has two older children, one attending university and the other residing within their local community area.

The Mother relies upon the Stepfather to assist with the Child’s needs when she is away from home due to her employment commitments. Their relationship is free of domestic violence. [ 60 ] She is well-established within her local community with a large number of friends and an extended family. [ 61 ] The home provided by the Mother for the Child is described as a “safe and comfortable environment” in the

Section 211 Report. Mother’s Financial Circumstances, Child Support and Special Expenses [ 62 ] The Mother’s employment income from her present management job for 2012 was $51,792.94. This includes a bonus amount based on the outlet’s performance, which she says could be adversely impacted by as much as $10,000 due to the poor local economic conditions. [ 63 ] Her sworn financial statement filed January 18, 2013 and her evidence discloses she also received a Worker’s Compensation (WCB) “wage loss” benefit in 2012 arising from a knee injury at work and resulting knee surgery.

In 2012 that amount was $11,650.00. [ 64 ] In addition she receives a WCB annual loss of use pension for her knee in the amount of $3,691.08 per annum. She therefore says that her total income in 2012 was $67,134.77. I understand from her evidence that she accepts that her annual income is usually therefore in this range of $67,000.00. [ 65 ] I note that she has not provided her 2012, 2011 and 2010 income tax returns and assessment notices which means that she has not fully complied with the usual financial disclosure requirements.

Therefore among other things, it is not clear on the evidence whether or not the WCB annual loss of use pension is subject to income tax. [ 66 ] The Mother testified that she believed that the Father had removed the Child from his extended health and dental plans at the time of or shortly after their separation in late 2007. She basis this conclusion on her inability to access payment for a prescription for the Child at a pharmacy.

Therefore the Mother has been paying approximately $672.00 per year in premiums for the inclusion of the Child’s on her extended health and dental plan, which she says provides 80% coverage but no coverage for any orthodontic work required by the Child. [ 67 ] Therefore she has incurred these orthodontic expense on her own without contribution from the Father or any reimbursement from his extended health and dental plans.

She says that at the time of separation the Child was covered by the Father’s extended health and dental plans and that the Father’s dental plan covered orthodontics. [ 68 ] Exhibit 5 and the evidence of the Mother reveals that she has incurred orthodontic expenses for the Child in the amount of $7,140.00. She has been paying off the orthodontic expenses for the Child as set out in Exhibit 5 on a monthly instalment arrangement of $230.00. [ 69 ] The Mother has been receiving child support payments from the Father as set out in Exhibit 3 since June of 2008.

She says that payments are less than the Guideline amounts that the Father should be paying and payments have been lowered unilaterally by the Father. She says the timing of the payments by the Father has been inconsistent. [ 70 ] She also says that since 2008 her legal counsel has been corresponding with either the Father’s legal counsel or the Father directly requesting updated financial disclosure from the Father and that until May of 2013 none had been provided. No evidence was led by the Father to contradict this assertion.

Personal Background and Financial Circumstances of the Father Father’s Personal Background [ 71 ] The Father is approximately 50 years old, resides in Maple Ridge, British Columbia with the Stepmother whose age is 42. He has been in a relationship with her for approximately 5 years and they have cohabited together in her three-bedroom, 3 bathroom townhouse for approximately 3 years. They have a stable and supportive relationship free from domestic violence or strife. The

Stepmother says that she would not tolerate it. [ 72 ] The Father suffers from depression issues, which in earlier times have been acute and for which he presently receives prescription medications. He is compliant with that prescription regime. [ 73 ] The Father completed his high school graduation requirements. Since then the Father has had a very varied career history. He worked in appliance sales, construction and construction project management, as an ambulance first aid attendant, and a product manager for an insulation company.

While living with the Mother, he trained at the Justice Institute of British Columbia in Victoria around 2000 and then obtained a job, on an on- call basis, as a correctional officer in the Provincial jail system on the British Columbia lower mainland. In the course of that job in December of 2003, he was seriously assaulted by an inmate and received a concussion; he ended up receiving Worker’s Compensation benefits for a period of about two years.

During this period of time he apparently was under the care of a psychologist. [ 74 ] In 2004 he attended Malaspina University College in Nanaimo for two years and received a diploma in Resource Management Officer Technology. [ 75 ] In September 2007 he obtained a job as a compliance officer with a provincial government agency based on the lower mainland of British Columbia. Prior to finally separating from the Mother, he had accommodation during the week on the mainland but returned home to Vancouver Island on the weekends. [ 76 ] In his present job, the Father is a member of the B.C.

Government and Service Employees’ Union (BCGEU). He has extended medical, extended health benefits and dental benefits. The Child is covered under his plan. The Father qualifies for and makes contributions to a government pension plan. This employment provides the Father with a stable and continuing career which the Father enjoys. [ 77 ] His work

schedule is 8:30 AM to 4:30 PM Mondays to Fridays. He works out of offices located in Burnaby, British Columbia although I understand that he also travels throughout the Province. Since November 2011, he no longer has the benefit of a flex day every other Friday. He has a relatively generous annual vacation allotment.

Father’s Financial Circumstances, Child Support and Special Expenses [ 78 ] The Father’s gross income in 2013 was projected to be in the amount of $60,782 per annum according to his sworn Financial Statement filed on May 14, 2013. [ 79 ] His sworn financial statement also confirms the following income for each of the prior years : a) 2008: $58,964.00 b) 2009: $59,318.58 c) 2010: $59, 530.00 d) 2011: $59,782.00 e) 2012: $60,251.00 [ 80 ] In the

Schedule 2-“Undue Hardship” provision of his sworn financial statements, the Father notes under the heading “Unusually high expenses for exercising parenting time or contact with a child” and that “ferry fares have jumped 45 % since he initially began picking up” the Child in Qualicum Beach and his annual cost to “attend the island” is $5,000.00 per year.

The Stepmother’s annual income is disclosed as $40,000. [ 81 ] The Father did not dispute the record of his child support payments entered as Exhibit 3, which does disclose a unilateral reduction in child support payments for eight months commencing in June of 2012, notwithstanding no apparent reduction in his income. There are numerous late payments ranging in duration from 1 to 25 days. [ 82 ] The Father testified that he never cancelled medical and dental coverage for the Child which is available under his plan and that it has been in place since 2001.

He says that he has orthodontic coverage for the Child which provides 80% coverage up to a maximum amount of $3000. He says that he has received no communication from the Mother with respect to the orthodontic expenses. The Relationship of the Mother and the Father and Step-parents [ 83 ] The Mother and the Father entered into a common-law relationship in June 1994, while on the lower mainland of British Columbia and then moved to Vancouver Island together around November of 1999. The Child was born while they were living together shortly after that move.

They resided together first in Bowser and then purchased a house in Qualicum Beach around March of 2000. [ 84 ] The Parents had another child born April 2, 2002 that was afflicted by a serious genetic defect, marked by extreme developmental delays that required highly specialized care. As I understand it that child was later adopted by another family in September of 2002. Overall this situation caused great emotional pain and stress for the Parents.

[ 85 ] For a variety of reasons the Parents’ relationship continued to deteriorate as a result of stresses over finances, loss of employment or underemployment, physical separations by reason of available employment, allegations of the Father’s alcohol problem and a loss of trust in the relationship.

By the time the Father gained his present employment, in the fall of 2007 the parties had essentially been living separate and apart under the same roof since around 2002 or 2003. [ 86 ] The Parents separated and ceased living together on Christmas Eve of 2007 when the Father returned home to find the locks on the family home changed; the police were called by the Mother and he was served with the December 24, 2007 Order including the restraining order. [ 87 ] The evidence supports the conclusion that the relationship has for the most part been very volatile, hugely dysfunctional and toxic.

There have been several mutual accusations of domestic violence and denials by each of the parties that they were the perpetrator of such domestic violence. Based on the evidence I have heard, even in the absence of physical violence, I am safe in concluding that historically this relationship has been marked by family violence as it is defined under sections 1 (

a) and (

d) of the FLA . [ 88 ] There has been prior police involvement at least three times while the Parents lived together as a couple and from what I can gather while the Parents were living separate and apart while under the same roof in the family home. There have been police concerns about firearms in the home and protective measures have taken by the police to remove those firearms. Each Parent apparently has significant training and certification in fire arm use. [ 89 ] The Parents have historically demonstrated that they are unable to communicate in a civil, effective and constructive fashion.

The Mother has essentially refused to communicate with the Father by means of phone or email.

Communication is usually routed through the Stepfather. [ 90 ] The Parents have also demonstrated that they are unable to find a constructive process for coming to long-term solutions for the various issues that have developed in their continuing relationship since separation and particularly as it relates to the Child. [ 91 ] They have chosen as a matter of course to bring their unresolved issues to the court for resolution, as is demonstrated above under Background of Court Proceedings heading. [ 92 ] There have been periods of time where they were able to make the provisions of the June 10, 2008 Order work. [ 93 ] However, for the most part they have viewed flexibility and cooperation as a weakness or sign of a concession and therefore they each rely upon their own notion of strict compliance with the terms of a court order or the necessity of the other person to do things the way that they demand of the other.

This has become the model for their mutually challenging and uncompromising behaviour. [ 94 ] Their interaction became particularly difficult after November 2011 when the Father lost his flex day and was therefore unable to regularly pick the Child up on Vancouver Island on his Friday parenting time transition day. On occasion the Father was able to travel over for the pick up or arrange for a close friend of the Father and a gentleman described by the Father as the Child’s “surrogate grandfather” to assist with the pick-up.

The Father became increasingly reliant on the Mother or Stepfather transporting the Child to the Departure Bay ferry terminal for the transition. [ 95 ] This necessity to coordinate and cooperate escalated the tensions between the Mother and the Father and further poisoned the working relationship or what remained of it. Each engaged in highly provocative behaviour towards the other. [ 96 ] The Mother viewed the Father as confrontational and demanding and the Father viewed the Mother as uncooperative and obstructionist.

This situation continued such the Father’s in person access time was significantly impacted and at the same time that the Mother refused to assist in facilitating the frequent telephone access. All of this led to the further applications of September 2012. [ 97 ] They appear to have continuing financial issues which remain unresolved. The main focus for their continuing war of attrition has been the Child.

Whether intentionally or unintentionally, the Child has become a pawn in the Parents’ continuing struggle with each other. [ 98 ] The Father concedes that the Mother is a good Mother but says that she has attempted to block his parenting time with the Child and has taken active steps to alienate the Child from him. [ 99 ] The Mother is much less generous with her compliments. There is no acknowledgment as to any positive parenting skills of the Father as it relates to the Child.

In fact the Mother seeks to characterize the Father both as lacking in good judgment as a relates to the Child and abusive towards the Child and that he is often placing the Child at risk, from time to time, when he exercises his parenting time. [ 100 ] The

Section 211 Report speaks in terms of the Mother describing the Parents’ relationship “with great vehemence.” That was also apparent in her testimony. [ 101 ] The

Section 211 Report speaks in terms of the Father having “a lot of anger towards” the Mother. Similarly, that was apparent in his testimony. [ 102 ] Regrettably both Parents have either intentionally or unintentionally brought their interpersonal dispute over the Child into the public arena at the Child’s school or have attempted to enlist and involve third parties as allies or for the purpose of finding solutions to the problems that they mutually create through their lack of cooperation. [ 103 ] Fortunately both the Mother and the Father have supportive partners.

The Stepfather and the Stepmother do not seem to actively engage in the high intensity dispute between the Parents. They provide support for their respective partners and are supportive of the needs of the Child. The Stepfather in particular has acted as an intermediary between the Mother and the Father as it relates to communication about the Child. The Stepfather’s attempts at being a positive intervener in the situation have failed to ameliorate the

situation. I conclude from the evidence that he has become very weary of attempting to fulfil this role. [ 104 ] The loss of the Stepparents performing a positive intermediary role will do nothing but heighten the discord between the Parents. There is a substantial risk of this occurring. It is hard to imagine that the existing dissonance could worsen.

Parental Relationships With the Child [ 105 ] The Child is fortunate to have two sets of loving, caring, concerned, involved and dedicated parents each who is supported by a stepparent who has bonded with the Child in a significant way. [ 106 ] The Mother has historically been a passionate advocate for the Child in terms of obtaining resources for the Child.

There have been occasions where she has been overly confrontational with organizations such as the School District. [ 107 ] The fact that the Mother and the Father have an extremely dysfunctional relationship has failed, for the most part, to detract from many of their respectively strong parenting abilities.

In one sense, they are both fortunate that their significantly impaired relationship has not completely prevented the Child from progressing and developing in a normal fashion. [ 108 ] However, Lisa Bury reports that the Child has experienced “a very toxic separation where he has had to listen to his parents vent about the other parent on numerous occasions.” It is clear from the evidence that the Child has been exposed to the toxicity of his parents’ relationship. [ 109 ] Based on my reading of the

Section 211 Report and the Views of the Child Report the best gift that his parents could give the Child would be to get along in a reasonably civil manner but “he has no hope that they will ever be able to be nice to each other and this has caused him a lot of anxiety.” [ 110 ] Based on the evidence it is difficult to identify any completely polarized differences in the parenting styles of the Father and the Mother. My sense is that the Mother has adapted her style to meet the Child’s special needs.

The time that the Mother and the Child spend together, outside of day to day matters, is more low key and home oriented; I daresay more relaxing. [ 111 ] The Father is aware of the Child’s special needs but has demonstrated some aspects of a parenting style that may be characterized as authoritarian and more demanding of the Child, including demanding attention and responsiveness from the Child.

The Father’s parenting time is quite diverse in nature, with a variety of outdoor and indoor activities and social engagements with other families. [ 112 ] The Father is much more emotional in nature and has allowed that emotion to boil over inappropriately in the presence of and to the detriment of the Child. In particular the Father screamed and swore in a very offensive manner in front of the Child about a transition problem that had occurred as between the Parents.

The Child has been marred by that event. [ 113 ] The evidence reveals several examples of where the Parents, either intentionally or unintentionally, have allowed their disputes to become known to the Child. Neither seems to want to assume any responsibility for this but rather attempts to place the blame at the feet of the other. By way of example, the financial dispute over the possible sale of the family home is a topic that should never be a topic of discussion in front of the Child nor should the Child be burdened or upset by any discussion of it in the Child’s presence or within earshot.

However if one is blinded by rage and hate, it is not surprising that the ability to detect the potential impact on a young child is unfortunately highly diminished. [ 114 ] The

Section 211 Report speaks in terms of the Child’s heighten nervousness and discomfort about visiting his Father during the course of the Father’s parenting time at his residence on the B.C. mainland. It is noteworthy that the Child spoke to Lisa Bury in terms of the notion of “supervised visits” with his Father. I find that such a concept being enunciated by a young teenager to be quite revealing. It raises the question in my mind as to who would have discussed such a concept with him and for what purpose. [ 115 ] The

Section 211 Report and the Views of the Child Report indicate a consistent theme of an erosion in the relationship between father and son, apparently starting in Christmas of 2010 when the Father unexpectedly presented the Child with the gift of a 22 calibre rifle. This is reported as having upset the Child. [ 116 ] The Child stated to Lisa Bury that he does not wish to visit his dad on the mainland and is reluctant to have visits near his home. [ 117 ] The suggestion made in the reports is that the Child was also discomforted by the Father’s large and constant number of telephone calls that have occurred.

There is heightened anxiety experienced about these calls in which the Father blames the Mother for any problems that arise with respect to the operation of the Child’s cell phone and is highly demanding in adhering to a strict

schedule for those calls. The Child seeks a more flexible

schedule with respect to those calls. I interpret that as wish for quality over quantity. [ 118 ] In the course of preparing the two reports, Lisa Bury observed the Father and Child together on two occasions and interviewed the Child on two separate occasions. In the

Section 211 Report Lisa Bury makes a very useful comment about the Child’s disclosure to her about eliminating his parenting time with the Father. She says as follows: Although [the Child] has expressed his wishes it is hard to imagine that he does indeed want to cut off all contact after observing him with his Dad. There is a connection between them that has been built on years of adventures and time spent together. It may be beneficial for [the Father] and [the Child] to see a family counsellor together that has experience with Children with Aspergers to facilitate some communication around the [the Child’s] anxiety and his feelings around his Dad.

[119] The recommendations contained in the

Section 211 Report are that: the Parents remain guardians of the Child; that the Child andthe Father attend counselling together; that the Father have parenting time at least one weekend per month on Vancouver Island until theChild decides to travel to the mainland; and that the Father have telephone access one day per week and at any other times at the Child’sdiscretion. Positions of the Parents With Respect to Guardianship, Parental Responsibilities and Parenting Time Positions of the Mother [120] The Mother seeks to dismiss the Father’s application and the relief that he seeks as set out in his written submissions. These arenoted in the

section below. [121] The Mother’s closing submissions regarding the relief she now seeks are somewhat different than what was being sought in hercross application contained in her Reply. Utilizing the new nomenclature of the FLA the Mother now seeks: a. That she continue to have primary residence and primary parenting time of the Child; b. That the Father have parenting time with the Child at her discretion; c. That, in the alternative, the Father have parenting time with the Child at the Child’s discretion; d. That the Father correspond by telephone or email with the Child at the Child’s discretion; e.

That any pick-up and drop-off of the Child for parenting time be the sole responsibility of the Father; f. That, in the alternative, pick-up and drop-off the Child for parenting time take place pursuant to the June 10, 2008 Order of JudgeCowling; g. That, in the further alternative to the above, the suggestions made by Lisa Bury, author of the

Section 211 Report, with respect toparenting time and telephone access, be implemented. [122] The Mother submits that the evidence before the Court supports all of these positions as being in the best interests of the Childand should be granted on the basis of the change in the needs or the circumstances of the Child, including because of a change in thecircumstances of another person [see

section 46 of the FLA]. [123] The change in the needs and the circumstances of the Child include the significant change in the relationship between the Fatherand the Child, especially as viewed from the perspective of the Child, as it is chronicled in the

Section 211 Report and the Views of theChild Report. The Mother also points to several incidents of what she characterizes as being relevant to “calling into question theFather’s judgment” as it relates to the Child. Examples relied upon include the gift of the rifle and a decision not to seek medicalattention for the Child’s ankle that turned out not to be sprained but rather broken. I understand that these examples are said to fit intothe notion of a change in the circumstances of another person. [124] The Mother relies upon Alexander v.

Alexander, (BCCA) in support of her position that considerable weightshould be placed upon the views of the Child as articulated in the two reports, given the consistency of those views and the fact that theChild is now a young teenager. Positions of the Father [125] In the Father’s written submissions, he opposes the relief being sought by the Mother, and he seeks the following orders:

a) that the each party be declared a guardian pursuant to

section 39 of the Family Law Act;

b) that the Mother and the Father share joint parenting of the Child;

c) that in the alternative, the Father have primary parenting of the Child and that the Child’s primary residence be with the Father inMaple Ridge B.C.;

d) that the Mother be ordered to seek the assistance of a psychologist in dealing with her issues toward the Father;

e) that the Parents share the costs of the Child’s counselling necessary to repair damage done to his relationship with his Father causedby the Mother;

d) that the counselling ordered for the Child to address these issues be split such that the Mother pays 60 % and the Father pays 40 %.

e) that should the Mother be made the “primary parent” that an order be made for the Father to receive all documents pertaining to theChild from the school, school district, medical, dental and any other agencies that may hold documents with respect to the Child;

f) that the recommendations contained in the

Section 211 Report “be set aside”;

g) that the Father be provided a home phone number for the Child;

h) that the Father have unrestricted telephone communication with the Child;

i) that the Child have his phone turned on and available between the hours of 6:00 pm and 8:00 pm, with the further proviso that should he not be available because of activities that the Child contact his Father to advise before such activities take place, thereby taking into consideration any possible functions or activities that the Child may have to attend;

s) that the Father have parenting time with the Child every second weekend;

t) that the Father have the Child for the first week of spring break, Good Friday to Easter Sunday, extended weekend parenting time for one additional day coinciding with school professional development days or statutory holiday but not for two days at Easter;

v) that the Father have a nine night extended sessions of parenting time to coincide with the Father’s weekend (as I understand it in July of each year) an that the Father’s parenting time be twenty one nights in August, with precise court directions for transitioning of the Child between the Parents;

w) that the Father have parenting time for a seven night period every second Christmas;

x) that the Father have parenting time for a seven night period starting on Boxing Day to January 2 in the year he does not have the Child for Christmas;

y) that in the alternative to a peace officer enforcement clause a conduct order pursuant to

section 222 be made and an order for relief to enforce conduct pursuant to

section 228 of the FLA be made.

z) that the Mother be ordered to return any and all personal documents (belonging to the Father) to the Father including all originals and copies. [ 126 ] As I understand his submission, the relief claimed is based upon what the Father says is the evidence before the Court. Such evidence supports the granting of all of these orders as being in the best interest of the Child and reflective of the change in the needs or the circumstances of the Child, including those changes arising from a change in the circumstances of another person [see

section 46 of the FLA ]. I understand those other persons who have undergone a change in circumstances to be the Father and the Mother. [ 127 ] The cited change in the needs and the circumstances of the Child include the fact that the Child is now older and better able to spend extended periods of time with the Father, including in the summer months when the Father is available and the Mother is apparently not due to her work commitments. It is submitted by the Father that an extension of the Father’s parenting time is necessary because of the fractures in the relationship between the Father and the Child arising, from the Mother’s attempts at parental alienation. Thus the

Section 211 Report and the Views of the Child Report demonstrate the level to which parental alienation has succeeded. Greater time spent together and further counselling of the Child are therefore required to counteract the Mother’s negative influence giving rise to the Child’s present attitude towards the Father. [ 128 ] The Father cites and places reliance upon L.G. v. R.G . 2012 BCSC 1365 , and the cases discussed therein by Mr.

Justice Brown, to support his contention that the Child’s existing attitude about him and the Mother’s various actions demonstrate that this is a case where I should make a finding that parental alienation is at play or possibly that as a result of the Mother’s actions the Child is now afflicted by Parental Alienation Syndrome (PAS). Analysis With Respect to Guardianship, Parental Responsibilities and Parenting Time [ 129 ] As a general comment the highly polarized positions of each Parent have one thing in common.

They are symptomatic of attitudes that can be characterized as “the winner takes all.” Most unfortunately the “table stakes” are the Child. The circumstances that they have created for themselves and the Child produce no winners but only losers. [ 130 ] I cannot conclude on the basis of the evidence that is before me that this is a case of parental alienation or PAS. I have no expert report or that would allow me to reach that conclusion about PAS. [ 131 ] In L.G. v. R.G . the court at least had some expert evidence to consider. As Mr.

Justice Brown noted, he had many of the examples of characteristics of parental alienation syndrome arising out of the facts before him. However, he concluded that he could make no findings in the absence of a valid psychiatric or psychological diagnosis within the psychological/psychiatric disciplines or in Canadian law. [See paragraph 205]. [ 132 ] As the court further noted in L.G. v. R.G . parental alienation as opposed to PAS focuses on the behaviour of the alienating parent.

The descriptors of that behaviour are outlined at paragraph 203 of that decision. [ 133 ] At first blush, some of the behaviour could describe the behaviour of the Mother. Similarly some of the behaviour could be attributed to the Father. This is not a case that will turn on a finding of parental alienation. It is a case that will turn on finding a way of dealing with the destructive behaviour that too long has marked the Parents’ relationship.

The fact that they have never been able to be reflective of what they can each do individually or collectively to improve their parental relationship for the benefit of and in the best interests of the Child is both telling and disturbing. Instead the Parents constantly default to their traditional behaviour pattern of hating and blaming the other. In my view this is far from being in the best interests of the Child. In fact I find it totally unacceptable. [ 134 ] Therefore I will now deal specifically with the consideration of the section 37(2) factors in assessing the best interests of the

Child. Section 37 (2)(a): The Child’s Health and Emotional Well Being [ 135 ] The Child’s health is not a significant issue in this matter. However the emotional well-being of the Child is certainly at play and of concern due to the extreme dysfunction of the relationship between the Mother the Father. I am not satisfied that on the basis of all the evidence that acceding to the most extreme positions of either the Mother or the Father that the Child’s emotional well-being, in the long term, will in any way improve.

The Child is obviously quite anxious as a result of being caught in the middle of the Parents continuing battles. A substantial portion of this anxiety revolves around the discharge of parental responsibilities by both of the Parents and the Father’s parenting time. In the absence of any likely or easily achieved agreement between the Parents, the court will have to deal with the Child’s emotional well-being through appropriate orders. Section 37(2)(b): The Child’s Views unless inappropriate to consider [ 136 ] I am drawn to the same conclusion reached by Lisa Bury in her

Section 211 Report that I referred to above and her reluctance to accept the Child’s view and his expression that he did not want to have further contact with the Father. One possible explanation of this expression for the Child is the Child’s apparent personality pattern, arising from his autism, of seeing things as black or white and as good or bad. There is no expert evidence about this before me to support such a conclusion.

But when all of the circumstances are considered, notwithstanding the views of the Child about not seeing his Father, in my view that type of significant limitation on parenting time is not in the Child’s best interest. Appropriate orders must therefore be put in place in order to at least give that fractured relationship an opportunity to heal. Section 37(2)(

c) The Nature and Strength of the Relationships between the Child and Significant persons in the Child’s life [ 137 ] While the

Section 211 Report identifies what appears to be a significant erosion of the Child’s relationship with the Father, it is also clear on the whole of the evidence that there are still elements of a strong relationship that can be built upon.

Notwithstanding the challenges in that relationship, the Child is fortunate to have a Father who has maintained an interest in him and a Stepmother who wishes to cultivate a relationship with him on her own behalf as well as to assist in improving the Child’s relationship with his Father and who is willing to support that improved relationship. [ 138 ] The Mother and the Stepfather’s relationship with the Child is paramount to the Child at present time. That is an important relationship to maintain since it provides the Child with nurture and necessary structure.

The most concerning aspect of their relationship is her undisguised hostility towards the Father, from which the Mother fails to adequately shield the Child. [ 139 ] It occurs to me that at some time in the future, when the Child is old enough to reflect back and analyse the long term impact upon him flowing from her anger and disregard of the Father, it may very well have a significant negative impact on the Mother and Child’s own relationship. At this point that is only speculation on my part but certainly should be a matter of concern for the Mother. Section 37(2)(

d) The history of the Child’s care [ 140 ] The Mother has played the predominant role of caring for the Child. The Father had a period of involvement when the Child was very young but since separation the Mother’s role has been by far the most important one. On the evidence before me, there is nothing that supports the suggestion that there should be a significant change in that historical care relationship, notwithstanding the Mother’s hostile behaviour towards the Father.

Section 37(2)(e):The Child’s need for stability, given the Child’s age and stage of development [ 141 ] Given the Child’s autism and Asperger’s Syndrome there is likely a heightened need for stability for this Child. Stability comes in many forms. Overprotection of a child and isolation of a child from another parent does not produce stability.

Attempting to force a parent’s notion of a relationship and placing heightened demands upon a child does not produce stability for that child. [ 142 ] In a reasonable relationship, most parents even with a high level of conflict will seek a smoother path to ensure a child’s stability. While the Child does enjoys a form of stability, that stability can be greatly improved by the Parents recognizing that their actions against each other are a significantly destabilizing force in the life of the Child.

Section 37(2)(f):The ability of each Guardian who seeks parenting time or parental responsibilities to exercise his or her responsibilities [ 143 ] Notwithstanding the significant attempts by both Parents to highlight the deficiencies and shortcomings of the other, I am satisfied that both have the necessary abilities requisite for them to exercise parenting time and parental responsibilities. Much of the evidence I heard was focused on perceived and real slights and highlighted historical wrongs between the Mother and the Father.

I anticipate that many of those were brought to the attention of Judge Cowling in the proceedings giving rise to the June 10, 2008 Order.

While there may have been newer mutual examples of unpraiseworthy behaviour on the part of each of the Parents, I have conclude thatthe constant theme from the evidence was the mutual inability of the Parents to take reasonable steps to co-operate with each other in intheir interactions as they related to the Child. Section 37(2)(g): The impact of family violence on the Child’s safety, security or well-being [144] Regrettably I cannot conclude that the parties have been able to go move beyond the family violence that has marked theirrelationship. They have moved beyond physical violence, as between each other, but the other unhealthy aspects of family violence, inparticular as defined in

section 1 (

d) of the FLA [psychological or emotional abuse of a family member] can be detected in this continuingrelationship. I have concluded that based upon the evidence before me, each of the Parents must bear a measure of responsibility for thecontinuation of this concerning aspect of their relationship. Each also bears mutual responsibility for their own behaviour and for findingproper means to address this concerning circumstance. I am of the view that further counselling for the Child and the Father to mendtheir fractured relationship is necessary unless the professional who previously provided the counselling pursuant to the July 12, 2013 isof a contrary view. Section 37(2)(

h) Whether the actions of a person responsible for family violence indicate that the person may beimpaired in his or her ability to care for the Child and meet the Child’s needs [145] On balance I have concluded that the level of impairment that may flow from the behaviour of each of the Parents is not of sucha level that it results in either being unable to care for the Child and to meet the Child’s needs. But I have concluded that to contain thatimpairment that arises from the Parent’s negative interaction then specific orders of the court will be necessary.

I have addressed thosein my conclusions and orders below. Section 37(2)(i): The appropriateness of an arrangement that requires Guardians to cooperate on issues affecting the Child, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the Child or other family members [146] There is ample evidence that there have and continue to be significant issues between the Parents in terms of cooperation. BothParents must bear a high measure of responsibility in that regard. Our Court of Appeal in Robinson v.

Filyk (1996) (BC CA), 28 B.C.L.R. (3d) 21 rejected the presumption that joint custody and joint guardianship under the FLA is appropriate only whenboth parents are excellent parents, there is a history of cooperation with respect to parenting of the child and there is no valid reason toexclude a parent from having a significant input into raising of the child. While there have been significant problems here withcooperation in the past, I am not satisfied that there is an overly significant risk to the safety and security of the Child or any other familymember that arises from the existing parenting arrangement.

I have noted above that there is a concern about the emotional well-beingof the Child resulting from the Parents’ lack of cooperation. It is evident to me that both sets of Parents must seek to utilize appropriatemeans of achieving co-operation and consensus when it relates to decisions that pertain to the Child and to arranging parenting time. [147] I have addressed these in my conclusions and the orders set out below.

Section 37(2)(j): Any civil or criminal proceedings relevant to the Child’s safety, security or well-being [148] So far as I can determine from the evidence there are no civil or criminal proceedings relevant to the Child’s safety or security. An early, appropriate resolution of the outstanding financial and property issues in the Parents’ Supreme Court action will be particularlybeneficial for the well-being of the Child. That resolution is beyond the jurisdiction of this court.

Conclusions and Orders With Respect to Guardianship, Parental Responsibilities and Parenting Time [149] I have reached a number of conclusions taking into account the relevant provisions of the FLA and in particular sections 37, 39to 43 inclusive and

section 45 and

section 47 and the multitude of issues relating to the highly conflicted relationship of the Parents. [150] Both parents will continue each to be guardians of the Child as that term is now used under the FLA. The Father will havereasonable and generous parenting time as that term is used under the FLA, subject to a defined

schedule and specific terms relating tothe transition of the Child between the Parents. There will be a sharing of parental responsibilities on specific court ordered terms. [151] I agree with Judge Cowling’s premise that in most cases it is not desirable for the court to micromanage issues between parents.

Unfortunately, this is one of those cases where the court may be called upon to intercede in matters which would normally be left toadults, who are mindful of their responsibilities as parents and act in a reasonable manner to find reasonable solutions to problems thatcan and should be solved by agreement. [152] That is not the situation in this case. Accordingly, there will have to be court orders to resolve what may be an unending seriesof disputes between these Parents.

Once thing I have considered is whether these Parents should be allowed to continue to usurp adisproportionate amount of court resources without first taking reasonable steps to resolve matters as between themselves. I haveconcluded that they should not. [153] The nature and type of communication or the lack of effective and constructive communication has been an ongoing challenge

for these Parents. Accordingly there will conduct orders for the parents as contemplated by

section 222 to 227 of the FLA to deal with this communication issue. In

part it is symptomatic of the dysfunctional relationship and also an underlying cause of it. In making those orders, I expect that they will serve the purpose of a constant reminder to them.

However, those orders should not be the subject matter of unnecessary applications alleging a failure by the other Parent to comply with a provision of the parental conduct order. [ 154 ] The Father’s parenting time of every second weekend as provided for in the June 10, 2010 Order and the behaviour of the Parent’s at the time of these frequent transitions is placing significant stress on the Child and offering yet another issue of major conflict. In addition the Father’s nightly “Phone Access” provided for in the April 2, 2008 Order is producing the same level of stress and another major conflict issue.

Appropriate changes are therefore required. [ 155 ] Thus there will be final orders on the following terms which will replace the April 2, 2008 Order, the June 10, 2008 Order, the January 23, 2013 Order and the July 12, 2013 Order and will henceforth govern: Guardianship and Parental Responsibilities 1. The Court is satisfied that the within named Mother and the within named Father are the guardians of the within named Child, date of birth December 14, 1999, under s.39(1) of the Family Law Act . 2. Each guardian will advise the other guardian of any matters of a significant nature affecting the Child. 3.

Each guardian will consult the other guardian about any important decisions that must be made and will try to reach agreement concerning these important issues and failing reaching an agreement, the disagreement will be resolved by the provisions of this order identified as the Dispute Resolution Provision. 4. The Child will primarily reside with the Mother, subject to the provisions that relate to the Father’s parenting time. 5.

Subject always to the duty to consult as set out in the order contained in paragraph 3 above, under s. 40(2) of the Family Law Act , the Mother will have the following parental responsibilities for the Child: (

a) When the Child is in actual primary residence care with the Mother and not while the Child is in the care of the Father for parenting time, making day to day decisions affecting the Child and having day to day care, control and supervision of the Child and making decisions respecting with whom the child will reside; (

b) Making decisions about where the actual location of the primary residence in which the Mother and the Child will reside provided that the Mother will not change that primary residence outside of the geographical boundaries of Qualicum School District No. 69, Province of British Columbia without further order of the court or the consent of the Father ; (

c) When the Child is in actual primarily residence care with the Mother and not while the Child is in the care of the Father for parenting time, making decisions about the Child’s education and participation in extracurricular activities including the nature, extent and location ; (

d) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Child including without limitation treatment for autism spectrum syndrome and specifically Asperger’s syndrome , provided that such parental responsibility to refuse or withdraw consent will not apply to any counselling of the Child pursuant to a court order and the Mother’s parental responsibilities set out in this

section will be subject to the right of the Father to exercise such parental responsibilities in the case of an emergency; 6. Subject always to the duty to consult as set out in the order contained in paragraph 3 above, under s. 40(2) of the Family Law Act , the Father will have the following parental responsibilities for the Child when the Child is in the care of the Father for parenting time: (

a) making day to day decisions affecting the Child and having day to day care, control and supervision of the Child and making decisions respecting with whom the child will reside ; (

b) making decisions about where the actual location of the residence in which the Father and the Child will reside during the exercise of the Father’s parenting time provided that the Father will not change that residence outside of the geographical boundaries of the Greater Vancouver Regional District or the Fraser Valley Regional District, Province of British Columbia without further order of the court or the consent of the Mother; (

c) making decisions about the Child’s education and participation in extracurricular activities including the nature, extent and location provided that no decision regarding education will conflict with the individualized learning plan of the Child that is in place from time to time with the Qualicum School District No. 69 ; (

d) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to emergency medical, emergency dental and other emergency health-related treatments for the Child (but not including the Child’s treatment for autism spectrum syndrome and specifically Asperger’s syndrome ) provided that such parental responsibility to refuse or withdraw consent will not apply to any counselling of the Child pursuant to a court order and the Father’s parental responsibilities set out in this paragraph will be subject to the right of the Mother’s rights to exercise such parental responsibility except in the case of an emergency; 7.

Except as set out in paragraphs 5 and 6 of this order, under s. 40(2) the guardians will share equally the following parental responsibilities for the Child:

(

a) making decisions respecting the Child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) applying for a passport, license, permit, benefit, privilege or other thing for the Child; (

c) subject to any other provision of this order, giving, refusing or withdrawing consent for the child, if consent is required; (

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

e) subject to any applicable provincial legislation, (

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

f) exercising any other responsibilities reasonably necessary to nurture the Child’s development; 8. In the event that guardians cannot reach agreement with respect to an important decision despite their best efforts and after compliance with the Dispute Resolution Provisions of this Order, the guardian to whom parental responsibility for that decision is assigned by this this Order is authorized to make the decision, provided however that the other guardian may under

section 49 of the Family Law Act , seek a review of any such decision if he or she believes that such decision is contrary to the Child’s best interest. Father’s Monthly Parenting Time 9.

The Father will have parenting time with the Child, unsupervised and on an overnight basis, on the third weekend of each month from Friday until Sunday commencing May 16, 2014, (the “Father’s Monthly Parenting Time” ) subject always to the Child Transition Provisions of this Order and the provisions that relate to extended stays due to statutory holidays and school professional development days, Christmas School Holidays and Easter Long Weekend Parenting Time, Thanksgiving and Family Day Parenting Time, School Spring break, School Summer Holidays Parenting Time and other special provisions contained within this Order. 10.

If the day preceding or following the weekend comprising the Father’s Monthly Parenting Time is a statutory holiday or school professional development day, then the Father’s Monthly Parenting Time will include that extra day or days, as the case maybe, except if it shall conflict with the allocation of the Mother’s sharing of Christmas School Holidays or of the Easter Long Weekend Parenting Time as set out in this Order . Shared Parenting Time at Child’s Christmas School Holidays 11.

The guardians will alternately share portions of the Child’s Christmas School Holidays such that the guardian who did not have Christmas Day with the Child in 2013 will have parenting time with the Child in 2014 commencing on the Friday afternoon at the start of the Child’s Christmas School Holidays to and including Boxing Day and the transition of the Child to the other guardian will occur on the day immediately following Boxing Day such that the Child will arrive at the ferry terminal in order to meet the other guardian and catch a noon scheduled ferry departure, and otherwise all

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