D.L.G. v. S.M.S Date:, 2015 BCPC 43

Citation: D.L.G. v. S.M.S Date: 20150227 2015 BCPC 0043 File No: F62505 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.L.G. APPLICANT AND: S.M.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Applicant: B.L. Day Appearing on their own behalf: S. M. S. Place of Hearing: Nanaimo , B.C.

Dates of Hearing: August 6, 7, 29 and October 8, 2014 Date of Judgment: February 27, 2015 Introduction [ 1 ] This highly contentious matter comes before this court pursuant to the Supreme Court of British Columbia consent order of the Honourable Justice Leask made May 28 2013, which directed this court to deal with the applications concerning the access of [S. M. S.] (the “Father”) to the children of the Father and [D. L.

G.] (the “Mother”). [ 2 ] That Order made by Leask J. (the “May 2013 SC Order”) followed the hearing of a Supreme Court appeal brought by the Father from a final order of the Provincial Court of British Columbia made December 7, 2012 (the “December 2012 PC Order”). [ 3 ] The December 2012 PC Order was made under the Family Relations Act , [R.S.B.C. 1996, c. 128 ] (the “ FRA ”) following a three day hearing that commenced in November of 2012, in which the Mother and the Father were contesting the Father’s access to their children (collectively the “Children”), namely: [S.L.S.], born [DOB]; (“Child S”) and [T.A.S.], born [DOB] (“Child T”) [ 4 ] The December 2012 PC Order subject of the appeal contained 5 specific provisions set out in several paragraphs as follows: Paragraph 1 ordered that the Mother was to continue to have sole custody and guardianship of the children.

Paragraph 2 ordered that the Father was to have no access to the Children. Paragraph 3 made an order for the Father to pay the Mother child support in the amount of $329.08 per month commencing January 1, 2012. Paragraph 4 stated that the December 2012 PC Order replaced all previous orders granted in this matter, of which there were a significant number.

Paragraph 5 prohibited the Father from making further applications to the court which “deal directly or indirectly with the Children without leave of the court”. [ 5 ] The May 2013 SC Order set aside the orders made in paragraphs 2, 4 and 5 of the December 2012 PC Order and returned the matter to the Provincial Court “to set Applications concerning the access of (the Father) with the children of the marriage.” [ 6 ] Other orders were made in the May 2013 SC Order including one pursuant to

section 233 of the Family Law Act , [S.B.C. 2011, c.25] (the “ FLA ”) granting the Father specific, supervised “parenting time” with the Children, “pending any further order of the Provincial Court concerning parenting time”. [ 7 ] I will have more to say below about the use of the term “parenting time” in the May 2013 SC Order. [ 8 ] At the same time Leask J. also made a restraining order pursuant to

section 183 of the FLA which restrained the Father from contacting, annoying, molesting harassing or communicating with the Mother and her parents or attempting to do any of the foregoing, but it did permit contact or communication necessary for the purpose of arranging parenting time with the Children [ 9 ] A further Supreme Court order of Madame Justice Holmes of the B.C. Supreme Court made on August 2, 2013 (the “August, 2013 SC Order”) dealt with applications brought by the parties in the Supreme Court concerning parenting time.

In those reasons Madam Justice Holmes confirmed that following the appeal and the making of the May 2013 SC Order, the Supreme Court had no further jurisdiction to deal with the fresh applications brought on by the Father to increase his parenting time and brought by the Mother to restrict the Father from seeking this relief. Holmes J. concluded that the applications of the Mother and the Father (collectively the “Parents”) were best heard in the Provincial Court.

Background of Court Proceedings [ 10 ] It is not particularly useful to extensively examine all of the background to the numerous orders that have been made in this on- going dispute which started in March 2011 and which has remained before the courts since that date. [ 11 ] From a legal and contextual perspective it is important to note certain of the multitude of orders made at different times up to and including the hearings that took place before the Provincial Court in November and December 2012. [ 12 ] First it is important to note that on February 6, 2012 a final order, by consent, was made by the Provincial Court under the then operative FRA granting the Mother sole custody and guardianship of the Children and granting the Father supervised access not to be less than once per week (the “February 2012 Consent Order”).

The Father was not present in court at the time of making of that order but previously on May 15, 2011 he had signed both a form of consent and a form of a consent order (that was never entered) confirming those consent provisions. [ 13 ] Issues apparently arose between the Parents with respect to the supervised access which supervision had been undertaken by the Mother and her parents. The matter came before the Honourable Judge Cowling on July 23, 2012.

After a hearing and the rendering of oral reasons by Cowling PCJ, an interim order was made that specified times for the Father’s weekly telephone access to the Children

and also specified the times for the Father’s in person access to the Children as every second Sunday (the “July 2012 Interim Order”). Further the July 2012 Interim Order provided that the Children’s residence was not to be changed from the Regional District of the Nanaimo without further court order. The Father’s then girlfriend, [A. S.] (“A.S.”) was named to be an access supervisor. [ 14 ] The Father’s access remained a highly contentious issue between the Parents. [ 15 ] Therefore the matter came back before Cowling PCJ on September 24, 2012 for a further hearing and the rendering of further oral reasons. This resulted in a variation of the July 2012 Interim Order. A three week rotating

schedule for weekend access was ordered, with one in-person access for the Father to occur in Vancouver and the others in Nanaimo. The supervision requirement was removed. This interim variation was put in place specifically to cover the interim period up to the completion of the hearing scheduled for November of 2012 in the Provincial Court.

That hearing eventually came before a different judge and resulted in the December 2012 PC Order. [ 16 ] It is useful to understand the background noted in and that gave rise to the December 2012 PC Order. [ 17 ] According to the transcript of the oral reasons for judgment rendered on December 7, 2012 the Mother was seeking to restrict access and the Father wished to have more access and specifically defined access to the Children. [ 18 ] Apparently a number of the background matters that came out in the evidence before me were also in front of the learned trial judge who made the December 2012 PC Order.

The learned trial judge examined the best interests of the Children as described in

section 24 of the then operative FRA when considering the primary issue before him, which was whether or not the Father should have “increased or any access to these kids”. Having posed this question, the court’s answer to the question was summarized in the following words: “Virtually everything, I must say, points to a negative answer…” [ 19 ] In his review of the evidence the learned trial judge noted that the Father did not work, even though he appeared to be capable of it, but rather he relied upon social assistance. He lacked a permanent place of residence. He misled the court about his actual residence.

He moved regularly, as was the case when he was living with the Mother, and often faced eviction. He had homeless periods, no car and no driver’s license. He relied heavily on his girlfriend A.S. for transportation, money and other things. [ 20 ] At paragraph 19 of the transcript of reasons the following observation is made by the learned trial judge: [19] I have no difficulty in concluding that [the Father] is totally irresponsible when it comes to money and obligations.

I have no difficulty concluding that he has a terrible temper; he is given to threatening, abusive and obscene language to his wife [the Mother] on a constant basis… or former wife. He gives the impression of being somewhat of a powder cake. [ 21 ] The learned judge stated in making his decision that the greatest emphasis be placed upon the “health and emotional well-being of the Children”. In doing so he concluded as follows: [23] I am more than satisfied that the Father is not a good influence on these Children.

He lives a very unstable life and that has always been the case, and I see no signs about stability coming in the future. [24] Mom is now stable. The kids are stable except after they go to see their Father. He likes seeing him, as I have said already, but when they return, they are quite agitated and using foul language and it takes some time to bring them to an even keel. [ 22 ] In paragraph 67 of the transcript, the learned trial judge specifically says, in part, the following directed to the Father: [67] … You have got to get some stability in your life; you have got to get some employment.

You have got to show that you are capable of being a sane rational person and not be abusive to everybody that you run in contact with. If you are able to do that, then you could make an application to the court, and the court would then open it up for reconsideration, perhaps.

I do not want to speak for any future court on what might happen, but clearly your chances are not good if you are like you are now. [ 23 ] The learned trial judge noted the significant improvements the Mother had made in her life following her separation from the Father while he was being held in detention in the United States for an immigration violation.

Those improvements included her attempts to find and to obtain appropriate employment to support herself and the Children, her success reconnecting with her own parents and involving them as very positive influences in the lives of the Children and her positive steps in dealing with some of the concerning behavioural issues demonstrated by the Children. [ 24 ] The May 2013 SC Order governed and defined the Father’s visitations with the Children until I made an interim order at the conclusion of the third day of the hearing on August 29, 2014 (the “August 29 2014 PC Order”). [ 25 ] The Father was granted unsupervised interim contact every second weekend from Friday after school to Saturday at 5:30 PM commencing September 5, 2014 and every second Wednesday, commencing September 10, 2014 from after school until to 7:30 PM.

The Father was also granted telephone contact every alternate Wednesday, commencing September 3, 2014 between 6:30 pm and 7:30 pm for a duration of 40 minutes to be reflective of the actual wishes of the Children. The Father was not entitled to remove the Children from Vancouver Island except on two occasions for an overnight family visit to the Lower Mainland under the supervision of A.S.

Other provisions were made to govern the conduct of the Parents especially during the transition of the Children between the Parents that had been particularly problematic. [ 26 ] On October 8, 2014 at the conclusion of the hearing before me, the August 29 2014 PC Order was, by way of a further interim order the (“October 2014 PC Order”), both extended until further court order and varied in order to provide for enrolment of the

Children in extra-curricular activities at least one day per week during the weekdays, at the expense of the Father. The Father was permitted to take the Children to that activity one day per week. Issues Presently Before the Court [ 27 ] The only issue that is before this court is that issue directed by Leask J. in the May 2013 SC Order, namely to deal with the access of the Father with respect to the Children. That term “access” as it was previously used under the FRA is now characterized as “parenting time” defined under

section 2 and under

section 42 the FLA. [ 28 ] I clearly identified the issue that I would be deciding for the parties at the outset, throughout and at the conclusion of the hearing before me. [ 29 ] Throughout the hearing the Father expressed the view that I should be dealing with a variation of the Mother’s existing sole guardianship of the Children and that a new shared parenting arrangement should be put in place.

Again, I have concluded that those issues are not properly before me. [ 30 ] I note parenthetically that the May 2013 SC Order utilized the term “parenting time” when making an order pursuant to section 233 (3) of the FRA to deal with the Father’ s access to the Children pending further order of the Provincial Court with respect to “parenting time”. [ 31 ] Under

Part 13 Entitled “Transitional Provisions” of the FRA ,

section 251 provides as follows: Transition — care of and time with children 251

(1) If an agreement or order, made before the coming into force of this section, provides a party with (

a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or (

b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access. [ 32 ] This transition provision is very significant in this case. [ 33 ] Given that there is an existing final order of this court being the February 2012 Consent Order made under the FRA granting the Mother sole guardianship and custody of the Children, she is and remains the sole guardian of the Children and has parental responsibilities and parenting time with respect to both of these Children within the meaning of the FLA. [ 34 ] Given that the Father has an order for “access” under the February 2012 Consent Order made under the FRA, which was subsequently varied as to the

schedule for exercise of that access by further interim orders of this court made under the FRA and given further that the Father does not have custody or guardianship of the Children, the Father therefore has “contact” with the Children under the FLA and he does not have “parenting time”. [ 35 ] In my view the above noted use of the term “parenting time” in paragraph 6 the May 2013 SC Order was in no way intended to change the status of the Father as it related to the Children’s guardianship or the parenting time or parental responsibilities.

In my view such a change in status would have to be specifically stated within the May 2013 SC Order. That language is absent. In addition those issues were not dealt with in the December 2012 PC Order, other than to reconfirm that the Mother remained the sole guardian as set out in paragraph 1 of that order.

Paragraph 1 was not disturbed by the May 2013 SC Order and therefore it and the guardianship provision of the February 2012 Consent Order remain in force. [ 36 ] Therefore, any futures change to the guardianship, parenting time, parental responsibilities or any other parental arrangements for the Children, in the absence of an agreement or a consent order, will have to be the subject matter of a fresh Application Respecting Existing Orders or Agreements. I will have more to say about that later.

Relevant Provisions of the Family Law Act [ 37 ] The applicable provisions of the Family Law Act that bear on this matter are:

Part IV, entitled "Care of and Time with Children," and in particular, Division 1 - “Best Interests of the Child”, especially s. 37 of the Family Law Act , and Division 4 entitled “Contact with the Child”; in addition,

Part 10 - “Court Processes”, and in particular, Division 4 - “General Orders the Court May Make” is applicable, especially s. 215, entitled “Changing, Suspending or Terminating Orders Generally” The Witnesses Who Provided Evidence at the Hearing Witnesses for the Father [ 38 ] The Father and A.S., who at present time is now the Father’s domestic partner, testified on behalf of and as part of the Father’s case. Witnesses for the Mother [ 39 ] The Mother testified on her own behalf. Lisa Bury, a Family Justice Counsellor and the author of the

Section 211 Report referred below was called to testify in the Mother’s case. In addition, the Mother’s present boyfriend [T H.] (“T.H.”) testified as part of

the Mother’s case. The

Section 211 Report [ 40 ] On July 15, 2013 the Honourable Judge Cowling made a further interim order to facilitate the Provincial Court hearing ordered by the May 2013 SC Order. Cowling PCJ ordered that a “Visitation Report” in accordance with

section 211 of the FLA be prepared. The terms of reference with respect to that report were outlined in the following language: “…aimed at determining, what if any visitation (the Father) should have with the children of the relationship…” [ 41 ] Judge Cowling also ordered that the Father provide true copies of any psychiatric reports and psychological assessments regarding the Father prepared by the Forensic Outpatient Clinic in Vancouver, B. C. [ 42 ] A

section 211 report was prepared on April 22, 2014 by Lisa Bury, in her capacity as a Family Justice Counsellor, employed by the Family Justice Report Service of the Family Justice Services Branch of the Ministry of Justice (the “Section 211 Report”). It formed part of the evidence in the hearing before me. The

Section 211 Report contains a views of the child component and a parental capacity component. The

Section 211 Report is comprehensive and generally useful. [ 43 ] As noted above, Ms. Bury also provided viva-voce evidence in the hearing before me. [ 44 ] One contentious issue as between the Parents relates to the scope of the recommendations made in the

Section 211 Report. As will be discussed below several of those recommendations exceeded the terms of reference outlined by Judge Cowling. Personal Background of the Father [ 45 ] The Father is approximately 35 years of age. He completed grade 11 in Nanaimo. He spent time in foster care.

He has no ongoing relationship with his parents and has only fairly recently re-established a relationship with his brother. [ 46 ] He testified that he maintains a relationship with his grandmother who is over 100 years of age, remains healthy and resides in North Vancouver, and has a relationship with her daughter who is in her 80’s. [ 47 ] He describes himself as having spent a decade in construction as the owner- operator of a business located initially in Nanaimo but laterally in Vancouver.

As I understand it, his trade is in dry walling. [ 48 ] He admits to previously dealing in illicit drugs but says that he has not done so since 2001. He admits to having had a bad gambling habit several years ago but says that it is no longer problematic for him. He only drinks alcohol occasionally. He testifies that he does not smoke marihuana anymore.

The evidence suggests that he last smoked marihuana about a year ago but there is some uncertainty about that date based upon some conflicting evidence and some contradictions in the evidence. [ 49 ] He testified that in December 2008 he faced financial reverses when he was not paid on a big construction job. He says that when this occurred, he “snapped” and then proceeded for a fairly length period of time to engage in the fraudulent internet sale of tickets for the Vancouver 2010 Olympic Games.

He was ultimately arrested, charged with fraud over $5,000, convicted and sentenced to a term of imprisonment for one year, pursuant to a conditional sentence order made in June of 2012. It permitted him to serve his custodial sentence in the community. The conditional sentence order required the Father to make thousands of dollars of restitution payments to his victims and to perform community work services.

He testified that he made the restitution payments but did not complete all of his community work service hours. [ 50 ] Apparently during the period of time that he was committing the fraud, the Father took the Mother and the Children to California on two separate occasions, for extended periods of time. He was ultimately arrested for immigration violations and was incarcerated in Texas for a period of it about 2 months awaiting deportation to Canada. [ 51 ] It was during this period of time and upon his arrest that he and the Mother separated. She fled back to Canada with the Children around January 2011.

He was deported from the U.S.A. in mid-March of 2011; upon his arrival back in Canada he was immediately arrested and charged with the fraud offenses. [ 52 ] While awaiting the disposition of his criminal charges the Father resided in Vancouver, sometimes in a homeless state. From approximately May of 2011 until July of 2014 he claimed and received social assistance payments from the Provincial Government. [ 53 ] In November 2011 he met A.S. and commenced to reside with her.

They apparently separated around August 2012 and while they maintained a form of a relationship they did not reside together again until the spring of 2013. There appears to have been two or three incidences of break ups and reconciliations.

A.S. would return to live with her parents often during the break up. [ 54 ] Both A.S. and the Father testified that at present they are in a supportive domestic relationship, described by her as “quite stable and flourishing now.” The Father in particular spoke of the tremendous emotional support and help he has received and continues to receive from A.S. [ 55 ] A.S. is 28 years of age. She holds a university bachelor degree in psychology. She has been employed as a special education aid and as an autism support worker. She has specialized training in applied behavioural analysis.

She has also worked as a behavioural support worker for children. Her training and her expertise has permitted her to work for at least three school districts in the Metro Vancouver area, both on contracts and on an on-call basis. She also finds employment as a one-on-one autism support worker with children in schools and on outside private contracts. She comes from a stable, fairly traditional South Asian family who are apparently supportive of her both financially as well as emotionally. She lived with her parents on a full time basis until age 24. She does not have any children of her own.

[ 56 ] A.S. has also provided the Father with significant financial support, as the steady income earner, throughout their relationship, apparently even during periods of their separation. [ 57 ] The evidence is that during the period from 2012 to 2014, with the financial backing of A.S., the Father engaged in a cash business enterprise that involved repairing and selling smartphones. From what I can gather, the Father earned approximately $100,000.00 of income between 2012 and 2014 from this enterprise. [ 58 ] Apparently, neither the Father nor A.S. have yet reported this income on any filed tax returns.

The Father’s says that neither has filed income tax returns for a couple of years but states that the intention is to declare the income as that of A. S. [ 59 ] The Father testified the welfare authorities are aware of his relationship with A.S. and the fact that they lived together. It is very unclear what steps the Father has taken to fully inform the welfare authorities about his involvement in the cash business enterprise.

He says that he leaves that to the Elizabeth Fry Society because of his past conflicts with the welfare authorities. [ 60 ] During the course of the hearing before me it was apparent that the plans of the Father and A.S changed quite significantly. As I understood their evidence, initially it was their intention to continue to live in Vancouver and to pursue financial and employment opportunities on the Lower Mainland unless there was a reasonable prospect of an increased opportunity to see the Children.

In fact, in her evidence A.S. expressed a significant number of reservations and a marked reluctance about moving to Courtenay on a full time basis, due mainly to her employment, her family and other aspects of her life. [ 61 ] Towards the end of the hearing I understood that the Father and A.S. were committed to relocating to the Courtenay area in order to facilitate greater opportunities for contact with the Children. In late August 2014 they had arranged for the rental in Courtenay of a two bedroom house with a den, close to the Children’s school.

They were scheduled to take up occupancy in October 2014, which I understood from the Father did actually occur. [ 62 ] I further understand from the Father that A.S. was seeking and had apparently obtained employment in the Comox Valley area, commencing in the fall of 2014, in her field of expertise.

The Father had started working again as a drywaller, first on the Lower Mainland area in September 2014 and then he had made some arrangements to work for a couple of drywall contractors in the Campbell River area, earning approximately $30 per hour, on a piecework basis. [ 63 ] The evidence suggests that the Father has significant anger management issues. Citing the fact that he grew up in foster care, the Father says that he has “always been angry”. [ 64 ] There is little to suggest that to date, the Father has taken any concrete steps in order to deal with his anger issues.

He says that he has not taken any anger management courses and contends that he has developed his own resources to deal with the issues. [ 65 ] As part of his conditional sentence order he was directed to attend for assessment at the Vancouver Regional forensic clinic operated by B.C. Mental Health and Addiction Services. [ 66 ] The first referral was made apparently around September 2012 and a file opened for him. That file was eventually closed in December of 2012 due to the Father’s non-attendance. [ 67 ] A second referral was made in January 2013.

His file with the clinic was closed in May of 2013 as a result of his “poor attendance, limited willingness to engage, no indication of mental illness and lack of clinical focus”. The Closing

Summary Report dated May 7, 2013 from the Vancouver Regional Forensic Clinic made the following observation: “[Mr. S.] made it clear that he was attending our clinic in order to fulfill his CSO requirements and found no benefit in attending our clinic. His presentation was irritable and responses to questions were monosyllabic. There were no overt signs of psychosis and no thoughts of self-harm/suicide.” [ 68 ] A.S. stated in her evidence a recognition on her part that she “cannot provide everything to the Father”.

I take that to mean that she cannot provide everything to him in order for him to successfully deal with his multitude of issues. [ 69 ] Also, so far as I can determine the Father has never taken any counselling to deal with his anger management issues. He did testify that he saw value in taking counselling in order to make him a better parent. Shortly before the commencement of this hearing on August 6, 2014 the Father had enrolled himself in the Triple P Parenting Program, citing a number of excuses for not engaging in that program at an earlier date, in accordance with the recommendations contained in the

Section 211 Report. Personal Background of the Mother [ 70 ] The Mother is age 33. She worked at the outset of her nine-year relationship with the Father but when she became pregnant with Child S she became a stay-at-home mother. [ 71 ] Following her separation from the Father in 2011, she returned to Nanaimo where she and the Children were taken in by her parents. She took some university courses to upgrade her academic standing. She realized that she needed to obtain a full-time job. She took her insurance fundamentals program in the spring of 2012.

She earned money working in a bar until she was finally able to obtain an insurance job in Port Alberni in November 2012. She commuted between Nanaimo and Port Alberni until January 2013, when she relocated her residence with the Children to Port Alberni. Thereafter, she was able to obtain a better job in an insurance brokerage firm in Courtenay commencing in January 2014. She relocated herself and the Children from Port Alberni to Courtenay at the end of December 2013. [ 72 ] She now has a stable job with good prospects.

She is now financially supporting both of the Children and herself with quite limited and irregular payments from the Father. I have concluded that the stability absent in her life during her relationship with the Father has finally been achieved to a reasonable level through her significant efforts.

[ 73 ] She testified that while she was in her relationship with the Father she was highly dependent upon money provided to her by her parents because of the Father’s failure to provide for her and the Children. She indicated that her parents easily provided an amount of financial support of $10,000 to her during the time she was in the relationship with the Father. [ 74 ] She formed a new relationship in the fall of 2013 with T.H. While they do not live together full-time, they do spend about half of their time together.

I understand it to be a stable and positive relationship. [ 75 ] T.H. is 38 years of age and works as a carpenter. [ 76 ] T.H. has a 15 year-old daughter and a 6 year old son. He shares parenting time of his children on a week on- week off basis with their mother. [ 77 ] T.H. is involved in the lives of the Children and has formed a mutually strong and loving relationship with them. He participates in their activities and assists the Mother with child care and transportation for the Children. He often assists in looking after a number of evening activities and for readying the Children for bed.

He often attends at the time of the transitioning of the Children between the Mother and the Father. Personal Background of Child S [ 78 ] The evidence supports that Child S is a physically healthy child. He is apparently “quiet and introverted” by his Parents according to the

Section 211 Report. The

Section 211 Report describes him as friendly and thoughtful. [ 79 ] At the time of the completion of the

Section 211 Report, Child S was 8 years of age and completing his second term of grade 3 in a new school in Courtenay. [ 80 ] His report card for that term was positive and demonstrated that he was meeting expectations in all of his courses. His teacher specifically commented that she was impressed by his politeness. Child S had adapted well to his new school and the new environment. Apparently he has the opportunity of seeing and enjoying his extended maternal family on a regular basis while residing in the Comox Valley. [ 81 ] He enjoys video games and building Lego.

Apparently he does not engage in a significant number of extra-curricular activities outside of school or the home. The terms of the October 2014 PC Order, in part, may address this concern. [ 82 ] The whole of the evidence supports a conclusion that Child S struggles with behavioural issues. This presents itself by what is described in the

Section 211 Report as “acting out in some abusive outbursts”. Often this inappropriate behaviour is directed at the Mother and previously had included some unnerving behaviour including physical threats against the Mother with a knife. [ 83 ] Child S has been adversely affected by the separation of the Parents and the high degree of conflict in their relationship. It apparently causes him significant anxiety. [ 84 ] He has been referred to the Child and Youth Mental Health to receive help in dealing with this anxiety.

It appears that there has been some recent improvement in his behaviour and he is demonstrating more respect towards his Mother and expresses concern about the untoward behaviour of his brother towards the Mother. Personal Background of Child T [ 85 ] At the time of the completion of the

Section 211 Report, Child T was 5 years of age. He was attending a day care center in Courtenay. I understand that he was scheduled to and did start school in Courtenay in the fall of 2014. [ 86 ] He apparently shares his brother’s love of video games and Lego. [ 87 ] The viva voce evidence and the

Section 211 Report describes some “concerning emotional behaviour” on the part of Child T. This is described as “aggressive and anxious behaviour” in the

Section 211 Report. This behaviour has necessitated a referral of Child T to a behavioural specialist. He receives extra support through the local Child Development Center while attending day care. The behaviour includes “signs of high anxiety such as chewing, pacing and watching rather than participating”. [ 88 ] Again according to the

Section 211 Report, both Parents apparently are concerned about Child T’s behavioural issues and “worry that he struggles with boundaries and rules”. [ 89 ] Child T’s behaviour includes physical and aggressive behaviour directed at his brother, Child S, and towards the Mother. He frequently calls his Mother a “bitch” and uses other highly unacceptable profane language.

In recent weeks he has stated to the Mother that it is all her fault that she will not let him see the Father. [ 90 ] In my view, it is highly likely that there is some significant correlation between this Child’s behaviour and his exposure to the conflict in the relationship between the Mother and the Father. The Relationship of the Mother and the Father [ 91 ] The evidence supports the conclusion that during the Parents’ time together their relationship was highly unstable, highly dysfunctional and plagued by a lack of financial support being provided by the Father.

The Mother testified that the Father was very controlling and would not even let her leave for visits with her family. [ 92 ] He was never physically violent with her but she was subjected to his violent rages, complete with damage caused by him to the physical surroundings, when she failed to accede to his demands.

[ 93 ] They never separated prior to the Father’s arrest on the U.S. immigrations charges. The Mother testified she could not figure out how to separate from him without facing the Father’s anger and his controlling behaviour. His arrest gave her that opportunity. [ 94 ] The evidence clearly supports the conclusion that the Parents have had very significant problems with their communication. Historically the Father has been angry, especially when dealing with the Mother and especially when it relates to the Children. He often resorts to yelling.

There are many times when the Father’s behaviour towards the Mother has been highly insulting, provocative and confrontational. The Father’s approach often evokes a negative and emotional response from the Mother. Unfortunately these highly unpleasant exchanges have occurred in front of the Children and specifically at the time of transitioning the Children between the Parents.

The transitioning becomes increasingly stressful when the Father is late returning the Children and when the exchange of the Children becomes protracted with extended good byes between the Father and the Children. [ 95 ] While the Parents may accuse each other of instigating conflict at the time of transitioning the Children, they both indicated to Lisa Bury that they struggle tremendously during the exchange of the Children and note that the use of third parties can be helpful. [ 96 ] There have been numerous occasions when A.S., who considers herself “an expert working with Children”, has raised concerns with the Mother, usually by way of email exchanges, about the concerning behaviour of the Children. [ 97 ] There is little doubt that the Mother has not welcomed this gratuitous advice, especially in light of the fact that the Children are receiving professional assistance arranged for by the Mother and the Mother is of the view that visits with the Father exacerbates their challenging behaviour.

This type of intervention has placed a strain on the relationship between the Mother and A.S., who is often left to deal with issues in dispute between the Parents and who has often lapsed into aggressively advocating on behalf of the Father.

The Mother expressed the concern that she feels bullied when she is trying to deal with the two of them. [ 98 ] The Mother views A.S. as an inappropriate supervisor and expresses concerns that she would not intervene on behalf of the Children, to ensure their safety if faced with inappropriate conduct by the Father. [ 99 ] As this matter has continued before the courts, the Parents have become more entrenched in their respective positions and both of them have demonstrated an inability to deal flexibly with accommodating any changes or requests made by the other party.

Parental Relationships with the Children [ 100 ] The Mother has historically looked after the Children and has attended to their needs. The Father played a role in the life of Child S as he was growing up and the Parents were together.

The Father played a much lesser role in the life of Child T due to the fact that the Parents separated when he was only approximately 2 ½ years of age. [ 101 ] The Mother has had to raise the Children with limited financial support from the Father and virtually none of his emotional support and encouragement since separation and while the Parents have been engaged in a pitched court battle over the Children. [ 102 ] The Father does concede that the Mother is a good parent who looks after the needs of the Children.

The Mother does not express the same views with respect to the Father. [ 103 ] She questions his motives for wishing to be an integral part of the lives of the Children at this point when, in her view, he was somewhat distant from them when she and the Father were together. [ 104 ] She expresses concerns about the lack of proper food, overindulgence in video games and a lack of a reasonable routine when the Children are with the Father. [ 105 ] The

Section 211 Report contains a Children’s views component. With respect to Child S, it describes him as having a “positive relationship with both parents”. He finds it very upsetting when the Parents fight at the drop-offs. He wishes it would stop. He expresses the wish to see more of his Father and to communicate with him. [ 106 ] Child T did not want to participate in the interview that was conducted in connection with the

Section 211 Report hence no specific views were expressed by him to Lisa Bury. [ 107 ] Based on the evidence before me, I have concluded that both of the Parents have not been prudent enough in shielding the Children from their conflicted relationship and both have, on occasions, inappropriately shared details of the litigation between them with the Children. Opinions and Recommendations Contained Within the

Section 211 Report [ 108 ] As previously noted the

Section 211 Report contains a parental capacity assessment of the Parents, but with a focus on the Father. [ 109 ] The

Section 211 Report describes the Mother as “a loving and concerned parent who is working hard to create a stable and comfortable environment for her Children.” It acknowledges the difficult process the Mother has encountered as a single parent to establish a consistent and solid foundation for the Children and her feelings of frustration with the Father’s lack of financial support and his abusive behaviour. [ 110 ] The

Section 211 Report describes the Father as “a concerned and passionate parent who presents as a sincere Dad looking to have more time with his children”. It goes on to say: “He does come across as a hyper person who can be easily agitated around the topic of his children and his time with them.”

[ 111 ] As part of the foundation work for preparing the

Section 211 Report, Lisa Bury had the opportunity to conduct a home visit for an hour and a half and to observe the Father and A.S. with the Children. That took place in an apartment that the Father and A.S. had rented in Courtenay. The rental accommodation was maintained from approximately December of 2013 to July of 2014. According to the evidence that apartment was given up because of financial constraints and the fact that the Father and A.S. maintained their primary residence in Vancouver. The

Section 211 Report discloses the favourable impressions that the Father and A.S. made in their dealings with the Children and the Children’s comfortable and positive responses to them during the relatively short period of observation by Ms Bury. [ 112 ] Ms. Bury did not observe the Mother and the Children together as part of a home visit because the Mother’s parental capacity and access was not at issue. [ 113 ] Under the heading of “Summary and Recommendations” contained in the

Section 211 Report, several important relevant and useful points are made by Ms. Bury as follows: (

a) the Parents have gone through an extremely high stress separation that has resulted in a high conflict and acrimonious parenting dynamic; (

b) both parties still acknowledge their concern and their difficulty communicating with each other; (

c) the Children’s exposure to this high conflict dynamic must be minimized because both are presenting issues around anxiety; (

d) it would be beneficial for both parties to work towards a healthy child-focused mode of communication. [ 114 ] The

Section 211 Report makes the following recommendations: (

a) both the Mother and the Father be the guardians of the Children; (

b) the Father have increased unsupervised “parenting time” every second weekend from Friday after school until Monday morning school drop and after school every Wednesday until 6:30 PM; (

c) the Father be able to participate in a sporting event or extra-curricular activity with both Children as mutually agreed upon; (

d) the Father participate in a parenting course; (

e) the Parents utilize email for child focused parenting time communication; (

f) the Parents utilize a third party and a neutral location for exchange of the Children; (

g) the Father not be under the influence of any non-prescription narcotics while the Children are in his care. Position of the Father [ 115 ] The Father submits that since the making of the February 2012 Consent Order which provided for his supervised access and since the making of the December 2012 PC Order which denied him any access to the Children, there have been a significant changes in his life.

He says that he has addressed many of the concerns about the lack of stability which were raised by the learned trial judge at the time of making the December 2012 PC Order. [ 116 ] He notes that he is now in a stable relationship with A.S., he is signed up for parenting counselling, he has found gainful employment and commenced making child support payments to the Mother. [ 117 ] He further submits that there should be no supervision of his access to the Children on the basis that it is neither necessary and it imposes a significant inconvenience and imposition upon A.S.

Notwithstanding the fact that he says that A.S. should not necessarily be required to be in attendance during any time he has with the Children, he views her as an important contributor to their lives and a full time part of his life. [ 118 ] He says that it is in the best interests of the Children that they have a male role model in their lives and there should be an opportunity for them to have a Father who participates in their extracurricular activities, such as sports.

He suggests that his time with the Children should be on a week-on week off basis. [ 119 ] He suggests that there should be a court order making the Father and Mother joint guardians of the Children. Positions of the Mother [ 120 ] The Mother submits that the sole issue to be decided is the Father’s contact with the Children.

The Mother further says that the Father has only expressed intentions of what he plans to do rather than having made any substantial changes to deal with the significant concerns raised by the learned trial judge following the hearing that gave rise to the December 2012 PC Order. [ 121 ] It is submitted that the steps taken to obtain employment, reduce his reliance on social assistance and to obtain stable housing are only very recently. It has taken the Father the better part of two years in order to institute any of these improvements in his life.

But most significantly what remains unaddressed is the Father’s temper and anger issues. [ 122 ] It is the Mother’s view that a staged increase in the Father’s contact with the Children is desirable. It is now suggested by her in submissions that the arrangements made in the August 29, 2014 PC Order remain in effect for a period of at least 6 months and then be subject to a review in order to determine the actual success made by the Father and the continuation of that success in establishing himself in the Courtenay area and achieving some real stability in his life.

[123] The Mothers further notes that considerable concern and weight must be given to the behavioural issues of the Children and thenecessity for them to receive professional counselling in order to deal with these issues. [124] As I understand it the Mother’s view continues to be that some form of supervision may be desirable if the Father wishes to takethe Children off of Vancouver Island to the Lower Mainland of British Columbia for visitations in which case specific court directionsfor the supervisor may be required.

Analysis [125] For the reasons mentioned above under the heading Issues Presently Before the Court I will be dealing only with myunderstanding of the issue set by the May 2012 SC Order namely what, if any access ( in this case specifically being contact) that theFather should have with the Children. [126] As noted above, the February 2012 Consent Order is a final order of this Court made under the FRA. By operation of thetransition provisions of

Part 13 of the FLA, in my view it is a final order with respect to the Mother’s entitlement for sole guardianship,parenting time and parental responsibilities for the Children and for the Father’s contact with the Children under the FLA. Orders for Contact [127]

Section 1 of the FLA defines “contact with a child” or “contact with the child” as: contact between a child and a person, other than the child’s guardian the terms of which are set out in an agreement or order. [128] Division 4 of

Part 4 of the FLA governs contact with a child. Under

section 58, a child’s guardian and a person who is not achild’s guardian may make an agreement respecting contact with a child, including describing the terms and form of contact. [129] Section 59 (1) grants jurisdiction to a court to make an order respecting contact with a child, including describing the terms andform of contact. Section 59(2) allows a court to grant contact to any person who is not a guardian, including without limitation, to aparent or grandparent. Section 59(3) allows a court to require contact to be supervised. Jurisdiction of the Court to Vary an Order [130] The jurisdiction of this court to change, suspend or terminate an order for the Father’s contact is found in

section 60 of the FLAwhich provides: Changing, suspending or terminating orders respecting contact 60 On application, a court may change, suspend or terminate an order respecting contact with a child if satisfied that, since the making ofthe order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances ofanother person. [131] Therefore the stated condition precedent that must be met under

section 60 is a change in circumstances. [132] The same type of threshold test appears in

section 47 of the FLA which is a condition precedent to a court changing, suspendingor terminating orders respecting parenting arrangements. [133] The same type of threshold test of there being a change in circumstances since the making of an order is contained in the generalpower for a court to change, suspend or terminate an order, which is found in

section 215 of the FLA. [134] The FRA, (being the predecessor to the FLA) and the Divorce Act, RSC 1985, c.3 both contain a similarly worded threshold testswhich essentially requires a change in circumstances when considering the variation of an order that deals with custody, access and otherarrangement with respect to children. [135] The question then is what is the nature of that change in circumstances? [136] The Supreme Court of Canada has considered the threshold test of a change of circumstances. The Supreme Court characterizedit as having to be a “material change” [see: Gordon v.

Goertz [1996] CanLII 191 (SCC), [1996] 2 SCR 2 at paragraphs 12 and 13]. [137] In that case McLachlin J. (as she then was) noted that change alone is not enough to meet the threshold. Therefore the changemust “have altered the child’s needs or ability of the parent to meet those needs in a fundamental way.” [138] Gordon v.

Goertz states: It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;(2) whichmaterially affects the child; and (3) which was either not proceeding or could not have been reasonably contemplated by the judge whomade the initial order. [139] The threshold test of the existence of a material change continues to apply under the FLA when considering the variation of anorder under

section 47 and section 215(1) [see: J.V.G. v. E.T., 2014 B.C.J. No. 3245 at para 16; followed in E.A.H. v. C.R.H.,2015BCPC 13 and also see Jellis v. Jellis , 2014 BCSC 375 ]. I am of the view that the same type of test applies when considering achange, suspension or termination of a contact order under

section 60 of the FLA, given the same wording that appears in sections 47,

section 215(1) and in

section 60. [140] The authorities further suggest that a material change in circumstances is a condition precedent to varying a consent order inrelation to parenting time or parenting responsibilities [see: E.A.H. v. C.R.H. supra, at para.7 and the cases referred to therein: Jellis v.Jellis supra; J.W.M. vs. J.L.M. 2012 BCCA 324 ].

I am of the view that same should be said about varying a consent order as itrelates to contact with a child. [141] Besides the three sections of the FLA referred to above that have this threshold test, the FLA makes separate reference in at leasttwo other separate sections to satisfying a threshold test before changing an order, which continues to be a material change incircumstances [see

section 152 re: changing child support orders and

section 167 changing spousal support orders]. In my view thelegislature by referring to the test in at least five separate sections intended that there will be a separate examination of the threshold testin each of these set of circumstances. I conclude, especially with respect to sections 47 and 60, that a material change of circumstancesthat may satisfy one of those sections in order to make a change in an order, may not necessarily satisfy a material change ofcircumstances in the other section. They must be considered separately. [142] Therefore a change may be a material change under

section 60 but in fact may not amount to a material change under

section 47of the FRA. It maybe that the material change is sufficient to change the contact of a non-guardian parent but that material change maynot be sufficient to be a material change that allows the court to vary the guardianship of a child to include the non-guardian parent.

Consideration of Any Material Changes in Circumstances [143] At the time that the February 2012 Consent Order was made the circumstances of the Parents and the Children weresignificantly different than at present date. [144] The Mother was still striving to obtain stability in her life, gain steady and remunerative employment and to establish a stableand supportive home for the Children. No appreciable financial support was forthcoming from the Father for either her or the Children.

She was living in Nanaimo and receiving significant emotional support for herself and the Children from her own parents. [145] Child S was then only approximately 5 ½ years of age and Child T was then only approximately 3 years of age and both werecontinuing to reside with the Mother in a state of flux.

They were not able to engage in any extra-curricular activities duly mostly to theirage and apparently also for financial reasons. [146] The Father was still facing serious unresolved criminal charges, chronic unemployment, lack of financial means, a lack of stablehousing (having previously experienced periods of homelessness), was a frequent user of marihuana and generally lacked any reasonablelevel of stability in his life. He was residing in Vancouver.

Visitations with the Children required him to commute by ferry to VancouverIsland. [147] I have set out above in my review of the background of the Parents and the Children the changes in the circumstances in thelives of each of these individuals that have occurred since the February 2012 Consent Order was made.

Some are very positive materialchanges, some demonstrate a moderate but nonetheless material change and some represent a quite concerning material change. [148] I have concluded that based on the whole of the evidence, and the past and now the present circumstances of each of Parents andthe Children, that the Gordon v.

Goertz test of a material change in circumstances has been satisfied in order to allow this court toconsider changing, suspending or terminating the existing provision in the February 2012 Consent Order, as it relates to the Father’scontact with the Children, as contemplated by the FLA. [149] In particular there has been a change in the condition, means, needs and circumstances of the Children and the ability of both ofthe Parents to meet the needs of both Children. I am also satisfied that these changes materially affect the Children.

Also they could notnecessarily have been reasonably contemplated by either the Parents or by court at the time that the February 2012 Consent Order wasmade. [150] I must be very clear that I am in no way deciding nor are any of my findings or my remarks to be interpreted as saying that thethreshold test has been reached under

section 47 for there to be a change, suspension or termination of the existing guardianshiparrangement or the parental responsibilities flowing from the February 2012 Consent Order. Consideration of the Father’s Contact with the Children [151] Therefore the threshold test in

section 60 having been met and I will now consider the question put before me regarding thecontact, if any, that the Father is to have with the Children beyond what is provided for in February 2012 Consent Order. [152] Under Section 37 (1) of the FLA the making of any order respecting contact with a child requires the parties and the court toconsider the best interests of the child only. [153] Section 37 (2) provides that to determine what is in the best interests of the child, the needs and the circumstances of the childmust be considered. Thereafter a non-exclusive list of factors to be considered is set out in subsections 2(

a) to (j). [154] The best interests of the child are the only consideration for the court. [see: Hadjioannou v. Hadjioannou, 2013 BCSC 1682]. [155] Each of the section 37 (2) factors must be separately considered but in the end the evidence has to be considered as a whole. [seeM. W. B. v. A.R.B., 2013 BCSC 885]. Consideration of the Section 37(2)- Best Interest of the Child Factors

[ 156 ] Therefore next I will deal with the consideration of the section 37(2) factors. Section 37 (2)(a): The Children’s Health and Emotional Well Being [ 157 ] As has been noted above, the evidence is that the emotional well-being of each of the Children is being adversely affected by the high level of conflict between Parents. A clear symptom of this is the highly challenging behaviour of both Children. [ 158 ] As is also noted above, the center of that conflict is the Father’s desire for increased contact with Children and the Mother’s reluctance to permit it. [ 159 ] The behavioural therapist contacted by Lisa Bury and referred to in the

Section 211 Report does not necessarily support the Mother’s contention that there is a correlation between Child T’s troubling behaviour and his weekend visits with the Father. [ 160 ] The indication from the behavioural therapist is that Child T struggles with these behavioural issues on a regular basis.

It is a reasonable inference for this court to draw that a reduction in conflict between the Parents will be of some assistance in dealing with the emotional and behavioural issues of the Children and together with obtaining necessary assistance and advice from qualified professionals, which the Mother is presently doing. [ 161 ] A.S. may be very well-meaning in offering suggestions about the Children’s behaviour to the Mother and she is likely useful in supporting the Father to refine his parenting skills.

However, in my view it would be best to allow the Mother to pursue advice from an independent, third party professional to assist in improving the Children’s emotional well-being. Section 37(2)(b): The Children’s Views unless inappropriate to consider [ 162 ] As noted previously, the

Section 211 Report does present the views of Child S. Child S wishes to have more contact with the Father. He is of a sufficient age where it is appropriate to get some weight to that wish. However he is also of an age where he is unaware some of the other important factors that are in play and must be taken into consideration when considering the Father’s contact and the Child’s best interests. Because of the reluctance of the Child T to be interviewed, little can be distilled about that child’s views concerning increased contact with his Father. The

Section 211 Report suggest that Child T does provide some emotional and behavioural cues that suggest that he favours some increased level of contact with the Father. [ 163 ] Given the reaction of the Children on an occasion when they hid the cell phone used to receive telephone contact from the Father, the Father should be aware that the quality of the engagement in telephone discussions and the level of a child’s engagement should override the quantity of time spent. The Father should be very cautious in seeking to utilize every possible moment of any period of scheduled telephone contact when the engagement of the Children is not evident. Section 37(2)(

c) The Nature and Strength of the Relationships between the Children and Significant persons in the Children’s Lives [ 164 ] I have no doubt that the Mother has a strong and loving relationship with both Children notwithstanding the behaviour and disrespect that is shown to her by them. [ 165 ] She and her own extended family have been the significant source of stability in the Children’s lives from the time of their respective births notwithstanding the significant challenges the Children have endured both before and following the separation of the Parents. Mr.

H. now plays an important role in the lives of both of the Children. [ 166 ] The Children’s relationship with the Father is different. He has not provided them with much in the way of stability and very little in the way of financial support. Child S has a strong bond with the Father. Child T is still formulating the bond with the Father.

I have no doubt that the relationship that the Father shares with the Children is a loving one. [ 167 ] The evidence supports the conclusion that since the time of separation of the Parents, the Father uses the available time that he has had with the Children to show them an enjoyable time, free from daily responsibilities and duties. Visits with the Father are not dissimilar in nature to attending a party or going on a play date. Time with Mother is in fact the reality of life. [ 168 ] A.S. has been able to form a positive, caring relationship with the Children.

That relationship has become an important one for all three of them. Section 37(2)(

d) The history of the Children’s care [ 169 ] The Mother has been the primary care giver for both of the Children both before and after the Parent’s separation. She has discharged those responsibilities competently. The evidence also suggests that that the Father has been significantly less hands on with the care of the Children during his time with the Children. I have concluded that in recent months significant reliance is placed upon A.S. by the Father to assist with the care of the Children.

Section 37(2)(e):The Children’s need for stability, given the Children’s ages and stages of development [ 170 ] Both Children are in need of maintaining stability in their lives having regard to their respective ages and levels of development. Achieving an appropriate level of stability for them has been a prime focus for the Mother.

Until quite recently, the Father had demonstrated a significant lack of appreciation for what is actually necessary to ensure stability in the lives of the Children, which has been demonstrated both through his actions, prior to and after the Parent’s separation, and through his particular lifestyle. Section 37(2)(f):The ability of each of the Parents who seeks parenting time or parental responsibilities or contact to exercise his or her responsibilities

[ 171 ] The evidence clearly supports that the Mother has good parental capacity to act as the guardian for the Children, to look after them on a daily basis and to exercise her parental responsibilities. She recognizes the behavioural challenges that her Children present and is taking appropriate steps to deal with the concerns. Therefore I have concluded that she has succeeded in ensuring that the Children are appropriately cared for and that their needs are being met. [ 172 ] The Father considers himself an engaged parent. The

Section 211 Report describes him as a “passionate parent”. That passion has in the past, at times, presented itself as significant anger on the part of the Father. Again, it is concerning that the Father has failed to take any meaningful steps to deal with his unresolved anger issues. [ 173 ] The evidence leaves me to conclude that Father is sincere when he says that he wants to be significantly more involved in the lives of his Children and to maintain and develop a relationship with him.

His historical life style with its attendant lack of stability, until recent months, raises some concerns as to whether he really has developed the required understanding and level of parental skills which he requires. His focus appears to be on the quantity of time he has with his Children and less on the quality of that time or how he can improve the quality of that time.

Hopefully he continues to receive support and guidance from A.S. who I have concluded is a positive influence and very helpful to him. [ 174 ] Again his poor past performance about taking advice or counselling and his lack of follow through is concerning when considering this factor. Section 37(2)(g): The impact of family violence on the Children’s safety, security or well-being [ 175 ]

Section 1 of the FLA defines “family violence”. The fact that there have been protection orders and restraining orders granted against the Father by the courts in the past helps to support the conclusion that the relationship between the Parents has been scarred with family violence. [ 176 ] That family violence has included psychological or emotional abuse of a family member, in this case the Mother and her parents by the Father. It has included the Father’s perpetration of incidences of intimidation and harassment of the Mother and her parents.

Also, in the past, the Father’s behaviour has been marked with unreasonable restrictions on, or prevention of the Mother’s financial and personal autonomy. There has also been intentional damage to property caused by the Father in the course of arguments with the Mother. [ 177 ] The Mother reported incidences of the Father stalking to Ms. Bury in the course of an interview conducted for the preparation of the

Section 211 Report. Those are denied by the Father. I do not need to make a determination about that fact given the other evidence that I do accept about the Father’s historical and concerning behaviour. [ 178 ] The

Section 211 Report says that the Father “does not appear to present any safety concerns to the [C]hildren in a physical or emotional manner.” Ms. Bury testified that she had formed the opinion that Child S had been indirectly exposed to family violence. [ 179 ] Based on the evidence before me I have concluded that the family violence perpetrated by the Father in the Parent’s relationship has been reduced in the past several months.

Notwithstanding this, I repeat that the Father should be seeking counselling to deal with his anger issues. [ 180 ] I also agree that the Father does not present any physical safety concerns to the Children. However, his continuing anger and agitation which most unhappily now presents itself during the transitioning of the Children remains a concern for the Children’s emotional well-being. Hence there is a need to continue to provide court directed conditions surrounding the transitioning of the Children during any court ordered or other permitted contact with them. Section 37(2)(

h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the Children and meet the Children’s needs [ 181 ] On the basis of the evidence, I consider the Father to be the person responsible for the family violence. However given his present circumstances and the additional fact that A.S. is an integral part of his life, when considering this factor under subsection 2(h), I am not convinced the Father’s ability to care for the Children and to meet the Children’s needs in the context of contact are sufficiently impaired.

I am also of the view that supervision of that contact is not required either under this factor or under the factor described in subsection (2) (g). Section 37(2)(i): The appropriateness of an arrangement that requires Guardians to cooperate on issues affecting the Children, including whether requiring cooperation would increase any risks to the safety, security or well-being of the Children or other family members [ 182 ] I have considered this factor under subsection 2(

i) having specific regard that the Mother is the sole guardian of the Children. I must also consider this factor in the context of the ongoing negative interaction of the Parents, when dealing with issues surrounding the Children and regrettably in their presence, particularly at the time of the transitioning of the Children. The Parent’s communication whether verbal or by email is also problematic.

Developing increased Parental cooperation and respectful communication is and will continue to be essential for the sake of the well-being of the Children. [ 183 ] Again court directed conditions will be useful and important.

Section 37(2)(j): Any civil or criminal proceedings relevant to the Children’s safety, security or well-being [ 184 ] Except for this matter, I am not aware of any other proceedings relevant to the Children’s safety, security or well-being that is relevant under subsection 2(j). [ 185 ] However, I am concerned about the number of court appearances that have taken place and the potential for further appearances

in the future. [ 186 ] There is no doubt that the well-being of the Children has and will continue to be impaired by the time and energy spent by the Parents coming before the courts to deal with issues that should be better resolved between the Parents by an agreement reached directly or through mediation or other alternative dispute resolution processes. Some Other Matters of Concern and Relevance Parents’ Discussions With the Children About Matters Before the Court [ 187 ] The evidence raises a further concern about the behaviour of both Parents.

It is clear that the Parents have not been prudent in their dealings with the Children about this on-going litigation or about the present or historical conflicts in the Parent’s relationship. [ 188 ] In my view their discussions in front of or directed to the Children and their apparent explanations to the Children about the contentious issue of the Father’s contact are not at all in the Children’s best interest.

Seizing a Judge With Respect to Ongoing Issues [ 189 ] Both of the Parents expressed the view that it may be useful to have one judge seized to deal with further matters that may arise in this family dispute.

The parties suggested that I would be an appropriate choice having heard an extensive amount of evidence at the present hearing. [ 190 ] It would of course be my preference to have the Parents work out their own solutions either by way of direct discussions or by way of a form of alternative dispute resolution. [ 191 ] There are advantages and disadvantages to that suggestion of seizing myself or for that matter any other judge. I have weighed these and have reached a conclusion as to what I consider to be an appropriate order.

Conclusions and Resulting Orders [ 192 ] Based on the evidence before me and the relevant provisions of the FLA, I have reached the conclusion that any orders denying the Father contact with the Children, or imposing supervision requirements with respect to that contact or significantly limiting the contact will not be in the best interests of either of the Children. [ 193 ] I have also concluded that it is in the best interest of the Children that their Father be a significant part of their lives but in doing so I am relying on certain presumptions that I have noted below. [ 194 ] Thus, there should be a form of regular contact between the Father and the Children.

Therefore, there will be an order that Father will have contact as that term is used under the FLA , which will be reasonable but subject to a defined

schedule and specific terms relating to the transition of the Children between the Parents. [ 195 ] However, in making the order, I am presuming that in order to exercise that regular contact, the Father will continue to be residing in the same community as the Mother and the Children, which will thereby assist in allowing that contact to take place in a convenient and in an uncomplicated manner. [ 196 ] I am also presuming that the Father will be continuing to strive to improve the stability in his life and the circumstances surrounding it.

In my view the Father’s present and on-going relationship with A.S. will be a positive contribution to improving that stability. [ 197 ] However, it is also my view that the attainment of stability in the Father’s life and in his present circumstances, can still be characterized as a work in progress. [ 198 ] It is important that the Father understand that I have reached my conclusion on this issue based not upon his passion nor his stated wishes to see much more of the Children and to be more involved in their lives.

That passion and those stated goals appear to have been a major preoccupation of his life for the past few years. Rather I have based my conclusions on the actual steps he has taken to achieve some measure of stability in his life. If that progress continues in a reasonable fashion it may allow him to actually achieve his wish to be a proper role model for his Children.

If he regresses and is once again facing significant instability in his life, it may allow a court to conclude that there has been another negative material change in circumstances and to allow that court to review and change the ongoing level and the terms of his contact. [ 199 ] The Father’s contact with the Children must be balance against preserving the stability in the lives of the Children that the Mother has worked very hard to achieve. [ 200 ] I agree with the premise that in most cases it is not desirable for the court to micromanage issues and relationships between Parents. [ 201 ] Unfortunately, this is one of those cases where the court may be called upon to intercede in matters which would normally be left to adults, who are mindful of their responsibilities to their Children and who act in a reasonable manner to find reasonable solutions to problems that can and should be solved by agreement. [ 202 ] It will be necessary to define the Father’s contact and to impose conduct orders for the Parents as contemplated by sections 222 to 227 of the FLA .

This is necessary because of the historical and present dysfunction in the relationship between the Father and the Mother, the nature and type of the existing communication between the Parents, namely a lack of effective and constructive communication and the lack of reasonable prospects that the Parents at this point in time will be able reach agreements in an forthright, flexible and conciliatory manner. This communication problem is symptomatic of the dysfunctional relationship and in

part is also a

present underlying cause of it. In making the conduct orders, I expect that they will serve the purpose of being a constant reminder to the Parents. However, those orders must not become the subject matter of unnecessary applications alleging a failure by the other Parent to comply with a provision of the parental conduct orders.

Guardianship, Parenting Time and Parental Responsibilities [ 203 ] Nothing in my reasons is to be interpreted as varying or changing the existing final order provisions of the February 2012 Consent Order or the December 2012 PC Order that makes or confirms that the Mother is the sole guardian of the Children, or affects her parenting time or changes her existing parental responsibilities, unless it is specifically stated in these reasons to be the case. [ 204 ] Therefore there will be an order on the following terms: 1.

The Mother as the sole guardian of the Children will inform the Father of any matters of a significant nature affecting the Children; and 2. The Mother will provide the Father with copies of the each Child’s school report card received from the Child’s school throughout the year within 7 days of receipt of them.

Father’s Contact With the Children [ 205 ] Next with respect to the Father’s contact with the Children there will be final orders on the terms set out below which orders will replace all of the provisions for access or contact or parenting time or visitation with the Children granted to the Father or which deny or restrict the Father any of the forgoing and which are contained in the February 6, 2012 Order, the July 23, 2012 Order, the September 24, 2012 Order, the December 7, 2012 Order, the August 29, 2014 Order and the October 8, 2014 Order and the final orders contained in these reasons for judgment will henceforth govern the Father’s contact with the Children.

Order for the Father’s Monthly Contact Time with the Children [ 206 ] I order that the Father will have contact with the Children (the “Father’s Monthly Contact Time” ) unsupervised and on an overnight basis, every second weekend during each month from Friday at 3:30 PM or if the Children are in school then after school on Friday until Sunday at 5:00 PM commencing March 13 2015, and continuing every second weekend thereafter, subject always to the Child Transition Provisions of this Order and the provisions that relate to any variation or extension of contact, due to statutory holidays and school professional development days, Christmas School Holidays and Easter Long Weekends and School Summer Holidays and other special provisions contained within this Order; and [ 207 ] If the day immediately preceding or immediately following a weekend comprising part of the Father’s Monthly Contact Time is a British Columbia statutory holiday for Family Day, Victoria Day, Canada Day, British Columbia Day, Labour Day, Thanksgiving or Remembrance Day or is a school professional development day, then the Father’s Monthly Contact Time will include those extra days of statutory holiday or school professional development days, as the case maybe, except if it shall conflict with the Mother’s allotted parenting time during Christmas School Holidays or the Easter Long Weekend or the Children’s School Summer Holidays or as otherwise set out in this Order; and [ 208 ] As part of the Father’s Monthly Contact Time, at the cost of the Father, the Children will be enrolled in an extracurricular activity which is to take place at least once per week, during the weekdays, and such extracurricular activity is to be arranged by the Mother with input solicited from the Father, and the Mother will advise the Father of the timing of such activity and the Father will be entitled to take the Children to that activity once per week (the “Father’s Extracurricular Contact Time”), which may either coincide with or be in addition to the Father’s Midweek Contact as described herein except the Father’s Extracurricular Contact Time will not occur if it shall conflict with the Mother’s allotted parenting time during Christmas School Holidays or the Easter Long Weekend or the Children’s School Summer Holidays or as otherwise set out in this Order ; and [ 209 ] As part of the Father’s Monthly Contact Time commencing Wednesday , March 18, 2015 and continuing every Wednesday thereafter, the Father will have contact with the Children from 3:30 PM or if the Children are in school then after school until 7:30 PM ( the “Father’s Midweek Contact Time”) except the Father’s Midweek Contact Time will not occur if it shall conflict with the Mother’s allotted parenting time during Christmas School Holidays or the Easter Long Weekend or the Children’s School Summer Holidays or as otherwise set out in this Order ; and [ 210 ] As part of the Father’s Monthly Contact commencing Tuesday, March 24, 2015 and continuing every second Tuesday thereafter, the Father will have telephone contact with the Children for a period not exceeding 40 minutes between 6:30 PM and 7:30 PM but the actual duration of the telephone discussions within that 40 minute period will reflect the actual wishes and engagement of the Children (the “Father’s Midweek Telephone Contact Time”).

The Father’s Midweek Telephone Contact Time will not occur if it shall conflict with the Mother’s allotted parenting time during Christmas School Holidays or the Easter Long Weekend or the Children’s School Summer Holidays or as otherwise set out in this Order. The Father will at his sole expense provide the Children with an operative cell phone in order to facilitate the Father’s Midweek Telephone Contact Time with them and the Father will pay the monthly cost of the cell phone usage.

The Mother will ensure that the cell phone is charged, on and is available for the Children at least 30 minutes before the commencement of the Father’s Midweek Telephone Cont

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