C.A.J. v. N.J.

2014 BCSC 279 C.A.J. v. N.J.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.A.J. v. N.J., 2014 BCSC 279 Date: 20140221 Docket: E032938 Registry: New Westminster Between: C.A.J. Plaintiff And N.J. Defendant Before: The Honourable Mr. Justice Bernard Reasons for Judgment The Plaintiff, C.A.J.: Appearing on her own behalf The Defendant, N.J.: Appearing on his own behalf Place and Date of Trial: New Westminster, B.C. November 21, 22, 2011 April 30, 2012, May 1-3, 2012 July 6, 2012, January 31, 2013 February 1, 2013, July 2, 3, 2013 August, 30, 2013 Place and Date of Judgment: New Westminster, B.C. February 21, 2014 A. Overview [1] N.J. ("Mr. J.") and C.A.J. ("Ms. J.") married in April 2000 and separated in April 2009. In these proceedings Ms. J. seeks: (a) divorce; (b) sole custody and sole guardianship of the parties' 8-year old daughter, C., with specified access to Mr. J.; (c) retroactive and future child support for C.; (d) retroactive child support for M. and R., the sons of Ms. J. from a previous relationship; (d) retroactive and future spousal support; (e) reapportionment of family assets in her favour; (f) a restraining order; and (g) costs. [2] Mr. J. is not opposed to orders for divorce and future child support for C. He opposes all other relief sought. He agrees to a 55/45 asset reapportionment in favour of Ms. J. He seeks sole guardianship of C. with "contact" to Ms. J., pursuant to the

provisions of the new Family Law Act, S.B.C. 2011, c. 25 [FLA]. [3] The most contentious and time-consuming issue at trial was parental care of C. Each party alleges that the other is unsuitable as the primary care-giver. Ms. J. alleges, inter alia, inappropriate sexual behaviour towards C. by Mr. J. Mr. J. adamantly denies such behaviour and describes Ms. J. as a lying, abusive, and controlling "rage-aholic" with a borderline personality disorder. [4] The parties were self-represented at a protracted trial, which spanned more than two years principally due to inaccurate time estimates, voluminous evidence, rescheduling difficulties, and the parties' unfamiliarity with the trial process and the rules of evidence. B. Background [5] Ms. J. is 48 years of age. She is an agent for insurance and real estate sales. She has three children: R. (born in August 1991), M. (born in May 1993), and C. (born in February 2004). R. and M.'s father is R.C. ("Mr. C."), a man with whom Ms. J. was in a common-law relationship from 1989 to 1998. Since the breakdown of that relationship the two sons have resided with Ms. J., and Mr. C. has paid child support pursuant to court orders. C.'s father is the defendant, Mr. J. [6] Mr. J. is 57 years of age. He is a self-employed mortgage broker. Upon marrying Ms. J., he assumed the role of step-father to R. and M. C. is Mr. J.'s sole biological child. [7]

Neither party brought any significant assets into the marriage. Both parties worked during the marriage, and through considerable financing and family assistance they purchased a house in Maple Ridge, B.C., where Ms. J. presently resides. The house has a "mortgage-helper" two-bedroom basement suite. In 2011 the house had an appraised value of between $500,000 and $515,000, and was encumbered by two mortgages totalling approximately $350,000. The equity is the parties' only significant asset. [8] When the parties separated, R. was 17, M. was 15, and C. was five. Since separation, Mr. J. has exercised some limited court-ordered access to C. His relationship with the boys has suffered. At present, they have no contact with him. He blames Ms. J. for alienating his step-sons from him. He says she is also responsible for alienating the boys from their natural father, and he believes she will alienate C. from him if given the opportunity. [9] By all accounts the marriage was a tumultuous one. It ended with Ms. J.'s allegation that Mr. J. assaulted her as she sat in the driver's seat of the family mini-van outside the family home. Shortly after the event, Ms. J. called the police. Mr. J. was arrested and bound by a bail order; however, an ensuing assault charge was later stayed upon receipt of a neighbour's witness statement which did not support Ms. J.'s version of events. At a

subsequent "peace bond" hearing, Mr. J. was, nonetheless, bound by a recognizance for six months. [10] Mr. J. maintains that the assault report was but one of many self-serving fabrications of Ms. J. in her quest to "demonize" him and obtain the trial relief she seeks. In the post-separation period Ms. J. filed seventeen police reports against Mr. J. in which she alleged, inter alia, harassment, stalking, threatening, child sexual abuse, and various breaches of court orders. Investigations into each of these complaints led to no police action being taken. [11] By interim court order on August 10, 2010, Ms. J. was granted joint guardianship and primary residency of C., child support of $280 per month, and sole occupancy of the family home. C. Evidentiary Synopsis [12] Ms. J. is a licenced and experienced agent in both real estate and insurance sales. She obtained her real estate agent's licence in 1995. She separated from her first (common law) husband in 1998 and married Mr. J. in 2000. In 2004 C. was born. She said that in 2007 she decided to "get serious" about her real estate career because C. was in pre-school and her sons were old enough to be of help at home. In 2007 she grossed $76,532 and reported a net income of $53,990. In her January 2011 "form 8" financial statement, Ms. J.'s reported income was $75,116. [13] Following marital separation in April 2009, Ms. J.

resumed working full-time as an insurance agent. Later, she returned to part-time real estate sales. Her goal is to work as a full-time real estate agent because it is more lucrative than insurance sales. [14] Ms. J. testified that Mr. J. was a self-employed mortgage broker during the marriage. She tendered into evidence his tax returns, prepared by an accountant, which show the following earnings: 2006: $64,015 gross; $30,332 net 2007: $69,803 gross; $37,004 net 2008: $46,559 gross; $15,159 net 2009: $39,902 gross; $24,991 net 2010: $50,014 gross; $34,114 net [15] Ms. J. accuses Mr. J. of embellishing his business expenses. [16] Ms. J. has received child support for C. from Mr. J. and child support for R. and M. from her former common law spouse Mr. C. At the time of her testimony she was receiving $500 per month for M., but support had ceased for R. upon his 19th birthday. She said she will pursue support for R. from Mr. C. and Mr. J. if R. attends post-secondary school. [17] Ms. J. testified that Mr. J. was secretive about his finances during the marriage. As an example, she pointed to an investment certificate for $75,000, for one unit in a company named Greenheart LLC. She said she found this certificate among Mr. J.'s personal files after Mr. J. was removed from the family home, and knew nothing about it prior to separation. [18] Ms. J. asserted that Mr. J. had an

explosive temper and was physically violent towards her and her sons during the marriage. She described Mr. J. as a physically, psychologically, sexually, and "legally" abusive man. She said the marriage ended when she was assaulted by Mr. J. on April 26, 2009. She tendered into evidence photos showing some redness and swelling to both of her cheeks, as some evidence of the alleged assault. [19] Ms. J. testified that she has been the primary care-giver to her children throughout their lives. In relation to Mr. J.'s suitability as a parent to C., Ms. J. says she is very concerned that Mr. J. has a sexual interest in C. This concern is based upon the following observations prior to separation: (a) On one occasion when C. was four or five years of age, C. and her father were showering together and Ms. J. observed Mr. J. slowly rubbing C.'s bottom with a bath puff. She found this odd and told him that he was no longer to shower with C.; however, Mr. J. continued to do so. (b) On one occasion she found Mr. J. and C. having a bubble bath together behind a locked bathroom door in the middle of the day. She said C. was five years old at the time, and she told Mr. J. not to bathe with C., again. (c) When the J.s had company for dinner, Mr. J. would put C. to bed and would not return for up to an hour. [20] In the post-separation period, Ms. J. reports that: (a) Mr. J. has taken C. into

the family change rooms at public swimming pools where she understands that they change clothes in each other's presence. (b) Mr. J. has had C. trim hair on his back that he could not reach, using an electric razor. (c) Mr. J. has taken naps with C. while wearing only his underwear. (d) Mr. J. does not have a separate bedroom for C. at his mother's house, where he has resided since separation, raising a concern with Ms. J. that they may be sleeping in the same bed. [21] In addition to the foregoing alleged sexually inappropriate behaviour, Ms. J. says: that Mr. J. does not ensure C. is properly or adequately fed when he has care of her; that he once left her unattended in a pet store for five minutes; that he once allowed her to run through a sprinkler with a friend on a Sunday afternoon in April; and, that Mr. J. allows C. to play with friends during his limited access time rather than spend time with her. Ms. J.'s source of information is C., following visits with her father. [22] Ms. J. asserted that any sort of co-parenting arrangement for C. would be unworkable. She describes Mr. J. as overbearing and notes that they disagree about such matters as religious upbringing and vaccinations; moreover, she claims to have an ongoing fear of him. [23] Mr. J. has been a mortgage broker since 1997. He met Ms. J. in 1998 and married her in April 2000. Ms. J.'s sons R. and M. were

seven and five years of age respectively, and Mr. J. understood from Ms. J. that their father, Mr. C., neither cared about them nor supported them. He said Ms. J. told him stories about mistreatment she suffered at the hands of Mr. C., including an incident of being tied up, having her wrists slit, and being left to die. Mr. J. said this explanation was offered for slit-marks he had noticed on her wrists. [24] Mr. J. testified that he assumed the role of father to Ms. J.'s sons and treated them as his own. He said he became very involved in hockey and basketball with them, took them to games and tournaments, and helped them with fund-raising. Mr. J. said he worked from home and that this allowed him to prepare meals and drive the boys to school. [25] Mr. J. described his marriage to Ms. J. as tense and difficult. He said Ms. J. tried to appear "June Cleaverish"; however, the reality was quite different. He said he discovered that she would do, and say, anything to get what she wanted. He said she lacked the ability to resolve conflict rationally, and when an issue arose she would deny, deflect, and attack. He said she "went from discussion to violence" very rapidly. He said she was quick to criticize and judge; she wrongly accused him of affairs, alcoholism, and pedophilia. He said that when Ms. J. got angry she would spit, hit, scream, swear like a sailor, throw things, knock

items over, and resort to name-calling, often in front of the children. [26] Mr. J. described Ms. J. as a "rage-aholic" with a borderline personality disorder. He said it was impossible to deal with her because she fabricated, demonized, and "lied at will" to get whatever she wanted. Mr. J. said he often had to act as a mediator between the boys and their mother. He described incidents of Ms. J. disciplining M. by beating him on the back of the legs with a piece of aluminum frame or with a leather belt and then keeping him from school until the welts disappeared. He testified that when he told her it was wrong to discipline children "in anger", she called it "mothering" and expected his moral support. [27] Mr. J. said that Ms. J. has a history of self-abuse. He noted the scars on her wrists and also described an incident during the marriage when he had to take her to the hospital to have her stomach pumped because she had overdosed on pills. He testified that the April 2009 false report of assault is an example of her self-abuse (i.e., she "self-battered" to cause the redness and swelling to her cheeks) and the lengths to which she is prepared to go to achieve her ends. He characterized the fabricated assault as an engineered plan to remove him from the house, get sole possession of the house, and get support for herself and the children. He said she employed the same technique

(i.e.: self-abuse and false criminal allegations) against her first husband and then alienated the children from their father by "demonizing" him, including suggesting that he did not pay child support when such was not true. [28] Mr. J. said he moved out of the matrimonial bedroom and into the basement of the house approximately eight months before his arrest in April 2009, because Ms. J. had accused him of "fucking his mother" and had said she wanted him "out". He said he spent the next eight months sleeping in the basement "wondering what to do". He said the issue came to a head when Ms. J. punched and assaulted him (by biting him on the cheek) while they argued in the family mini-van, on the street directly in front of their home. The parties had been arguing about taking C. to a friend's birthday party. Mr. J. said that after he was assaulted, Ms. J. stepped out of the van and he drove C. to her party. When he returned to the parties' home, the police were in attendance and Mr. J. was arrested for assaulting Ms. J. [29] Mr. J. said that the argument that triggered the false assault allegation was witnessed by his neighbour Mr. V. When Mr. V. learned of the charge and gave a witness statement to the police, the assault charge against him was dropped. [30] Mr. J. tendered a photograph of injury to his face in support of his assertion that he was bitten by Ms. J. when he

attempted to remove the keys from the ignition as Ms. J. sat in the driver's seat of the mini-van. [31] Mr. J. testified that he has been very involved in parenting C. since her birth. He describes C. as his "treasure on Earth". He expressed grave concerns about Ms. J.'s parenting of C. He says that she has alienated R. and M. from both him and their biological father, fabricated sexual misconduct against him, accused him of child neglect, and denied him access to C. [32] Mr. J. says that Ms. J. is overly controlling as a parent. She treats C. as a chattel and does not permit her to have playdates or sleep-overs with her friends. He said he is compelled to use his limited access time to allow C. to play with her friends because she is missing this important aspect of socialization when she is with her mother. He expresses fear that C. will learn from her mother that conflict is resolved through violence. [33] Mr. J. asserted that if he were C.'s sole guardian he would never withhold access to her mother, because it would not be fair to C. He said C. loves and needs both her parents. In cross-examination he denied ever telling C. that her mother was "crazy" or that she was "not a good mum"; rather, he said, "I tell her that her mother and I disagree about issues" and "I've said if anyone ever hits you, please let me know". [34] In relation to Ms. J.'s allegations of sexual and

other improprieties in relation to C., Mr. J. adamantly denied each of them and addressed them, more specifically, as follows. He said: (a) The shared showers and bathing began when C. was one year of age and ceased prior to C.'s 4th birthday, because both he and Ms. J. agreed that she was getting too old to bathe with her parents. It is a blatant lie that he used a bath puff on her bottom. He said a puff would have been too abrasive for her skin. (b) The bubble-bath in question was when C. was only three years of age and was in the evening when she needed a bath. The door was locked because the boys had friends visiting at the time, and the bathroom is one they would use. (c) Once a year he trims the hair on his back, and he asked C. if she would trim an area he could not reach, using an electric razor, and she agreed. He said this is something he had his wife do for him when they were together. (d) When he and C. use the family change room, he changes in the shower area and she changes in the bench area. C. has never expressed any concern to him about this arrangement, but he said he will ask her if she'd prefer to use the women's changing room in the future. He had concerns about sending C. into the adult changing room alone. (e) At his mother's house, when C. visits she sleeps in the spare bedroom and he sleeps in another room on a "fold-out" bed. (f) The other allegations

are simply false. [35] In relation to all the foregoing, Mr. J. said that these are examples of Ms. J.'s inclination to see evil in entirely innocent and non-sexual interactions, and to demonize him. He noted that on November 25, 2011 (three days after the first hiatus in the trial) a member of the RCMP telephoned him and informed him that Ms. J. had reported him for sexually assaulting C. He said the RCMP suspended his access to C. pending an investigation into the matter. The following day he was advised by the RCMP that C. had been interviewed and no further action would be taken. His access resumed. Mr. J. believes the report was Ms. J.'s response to her unhappiness with the court's failure to act in relation to the other allegations of sexual abuse, and was another attempt to have him arrested and separated from his daughter. [36] Mr. J. said that immediately after separation Ms. J. denied him access to C. until October 2009. In this period he said he called Ms. J. 30 times to try to arrange access, but she refused to communicate with him and directed him to her lawyer. He says the "legal abuse" Ms. J. alleges arises from Ms. J.'s refusal to communicate with him about access to C., except through her counsel. [37] In the immediate post-separation period, Mr. J. attempted to maintain contact with his step-sons; however, he said Ms. J. would not permit them to have contact

with him. He said M. told him that he would "get into trouble" if his mother knew that he was in contact with Mr. J. In an email dated July 4, 2009, his step-son R. wrote: Okay, so Mom is pretty much watching our every move now making sure that we don't talk to you, and shit. It's really dumb. She has your phone and it's on lockdown . . . when I asked for you to be able to come [to my graduation] she said "no" . . . phoning is out of the question. She is watching those lines like none other. It's actually stupid - every call I make: "Who was that?" It's getting annoying. [38] On July 5, 2009, when Mr. J. tried to arrange a dinner with his step-sons, R. wrote: Mom might try to kick us out if we do that. She can't know anything. [39] On July 18, 2009, R. wrote: Mom kicked me out for talking to you. She found out. I'm living at [Mr. V.'s] right now. [40] On September 26, 2009, R. wrote: Hey, Dad. Got kicked out, again. You probs [sic] already know [that I am] living at [Mr. V.'s] for the meantime. [41] Mr. J. said that when R. moved into Mr. V.'s house in September 2009 following an argument with Ms. J., he and R. were able to resume their father/son relationship. He said he gave the V.'s $1300 to help pay for R.'s room and board. Mr. J. said R. returned to his mother's home in December 2009, out of concern for his younger brother, M., who was living with his mother. Mr. J. said

that coincident with that return home, all contact with his step-sons ceased. He believes that R. and M. continue to fear reprisal from their mother if they contact him. [42] In December 2009, Mr. C. showed up at the V.'s door in response to a call he had received from Ms. J. Mr. C. was residing in Winnipeg, Manitoba at the time. When Mr. C. arrived at the V.'s home, Mr. J. was called and attended. Mr. J. said this was his first encounter with Mr. C. in ten years. Mr. J. understood that Mr. C. had flown to Vancouver because Ms. J. had told him that R. was being sexually molested by Mr. V. He said that Mr. C. realized Ms. J.'s accusation was unfounded and learned that the J.'s were separated. Mr. C. and Mr. J. then spoke of their experiences with Ms. J. [43] Mr. J. said that Mr. C. was grateful that he had looked after his boys. Mr. J. said he learned, for the first time, that Mr. C. had paid close to $100,000 in child support over the years. Mr. J. said they discussed an outstanding claim for $25,000 in basketball expenses and Mr. J. said he offered to help Mr. C. resist the claim because he was aware, through his involvement in the teams and their fundraising efforts, that the claim was false. [44] In relation to his financial matters, Mr. J. said he anticipated grossing $70,000 in 2011 from his mortgage broker business. He said he expected his "line 150" income to be

approximately $35,000; however, he offered that his income ought to be imputed at approximately two-thirds of his gross income for the purposes of child support. He agreed that both he and Ms. J. maximized their business expenses as self-employed persons within the bounds of the law. [45] Mr. J. testified that his income in 2009 was very low ($39,000 gross), partly due to the "economic meltdown" at the time and partly because of his despondency over the breakdown of his marriage, the false criminal charge against him, the loss of his home, and the loss of contact with his daughter and step-sons. [46] Mr. J. said both he and Ms. J. worked throughout the marriage, and both forfeited some potential earnings to spend more time with the children. Mr. J. testified that if Ms. J. works as a real estate agent then she is capable of earning a higher income than he does as a mortgage broker. He noted that they are both similarly affected by the ebbs and flows of the real estate market. [47] Mr. J. estimated that in the post-separation period he contributed approximately $18,000 towards the former matrimonial household and the support of the children (as calculated to November 22, 2011). More specifically, he said his contributions were as follows: (a) 31 payments of $195 each for a joint loan; (b) all interest payments on a Westminster Savings line-of-credit account; (c) all MSP

payments; (d) monthly child support payments of $280 for C. since August 2010; (e) $275 to FIDO; (f) $228 to Terasen Gas; (g) $1300 to the V.'s for R.'s room and board; (h) $778 per month for two months of lease and insurance payments on his vehicle when he loaned it to Ms. J. in the first two months following separation so that she could drive the children to school; (i) $1129 to bring an education fund up-to-date; (j) half the rental income from the basement suite in the house; and, (k) occupational rent for Ms. J.'s exclusive use of the matrimonial home. [48] Mr. J. stated that the $75,000 investment certificate Ms. J. found among his papers following his removal from the house was a record of failed investment. He explained that he had entered into an option-to-purchase "handshake" agreement with his long-time friend T.G. (who initially financed the purchase and now holds sole beneficial interest), but he was unable to exercise the option as a result of the economic downturn in 2008. Mr. J. said that after six payments of $200 in interest he had to withdraw from the investment because he could no longer afford the monthly payments. He tendered bank records showing withdrawals consistent with his testimony. He said the investment ultimately proved to be a very lucrative one for T.G.; one which, regrettably, he had to forego. He agreed that he did not tell Ms. J. about this

investment opportunity; he said he hoped it would be a nice surprise and when it failed there was no purpose in mentioning it. [49] In the context of cross-examination about Mr. J's efforts to support his family in the post-separation period, Mr. J. was asked about a $2051 charitable donation he made to a church ministry in 2009. Mr. J. explained that the money was a tithe for a church which had helped him cope in the period immediately following separation. He said he did not sleep for four months and lost 25 pounds. He said it was very stressful not to see his young daughter. He added that he could not make greater financial contributions to the family after separation because he faced thousands of dollars in legal fees to defend himself against a false accusation of assault and to respond to the divorce action. [50] In Ms. J.'s cross-examination of Mr. J., she suggested that he was obsessed with her. Mr. J. emphatically replied: "I absolutely disagree", and then said: "the only obsession is you reporting me, repeatedly, to the police. In each and every instance (17 complaints) it was 'no breach committed, no action taken'. They were all false. You are using them to harass me. The police noted: 'the next time [Ms. J.] says she has an independent witness it cannot be a family member'." [51] Ms. J. also suggested that Mr. J. had befriended her neighbours since the separation

for the purpose of disparaging her and giving him an opportunity to be on the street where she lives. Mr. J., again, emphatically disagreed and said he had been in these neighbours' homes many times prior to separation, and explained that he has a continuing friendship with Mr. V., who happens to live across the street from Ms. J. [52] Ms. L. is a friend of Ms. J. She described Ms. J. as a "great, interested, dedicated mum". She said she thought Mr. J. was "a good dad", although she recalled that familial interactions were stressful towards the end of the marriage. Ms. L. said that when Ms. J. telephoned her on April 26 and informed her that she had been assaulted by Mr. J., she went to see Ms. J. and noted bruises, lumps, and bumps to her face and head. [53] In cross-examination, Ms. L. said she was not aware that four people witnessed the alleged assault or that the assault charge was dropped in July 2009. She was aware, however, that Mr. J. was bound by a peace bond and she decided not to have any contact with him after the parties separated. [54] Ms. S. said that she was Ms. J.'s best friend. Ms. S. described Ms. J. as a strict, but very loving parent. She said she rarely saw Mr. J. interact with the children. In cross-examination, she agreed that Mr. J. took the boys to basketball practices and games, and was unaware of the number of basketball games Ms. J. attended. [55]

C.S. is Ms. S.'s 20-year-old son. He testified that Ms. J.'s sons were like cousins to him. He described Ms. J. as a mother who "has always been there" for her children and has provided "good structure and proper discipline" for them. In cross-examination, he agreed that he and Mr. J. communicated very little over the years. He said it seemed to him that Mr. J. "was there for himself". He said he was aware that R. went to live with a neighbour. He said he understood that R. had been kicked out of the house for behaving badly; however, he said he did not discuss it with R. [56] E.V. is Ms. J.'s cousin. He lived in the basement suite of the former matrimonial home from November 2009 to April 2011. He paid rent of $900 per month. E.V. said Ms. J. seemed like a very good mother, and was of "outstanding character, as far as I could tell". [57] Ms. J. called both her sons as witnesses. M. was in grade 12 when he testified. He said that he lived at home with his mother, brother and sister. He described his relationship with his mother as good and said he does not have any relationship with his either his biological father, Mr. C. or with his step-father Mr. J. [58] In his direct examination M. said his mother never prevented him from having a relationship with his father, and never told him not to speak to Mr. J. in the post-separation period. [59] M. said that during the marriage,

Mr. J. and his mother always argued and fought "about the dumbest things". He asserted that he did not like Mr. J.; that he had a short fuse and they never did anything together. He said he has no desire to talk to Mr. J. now because "he's making us have no money for groceries and stuff." [60] In cross-examination by Mr. J., M. agreed that Mr. J.: (a) was "a good dad until [C.] was born - then all attention was on her"; (b) took the boys to their morning hockey practices and weekend games; (c) drove the boys to school "most of the time" and to see friends; (d) helped with fund-raising at school; (e) welcomed the boys' friends into the house for dinners, sleep-overs, and basketball games; (f) watched movies with the boys; (g) did many things with the family, including two trips to Seattle, a trip to Long Beach in 2005 ("it was a decent trip"), a 2008 trip to Kelowna with the boys and one friend each ("it was good - we boated, ate out, went to the beach"), and a trip to Whistler to visit a friend. [61] M. agreed that Mr. J. had tried to contact him in the post-separation period, and that he had never told Mr. J. that he did not wish to see him anymore. [62] When Mr. J. bluntly asked M. what he had done to the family, M.'s response was: "[w]e had to spend all our money on going to court to defend ourselves, and I still think you punched mum even though the charges were

dropped." [63] R. was almost 20 years of age when he testified. He said he lived at home and worked as a roofer. He planned to attend BCIT in the fall of 2011. (N.B.: He eventually did so, but dropped out at the end of an unsuccessful first term.) [64] R. agreed that he lived at the V.'s home from September to December 2009. He explained that he had a disagreement with his mother; however, he characterized his departure as "a mutual leaving" rather than as a result of his mother kicking him out. [65] R. described his present relationship with Mr. J. as distant, and he said he does not talk to his biological father. He told his mother in her examination of him that she had never stopped him from having a relationship with his father. [66] In relation to the J.'s marriage, R. said that his mother and Mr. J. always fought; however, he also said that "life was pretty good before mum had to work so much". [67] R. was cross-examined about the content of the e-mails he sent to Mr. J. in the months immediately following the separation. In relation to the negative things he wrote about his mother, he explained that he was angry at his mother and venting to Mr. J. As for the e-mail in which he told Mr. J. that his mother did not want Mr. J. at his graduation ceremony, he said this statement was both true and reasonable. Finally, he asserted that he did not desire to have any sort of

relationship with Mr. J. in the future. [68] A.V. is Ms. J.'s father. He testified that he has loaned Ms. J. money to help her meet expenses since separation, including $42,500 in legal fees and $1100 for a car. He said he holds the second mortgage on the former matrimonial home, with a balance owed of $57,533. He said he is willing to co-sign a mortgage to help his daughter keep the former matrimonial home. [69] Mr. V. (not related to A.V.) is a friend of Mr. J. He has lived across the street from the J.'s since 2005 and is acquainted with both parties. He noted that he had retained Ms. J. as the real estate agent for the sale of his mother's house, prior to the marital breakdown. [70] Mr. V. testified that Ms. J. was, on many occasions, foul-mouthed and insulting about Mr. J. while they lived together. He recalled an instance when he asked Ms. J. where her husband was and, in the presence of her daughter, she replied: "[t]he fucking Nazi is in the back yard". [71] Mr. V. described Mr. J. as a "normal, good parent" who spent time with R. and M. and enjoyed a good relationship with them. [72] Mr. V. said he witnessed the April 26, 2009 events that led to Mr. J.'s arrest for assault. He said he did not want to become involved; however, when he learned that Mr. J. had been charged with assault he gave a statement to the police. He said he had seen the event from a short distance,

and Mr. J. did not strike Ms. J. He said he saw Mr. J. reach over from the back seat to get the car keys as Ms. J. sat in the driver's seat of the family minivan. He said Ms. J. began attacking and flailing. He described Ms. J. as the aggressor. He said Mr. J. then exited from the passenger side and approach the driver's side, where Ms. J. continued to go after Mr. J. and swing at his face. He said Mr. J. then departed in the minivan with C. [73] Mr. V. said that after Mr. J. departed Ms. J. was furious. He said she approached him, accused him of causing all the problems in the neighbourhood, and criticized him for not coming to her aid when Mr. J. attacked her. Mr. V. said he saw no such attack and he noted that when Ms. J. approached him she "did not have a mark on her". He said he watched her flip open her cell phone, glance at him, and then walk away. He said he heard another neighbour yell, "[s]top her - you know what she's doing". [74] Mr. V. said that he next saw Ms. J. when she emerged from her home with her son M. at one arm and a police officer at the other. He said she had a towel on her head and was walking "like an 80-year-old grannie". He described it as a Golden Globe performance. In cross-examination he agreed that he was "there" for Mr. J. because Ms. J. had manufactured a situation and then walked out of her house as if she had been beaten. [75] Mr. V. said

that R. lived at his house for approximately three months, starting on September 22, 2009. He said that R. showed up at his door late at night and said he had been kicked out of his home. He noted that R. had noodles in his hair (allegedly from Ms. J. dumping a bag of kitchen waste over him). [76] In R.'s time at the V.'s house, Mr. V. said that Mr. J. visited the house several times and paid for groceries for R. He said everyone got along well when R. was at his home; however, after R. returned to his mother's home, R. would not speak to him unless they were outside the neighbourhood. He believes that R. feared retaliation from his mother if she became aware that R. had spoken to him. [77] Mr. V. said that in December 2009 Mr. C. appeared at his door. Mr. V. had never met Mr. C. prior to this unannounced visit. [78] Mr. C. testified on behalf of Mr. J. He said he separated from Ms. J. in September 1998 when she falsely reported that he had attempted to "run over" her and their son, R. He said he was arrested, charged, and bound by a restraining order. He said he did not see his sons from September 1998 until February 14, 1999, and the latter date was his last contact with them. [79] Mr. C. said he was very close to his sons (ages seven and five at the time of separation) during the common law marriage. He said that he could not get access to his sons after separation, that

there was "lots of manipulation and turmoil", and that access was "100% impeded". In 2005 he moved to Winnipeg to be near his aging parents. [80] Mr. C. testified that he received a telephone call from Ms. J. in December 2009, in Winnipeg. Ms. J. reported that their son R. was being abused and molested by a man named Mr. V., a neighbour with whom he was living. Mr. C. said he decided he should come to his son's rescue, although he wondered why Ms. J. had turned to him rather than to her husband. [81] Mr. C. went to the V.'s house, met Mr. V., spoke to R., and determined that the complaint was false. At this time Mr. V. suggested that he speak with Mr. J. When he did so he learned that the J.'s were separated and his sons' family life was in turmoil. He invited his sons and Mr. J. out for dinner. He said that at this dinner he learned that Ms. J.'s outstanding $25,000 claim against him for his son's basketball expenses was fraudulent. Mr. C. said he made a point of not discussing Ms. J. at this dinner because his sons were present. [82] Mr. C. said he is still trying to "reach out" to his boys but they are unresponsive to him. [83] In cross-examination by Ms. J., Mr. C. said that he requested custody of his sons when he and Ms. J. separated. He said that he thought Ms. J. was chemically unbalanced during their relationship. He related an incident when he had to take Ms. J. to

the hospital when she slit her wrists. He described seeing Ms. J. hit R. (at age six) so hard on the face that it knocked him out. He said he did not report it to the authorities because "we were a family". He said after separation he wanted visitation with his sons but eventually gave up. He assumed his sons were "okay" because he believed Ms. J. was in a good relationship. [84] B.V. is Mr. V.'s 76-year old mother. She moved into the V.'s home, across the street from the J.'s, in 2007. B.V. described herself as "like a second grandma" to C.; however, she said that after the separation C. no longer visited her and does not even acknowledge her greetings on the street. [85] B.V. recalled the time that R. lived with the V.'s. She said she made his lunches and did his laundry. She described him as a decent kid, and she remains perplexed by his lack of contact with them since he returned to his mother's home. [86] In cross-examination, B.V. was asked about the events of April 26, 2009. She asserted that she saw Ms. J. hit Mr. J. She said Ms. J. was very angry at the time. She explained that she did not give a witness statement to the police because her son Mr. V. had done so; however, she said she would have stepped forward, if needed. She described Mr. J. as a quiet, easy-going man and a good friend of her son. D. Discussion Divorce [87] This relief is non-contentious. The

statutory prerequisites for an order of divorce have been established; accordingly, pursuant to s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), a divorce is granted, effective 31 days from the date of this judgment. Parenting Arrangements [88] The parties are pursuing their parenting arrangement claims only in relation to their daughter, C. By the trial's conclusion, sons/step-sons R. and M. were ages 23 and 20, respectively. [89] In both her statement of claim and final written submissions, Ms. J. has sought orders of sole custody and sole guardianship of C., pursuant to the provisions of the Family Relations Act, R.S.B.C.1996, c. 128 [FRA]. Ms. J. opposes access to Mr. J. beyond the limited access provided in the existing interim order. [90] Mr. J. seeks similar relief in his favour, but has modified the wording of the relief sought in his final submissions to comply with the provisions of the new FLA; accordingly, he seeks an order designating him as the sole guardian and principal resident caregiver of C., with a provision of "contact" to Ms. J. [91] The FLA came into force on March 18, 2013, after the trial's onset and prior to its conclusion. In this circumstance, pursuant to ss. 4 and 36 of the Interpretation Act, R.S.B.C. 1996, c. 238, the parties' claims of custody and access under the FRA are to be determined under the applicable provisions of the FLA. [92] The

FLA regime addresses parenting arrangements following separation in terms of "guardianship", "parenting responsibilities", "parenting time" and "contact". Notably, a separated parent who resided with the child prior to separation remains the child's guardian and is responsible for the child's care and upbringing, unless and until a subsequent agreement or court order provides otherwise. After separation, guardians' parenting responsibilities may be shared or exercised separately. If a parent is removed as a guardian then that person's parental responsibilities cease; however, they may be permitted to have "contact" with the child. [93] In determining post-separation parenting arrangements, the "best interests of the child" are now the only (vs. paramount) consideration, having regard for all the child's needs and circumstances. Section 37(2) of the FLA provides a non-exhaustive list of factors that must be considered. The overarching principle is that the parenting arrangements must protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security, and well-being: FLA s. 37(3). [94] Among the factors the court is now specifically obliged to consider, are "the child's views, unless it would be inappropriate to consider them" and "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 child and meet the child's needs". In relation to family violence, the court must consider the factors listed in s. 38 of the FLA for the purpose of making a nuanced risk assessment where there has been family violence. [95] Turning to the instant case with due regard to the foregoing, it is evident that the relief Ms. J. seeks pursuant to the new regime is the removal of Mr. J. as a guardian for C. (thus, bringing to an end his parenting responsibilities) with the provision of limited and scheduled contact. The essence of her position is that such an order would be in C.'s best interests because Mr. J. is a physical, psychological, and emotional danger to C. [96] Ms. J. submits that Mr. J. is angry, abusive, and controlling. She says he was physically violent and emotionally abusive towards her during the marriage and that he threatened, harassed, and intimidated her after separation. Most significantly, Ms. J. alleges: (a) that Mr. J. is sexually interested in C.; (b) that he is guilty of several instances of past sexual misconduct towards her; and, (c) that he does not appreciate "the boundaries that should be set between a father and daughter". To these serious allegations Ms. J. adds that Mr. J. does not adequately feed or watch over C. when she is in his care, and he has attempted to alienate her children from her. [97] Mr. J. seeks

orders removing Ms. J. as C.'s guardian and granting her generous contact. Mr. J. argues that such orders would be in C.'s best interests because Ms. J. "has demonstrated by her actions that she has problems being a loving, nurturing parent". He describes her as a bully who is angry, violent, and abusive. He says she is a malicious, mean-spirited, treacherous woman who is a menace to C. and a threat to him. [98] Mr. J. says that Ms. J. is unable to resolve conflict without flying into a rage. He submits that it is this rage that led to Ms. J. making a false allegation of assault against him on April 26, 2009 which resulted in his removal from the family home. In this regard he said: "I knew she was dangerous, but I did not think she would betray me and the children this way". [99] Despite his very negative view of Ms. J., Mr. J. submits that C. needs both her parents; thus, he believes she ought to have generous contact with her mother. [100] The parties' foregoing positions and arguments place various allegations of violence squarely before the court. As noted, family violence is now a factor that the court must consider in determining the best interests of the child in relation to parenting arrangements; more specifically, Section 37(2) obliges the court to consider, inter alia: (g) the impact of any family violence on the child's safety, security, or wellbeing, whether the

family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs. [101] The principal complaints of family violence alleged against Mr. J. are: (a) the April 26, 2009 assault upon Ms. J. in C.'s presence; and, (b) the series of incidents of sexual misconduct in relation to C. [102] In relation to (a), Ms. J.'s position is that she was beaten about the face by Mr. J. and that he caused the redness and swelling to her cheeks depicted in photographs. She says this is but one example of Mr. J.'s abusive nature and propensity for physical violence, and she relies upon it in support of her bid to have him removed as a guardian for C. [103] Mr. J.'s position is that Ms. J. caused her own injuries and fabricated an assault for the purpose of having him removed from the house and to enhance her case against him. He says this is but one example of Ms. J.'s willingness to say and do anything to achieve her ends, including alienating his daughter and step-sons from him. In support of his position he relies upon eye-witnesses to the event and the withdrawal of the charge against him. He also tendered into evidence an e-mail written by Ms. J. and sent to herself on April 28, 2008 (i.e.: one year prior to the

separation), in which she wrote that she had dreamed that Mr. J. would kill her and the children. This e-mail reads, in part, as follows: ... I have been dreaming that [Mr. J.] will attempt to kill me and the kids in our sleep. I know it sounds crazy. I am dreaming this more and more. What scares me is that some of my dreams have actually come true over the years. ... I am going to keep writing in a journal and make plans to allow others [to] have access to it in case something should happen to me or the kids. I am going to start making plans to have him removed from the house. [104] On the question of whether an assault as alleged by Ms. J. occurred, I am satisfied, on a balance of probabilities, that it did not. The preponderant evidence establishes that Ms. J. made a false complaint against Mr. J. I accept as true Mr. J.'s description of the events and his assertion that he did not assault Ms. J. In this regard, it is significant that Mr. J.'s evidence is strongly supported by the convincing testimony of eye-witness Mr. V. Mr. V. testified that he was present and that the alleged assault did not occur. B.V., who was also an eyewitness, supported her son's testimony. [105] In relation to Ms. J.'s injuries, I am not satisfied that they are persuasive as evidence of an assault upon her. They depict some rather surprisingly uniform minor swelling and redness to both of Ms. J.'s

cheeks consistent with minor self-battering, as far-fetched as such an act might seem in the abstract. [106] On the question of whether Mr. J. is guilty of sexual misconduct against his daughter, I am satisfied on a balance of probabilities that he is not. I am neither persuaded that the conduct alleged was sexual nor that it is of the sort that is inappropriate between a father and child. While I accept that comfort levels with nudity, bathing together and sleeping together vary among families and family members, it would be unjustly presumptuous to find sexual impropriety in such occurrences without some specific evidence of sexual interest or sexual misconduct. [107] Ms. J.'s view that it is inappropriate (and indicative of a sexual interest in a child) for a father and young daughter to use "family" changing rooms at public pools, when such facilities are intended for that purpose, is very telling. It tends to support Mr. J.'s position that Ms. J. is not only inclined to see evil in the benign, but is specifically attempting to demonize Mr. J. in order to enhance her position. [108] I accept Mr. J.'s testimony that he has no sexual interest in his daughter, and that he ceased bathing and showering with C. when she was three years of age. [109] Ms. J.'s false allegations of Mr. J.'s sexual abuse and ongoing sexual interest in C. are very troubling, particularly in the

context of a fabricated assault which led to Mr. J.'s arrest and charge. They raise serious concerns about Ms. J.'s credibility and motives. [110] In relation to Ms. J.'s allegations of parental neglect by Mr. J., I am satisfied, on a balance of probabilities, that they are not true. Ms. J. says that they are based upon what young C. has told her following visits with Mr. J.; however, it is apparent that Ms. J. is inclined to believe the worst of Mr. J. and has no interest in getting to the truth when it may not suit her purposes. [111] Mr. J. alleges that Ms. J. is guilty of parental alienation; more specifically, he submits that Ms. J. has alienated her sons from him and that she will do the same, if given the opportunity, with C. In this regard, the evidence that Ms. J. alienated Mr. J. from his step-sons is quite compelling. The evidence establishes that in the months immediately following Mr. J.'s arrest and removal from the family home, he attempted to maintain contact with his step-sons, and that Ms. J. actively discouraged any contact or communication. It is clear that Mr. J. has now completely lost contact with his step-sons, despite his many attempts to maintain it. [112] It is evident that Ms. J. has involved her sons in the marital dispute and ensuing litigation, and has insisted on their undivided loyalty. The evidence of Mr. V. and B.V. was convincing in this

regard. It shows that Ms. J. has successfully alienated her children from the V. family, despite the former good relationship and their kindness and generosity in offering room and board to R. when he knocked on their door late one night seeking shelter. It is noteworthy that R.'s late night departure with food scraps in his hair does not bear the hallmarks of a "mutual leaving" as R. described it when he was examined by his mother on the witness stand. [113] Mr. C.'s evidence that Ms. J. alienated his sons from him was similarly convincing. He was a believable witness who only became involved in this matter when Ms. J. falsely reported to him that his son R. was being molested by Mr. V. His visit to the V.'s home brought him into contact with Mr. J. and prompted the sharing of their negative experiences with Ms. J. [114] Ms. J.'s false accusation against Mr. V. is regrettably demonstrative of the lengths which Ms. J. is prepared to go to discredit those persons whom she perceives to be against her. Mr. J. undoubtedly falls within this category; thus, I am satisfied it is very likely that Ms. J. will attempt to alienate C. from her father if she is given the opportunity. Her history with her sons supports this conclusion. [115] Parental alienation is more often than not subtle and insidious rather than overt and obvious. A parent who simply fails to spare a child from exposure

to his or her ongoing contempt for, or claimed fear of, the other parent may quite effectively alienate a child from that parent. It is clear that Ms. J. fails to appreciate the positive duty she bears as a parent to shield her children from her contempt for Mr. J., and for Mr. C. before him. It is evident that she believes that her duty is fulfilled so long as she does not expressly discourage or forbid contact. [116] In the post-separation period, Mr. J. had no access to C. from April 27, 2009 (the date of his release on bail) until October 31, 2009, for no apparent reason other than Ms. J.'s claimed fear of Mr. J. and her refusal to take reasonable steps to facilitate access for C.'s sake. If Ms. J. had any genuine interest in ensuring that C. maintained a relationship with her father despite Ms. J.'s contempt for him, then access could easily have been arranged. [117] It is evident that Mr. J. desperately missed C. and wanted to see her. In relation to this period Mr. J. said, "...I hurt so much not being able to see [C]. The pain was compounded by the fact that I knew she missed me and I could not tell her I loved her, that I missed her, and was doing everything I could to see her, and that she would see me again, but not sure when." [118] Mr. J. also submits that Ms. J. is an unsuitable guardian because she quickly flies into rages and becomes physically violent to

herself and others, including her children. He testified to witnessing incidents of excessive and abusive child discipline by her during the marriage, and to an incident of self-inflicted harm. Mr. C. testified to similar experiences and observations while he lived with Ms. J. Both men described suicide attempts by Ms. J., concerns about her mental stability, and acts of excessive child discipline by her. [119] Ms. J. makes similar allegations against Mr. J. She says he has "an anger and abuse problem"; however, Ms. J.'s credibility has been seriously undermined by her fallacious and self-serving allegations against Mr. V. and Mr. J., including the filing of 17 complaints to the police about Mr. J. in the post-separation period, not one of which resulted in any police action. [120] I am satisfied that the evidence establishes that Ms. J. has an unstable personality with a propensity for rage and physical violence. It seems that she has a need for complete control and a most regrettable willingness to say and do whatever she believes is necessary to achieve it. In the face of conflict and marital breakdown, it is evident that she insists on complete and unquestioned loyalty from her friends and family, and that she is inclined to reject and demonize those persons whom she perceives are against her. One dire consequence of these behaviours has been the alienation of her children

from their fathers. [121] Despite the foregoing, it cannot be said that Ms. J. is without positive traits. Presumably it is these which drew Mr. J. and Mr. C. to her. She is a presentable, well-groomed, articulate, capable, ambitious and hard-working woman. She is caring and attentive to her children, in her own way. It seems, however, that she may indeed suffer from either the chemical imbalance or borderline personality disorder suggested by Mr. C. and Mr. J., respectively. The evidence establishes that there is instability in her personality and a side to Ms. J. other than her soft-spoken and mild-mannered public persona. [122] In Ms. J.'s bid for sole guardianship of C., she asserts that a parenting arrangement requiring any agreement or compromise by the parties would fail. She said Mr. J. treats her "with disregard and contempt and malice" and "there is no possible way I can compromise with him for ANY decisions that will need to be made for [C]. He has a need to exert his will on all matters." [123] Mr. J. raises similar concerns about co-parenting. He says, "I do not want an adversarial relationship with [Ms. J.] but she has pursued this from the very beginning and I suspect that all efforts on my part to co-parent will be met with fierce opposition." In this regard, he says: I have reconciled what she did, have forgiven her, and wish her well. I hope she will be happy

and non-confrontational. That would benefit me, and the children will do better with a happy well-adjusted loving mother. ... I am not perfect and have made mistakes, but would never betray her and, especially, the children, the way she did to us. ... [She] has lied with impunity for 20 years, causing great grief and torment. ... [She] has left a trail of destruction that includes destroying relationships between [Mr. C.] and his sons, myself and my step-sons, between our daughter and [Mr. V.] and [B.V.], [and] neighbour [J.T.], and she continues to interfere in [C.]'s relationship with me, and finally [she] denies our daughter access to all her school friends. [124] Turning, then, to the governing legal principles, as noted above C.'s best interests in relation to parenting arrangements are determined by considering all her needs and circumstances, including those listed in s. 37(2) of the FLA. I will address each listed consideration separately. (a) the child's health and emotional well-being [125] C. has no special health needs or concerns that cannot be met by either parent; however, the evidence establishes that C.'s emotional well-being would be at risk if her mother were her sole guardian. (b) the child's views, unless it would be inappropriate to consider them [126] Given C.'s tender years, I am satisfied that she is too young to consider her views. In any event, there

is ample evidence upon which to determine C.'s best interests. (c) the nature and strength of the relationship between the child and significant persons in the child's life [127] The most significant persons in C.'s life are her parents. She has a strong bond and healthy relationship with both parents. She also has a good relationship with her half-brothers, although they are now adults and may not be living at home for much longer. (d) the history of the child's care [128] Both parents were actively involved in the first five years of C.'s care. Since the separation Ms. J. has been, by default, the primary caregiver. Mr. J. has had very limited access to C., but he has taken a keen interest in parenting and in ensuring C. socializes with her friends. (e) the child's need for stability, given the child's age and stage of development [129] There is no indication of any special need or concern regarding stability for C. She has lived in the same house in Maple Ridge for most of her life, and has been in the primary care of her mother at that house, for the past 4.8 years. For 3.5 years, she has had regular access to her father, including overnight visits. C. is now old enough to be away from either parent for reasonably extended time periods. (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities,

parenting time, or contact with the child, to exercise his or her responsibilities [130] Both parents are able, in a general sense, to exercise parental responsibilities. Both parents are capable and responsible adults, subject to the concerns expressed below. (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; and, (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 child and meet the child's needs [131] The family violence Ms. J. alleged against Mr. J. has not been established; thus, it cannot form a basis for concern that Mr. J. may be impaired in his ability to care for C. and meet her needs. Violent outbursts have been attributed to Ms. J., and this raises some concern regarding Ms. J.'s ability to meet C.'s emotional needs. (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members [132] Perhaps this is the only matter on which the parties are ad item. There is no reasonable prospect of a successful cooperative parenting arrangement. If such were imposed it is

likely that it would expose C. to considerable parental conflict and, thus, put C.'s well-being at risk. (j) any civil or criminal proceedings relevant to the child's safety, security or well-being. [133] There is no evidence of such proceedings. [134] In the case at bar, each party seeks an order removing the other as guardian. A parent who is not a guardian cannot have any "parenting responsibilities" or "parenting time" as these terms are defined in ss. 41 and 42 of the FLA. The role of such a parent in relation to the child is limited to mere "contact"; thus, the removal of a parent as guardian is a draconian step that ought to be taken only when any sort of division of parenting responsibilities and parenting time between the parents would not be in the best interests of the child. [135] In this regard, s. 40 of the FLA permits the court to allocate parenting responsibilities and parenting time between, or among, guardians, and provides that there is neither a presumption of equal allocation nor one that the decisions of guardians must be exercised together; thus, even where, as here, there are compelling concerns about a child's best interests vis-à-vis one parent and of parental animosity which would realistically preclude joint decision-making, these may be addressed through allocation and designation of parenting responsibilities. [136] Parenting responsibilities are

prescribed in s. 41 of the FLA and they include "making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child". Pursuant to s. 42(2) of the FLA, this responsibility falls to the guardian who is exercising his or her parenting time, unless an agreement or order provides otherwise. The remaining responsibilities must be specifically allocated. [137] Having regard to the foregoing provisions of the FLA and the facts in the case at bar, I am not persuaded that it is necessary, in C.'s best interests, to remove either parent as a guardian. I am satisfied that an allocation of parenting time and responsibilities, albeit heavily weighted in favour of Mr. J., is the appropriate means to address the compelling concerns that exist in relation to Ms. J.'s parenting. [138] Foremost among these concerns is parental alienation. It is clear that Ms. J. holds Mr. J. in the utmost contempt, that she would prefer to be entirely rid of Mr. J. except for his financial support, and that she will say or do whatever is necessary to discredit and demonize him in the eyes of others, including her own children. She has made baseless allegations against Mr. J. and has successfully alienated her sons from him and from their biological father. I am satisfied that Ms. J. will alienate C. from her father if given the opportunity. [139] In my view Ms. J.

teeters between "guardian with very proscribed parenting responsibilities" and "non-guardian parent with simple contact"; however, Mr. J. fairly acknowledges that C. needs both parents in her life and that she should spend generous amounts of time with both. It is also not in issue that Ms. J. is an attentive mother, and that while C. is in her mother's care her physical needs are met. In these circumstances, I am satisfied that the court ought to err on the side of guardianship and, thus, afford Ms. J. the opportunity to make day-to-day decisions affecting C. and to have day-to-day control and supervision over C., while C. is in her care. These are important for effective day-to-day parenting and normalizing parent-child relations, both of which are in C.'s best interests. I also see no reason not to allow Ms. J. to request and receive, from third parties, health, education or other information about C.; accordingly, I am satisfied that both parties should share this responsibility identified in s. 41(j) of the FLA. [140] For the remaining parental responsibilities under s. 41, I am satisfied that C.'s best interests would be served by Mr. J. having responsibility to the exclusion of Ms. J. Mr. J. is willing and able to carry out these responsibilities. Most importantly, he has no interest in alienating C. from her mother or anyone else, and no inclination to make decisions

about C. which are influenced or motivated by anything other than C.'s best interests. Regrettably, the same cannot be said for Ms. J. [141] In the exercise of his considerable parenting responsibilities, I am satisfied that Mr. J. must keep Ms. J. apprised of any significant developments or decisions regarding C. in relation to her living circumstances, health, education, extracurricular activities, and general welfare. For all these matters, Mr. J. must seek and consider Ms. J.'s advice prior to making decisions. [142] In relation to parenting time, Ms. J.'s contempt for Mr. J. and the unlikelihood that the parties will reach agreement obliges the court to define C.'s time with each parent; moreover, it is in C.'s best interests that opportunities for conflict between her parents be minimized. As for the scheduling of parenting time, I am satisfied that it would be in C.'s best interests to split her time equally between her parents on a "week on, week off" basis, with increased flexibility in this schedule during the usual breaks from school to accommodate vacations with each parent. All holidays and any other special days designated by the parties shall be equally shared on an alternating-year basis. C. shall be with her mother on Mother's Day and on Ms. J.'s birthday, regardless of the usual schedule. Similarly, C. shall be with her father on Father's Day and Mr. J.'s

birthday. [143] Unless the parties otherwise agree, during the school year each parent's weekly parenting time with C. shall commence upon pick-up after the last class of the week, and end upon pick-up by the other parent following the last class of the next week. Pick-ups shall be the responsibility of the parent commencing his or her parenting time with C. This new parenting arrangement shall begin in the week of March 3-7, 2014, upon Mr. J. picking up C. from school after her final class of the week. In non-school periods, the parents must agree upon the method and timing of the exchange. If they cannot agree, the parties must resort to a parenting coordinator for resolution. [144] All communications between the parties in relation to C. must be timely, courteous and, except in emergencies, by e-mail. For C.'s sake, the parties must strive to behave respectfully and courteously towards one another at all times. Property Division [145] Section 252(2)(b) of the FLA provides as follows: Unless the parties otherwise agree, a proceeding respecting property division started under the former Act must be started or continued, as applicable, under the former Act as if the former Act had not been repealed. [146] The parties have not otherwise agreed; accordingly, the property division provisions of the FRA are applicable. [147] The only family asset of significance is the equity in

the former matrimonial home, estimated to be approximately $160,000. Ms. J. attempted to establish the existence of a $75,000 investment certificate, but failed in this regard. Mr. J. provided a complete and plausible explanation establishing that no such asset exists. Notably, Ms. J. was not inclined to accept the certificate as part of her share of any asset division. [148] Pursuant to s. 56 of the FRA, each party is entitled to an undivided half interest in this equity. Ms. J. seeks an order of reapportionment which would give her 70% of this asset. Section 65 of the FRA permits reapportionment when to do otherwise would be unfair, having regard to the factors listed in s.

65. Ms. J. relies principally upon the following factors: (a) The duration of the marriage, (e) The need of each spouse to become or remain economically independent and self-sufficient, or (f) Any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse[.] [149] Ms. J. claims: (a) that she has been economically disadvantaged by the marriage and its breakdown; (b) that she was the primary care-giver of the children during the marriage and still bears this responsibility; (c) that her career "took a backseat" to Mr. J.'s; and, (d) that she will need "a great deal of time to advance her career" and may "never be able to recover what opportunities have passed over the years". These same arguments have been advanced in support of Ms. J.'s claim for spousal maintenance. It is evident from other aspects of her final submissions that since separation Ms. J. has preserved and maintained the house without Mr. J.'s assistance. [150] Mr. J. is opposed to the 70/30 reapportionment sought by Ms. J.; however he agrees to a 55/45 reapportionment in favour of Ms. J., albeit without articulating the basis for such. [151] Having due regard for all the evidence, I am not persuaded that Ms. J. has satisfied the onus on her to demonstrate that an equal division of the home equity would be unfair, having

regard to the factors in s. 65 of the FRA. [152] In relation to her alleged need to become or remain economically self-sufficient, the evidence shows that Ms. J. is capable of earning at least as much as Mr. J. The incomes of both parties may be subject to the ebbs and flows of the real estate market, but in terms of post-separation economic independence and sufficiency, Ms. J. is similarly situated to Mr. J. [153] In relation to preservation and maintenance of the property, the evidence does not establish unusual efforts by Ms. J. in this regard; in particular, none that have significantly influenced the property's value. Simply maintaining the house, doing minor repairs, and meeting the usual monthly house expenses during a period of exclusive occupancy and sole access to rental suite income is not a basis to justify reapportionment. [154] In light of the foregoing, I conclude that a legal justification for reapportionment has not been established; however, on the basis of Mr. J.'s concession of a five percent reapportionment in favour of Ms. J., the equity in the home will be divided on a 55/45 ratio in favour of Ms. J. [155] Ms. J. has expressed an interest in remaining in the home. If Ms. J. wishes to do so then she must pay Mr. J. 45% of the equity (based upon a property value of $515,000) and assume sole responsibility for the mortgage debt. From Mr. J.'s share in the

house equity the amount required to clear the registered judgments against Mr. J. and any other monies owed to Ms. J. pursuant to this judgment shall be deducted before distribution to him. [156] If Ms. J. does not purchase Mr. J.'s interest within 120 days, then within 30 days of the expiration of the 120-day period Ms. J. must list the house for sale with a realtor mutually agreeable to the parties, and at a mutually agreeable price within $20,000 of that recommended by the realtor. Ms. J. must fully cooperate with the real estate agent in promoting the sale, including making the house reasonably available for showings. If Ms. J. fails to do so, then Mr. J. may apply to court for an order granting him sole conduct of the sale. Once the house is sold, the mortgages and any fees associated with the sale must be paid off before the net proceeds are divided between the parties in a 55/45 ratio. From Mr. J.'s share of the proceeds the registered judgments against him and any monies owed to Ms. J. pursuant to this judgment shall be paid before distribution to him. [157] The remaining personal property shall be divided as follows: (a) each party shall have the motor vehicle presently used by her/him; (b) each party shall have any personal property brought into the marriage or received as a personal gift during the marriage; (c) Ms. J. shall have all the household furnishings; and,

(d) Mr. J. shall have all "sports and recreational" vehicles and equipment, and all "household and garden" tools. Future Child Support and s. 7 expenses [158] The foregoing new parenting arrangements will have the parties equally sharing parenting time with C. In this circumstance, the "shared custody" provisions of the Federal Child Support Guidelines, SOR/97-175 ("Guidelines") are applicable; however, the parties have not addressed the factors the Court must take into account in determining the amount of a child support order, pursuant to s. 9 of the Guidelines. At trial, the incomes of the parties for the purpose of child support were in contention and the evidence was unsatisfactory. Ms. J.'s position was that an income much greater than Mr. J.'s actual income ought to be imputed to him and that an income much lower than her actual income ought to be imputed to her because she should not be expected to work so hard. [159] In view of the new parenting arrangements, I am satisfied that the claim for ongoing child support for C. should be adjourned generally, and the existing interim order obliging Mr. J. to pay child support should be cancelled. Either party may pursue a future application for child support after May 31, 2014. The parties must exchange business and income tax documentation showing their gross and net earnings for the previous year, on or before May 31 of 2014

and then on May 31 of each year thereafter. [160] Section 7 expenses for C. should be shared equally until May 31, 2014, and thereafter in proportion to the parties' respective incomes. Mr. J. must consult with Ms. J. regarding these expenses prior to incurring them. If the parties cannot agree then Mr. J. will decide, with due regard for the views of Ms. J. and for the reasonableness of the expense in relation to the incomes of the parties. Past Child Support and s. 7 expenses [161] Ms. J. seeks past support for R., M., and C. In relation to R. and M., she submits that Mr. J. assumed the role of step-father for nine years and is, thus, obliged to support his step-sons. Mr. J. does not challenge this assertion. He agrees that he was in a parental relationship with R. and M., that the boys called him "dad", and that he was actively involved in their upbringing; indeed, he laments the loss of his relationship with his step-sons. He blames Ms. J. for alienating his step-sons from him despite his efforts to maintain these relationships following the marital breakdown. [162] Section 5 of the Guidelines provides that the amount of child support payable by a "spouse in place of a parent" is that which is appropriate having regard to the Guidelines and any other parent's legal duty to support the child. On the evidence presented, such a figure is virtually impossible to

calculate. [163] In the post-separation period, Ms. J. received child support and a contribution towards s. 7 expenses from Mr. C. In addition, Mr. J. submits that he contributed in various ways to the support of R. and M. within his limited means, and I accept this as true. In this period Mr. J. was struggling with a marital breakdown and eviction from his home precipitated by a false allegation of assault. His income was very low and he lived with his mother in order to make ends meet. [164] Ms. J. characterized Mr. J.'s payments to Mr. V. for R.'s room and board as "fictitious"; yet, both Mr. V. and his mother testified that Mr. J. contributed to R.'s expenses and their testimonies in this regard were not challenged in cross-examination. I accept their evidence in this regard as true. [165] I am satisfied that Mr. J. contributed in various ways to the support of his step-sons in the post-separation period, including foregoing his share of the rental income from the basement suite in the matrimonial home. If Mr. J. fell short of his appropriate contribution towards the support of R. and M., then I am satisfied that this shortfall is adequately covered by the five percent asset reapportionment to which Mr. J. has agreed without legal justification for it. [166] In relation to C., Mr. J. has conceded that his child support should have been based upon an income of $46,700 as of

January 1, 2011. His monthly support payments of $280 were based upon an imputed annual income of $30,000; accordingly, after January 1, 2011 he ought to have been paying $426. His underpayment to February 28, 2014 is calculated at $5548. Mr. J. is also responsible for his proportionate share of C.'s daycare expenses incurred by Ms. J. from May 1, 2009 to February 28, 2014, upon receipt of proof from Ms. J. that such expenses were incurred. Due to the difficulties in determining the parties' incomes for this period and given their similar income-earning abilities, I will fix Mr. J.'s proportionate share at 50%. [167] The total of: (a) the arrears in basic child support for C.; and, (b) Mr. J.'s share of daycare costs, shall be deducted from Mr. J.'s share of the equity in the family home, in favour of Ms. J., at the time of asset distribution. Spousal Support [168] Ms. J. seeks past and future spousal support from Mr. J. pursuant to s. 89 of the FRA. She submits that her traditional role of housewife and mother during the parties' nine year marriage has left her economically disadvantaged; however, I am not persuaded that such disadvantage has been demonstrated. I accept Mr. J.'s evidence that both parties were actively involved in raising the children and that after C.'s birth both parties cut back on their income-earning employment and assumed parenting responsibilities. Ms.

J. worked during the marriage. Since separation, Ms. J. has demonstrated the ability to earn a similar or greater income to that of Mr. J. In 2007 she earned $76,572. In 2011 she earned over $75,000. Although Ms. J. claims that she "busted her tail" to earn this income, the essential points are that she was able to resume full-time employment in her line of work immediately after separation and that she has a demonstrated ability to earn a higher income than Mr. J. There is no suggestion that Mr. J. is underemployed as a mortgage broker. Restraining Order [169] Ms. J. seeks a restraining order against Mr. J. She claims to be fearful of him because he has been threatening and physically and psychologically abusive to her. She suggests that Mr. J. is obsessed with her. Ms. J. relies, in part, on Mr. J.'s April 26, 2009 arrest for assault as evidence of physical abuse; however, she also submits that she was physically abused throughout the marriage and that after separation Mr. J. harassed her in various ways including by telephoning her excessively, by sending e-mails to others about her, and by taking photos during exchanges for access time with C. She points to cellphone records which show that Mr. J. dialed her telephone number 78 times between July 20, 2009 and May 19, 2010. [170] Mr. J. denied the abuse and provided a reasonable explanation for his post-separation conduct.

In the wake of the assault charge against him, Mr. J. was struggling to gain access to his young daughter and to attempt to save a personal reputation tainted by a false allegation. His emails and telephone calls were not unreasonable within this context. Ms. J. used her assault complaint as a basis for gaining exclusive occupancy of the family home and as a justification for cutting off all direct communications with Mr. J. in a period when Mr. J. was attempting to see his daughter; despite this, Ms. J. characterizes the calls as "unwarranted" and uses them as evidence of Mr. J.'s obsession with her. [171] I do not believe Ms. J. when she says that she is fearful of Mr. J. Her past conduct suggests that the request for a restraining order is ill-motivated; that is, it is not sought for the purpose of her protection, but rather to use against Mr. J. to further her own ends. I am satisfied that Ms. J. believes a restraining order will: (a) lend some credence to her version of events; (b) demonstrate to others that there is a reasonable basis for her fears; and (c) help rally support for her and foster antipathy toward Mr. J. [172] I am satisfied that Ms. J. was similarly motivated when she fabricated the April 26, 2009 assault and then made 17 unfounded reports to the police. In relation to the assault, it was clear throughout the trial she regarded the arrest, the charge, and

the restrictive bail conditions arising from her April 26, 2009 complaint as some sort of confirmation of the truth of her allegations, notwithstanding the subsequent stay of proceedings. Even in her final submissions she relied upon the requisite "reasonable and probable grounds" of the police to arrest and charge Mr. J. as evidence she had been assaulted by Mr. J., knowing that the arrest and charge arose solely from her complaint and that the charge was subsequently stayed. E. Disposition [173] In summary, I make the following orders: 1. Divorce a. Pursuant to s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), a divorce is granted, effective 31 days from the date of this judgment.

2. Parenting Arrangements a. The parties' claims to have the other parent removed as a guardian of C. are dismissed. Both parties shall remain guardians of C. b. Parenting responsibilities for C. shall be allocated as follows: i. The guardian who is exercising his or her parenting time shall be responsible for making day-to-day decisions affecting C. and having day-to-day care, control and supervision of C. pursuant to s. 41(a) of the FLA. ii. Both guardians may request and receive, from third parties, health, education or other information respecting C. pursuant to s. 41(j) of the FLA. iii. Mr. J. shall have sole responsibility for exercising the remaining parenting responsibilities set out in s. 41(b)-(i) and (k)-(l) of the FLA. iv. In exercising the parenting responsibilities set out in s. 41(b)-(i) and (k)-(l), in relation to C.'s living circumstances, health, education, extracurricular activities and general welfare, Mr. J. shall inform Ms. J. of any significant developments or decisions, and shall seek and consider Ms. J.'s advice before making decisions. c. Parenting time with C. shall be allocated as follows: i. Parenting time shall be split equally between the guardians on a "week on, week off" basis. ii. Subject to an agreement otherwise by the parties, during the school year each parent's weekly parenting time with C. shall commence after the final class of the week,

and end after the final class the following week. The parent exercising parenting time shall be responsible for picking up C. This parenting schedule shall begin the week of March 3-7, 2014, with Mr. J picking up C. after her final class of that week. iii. In non-school periods, the parties must agree on the method and timing of the exchange. If they cannot agree, they must resort to a parenting coordinator for a resolution. iv. The "week on, week off" schedule may be modified during school breaks to accommodate vacations with each parent. v. All holidays and any special days designated by the parties shall be equally shared on an alternating-year basis. vi. C. shall be with her mother on Mother's Day and on Ms. J.'s birthday, regardless of the usual schedule. vii. C. shall be with her father on Father's Day and Mr. J.'s birthday, regardless of the usual schedule. d. All communications between the parties in relation to C. must be timely, courteous and, except in an emergency, by e-mail. During parenting time with one parent, C. shall have liberal telephone contact with the other parent.

3. Property Division a. Ms. J. shall have 55% of the equity in the former matrimonial home, and Mr. J. shall have 45%. b. Should Ms. J. wish to purchase the home, she must pay Mr. J. 45% of the equity based upon a value of $515,000, and assume sole responsibility for the mortgage debt. c. If Ms. J. does not purchase Mr. J.'s interest within 120 days, then within 30 days of the expiration of the 120-day period Ms. J. must list the house for sale with a realtor mutually agreeable to both parties, and at a mutually agreeable price within $20,000 of that recommended by the realtor. Ms. J. must fully cooperate with the real estate agent in promoting the sale of the house, including allowing the house to be shown to agents and prospective buyers. If Ms. J. fails to do any of the foregoing then Mr. J. may apply to court for an order of sole conduct of sale. d. Regardless of whether Ms. J. purchases the home or it is sold, from Mr. J.'s 45% share shall be deducted the amount required to clear judgments against him registered against the property and the amount of any other monies due to Ms. J. pursuant to this judgment. e. The parties' remaining personal property shall be divided as follows: (a) each party shall have the motor vehicle presently used by her/him; (b) each party shall have any personal property brought into the marriage or received as a personal gift during the marriage; (c) Ms. J. shall have all the household furnishings; and, (d) Mr. J. shall have all "sports and recreational" vehicles and equipment, and all "household and garden" tools.

4. Child Support and s. 7 Expenses a. Mr. J. must pay $5548 to Ms. J. to account for underpayment of past child support for C. For the period from May 1, 2009 to February 28, 2014 Mr. J. must compensate Ms. J. for half of C.'s daycare expenses upon proof of payment by her. The foregoing amounts shall be deducted from Mr. J.'s share of the family assets at the time of asset distribution. b. The interim order obliging Mr. J. to pay child support for C. is cancelled. c. The claim for ongoing child support for C. is adjourned generally. d. The claims for past and future support and s. 7 expenses for R. and M. are dismissed. e. The parties must exchange business and income tax documentation showing their gross and net earnings for the prior year, on or before May 31 of each year. f. Section 7 expenses for C. shall be shared equally until May 31, 2014, and thereafter in proportion to the parties' respective incomes. Mr. J. shall consult with Ms. J. prior to incurring s. 7 expenses, but shall have the final decision-making responsibility to be exercised with due regard for the views of Ms. J. and the reasonableness of the expense in relation to the parties' incomes.

5. Spousal Support a. The claims for past and future spousal support are dismissed.

6. Restraining Order a. Ms. J.'s claim for a restraining order against Mr. J. is dismissed. F. Costs [174] The parties shall bear their own costs of this litigation. There has been mixed success and there is no reasonable foundation for Ms. J.'s claim that Mr. J. needlessly prolonged the litigation or engaged in reprehensible conduct in relation to it. "The Honourable Mr. Justice Bernard"