E.J.C. v. S.C.

2002BCSC0731 Citation: E.J.C. v. S.C. Date: 20020517 2002 BCSC 731 Docket: 990116 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: E.J.C. ALSO KNOWN AS B.J.T. PETITIONER AND: S.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE Mr. JUSTICE BURNYEAT Counsel for Plaintiff: A. M. Rafuse S.C. Appearing on his own behalf Date and Place of Hearing: February 19-22, 2002 Victoria, B.C. [1] Ms. C. seeks to vary the terms of an Order made November 21, 1997 in order to limit the access that Mr. C. has to their daughter to supervised access two times a week (three hours maximum) on weekends during the school year and any day during July and August. Mr. C. applies for sole custody but, in the alternative, for unsupervised access including two months with the child at his home in Ontario. Pursuant to an earlier Order made, the applications were heard with the parties and others testifying under oath as well as referring to affidavits previously filed. BACKGROUND [2] The parties met during the summer of 1993, became roommates, became romantically involved with Ms. C. becoming pregnant but subsequently experiencing a miscarriage, moving to separate locations but keeping in touch during 1994 and 1995, and Ms. C. moving to Ontario at the urging of Mr. C. in early 1995, returning to Victoria and then Penticton in July, 1995, and Ms. C. becoming pregnant and agreeing to marry Mr. C. in Penticton on November 29, 1995. It is apparently the case that none of the family of Mr. C. was in attendance at the wedding as it is said that he had neglected to introduce Ms. C. to his parents. Ms. C. states that she married Mr. C. because he pressured her to marry and because she wanted to legitimize the child. Their daughter was born on February 11, 1996. [3] After the marriage, Ms. C. remained in Penticton while Mr. C. continued to reside in Ontario. In May, 1996, Ms. C. joined Mr. C. in Ontario but returned with their daughter to Penticton on June 13, 1996. While Ms. C. and her child returned to Ontario twice during the summer of 1996, the parties permanently separated at the end of August, 1996. INTERIM ORDERS [4] Master Bishop made an Order on October 31, 1996 that the parties were to have "interim joint custody" and "interim joint guardianship" of the child, that the primary residence of the child was to be with Ms. C., and that Mr. C. would have: Supervised access to the child as agreed upon between the parties with the Respondent at liberty to apply for variation once his residence has been finalized. [5] Neither party was to remove the child from British Columbia without the other's written consent, with consent not to be "unreasonably withheld." Mr. C. had requested "reasonable unsupervised access" and stated in his affidavit that Ms. C. would only allow him to see his daughter in her presence, that he would like to spend time with his daughter on his own and that, when she is older, he would like to be able to take her to Ontario to visit with her family "... who all want to be involved in [her] ... life." [6] In support of her submission that the visits should be supervised, Ms. C. stated that she wanted their daughter to have a relationship with Mr. C. but that she thought that the visits should take place at her residence until their daughter was old enough to talk and communicate. She also stated her belief that a child of eight months requires close and constant supervision and attention. At the time of this Order, both parties were represented by counsel. [7] An application was brought by Mr. C. to vary the October 31, 1996 Order. Mr. C. requested specified unsupervised access now that he had a permanent address in Kelowna. In his affidavit, Mr. C. stated: I have been experiencing great difficulty in exercising consistent access, since the Petitioner has consistently sought to limit my involvement with the child. [8] Mr. C. also stated that he had received a letter from Ms. C. indicating that she no longer wished him to exercise access at her home and that he would have to find someone else to supervise access if he wanted to exercise access. That application to vary the October 31, 1996 order was denied by Master Bishop on December 12, 1996. At the same time, Master Bishop ordered a Level III Custody and Access Report. [9] In a motion heard March 6, 1997, Mr. C. again requested unsupervised access. Under the Order made by Master Bishop, Mr. C. was to have unsupervised access every Sunday between 9:00 a.m. and 5:30 p.m. It was a further provision of the Order that the question was to be reviewed after May 1, 1997. Both sides were represented by counsel at the hearing as well. [10] On May 29, 1997, Mr. C. made a further application to vary access. Mr. C. requested unsupervised overnight access on five evenings as well as unsupervised overnight access at 10-day intervals for three consecutive days and for two weeks in the Province of Ontario. The Order made was that Mr. C. would have overnight access on May 29 and June 14, 1997. THE DIVORCE TRIAL [11] Both parties were represented by counsel when the matter came to trial in Kelowna on November 19 and 20, 1997. Kirkpatrick, J. gave judgment on November 21, 1997 and granted Ms. C. permanent sole custody, the parties joint guardianship of the child and Mr. C. "liberal and generous access to the child". It was also ordered: (a) when the Respondent moves to Ontario, the Respondent shall have access three days per week, between the hours of 9:00 a.m. and 7:30 p.m. and the Respondent shall exercise at least ten regular access visits per calendar year; (b) the Respondent shall not exercise overnight access for a period of two years, after which time if he has exercised at least ten regular access visits per calendar year for the previous two years, he shall be permitted to have overnight access on the basis to be agreed between the parties; (c) upon the child entering Grade 1, the Respondent shall have access for one-half of the Christmas Break, Spring Break and summer vacations." [12] By and large, it is this access Order which remains in effect. It is this Order as to access that Ms. C. seeks to vary. In addition to the matters which had been raised by Ms. C. in prior applications, Ms. C. also raised certain concerns at the Trial. In her Reasons for Judgment, Kirkpatrick, J. stated: "As I understand her evidence, [Ms. C.] ... does not accuse [Mr.C.] of sexually abusing [their daughter] .... she does, however, express real concerns about inappropriate behaviour by [Mr. C.] ... (particularly relating to his nudity and to her breast-feeding ... [their daughter] and, more importantly, odd and unexplained behaviour by [their daughter]... when she returns from access visits with her father." "After listening carefully to all the evidence, I conclude that [Mr. C.'s] allegations were not motivated by malice or a twisted desire to thwart access. She may be mistaken, but not maliciously so. The fact is that both Mr. and Ms. [C.] adore [their daughter]...and want her to live with them." [13] Kirkpatrick, J. noted that both parties wanted sole custody and that Mr. C. testified that, if he was awarded custody, he and their daughter would return to Ontario to live with his brother and sister-in-law and that his sister-in-law was prepared to care for his daughter while he was at work. Mr. C. testified that he was prepared to give Ms. C. access on alternate weekends but Kirkpatrick, J. inferred from this evidence that this was based on an assumption that she would move to Ontario as well. Kirkpatrick, J. noted: "It would otherwise be a financially impossible proposal." [14] A Custody and Access Report filed February 4, 1997 was before Kirkpatrick, J. The Report notes: "The writer observes a father who is emotionally immature, irregular in employment and uneasy in the marriage relationship who would very much like to follow through as a parent to his only child." "Unsupervised access could proceed for the time being in the same twice weekly pattern or in some other pattern." "Overnight access would see a start to more involvement and care by father and would call for a level of trust and co-operation between the parents which is presently tenuous." "Extended periods of unsupervised access would involve real 'co-parenting' by a mother and a father whose parenting styles appear to be at marked variance with one another. Both parents clearly love the child and are interested in her welfare and happiness." "....overnight access should not commence until regular daytime access has been exercised for a period of two years. Extended periods of access could commence once the child enters first grade." [15] Kirkpatrick, J. stated that the decision she was asked to make was "exceedingly difficult". She described her decision to not allow Mr. C. to be the custodial parent as follows: "She would, in reality, be living with strangers, at least initially. She would be taken from the only home she has known and from, in particular, her mother and sister with whom she has obvious bonds of love and affection. Such a decision would not, in my view, be in [her]... best interests. The only conceivable purpose it might serve is that [Mr. C.]... would have unimpeded contact with his daughter. But it would inevitably result in the severance of [her] continuing contact with her mother and sister, the only care-giver she has really known in her very young life. I apprehend that [Mr. C.'s] ... motivation in seeking sole custody of [his daughter] ....although perhaps also motivated by spite for what he regards as [Ms. C.'s] ... unwarranted allegations and impropriety) has been his desire to see more of [their daughter]...." "But he must understand that [their daughter]... is hardly out of babyhood. As much as she loves her father, her constant parent has been [Ms. C.], ... who is unquestionably a loving, competent mother." "There is absolutely no reason to disturb the status quo. Having said that, it is extremely important for [Ms. C.] to understand the importance of fostering and maintaining the relationship that [her daughter]... has with her father. That is not to disregard or in any way trivialize her stated concerns. Indeed, one of the factors that causes me some pause is [Mr. C.'s] apparent disregard of the concerns raised by [Ms. C.]... He explains [their daughter's] ...odd behaviour as, in his words, a "longing to be with him". Given [Ms. C.'s]... description of ... [their daughter's] behaviour, I doubt very much that his explanations has any connection to the root cause of ... [their daughter's] actions. Both [Mr. and Ms. C.] must put aside their differences and work towards [their daughter's] ... total well-being. I conclude that Ms. C. is prepared to facilitate access to [their daughter] ... by Mr. C. (although his testimony that he is returning to Ontario was evidently a surprise to her and her counsel). I should add that, if [their daughter] ... were to live with her father in Ontario, I would have some serious reservations that his family (with whom he is tightly bound) would facilitate access to [Ms. C.]... Accordingly, I conclude that [their daughter's] ... best interests are served by her continuing to live with her mother and sister in the environment she has known most of her young life. SUBSEQUENT APPLICATIONS [16] Since 1997, Mr. C. has been back before the Court on many occasions to attempt to vary what was ordered by Kirkpatrick, J. On some of those applications, the parties have been represented by counsel. On most of the applications, both parties have merely re-argued the questions which were before Kirkpatrick, J. without first showing that the criteria for a variation of the custody and access Order existed. [17] McLachlin, J., as she then was, is Gordon v. Goertz, [1996] 2 S.C.R. 27 summarized the law on an application to vary an Order dealing with custody and access: (a) the parent applying for a change in the custody or access Order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child and, (b) it is only if the threshold requirement has been met, that the judge must then embark on a fresh enquiry into what is in the best interests of the child having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. [18] I am satisfied that Mr. C. has not once shown that there has been a material change in the circumstances affecting the child such that there should be a change in custody so that he be the custodial parent. I find that the circumstances have not changed. Mr. C. still resides in Ontario. Ms. C. and their daughter reside in British Columbia (Victoria). The child has been with her mother exclusively since birth. Any changes affecting the child have merely amounted to further allegations made against Mr. C. that he has acted inappropriately. [19] The desire of Mr. C. to revisit and reverse the decision of Kirkpatrick, J. has not changed. Mr. C. remains adamant that the Court and Ms. C. do not know what is in the best interests of the child on the question of custody and that only he does. Mr. C. wishes to embark upon a fresh inquiry as to what is in the best interests of the child on the question of custody without having met the threshold requirement of demonstrating a material change in the circumstances affecting the child. [20] On the other hand, I am satisfied that Ms. C. has met the threshold requirement of demonstrating a material change in the circumstances affecting the child on the question of access so that there should be a review of the original access provisions made by Kirkpatrick, J. on November 21, 1997. Ms. C. continues to submit that Mr. C. is not an appropriate parent to have unsupervised access and has made a number of allegations which have resulted in the access of Mr. C. being severely curtailed. As a result of those allegations, Mr. C. has only had supervised access, any access has been severely curtailed, there has been limited access and, as a result of limited access, Mr. C. has become estranged from his daughter. It is also apparent that Ms. C. has not followed the direction of Kirkpatrick, J. that it is extremely important to foster and maintain the relationship that their daughter has with her father. [21] While I am satisfied that there have been no material changes in circumstances on the question of who should have custody so that it is inappropriate to revisit the order that Ms. C. be the custodial parent. I am prepared to deal with the other reasons why it would be inappropriate for Mr. C. to have sole custody. [22] On the question of access, it can no longer be said that Mr. C. is enjoying "liberal and generous access" which was what was ordered by Kirkpatrick, J. As I am satisfied that there have been material changes in circumstances relating to access, I will consider the appropriate variation of the access which was previously granted. APPLICATIONS MADE BY MR. C. SINCE THE TRIAL [23] Mr. C. has been incessant in his applications to obtain variations of what was ordered by Kirkpatrick, J. and to obtain the liberal and generous access which was provided by the November 21, 1997 Order. The applications of Mr. C. have been numerous: (a) for an Order that Kirkpatrick, J. had erred in that: "... she did not take into account first and foremost the child's best interests ...." and for joint custody, day-to-day care of their daughter, that Ms. C. be held in contempt and that he have the right to speak to his daughter three times a week (July 28, 1998); (b) for Christmas access, telephone access three times a week, that Ms. C. provide a "verifiable address" so that direct support payments could be made to her, that the child be delivered to him at the Toronto airport and that he be able to exercise access for a minimum of 40 hours per month or 87 days per year (December 24, 1998); (c) an Order that part of the Order of Kirkpatrick, J. be "struck from the record", telephone access be provided three times a week, that he be provided with written notification of any move involving the child, that Ms. C. provide a "current verifiable address", that he have one month's access in Victoria, that he have a four-week period in the summer of 1999, and that he have the minimum of 40 hours per week or 87 days per year access. After hearing argument on this motion, Edwards, J. concluded: "I am not satisfied that it would be in her best interest to be taken to Ontario to visit persons she will have little, if any, recollections of from her earlier time there. The father's access should be exercised in accordance with the original Order as regards overnight visits." (January 27, 1999); (d) that access be varied, the address of Ms. C. and the child disclosed and child support varied if additional access was not ordered (June 28, 1999); (e) Ms. C. be held in contempt for denying him access, that he have access four times in the month of August, 1999, that he be provided with the address of the child at all times, that he have overnight access and that he be allowed to take the child to Ontario to visit her extended family (August 25, 1999); (f) for permanent sole custody to him, that Ms. C. be held in contempt and that she be incarcerated for four days to be served on consecutive weekends, and that joint guardianship continue (September 21, 1999); (g) that Ms. C. be held in contempt and incarcerated and that Mr. C. have sole custody of their child (September 28, 1999); (h) for Ms. C. to show cause why she should not be held in contempt of the November 21, 1997, July 28, 1998 and August 25, 1999 Orders, and that Mr. C. have overnight access every weekend and every Wednesday (May 29, 2000); and (i) in response to an Order made on June 16, 2000 that access be supervised, to provide for unsupervised access three times a week, that counsel and employees of the Ministry for Children and Families be held in contempt and that the November 21, 1997 Order of Kirkpatrick, J. be enforced (July 13, 2000). [24] Partially in view of the allegations made by Ms. C., no Order made since the Trial has substantially changed the arrangement for custody made by Kirkpatrick, J. However, allegations made or suspicions raised by Ms. C. have resulted in severe curtailment of the access originally ordered. ALLEGATIONS MADE BY MS. C. AGAINST MR. C. [25] In addition to the matters noted by Kirkpatrick, J. in her trial judgment, Ms. C. has raised further matters which she submits casts doubt on the appropriateness of Mr. C. having unsupervised access or of being the custodial parent. The allegations made against Mr. C. have usually been in the context of motions by him for unsupervised access and they include the following allegations in the context of the dates of the motions shown heard both before and after the Trial: (a) Mr. C. is "untruthful and deceitful" and he "refuses to adhere" to the schedule of the child and refuses to allow regular naps "which a child of such tender years requires". (September 6, 1997); (b) to the allegation that she had been molested by her father, Ms. C. stated that she had "no idea" how Mr. C. "has come up with such an allegation" (March 6th, 1997); (c) the advice received from her daughter from a previous relationship that: "...she did not want to be left alone with the Respondent because she did not feel comfortable around him and felt that he was a pervert." (March 6, 1997); (d) she walked into the bedroom and saw Mr. C. naked on his hands and knees and when she asked him what he was doing he told her that "he was playing with his little girl." Mr. C. liked to take nude photographs of their daughter and that he carried her around while he was naked which was conduct and behaviour that Ms. C. described as being not "natural or healthy." (March 6, 1997); (e) Mr. C. was harassing her including showing up at her door on numerous occasions unannounced demanding to see their daughter, showing up at a shopping mall when she was with other people insisting on seeing their daughter, calling Child and Family Services and accusing her of denying him access, being an unfit mother and abusing and neglecting her child, going to see her doctor and trying to get information about both her and their daughter from him, being abusive to her and always having a "hostile attitude towards me" (March 6, 1997); (f) attempting to pick up their daughter two hours earlier than what was ordered and bringing her home about an hour and a half later than what was ordered and the suspicion that he was sleeping with their daughter during her nap times as when she returns from visits with Mr. C. "... she no longer wants anything to do with her own bed, but she keeps getting out of her own bed and going to sleep in the big bed (mine)." "... the more time she spends with the Respondent the more insistent she is on sleeping in an adult bed." (May 29, 1997); (g) calling the Ministry of Social Services and making false allegations that she was abusing her daughter, that she was sexually molested by her father, that her sister was sexually molested by her father, and picketing the offices of Family Court Services after the Custody and Access Report of the Family Court Counsellor had been received (May 29, 1997); (h) by attempting to try to turn the custody and the access question into a "circus" in that: "when he doesn't get his own way, he turns around and does something 'big and loud' to try and attract the sympathetic attention of the general public. The Respondent has been continuously contacting my family members ... and harassing them and making slanderous statements", making "loudly demands" in the presence of their daughter (May 29, 1997); (i) "Unreasonable and unable to compromise even in the best interests of our daughter", "inappropriate conduct with our daughter" (July 28, 1998); (j) by continuing to harass her, "my family, friends, neighbours and a landlord" including "... sat in a car in front of my home; banged on my door on numerous occasions, peered in my windows, followed me down the street and to shopping malls; ...." (August 25, 1999); (k) in the context of an application requesting an increase in child support and a redefinition of telephone access and joint guardianship, that a "psychological evaluation be done on the Respondent before any overnight access is granted" (December 24, 1999); (l) that he "was not honest with respect to the debts and liabilities section in his Financial Statement of November, 1997" (December 24, 1998); (m) that he had proven himself to be "volatile, easily enraged, dishonest, negligent with the safety of [their daughter] ..., untrustworthy, self-centered, and self-serving" and that there was a need to redefine Joint Guardianship due to the "hostility, inability to compromise, lack of maturity and good decision making, a need to control" by Mr. C. (December 24, 1998); (n) he "blatantly abuses the judicial system, my rights ... and defiles parental rights for self-gratification", "a legend in his own mind", who needs to "accept responsibility for his enormous contribution of emmity [sic] and stop blaming judges, lawyers and me for circumstances he has caused it to be." (January 20, 1999); (o) has exposed their daughter to "his media campaigns for self-promotion and his continual negative attitude and comments regarding" her (January 20, 1999); (p) that he attend an anger management course before he can apply for a further variance of access (August 25, 1999); (q) he refrain from using the child's photo or given names and her gives names for "media purposes", "The Respondent's priority is his best interests and their daughter is 'just the tool he uses to obtain this'. His vehement need to portray himself as the victim, gain attention and control, to abuse me and to beat the system has always been his primary motivation. He makes absolutely no effort to compromise, nor does he accept responsibility for his conduct or actions. His answer to every situation is the media, Court and public officials. The Respondent's nomadic lifestyle, extreme hostility, lies and unreasonableness cause me to fear he may abscond with ...." their daughter. (August 25, 1999); (r) he "aggressively attempts to alienate" their daughter from her by attempting "to influence her into believing that I abuse her", "tells her not to listen to me", "tells her the police are going to take me away", "does not respect her wishes", "continually speaks badly of me in her presence" and puts her in the position of having to choose sides (August 25, 1999); (s) the mail in her mailbox "has been opened" and clumsily resealed and she does not want to disclose her address as he "frightens me" (September 12, 2000). FURTHER ALLEGATIONS AND SUGGESTIONS OF IMPROPRIETY [26] In addition to the matters noted above, more serious concerns were raised by Ms. C. after two Fall, 1999 access visits. After a September 3-5, 1999 access visit, Ms. C. alleges that their daughter indicated that Mr. C. had taken a bath with her during the visit. This came to the attention of Ms. C. when she attempted to bathe her daughter and the child refused to take off her underwear for the bath. [27] Following a visit in early October, 1999, the child complained of a "sore pee-pee" upon her return home and, upon inspection of the affected vaginal area, Ms. C. was of the view that the area appeared red and swollen. In her statement to police, Ms. C. reported their child as saying: "My pee-pee hurts because my daddy put his fingers down there and pressed on it and it hurts". [28] The child was taken to a medical clinic to be examined but the attending physician advised Ms. C. that he did not have the expertise to examine the child for sexual abuse. The child was referred to the Health Assessment and Resources for Children of the Capital Health Region ("HARC") for assessment on October 26, 1999 and the staff there found the child to be healthy and well within social and developmental norms. [29] The HARC Team reported no medical evidence of sexual abuse and noted that the child did not disclose any abuse to the HARC staff. The "Impression" given by the Paediatrician in the October 26, 1999 report was: Reportedly, there are ongoing concerns with respect to poor sexual boundaries and sexualized behaviour exhibited by her biological father. The specific allegations that have been made are extremely concerning. I find the prior incident of the toy in [her] ... anus concerning, however, I am unable to determine whether the toy was ingested or inserted, and if inserted, by whom. It appears that the September, 1997 incident of vulvar erythema occurred with a yeast infection. It may be possible to explain the physical findings at the time by the presence of a yeast infection alone. I feel that the seriousness of the disclosure and allegations of sexualized behaviour/poor sexual boundaries by [Mr. C.] ... warrant a thorough examination of the information available. [30] The accompanying report done by a social worker set out a number of "allegations or incidents" reported by Ms. C. The conclusions set out in this report was: H.A.R.C. found no medical evidence of sexual abuse of [the daughter] ... however, the lengthy history of concerns posed by [Ms. C.] ... that infer a sexualized relationship, or one with poor sexual boundaries, are of serious concern. [31] As a result, the following "Recommendations" were made: ... that her behaviour be monitored at the daycare and home if she continues to act out or regress, mental health assessment be arranged, that supervised visits continue while assessments were being undertaken regarding the allegations that were made about [Mr. C.'s] ... relationship with his daughter, that [Ms. C.] ... ensure that social and health issues of their daughter be coordinated by one family physician as opposed to clinical care with multiple physicians. [32] After the October, 1999 incident, Marc Storms of the Ministry for Children and Families wrote to Ms. C. on October 13, 1999 stating: This letter is to inform you that your ex-spouse [Mr. C.] ... is to have NO contact with your daughter .... The Ministry for Children and Families and Saanich Police are currently investigating child protection concerns regarding [your daughter] ... in which [Mr. C.] ... is to be the alleged offender. Once these investigations are concluded then access can be reviewed. [33] This letter was written despite the fact that the Director appointed pursuant to the Child, Family and Community Service Act, R.S.B.C. 1996, c.46 ("Director") had made no determination that the child was in need of protection and despite the outstanding Court Orders granting Mr. C. access. The Director took the position that the child would be apprehended if Ms. C. allowed Mr. C. to exercise access in accordance with the outstanding Orders of this Court. [34] The Director did not take what is a common approach which is to apprehend the child then immediately place the child back with the custodial parent (Ms. C.) until a supervised access Order could be made with respect to the access parent (Mr. C.). If the Director had acted in that manner, it would have been the appropriate way to suspend the effect of any existing access orders. That was not the way the Director proceeded. The Director required Ms. C. to choose between retaining custody of her daughter and disobeying the Court Order. Ms. C. put it best in her Affidavit: It is not my desire to allow access to our child by the Defendant, but it is the Order of the Court and I have no choice. It is my position that the Ministry, through Marc Storms, by telling me to not allow access, and that if I do allow access I will be adjudged as being unable to care properly for our daughter, is encouraging me to an unlawful act, namely the violation of an Order made by this Court. I am therefore in an untenable position, having to make a choice between: (a) Abiding by the Order of the Court to allow access and thereby causing the Ministry to apprehend my child; or (b) Failing to abide by the Order of a Court and being in contempt of the Court. It is my position that it is improper for the Ministry or any of its employees, and in particular for Marc Storms, to tell me under threat of removing my child from my custody that I must violate the Order of the Court. The Ministry's position is tantamount to the Social Worker concerned placing himself above the Court and telling me that I must violate an Order of the Court if I wish to keep my child. [35] It was totally inappropriate for the Director to put Ms. C. in that position. To the knowledge of the Director, there was an outstanding Court Order. With justification, Ms. C. was upset that she was being asked to violate that Order. With justification, Mr. C. was furious when access to his daughter was denied despite the Order. [36] This blatant disrespect for the courts resulted in both Ms. C. and Mr. C. applying to the Courts. Ms. C. requested an Order that the November 21, 1997 Order be varied so that Mr. C. could not exercise access until the custody and access report ordered by the Court had been completed. In the alternative, Ms. C. applied for an Order that the Director be restrained and enjoined from apprehending the child. Mr. C. applied for an Order enforcing the valid and subsisting Orders for access and for an order that Ms. C. Should be found in contempt as she was not permitting access. [37] The Ministry was represented on these applications. Counsel on behalf of the Ministry stated: It's the Ministry's belief that the Child's visits, as they have gone at the present, are a real --emotionally abusive to the child. They have great concerns about the father's inappropriate behaviours and inappropriate sexual behaviours in the past. [38] Counsel on behalf of the Ministry submitted that access could be resumed once Mr. C. agreed as follows: You must be willing to abide by the terms of the supervised visitation agreement and treat the people involved in a respectful manner, and most importantly, control his anger and make his daughter the focus of her visits. So, there is a possibility, if he becomes co-operative with the Ministry, of having the visits restarted. [39] Lowry, J. dismissed the application of Mr. C. that the November 21, 1997 Order of Kirkpatrick, J. be enforced. Before dismissing the application, Lowry, J. commented: I could see there must be procedures for making applications to address these kinds of problems, but it seems a rather novel thing to me to have the Ministry of Child Services simply saying: 'Well, if you abide by that Court Order, we are going to apprehend your child." [40] Mr. C. agreed to supervised visits after the October, 1999 allegations had been made and three, one-hour visits per week were then in place. Since then, all access that Mr. C. has had to his daughter has been supervised. [41] In a January 4, 2000 report, HARC through Dr. Mills, a registered psychologist, concluded that the daughter of the parties appears to "... be developing an adequate sense of self with appropriate boundaries and understanding of her own needs." It was noted that this "adequate social/emotional development" suggest that their daughter has received "primarily parental care that has been child focus, respectful and protective." Dr. Mills also concluded: Behavioural observations by [Ms. C.] ... suggested some concerns that [her daughter] ... may be experiencing behavioural symptoms often related to anxiety or insecurity. No behavioural differences in [their daughter] ... were observed in the play interview sessions when speaking about either of her parents. Her reported behaviour in supervised visits suggested a playful relationship with her father when he was able to focus on her rather than the access situation and his feelings about [her] ... mother. Her reported behaviour in the visits also suggested a developing awareness of the conflict between her parents and possible distress relating to the differences in her parents' capacities to maintain developmentally appropriate and child-focussed interactions with her. [42] The "Recommendations" made by Dr. Mills were: Strongly recommended that there be limits to [their daughter's] ... exposure to environments that are not child focussed or respectful of her developmental needs for security and protection. Parental capacity or a parent/child access assessment may be helpful in developing recommendations that will ensure that [she] ... can feel secure and protected in her relationships with her parents. [43] After investigation and after interviewing the child and recording that interview on the videotape which was in evidence, the Saanich Police Department concluded that there was "insufficient evidence to proceed further on this matter" and "insufficient evidence to support charges". [44] The failure to lay charges is seen as vindication by Mr. C. Unfortunately, that is not the case. The failure to lay charges will never erase the suspicions that were raised. Many of the most recent submissions made by Mr. C. have centered around a request that the Court erase any suspicion that the events which led to the police investigation ever occurred. Clearly, that cannot be done in the context of applications for custody and access. Many of the most recent submissions made by Mr. C. have centered around the request that the Court remove the requirement that access be supervised as Mr. C. views this as an effective way of erasing the suspicion that the events which led to the police investigation ever occurred. Unfortunately, Mr. C. fails to recognize that there are many reasons why access visits should be supervised. [45] The Saanich Police Department acted appropriately when the allegations of inappropriate conduct were raised. Similarly, the Ministry should have taken action when the allegations were made. While the action that they did take was inappropriate, the Ministry must always make it their first priority to protect the children when similar allegations are made. [46] Only Mr. C. knows whether there was any impropriety. He vehemently denies it and I am prepared to accept his denials. However, Mr. C. has inappropriately reacted to all of the allegations and suggestions that he has faced. He views Ms. C., the Ministry, and the Court with undue and unwarranted suspicion. He has allowed that suspicion to become all encompassing in his relationship with his daughter. His rebellion against the perceived need to have his access visits supervised has created a situation where he concentrates on his frustration with supervision more than he concentrates on his efforts to re-establish a good relationship with his daughter. As well, he continues to counter what he believes are unwarranted allegations against him with unwarranted and unproven allegations against Ms. C. ALLEGATIONS MADE BY MR. C. AGAINST MS. C. [47] In addition to his complaints that access as ordered is being denied to him, Mr. C. has also made a number of allegations about Ms. C.. Those are set out as follows with the corresponding application dates noted: (a) Ms. C. has "consistently sought to limit my involvement with the child" (October 31, 1996); (b) Ms. C. and her sister had been abused by their father (March 6, 1997); (c) Ms. C. has "strange ideas about nakedness which I still maintain stem from her being abused". Mr. C. states that Ms. C. accused him of being HIV Positive and that this made him an unfit father (March 6, 1997); (d) "I suggest she get counselling. I fail to see how my nakedness could be any type of example whatsoever to a 6-month-old baby" (March 6, 1997); (e) that Ms. C. had "no stable home" and that their child has "no friends to play with" and that any fears that [Ms. C.] had about him were fears caused by her "... passed in her own dysfunctional family life growing up" (July 28, 1998); (f) because of actions taken by Ms. C., Mr. C. "had to face sexual innuendo and not get overnight access. Put me and my child through hell." (July 28, 1998); (g) Ms. C. has "viciously tried to sever my relation with my daughter by preventing any access or contact with her in order to destroy a proper, healthy father-daughter bond and relationship. If [Ms. C.] ... could look past her anger, act maturely, she would see that a healthy, happy relationship for our daughter with her father is in the best interest of and development for the child (December 24, 1998); (h) Ms. C. had not provided a "stable, happy home" for their daughter as she has "continually moved around from place to place, not only has she not been able to establish any permanency or friends, but she has exhibited signs of stress and anger related to her situation." And she has a history "in stressful financial circumstances to hit out, becoming verbally abusive" (December 24, 1998); (i) that he had been "victimized by someone who has used the tried and true method of moving as far away as possible ... so that the other parent cannot see the child." By this time, Ms. C. and their daughter had moved to Victoria. (January 20, 1999); (j) "I truly believe the Petitioner is in need of deep psychological help" as her actions in withholding access and constantly moving "portray her true problems and colours" (January 20, 1999); (k) Ms. C. is "hostile" and "Child alienation is child abuse." (August 25, 1999); (l) the refusal to provide the residential address allows Ms. C. not to reveal to the Court the "nomadic and unstable nature" of the childhood of their daughter (September 21, 1999); (m) Ms. C. continues to use "false and malicious allegations to deny me my parenting and access to my only daughter" and the Court must "begin to recognize this continued pattern of abuse" (October 12, 1999); (n) Ms. C. is "suffering from 'Divorce Mother Syndrome'" (aka Malicious Mother Syndrome") ... or equivalent, and is engaging in a wide range of tactics including using other individuals to attack myself and facilitate a denial of access" (October 12, 1999); REPORTS OF THE VISITATION SUPERVISORS [48] After supervised access was in place, the supervisors were required to complete reports. As I was satisfied that those reports were prepared contemporaneously, were required to be completed by the supervisors, and were accurate reflections of the observations of the supervisors, those Reports were admitted into evidence. [49] My review of the reports allows me to conclude that the "areas of concern" set out in the reports are accurate. Many comments made by Mr. C. in the presence of his daughter were inappropriate. Mr. C. is obviously upset that his visits with his daughter are limited in time, are supervised, and must be undertaken in English rather than Italian. The summary to November 12, 1999 is typical of how he has reacted to supervised access: He appears to be very upset and angry by the situation, the length and duration of the visits, not being permitted to speak his native language and so on. This anger is expressed in words and behaviour in [his daughter's] ... presence. [50] I am satisfied that, during his access visits with his daughter, Mr. C. was not courteous and co-operative with the supervisors, was unable to keep his visits focussed upon his daughter and her right to have conflict-free visits, was expressing his own negative views regarding the supervision of the visits, was expressing distrust of the "system" in the presence of his daughter, was "verbally aggressive" with his daughter and was experiencing difficulty interpreting her "cues" so that needs for rest or changes in activity were ignored. [51] Mr. C. has allowed his anger and frustration with the requirement that his access visits with his daughter be supervised to negatively affect the effectiveness of the visits and to create an atmosphere that his daughter was bound to find uncomfortable. He has allowed his frustration with the situation to poison his relationship with his daughter. [52] Even if all of his anger and frustration was justified, Mr. C. must begin to realize that he is now to blame for the fact that supervised access continues to be recommended. Until Mr. C. shows that he can deal with his frustrations with supervised visits, the suspicion will remain that he does not wish to re-establish a good relationship with his daughter as much as he wishes to use his access visits to express his frustration with the Ministry, the Court, and Ms. C. [53] In dealing with the questions of custody and access which are before me, I have been assisted by the opinions provided by two psychologists. Those opinions reinforced the impressions that I gained of Ms. C. and Mr. C. during the hearing before me. OPINION OF DR. PETER MEUSER [54] Dr. Meuser is a clinical psychologist. His opinion was requested by the Ministry for Children and Families. He interviewed and tested Mr. C. on June 13, 2000 and observed Mr. C. and his daughter for about two hours on June 15, 2000. Dr. Meuser was very positive about the interaction between Mr. C. and his daughter which he observed them at Beacon Hill Park: Essentially, the visit appeared to go very well and there was nothing to report out of the ordinary. Present circumstances aside, anyone watching [Mr. C.] ... with [his daughter] ... would report seeing a clearly happy, laughing child enjoying normal activities with her father." [55] The conclusions of Dr. Meuser regarding Mr. C. can be summarized as follows: ... a "tendency" towards paranoia, without reference to it as a "disorder". Nevertheless, it would appear that the current situation dovetails with [Mr. C.'s] ... inherent personality style, tending towards paranoia, such that his anger, conflict, frustrations, and noted lashing-out at MCF and Nisika staff [the supervisors of visits] and verbal denouncing of the Courts, Police, and Judicial systems, is entirely predictable and to be expected. Furthermore, he exhibits strong character tendencies of projecting, rationalizing, especially when he perceives that he is being threatened. Additionally, taking into consideration his noted inability to take personal responsibility for his problems, one might reasonably suggest that, even if [Mr. C.] committed some or all of the acts alleged, he would adamantly deny same. Finally, given his personality tendencies, he could be expected to deflect blame and draw attention away from himself and onto others, such as the Courts, his ex-wife, etc." "In my summary, I have taken into consideration all of the issues pertaining to my involvement in this matter, as well as my stated bias in favor of child safety above all else. I am of the opinion that while [Mr. C.] is clearly loved by his daughter, and appeared to be a "good father" when I observed them, the fact remains that I cannot rule out the possibility that he could have committed inappropriate sexual acts with his daughter ..., or equally worrisome, might do so in the future. Thus, I am respectfully suggesting that generous visits between [his daughter] ... and her father ... be allowed, but the visits continue to be supervised, at least until [she] ... is of an age where she could reasonably be expected to rebuff any inappropriate advances from her father or anyone else. That age I suggest, depends largely upon the child and the surrounding circumstances, but might be between 9 and 10 years. Such a change might be the subject of a review at that time. [56] Dr. Meuser also states that Mr. C. can be expected to resist the concept of supervised visits "because it implies that he is guilty. This conclusion is difficult to argue with, but I wish to make it clear that I make my recommendations not on the basis of him being "guilty", but on the basis of "not knowing for sure". [57] Dr. Meuser had the following observations regarding Ms. C.: Additionally, the success of any child-care plan will be enhanced or hampered by the attitude and stance taken by [Ms. C.] ... To ensure, or at least facilitate [their daughter's] positive relationship with her father, given the restrictions now imposed, it is imperative that Ms. C. remain open and supportive in the matter of Mr. C.'s access to his daughter, as long as her safety is ensured. In that regard, I suggest [Ms. C.] ... access counselling to assist her in putting her personal issues aside about Mr. C., and allowing, even supporting, the relationship between [their daughter] and her father to grow, albeit under supervision. OPINION OF DR. BINGEN [58] Dr. Bingen is a registered psychologist. At the request of both counsel at the time, he evaluated both parties as well as their daughter who was five at the time. He administered tests to both parties as well as forming impressions from separate interviews of both parties. [59] His interpretation of test results and impressions from his August, 2001 interviews are: (a) Ms. C. "Marked dependent traits which may foster acute feelings of vulnerability and fears of abandonment." "Feel the need to always be in a relationship so to diminish feelings of loneliness, and gain the feelings of nurturance and attention that she needs to maintain equanimity. Fearful of loss, individuals with these particular traits may vent their tensions and anxiety through outbursts of anger directed at those who have failed to appreciate their need for security." "[Ms. C.] is overly sensitive to criticism, had a propensity to react to even minor problems with anger or hostility; and tended to be highly suspicious of other people. Further, the results indicated that when [Ms. C.] ... felt threatened, may overreact with self-righteous indignation and complain that she was wronged in some manner - often projecting blame onto others." His sustained effort to have unsupervised visits with the couples' daughter likely has only accentuated those feelings of being threatened." "There is a likeliness that [Ms. C.] over a period of time has misinterpreted situations or events as being malevolent when there was no basis for her concerns.... (b) Mr. C. "There's a significant likelihood that he has marked paranoid personality traits. These individuals are noted for their discontent, pessimism, stubbornness, and vacillation - traits common with the negativistic (passive-aggressive) personality pattern. Their [sic] individual with these traits have pathology which is more aggressively negativistic and fault finding. Sullen, resentful, obstructive and peevish at all times, and openly expressive of jealousy, of being misunderstood, and of being cheated. As a consequence, these individuals rarely sustain good relationships, creating endless wrangles wherever they go. Demoralized by all of these events, they forego all hopes of gaining affection and approval from others, and decide to renounce these aspirations in preference for self-determination. Despite the strength with which they assert their new-found independence, such individuals remain irritable, dissatisfied, and troubled by discontent and ambivalence. They rarely forget their resentments - the feelings of having been mistreated and exploited. Not uncommonly, they begin to perceive the achievements of others as unfair advantages, preferential treatment that is undeserved and that have been denied to the person. Disgruntlement and complaints mount and turn into anger and spite, each of these feed into the central theme of unjust and misfortune, and can escalate into delusions of resentment. Often times, resentments will be vented by means of litigiousness or frequent complaints against individuals or institutions the person feels have mistreated them. It can be clearly concluded that Mr. C. has marked paranoid personality traits or paranoid personality disorder. These traits are most evident in [his] hostility and mistrust of the Ministry, the Courts, the Judicial system, and those associated with it. Such individuals will be extremely angry and suspicious that others are taking advantage of them. Moreover, persons with these traits are overly sensitive to criticism, and react to perceive censure by projecting their anger, and then rationalizing their reaction to the situation. Little responsibility is taken for their actions, but instead others are held blameworthy. Additionally, these individuals will be unforgiving of insults or injuries, and will persistently harbour grudges against those who they feel have slighted them. [Mr. C.] ... has a rigid approach when interacting with [his daughter]... and tends to become oppositional when she asserts a need or wish that is contrary to what he wants or feels is desirable. When the girl does conveys [sic] her needs or desires, [Mr. C.] will often make a concerted effort to manoeuvre or manipulate the girl into agreeing with his position. When that particular tact is not effective, [Mr. C.] can be verbally harsh with his daughter. The question remains as to why [Mr. C.] ... has persistently sought unsupervised visits with his daughter if in fact, he does not find his interactions with her satisfying; and that there may exist an impairment in his attachment to the girl. His quest to have unsupervised visitation likely represents an attempt to resist the control of others whom he feels have mistreated and abused him; those in people or institutions (pseudocommunity) whom he feels have attacked or maligned his character. To resist or negate the edicts of those within the pseudocommunity is a means for him to regain a sense of emotional equilibrium - to demonstrate that those perceived attacks were without basis, and to demonstrate that others and not he, are blameworthy for any problems that may exist. (c) Their Daughter She felt that her father would not listen to her when she voiced her opinion or requests. "I miss him but not too much". "The girl was unresponsive and paid little attention to [Mr. C.] [when he came into the office to spend time with her]. He encouraged her to sit next to him on the couch but she refused. Nor was she willing to give him a hug nor evidenced any sign of affection for her father." "[Mr. C.] interacted with his daughter in an emotionally distanced and perfunctory manner." [60] The "Recommendations" of Dr. Bingen in his August 28, 2001 Report are as follows: When considering all the information available, it would be recommended that supervised visitation continue in the same manner as has been in the recent past. It would be hoped that a supervisor with the ability to speak Italian could be found so as so afford [Mr. C.] ... the opportunity to pass along his native language and culture. Moreover, it would be recommended that [Ms. C.] ... make a concerted effort to encourage [their daughter] ... to speak with her father at least a few times a week. RISK ASSESSMENT BY THE MINISTRY [61] A risk assessment was done on August 17, 2000. The purpose of the analysis was to "Identify and evaluate the significance and interaction of the key risk elements and any other relevant areas of family functioning that should be addressed before the case is closed". The "Analysis" included the following comments: It is likely that both parents have been impacted by childhood experiences more than they are able or willing to recall at this time. [Ms. C.] ... appears to be providing a safe and healthy home environment for her daughters and at this time there are no areas indicating serious or severe concerns. Dr. Meuser does recommend that [Ms. C.] participate in counselling to assist her in better dealing with her feelings about [Mr.C.], given that he is the father of her young daughter. If [Ms. C.] follows through with this, it may be helpful to her to also examine all of her past relationships, what she has learned from them and develop strategies for choosing healthier partners in the future. Of most concern, due to the serious risk posed to [their daughter] ... is the information we have with respect to [Mr. C's] history of sexual behaviours and his extremely poor boundaries with [Ms. C.'s older daughter] ... when she was younger. Please refer to information documented on the HARC assessment dated October 1999 and the "abuse/neglect influence." Mr. C. does not acknowledge his behaviour or that he is likely to pose a risk to his daughter. There is a high likelihood that [he] would sexually abuse [his daughter] ... if given unsupervised access. At this time [Ms. C.] is seeking to vary [her daughter's] ... access to her father to ensure that it is always supervised .... There are no concerns with respect to [the daughter's] safety while in the care of her mother. DECISION REGARDING CUSTODY [62] Even if Mr. C. had been able to show that there had been material changes in circumstances, I would not have ordered that he be the custodial parent as he has requested. The child has been with her mother since birth. If the child was moved to Ontario, I am satisfied that it would be financially impossible for Ms. C. to move there or to exercise any rights of access. Like Kirkpatrick, J., I cannot conclude that access for MB. C. in Ontario would be encouraged. [63] It is clear to me that Mr. C. had given absolutely no thought to how the move of the child to Ontario would be accommodated. There were no current materials in evidence about where their daughter would live and go to school. There is no evidence about how she would relate to the current life of Mr. C. in Ontario. Mr. C. gave no testimony about these matters. I am satisfied that it was only after I interrupted his submissions to ask him about these questions that he put his mind to what effect it would be on his life and on the child's life if he became the custodial parent. The state of the affidavit materials, his evidence under oath, and his submissions were woefully inadequate if Mr. C. was serious in his application that he become the custodial parent instead of Ms. C. [64] Under both the Family Relations Act and the Divorce Act, Mr. C. bears the evidentiary burden of demonstrating where the best interests of a child lie once good reason is established for the Court to make an inquiry into what is in the child's best interest. Mr. C. has not met that burden. While Mr. C. has requested that I find fault with the arrangements which Ms. C. has put in place, what I must do is inquire into what is in the best interests of this child and not to find fault with those arrangements: Rail v. Rail, (1999) B.C.C.A. 587 as there is nothing before me which would allow me to conclude that it is in the best interests of the child that Mr. C. be the custodial parent and that the child be moved to Ontario, I dismiss that part of the application of Mr. C. I have no hesitation in concluding that Ms. C. should remain the custodial parent. She is a good parent and she is best able to continue to raise her daughter even though she has failed to meet her obligation to see that the contact that Mr. C. has with his daughter is maximized. DECISION RELATING TO THE CURRENT ACCESS ORDERS IN PLACE [65] Dealing with the question of access, the test to be applied is what is in the best interests of the child and not what the parties view as their "rights" : s .16 (8) of the Divorce Act; s.24 of the Family Relations Act; s.52 of the Law and Equity Act; King v. Low, [1985] 1 S.C.R. 87; New Brunswick (Minister of Health and Community Service} v. C.(G.C.}, [1981] 1 S.C.R. 1073. However, I am also mindful of s.16(10) of the Divorce Act: In making an order under this section, the Court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such a contact. [66] I am satisfied that the situation found by Kirkpatrick, J. has not changed. Mr. C. should continue to have liberal and generous access. If given a chance, I am satisfied that the relationship which did exist between father and daughter as found by Dr. Mills of HARC can be restored. However, that relationship can only be restored if Mr. C. is able to focus on his daughter rather than on the access situation and his feelings about Ms. C. There is no present evidence that he can. [67] Until he can and so that an independent observer can monitor his progress, I am satisfied that supervised access should continue. It must also be noted that Mr. C. has not seen his daughter for a considerable period of time. It is totally unrealistic for Mr. C. to expect the Court to agree to unsupervised access visits until it is clear that he can approach his access visits in a mature way which will accentuate a reestablishment of a good and loving relationship with his daughter. While I recognize that supervised visits will be difficult for Mr. C. to accept, supervised visits must be the status quo until he can prove to the Court that he can put his prior grievances behind him and can work towards re-establishing a good relationship with his daughter. [68] In the circumstances laid out above, I provided counsel for Ms. C. and Mr. C. with a memorandum shortly after the hearing of this matter. In the circumstances then existing, I ordered the following: (a) Starting the weekend of March 16, 2002, the child will be with Mr. C. for no more than three hours per weekend. That access will be between the hours of 10:00 a.m. and 7:00 p.m. and the first four visits will be supervised. The supervision for the first four weekend visits will be by Ms. C. accompanied by a third party. The third party can be either Ms. C.'s daughter or a family friend. No later than March 13, 2002, Ms. C. or her counsel are to provide to Mr. C. the proposed dates, time and location of the first four weekend visits. The dates, times and locations will be within the complete discretion of Ms. C. These matters will not be subject to negotiation between Mr. and Ms. C. The locations will be chosen by Ms. C. after consultation with their daughter. Ms. C. will be responsible for transportation for herself, their daughter, and any person accompanying them to and from the locations. The location of the visits will be at locations which can easily be accessed by bus transportation. (b) Starting March 19 and 21, 2002, Mr. C. will be with his daughter for two hours each Tuesday and Thursday until April 9 and 11, 2002. Visits will be for two and a half hours, will end no later than 7:30 p.m. and will be at a time and location which is in the sole discretion of Ms. C. who will exercise that discretion after consulting with their daughter. These matters will not be subject to negotiation between Mr. and Ms. C. Those visits will also be supervised by Ms. C. and one or two third parties. (c) Mr. C. will be unaccompanied during all of these access visits. Both Mr. C. and Ms. C. will refrain from making any derogatory comments about the other in the presence of their daughter. Mr. C. will refrain from making any comments in the presence of his daughter regarding his perception that Ms. C. has acted inappropriately, that government officials have acted inappropriately and/or that the Court has favoured Ms. C. on all of the questions which have arisen. For the visits to April 11, 2002, Mr. C. will not attempt to converse with his daughter in a language other than English. (d) Everyone (other than their daughter) who is in attendance at these access sessions will create a "diary" about the events surrounding the access sessions. The diary will include the times, the location, any difficulties experienced, any alleged inappropriate behaviour by anyone, and the child's reaction to the visits. Those diaries will be prepared after the fact and not in the presence of the child. The diaries are not to be shown or discussed with the child. Copies of the diaries reflecting the events of all previous visits are to be provided to Mr. Rafuse no later than April 8, 2002. Mr. C. is also to provide a copy of his diary to Mr. Rafuse no later than 2:00 p.m. on that date. His copy of his diary is to be provided by facsimile transmission so that it is not necessary for Mr. C. to go to the office of Mr. Rafuse. Mr. Rafuse will then e-mail copies of the diaries to my attention at the Vancouver Court House by facsimile transmission in order that I can have them no later than 2:00 p.m. on April 9, 2002. (e) There will be a teleconference Chambers application before me on April 12, 2002 at which time I will provide my further order relating to further access visits. Mr. Rafuse is to arrange for that application through the Victoria Trial Coordinator. (f) Mr. C. is to make no attempt to contact his daughter or Ms. C. outside of the access visits. At the same time, Mr. C. shall not contact Mr. Rafuse other than by mail or facsimile transmission. [69] A memorandum outlining those orders was forwarded to counsel for Ms. C. and to Mr. C. I am advised by counsel for Ms. C. that Mr. C. left British Columbia for Ontario once that memorandum was received. [70] Accordingly, the access visits which would have allowed Mr. C. to re-establish a relationship with his daughter did not occur. I indicated in my memoranda that I would be prepared to deal with the possibility that visits after the middle of April would be unsupervised. As none of these supervised access visits took place, the April 12, 2002 teleconference Chambers application did not proceed. [71] In those circumstances, no further Orders are now made. I will remain seized of any further applications by either party. Until further Order, Mr. C. will have no access. JOINT GUARDIANSHIP [72] Joint guardianship was ordered on November 21, 1997 and that Order has never been varied. As well, there was no application made by either party that the joint guardianship ordered be varied. For some time, it could not be said that Mr. C. and Ms. C. were jointly making the decisions which would usually be made by parents sharing joint guardianship. At the same time, it is clear that Ms. C. is not providing Mr. C. with the usual information that he would receive so that decisions ordinarily made by joint guardians could be made. [73] I am reticent to confirm the Order for joint guardianship which was made on November 21, 1997 in view of what has occurred since that date and in the absence of any application regarding joint guardianship being before me. I am satisfied that some of the indicia of joint guardianship can be made available to Mr. C. through the right to certain information which is available to Mr. C. under s.16(5) of the Divorce Act: Unless the Court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. [74] It is clear that such information has not been forthcoming from Ms. C. It is also clear that decisions which should have been made by the joint guardians were not made by them but were made solely by Ms. C. In the circumstances, I make the following orders: (a) within four days of receipt, Ms. C. is to forward copies to Mr. C. of all report cards and written communications received from the school that is attended by their child so that Mr. C. will be aware of the progress of the child in her schooling. However, Mr. C. is to make no direct contact with school officials or with the child at the school although he is at liberty to apply to the Court for a variation of that restriction; (b) Within a reasonable time afterwards, Ms. C. is to advise Mr. C. in writing about any significant health problems being experienced by the child. Mr. C. is not at liberty to contact the medical advisors of the child directly although he is at liberty to apply to remove this restriction. [75] Those Orders are made without any finding that Ms. C. has acted other than in accordance with the Order for joint guardianship made November 21, 1997 or that the rights of Mr. C. as a joint guardian should be limited to what is set out. COSTS [76] In the circumstances, I am satisfied that it is appropriate for E.J.C. to have her costs. Costs on a Party and Party (Scale 3) basis for this hearing will be available to her. The requirement that Mr. C. approve the form of the Orders made is waived but counsel for the Petitioner is to supply Mr. C. with an unentered copy of the Orders as drafted and will not be at liberty to submit the Orders for entry within 21 days of forwarding the draft order for the review of Mr. C. If Mr. C. has any submissions that he wishes to make regarding the form of Orders as drafted, then those comments should be forwarded directly to my attention through the Registry. "G.D. Burnyeat, J." The Honourable Mr. Justice G.D. Burnyeat