J.A. v. K.A.

2024 BCSC 1195 J.A. v. K.A.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.A. v. K.A., 2024 BCSC 1195 Date: 20240704 Docket: E212392 Registry: Victoria Between: J.A. Claimant And K.A. Respondent Corrected Judgment: The text of the judgment was corrected at paragraph 31 of the Appendix on November 18, 2024. Before: The Honourable Justice Fitzpatrick Reasons for Judgment Counsel for the Claimant: J. Stamm The Respondent, appearing in person: K.A. Counsel for the Child, J.M.: K. Marks Place and Dates of Trial: Victoria, B.C. April 29-30, May 1-3, 6-8, 10, 27-29, 2024 Place and Date of Judgment: Victoria, B.C. July 4, 2024 Table of Contents INTRODUCTION.. 4 BACKGROUND FACTS (PRE-SEPARATION) 4 OVERVIEW OF POST-SEPARATION / COURT PROCEEDINGS. 12 July 2021. 16 August-December 2021. 24 2022. 28 2023. 32 2024. 34 DIVORCE. 35 GUARDIANSHIP / PARENTING OF THE CHILDREN.. 35 Legal Framework. 36 T.J. 40 J.M. 40 1) J.M.'s views. 41 2) J.M.'s health and emotional well-being. 41 3) History of J.M.'s Care / Nature and strength of the relationships between J.M. and his parents and T.J. / J.M.'s need for stability. 42 4) Ability of J.A. and K.A. to exercise parental responsibilities. 43 5) Family violence issues. 46 6) Appropriateness of an arrangement that would require J.M.'s parents to cooperate on issues affecting him.. 47 7) Any civil or criminal proceeding re J.M.'s safety, security or well-being. 48 8) Summary re

J.M. Best Interests. 49 GUIDELINE INCOMES. 49 J.A.'s Income. 49 K.A.'s Income. 50 CHILD SUPPORT. 51 J.M. Support (Retroactive and Future) 51 J.M. Section 7 Expenses. 52 T.J. Child Support 53 FAMILY PROPERTY / DEBT DIVISION.. 57 General Principles of Family Property / Debt Division. 57 Family Assets / Debts. 58 The Family Home. 58 Vehicles. 59 RRSPs. 59 RESP. 60 Pensions. 60 CPP Credits. 60 K.A.'s Excluded Property Claim re Family Home. 61 Property Division re Family Home. 62 J.A. Claimed Deductions. 63 K.A. Claimed Deductions. 65 K.A.'S SPOUSAL SUPPORT. 65 OTHER CLAIMS. 70 COSTS. 71 FINAL ORDER.. 72 APPENDIX - TERMS OF FINAL ORDER.. 73

INTRODUCTION [1] These reasons arise from a family trial. [2] Many issues are to be addressed, including divorce, parenting of the parties' ten-year-old son ("J.M."), retroactive and prospective child support for J.M. and another child of the marriage ("T.J."), spousal support and the division of family property and debt. [3] All of the issues, save for the divorce, are contested to a degree. The main focus of this trial has centered on the issues relating to parenting of J.M. BACKGROUND FACTS (PRE-SEPARATION) [4] The following are my initial findings of fact, which will be supplemented in the specific discussions of the issues later in these reasons. [5] The claimant, J.A., is currently 57 years old. He has worked for the Coast Guard for about 34 years. Since 2019, he has been the National Program manager. His family lives in Eastern Canada. [6] The respondent, K.A., is currently 54 years old. She was born in the former Soviet Union (now Romania) and later her family moved to Hungary. She speaks fluent Hungarian. K.A. was trained as a nurse in Hungary. She moved to the United States to further her career in nursing. In 2003, she moved to Canada with her then husband. [7] After separating from her first husband, K.A. moved to Ontario where she lived with a fellow Hungarian. In 2005, K.A. returned to her nursing studies at York University. In November 2007, she graduated summa

cum laude. [8] In April 2008, T.J. was born to K.A. and her former partner. [9] In November 2009, K.A. obtained her Canadian citizenship. [10] In March 2010, K.A. decided to move with T.J. to Vancouver Island, with the agreement and cooperation of T.J.'s father. K.A. and T.J.'s father remain close friends and cooperate with each other, including in relation to T.J. and his upbringing. T.J. and also K.A. regularly return to Ontario to visit him. [11] In June 2010, K.A. began seeing her family doctor, Dr. Mark Sherman, who was a witness at this trial. [12] In August 2012, the parties met in Victoria after using a dating website. T.J. was then four-and-a-half years old. K.A. discussed T.J.'s parenting with J.A. She told him that she wanted any new partner to be a father figure for T.J. She was particularly concerned about this since she had no family in BC should anything happen to her. J.A. agreed that he would be that father figure to T.J. K.A.'s evidence, which I accept, is that J.A. assumed a parenting role in relation to T.J. almost immediately. T.J. called J.A. "Dad" and J.A. also called himself T.J.'s "Dad". J.A. and T.J. spent substantial time with each other at T.J.'s sporting events and other activities, such as Scouts. [13] In February 2013, K.A. and T.J. moved into J.A.'s apartment. [14] The parties had starkly different financial resources and attitudes. When parties

began their relationship, K.A. was financially solid. She was a prudent financial planner who had savings. When K.A.'s parents came to visit in 2011, they gave K.A. over €10,000 (the "Euros") which she put in a bank safe. J.A. had no savings or property, despite the fact that he had a significantly higher salary than K.A. I accept K.A.'s evidence that the only thing that J.A. financially brought into the relationship was about $40,000 of debt. [15] In May 2013, K.A. obtained a full-time research nursing position at the BC Cancer Agency ("BC-CA"). K.A. travelled for her position at the BC-CA. During those times, J.A. took over the parenting of T.J. [16] In January 2014, J.M. was born. K.A. had maternity leave to stay at home for a while. J.A. also took the paternity leave, during which time he cared for T.J. and J.M. [17] J.M. is currently ten years old and T.J. is 16 years old. I will refer to T.J. and J.M. collectively as the "Children" for ease of reference. [18] In July 2014, the parties were married in Lachine, Quebec. [19] K.A. liked the fact that J.A. spoke French and she wanted to encourage T.J. to learn other languages. She already knew that she could teach him Hungarian. As a result, the parties enrolled T.J. in a local French school. The parties had the same plan to enrol J.M. at this French school when he began his schooling. K.A. was then teaching both boys how to

speak, read and write Hungarian. [20] In August 2014, the parties purchased a family home on Hanover Place in Saanich, BC where the entire family lived (the "Family Home"). They obtained mortgage financing. At the time, J.A.'s long-time friend, Robert Spensley and his wife, Kim Barthel, and their daughter lived next door. Mr. Spensley and Ms. Barthel both gave evidence at this trial. [21] The Family Home required substantial work. The parties jointly began doing various renovations to the Family Home. In the following years, the parties worked on these renovations very slowly although many, if not most, of these renovations were not yet complete as of mid-2021. [22] In addition to teaching Hungarian to the Children, K.A. also introduced the Children to Hungarian culture and heritage. She took them to many events and activities, in addition to promoting their learning of written and spoken Hungarian. [23] Eventually, J.A. became upset when K.A. spoke Hungarian with the Children, feeling that he was being excluded. This was so despite K.A. telling him that she was happy if J.A. spoke French with the Children, a language that she did not understand. [24] By all accounts, the family was a relatively happy and stable one for many years, from 2013-2020. K.A. had a fairly traditional role within the family, which included having primary child-care responsibilities for the Children at

all times. She also did most of the cooking for the family. She maintained the Family Home and provided all parenting responsibilities for the Children while J.A. was travelling extensively for his work, both in the Arctic and in Ottawa. [25] In the period of 2016-2018, K.A. was on long-term disability ("LTD") from her work at the BC-CA. During this time, K.A. was struggling with some mental health challenges, including PTSD, for which she was receiving cognitive behavioral therapy. Despite addressing these difficulties, K.A. continued to handle major functions of the household, including in relation to child care, the family finances and working with J.A. on the extensive renovation work. [26] In May 2018, when K.A. was ready to return to work, J.A. had an opportunity to work in the Arctic, which meant that he would be away all summer. As a result, K.A. agreed not to return to work from May-October 2018 so that she could look after the Children and the household while J.A. was away. [27] Ultimately, K.A. returned to work at the BC-CA for a brief period. Later, K.A. obtained work with the federal government as a medical adjudicator. [28] The family finances during the marriage are not particularly clear. J.A. maintained his own bank account and the parties had a joint account. K.A. was very conscious and paid attention to her and the Children's financial stability, in that she

put away savings for a rainy day in addition to maintaining the Euros that her parents had given her. In mid-2018, K.A. used her savings to reduce the mortgage on the Family Home when it was renewed, which J.A. asked her to do. Some of the Euros were used by K.A. to purchase a computer, reducing the cash she held to €7,700. [29] Both parties have filed their financial statements (Form F8 Financial Statements). No bank statements are before me, from the period before or after 2021. [30] As with many situations such as this, it is difficult to identify exactly when significant problems with the family began to develop and which would lead to the ruinous litigation that later took place. Whenever it was, the problems quickly intensified leading up to the events in July 2021, being the start of this family's significant litigation history. [31] A brief summary of this pre-July 2021 period is as follows. [32] When J.M. was a baby, J.A. left much of the child care to K.A. That changed when J.M. got older and J.A. spent more time with J.M., as opposed to T.J. I accept K.A.'s evidence that, around 2018, J.A. started treating T.J. differently in that he favoured J.M., which began to strain the relationship of J.A. and T.J., which in turn affected the relationship between J.A. and K.A. [33] In March 2020, the parties identified that T.J. was having behavioral and learning difficulties.

While J.A. had been successfully co-parenting T.J. in his role as stepfather to a certain time, the relationship between J.A. and T.J. became to fray and became more strained as time went on. [34] In relation to issues concerning T.J. and J.A., the family began seeing a family counsellor, Dr. Stephanie Marchal. Dr. Marchal's notes from March 2020-August 2021 are in evidence. [35] Ms. Barthel, the next door neighbour, an occupational therapist, did some informal testing of T.J. and identified some issues which she considered may be ADHD and learning behaviors. Ultimately, the parties obtained a diagnosis for T.J. which confirmed a mild form of ADHD. [36] During this period of time, the parties were also continuing to see Dr. Sherman, who had become the doctor for the entire family. [37] Later in mid-2020, more serious issues developed. The backdrop of these later issues was of course the COVID-19 pandemic, which only exacerbated how the parties were able to navigate these difficulties. [38] In May 2020, J.A. thought he had cancer and he was so stressed by this possibility that he took medical leave from his job. By the end of May 2020, J.A. found out that he did not have cancer but he remained on stress leave for reasons that are not clear to me. [39] Things got worse. [40] In June 2020, K.A. discovered that she actually had cancer, an aggressive form of breast cancer. K.A. was

understandably very upset and distressed about this diagnosis, which only increased her pre-existing mental difficulties. [41] J.A. was attempting to address his increased role in taking care of the household and the Children while K.A. was fighting her cancer diagnosis. K.A. was clearly suffering--physically, emotionally and psychologically--and her behavior became more and more emotional. K.A. felt that J.A. was not supportive of her and her suffering. J.A. describes that it devolved into K.A. yelling at him and isolating herself from him and the Children. [42] Whether J.A.'s lack of support arose from his inability or unwillingness to support K.A. and her severe challenges, I find that J.A. became more and more self-interested, which was a sign of things to come. [43] Dr. Marchal continued to see the family members to address all of the above issues into late 2020 and in 2021, although most of the sessions were with J.A. only. [44] The pandemic forced the parties to spend their entire days together--for both work and leisure--which was difficult for K.A. She continued to work until early August 2020 just days before her surgery. K.A. found it difficult to find quiet space in the Family Home for her work. K.A. was still doing substantial renovation work that needed to be done which she did not think J.A. would complete during her recovery time. [45] Into 2021, the yelling and

fighting between the parties continued. In addition to addressing the trauma from her cancer treatment and recovery, K.A. now had the stressors of a deteriorating relationship with J.A. [46] The relationship between J.A. and T.J. continued to deteriorate with K.A. caught in the middle between her son and husband while battling her cancer diagnosis. In April 2021, K.A. formed the view that J.A. was physically assaulting T.J. at various times and not supporting him, while favouring J.M. K.A. told J.A. that he was no longer to speak to T.J. [47] K.A. told J.A. that she no longer wanted to have sex with him. His reaction was to say that he wanted to sell the Family Home. [48] By this time, J.A. had moved to a separate bedroom in the Family Home. [49] At some point, J.A. began to document his thoughts in a notebook. In the period prior to the end of May 2021, J.A. wrote in his notebook that he wanted to question his lawyer about how he could get "100% custody" of J.M. J.A. also noted that he was concerned about preventing K.A. from travelling with J.M. out of BC or internationally. He also jotted down that he wanted to buy K.A. out of the house. Finally, he noted that he should talk about how he was "scared" of K.A. These jottings would be an early indication of J.A.'s strategy in the months and years to come. I reject J.A.'s assertions that his notes were only questions for his

lawyer--rather, I consider them as the early formulation of his litigation strategy in relation to K.A. [50] K.A. took J.A.'s notebook and read his writings in it. She became angry and upset. In May 2021, at one time, K.A. shouted at J.A. in front of the Children that she wanted a divorce. During that incident, K.A. also spoke about taking the Children to Ontario and Hungary. [51] In May 2021, J.A. hired a lawyer, Mikaila Maura, to draft a separation agreement. [52] I accept that the fighting between the couple only intensified while these events occurred. [53] On June 22, 2021, J.A. met with Dr. Marchal where J.A.'s focus of the discussions was custody of J.M. J.A. expressed concerns regarding J.M. and said he wanted to ask for 100% custody of him. Dr. Marchal advised him that it would be rare for a court to order such relief unless there was risk of harm. She reminded J.A. of the difficulties that K.A. was facing and she commented that it would not likely be very helpful to seek such drastic relief. [54] On June 24, 2021, J.A. advised Ms. Mauro that K.A. was insisting on staying in the Family Home. J.A. said he needed a court order to "get her out". [55] On June 30, 2021, K.A. received an email from Ms. Maura along with a copy of the separation agreement. As recorded in J.A.'s notebook, J.A. proposed that he have full custody of J.M. [56] Within hours, early on July 1, 2021,

J.A. was provided the very opportunity that he wanted and needed to achieve his goals--sole parenting of J.M. and sole occupancy of the Family Home. [57] In the early hours of July 1, 2021, J.A. woke up to find K.A. painting various messages on the basement walls. She had painted the word "despicable" in many places. K.A. was clearly angry, upset and frustrated with J.A. and describes her actions as an emotional outburst to address her feelings (the "Painting Incident"). [58] J.A. reported the matter to Saanich police. He alleged that K.A. had thrown a paint brush at him but did not strike J.A. This was untrue. The police attended and found K.A. alone upstairs in her bedroom. The police calmed the parties down and advised them to separate for a while. The police later attended when K.A. called requesting a follow up. Around 4:00 p.m., after further discussions with the officers, J.A. agreed that he would leave the Family Home for a while. Later that evening, J.A. returned to the Family Home to retrieve some personal items. [59] Later that evening on July 1, 2021, K.A. contacted J.A. to ask him to take J.M. for two weeks so that she could recover her strength given her ongoing physical and mental challenges. On July 2, 2021, J.A. arrived at the Family Home and entered it without incident to pick up J.M., as K.A. had requested. I accept K.A.'s evidence that he displayed no fear

of her in doing so. [60] On July 3, 2021, T.J. flew to Ontario to be with his father for a couple of weeks, as was previously arranged some time earlier. [61] I find that July 1, 2021 is the parties' date of separation for the purposes of this litigation. In doing so, I reject J.A.'s argument that it occurred earlier in May 2021. OVERVIEW OF POST-SEPARATION / COURT PROCEEDINGS [62] While I would normally describe the post-separation circumstances of the family members separate from the court proceedings, it is not feasible in this case. That is because the post-separation period largely consists of litigation between the parties, which shaped the course of their lives to this time. [63] There is no doubt that this family has been in significant turmoil over the last almost three years. [64] As with any family matter, I am required to revisit the family's life pre-separation to a degree in terms of understanding how the parties got to where they are. I have done that above. In addition, I am required to revisit the family's life post-separation to a degree in terms of understanding the parties' circumstances toward considering what relief may be granted to address the post-separation issues and the present and future circumstances. [65] The post-separation litigation has been extensive. A significant number of orders have been granted in both the Provincial Court and this

Court. [66] The various orders were, of course, interim orders. As presiders know, these orders are typically meant to stabilize the situation and move the matter along until a trial can take place to allow a more fulsome consideration of the issues based on a full evidentiary record. Such applications are usually brought before presiders in busy chambers where the presider has little or no time to fully consider the materials. As happened in this case, applications can be brought without notice, which heightens the need to fully consider the matter. [67] I have had the benefit of a substantial amount of evidence from both J.A. and K.A. at this trial. Both gave extensive oral testimony, both in direct examination and in cross-examination. Both parties have introduced an extensive documentary record at this trial, mostly in the period post-July 2021, when the litigation was taking place. It is not my role to sit on appeal of the various interim orders granted; however, I have now had the benefit of considering a more fulsome evidentiary record than the earlier presiders, including oral evidence from the parties. I would venture to say that this has afforded me perhaps a better vantage point to consider the matter more substantively. [68] J.A. and K.A. present starkly different narratives as to the course of events from early 2021-present. [69] J.A. presents himself as suffering

from K.A.'s erratic behavior and as being the protector of J.M. in shielding him from that behavior. J.A. continues to this time to paint K.A. as an irrational person who causes him to have "concerns" in terms of her ability to parent J.M. [70] K.A. presents herself as having suffered from the machinations and planning of J.A. who has schemed to achieve what he wanted as a result of the breakdown of their relationship--sole parenting of J.M. and sole occupancy of the Family Home. She considers that that J.A. has in the past and continues to seek "coercive control" over her relationship with J.M. [71] After having heard both parties and many other witnesses at this trial, and considered the substantial documentation, I consider that K.A.'s narrative has the most substance. [72] I find that, from early 2021, J.A. has been seeking the means to achieve sole parenting of J.M. and also to remove K.A. from the Family Home so that he and J.M. could solely occupy it. When the Painting Incident occurred, J.A. saw his chance and he took it, as I will describe below. [73] J.A. presented himself as a passive observer in terms of the past three years of litigation and the controlling court orders that he sought and obtained. Continuously, he referred to the decision making as being made by others--everyone but himself. I find that his statements were almost invariably disingenuous as he

sought to distance himself from the ruin that resulted from his actions and his decisions from July 2021 forward. [74] In addition, J.A. continuously said that he sought the various court orders to restrict K.A.'s parenting in relation to his "concerns" and that he only wanted someone to tell him that K.A. was "OK" to parent J.M. on an unsupervised basis. Yet, when those persons in the know did not identify any concerns--whether it be Dr. Sherman, various parenting supervisors or judges--he did not accept it and continued to seek controls over K.A.'s parenting. In short, when J.A. said that he just wanted someone to tell him it would be "OK", he really only meant that he wanted someone to tell him what he wanted to hear. [75] K.A. presented her own difficulties and her behavior at certain times over the course of this litigation has generated concerns about her mental stability. Her behavior has, at times, been detrimental to her cause in that it has deeply affected her ability to present her side of the story. I accept that K.A. is an emotional person and perhaps more expressive than many in our North American culture. She has clearly railed against the litigation strategy endorsed and undertaken by J.A. against her. I conclude that J.A. fully expected that he could spark reactions from K.A. that would be seen as detrimental to her cause. He was right. K.A. did behave

inappropriately at times, which J.A. then used to his full benefit. J.A. made sure that he reported absolutely any sniff of an infraction or inappropriate behavior to the authorities whenever he could, whether it be the police, the Ministry of Children and Family Development or the courts. [76] I have no difficulty accepting K.A.'s evidence where it contradicts that of J.A. I find that J.A. is a disingenuous person who has attempted to portray himself in the role of victim, when that is anything but the case. Somewhat incredulously, J.A. considers that K.A. is to blame for the course of the parties' lives after July 2021 and that she is the "driving force" behind the continuing conflict between them. At best, J.A. has little or no insight into his actions in terms of the consequences of his actions to others, including K.A., T.J. and J.M. [77] I conclude that J.A. has purposefully and, arguably, effectively, weaponized the legal system over the last few years to disenfranchise K.A.'s parenting of J.M. so that he could gain full custody of J.M. and remain in the Family Home, just as he had formulated in spring 2021 as set out in his notebook. This strategy worked for many years until J.A. ran out of any support for his continuing "concerns" about K.A.'s parenting abilities and even this Court could see no basis for a continued denial of K.A. having regular/unsupervised parenting

time for J.M. pending this trial. [78] J.A.'s strategy has included allegations that K.A. has been guilty of various criminal and defamatory behavior in relation to him--none of which has been proven or established beyond his bare assertions. [79] In the meantime, much damage has been done. To put it mildly, J.A.'s litigation strategy has been akin to taking a wrecking ball to this family. The most significant damage has been to K.A. and J.M.'s relationship to the point where J.M. said recently to K.A. something along the lines of "I don't even know you anymore". [80] K.A. has also been a direct victim, as I will describe in more detail below. As the well-worn saying goes, interim orders are meant to provide "rough justice" pending a trial and it cannot be understated in this case that K.A. very much suffered that "rough justice" over the last three years. [81] Finally, J.A.'s strategy has caused direct harm to the relationship between the Children, which is now strained. [82] As I will describe below, my conclusions above are important ones in relation to the parenting of J.M. K.A. has substantial challenges ahead to counteract and mend the substantial harm that J.A. has brought upon her and the Children. [83] It is not necessary to set out in great detail the course of the litigation. Rather, I will set out the more significant events to illustrate what occurred. July

2021 [84] The extensive litigation between the parties--and the "rough justice" suffered by K.A. as a result--began with a protection order. On July 2, 2021, J.A. obtained such an order from Judge McKimm of the BC Provincial Court on a without notice basis (the "McKimm Protection Order"). Many orders followed, some also without notice, all of which were primarily focussed on J.M. and K.A.'s parenting abilities of J.M. which, as stated above, was the most significant issue to be addressed at this trial. [85] The circumstances of McKimm Protection Order are significant in relation to many of the family issues, particularly the parenting of J.M. [86] Before commenting on those matters, it is helpful to review the basis upon which protections must be granted under the Family Law Act, S.B.C 2011, c. 25 [FLA]. [87] Section 183 of the FLA sets out a scheme for court orders for the protection of persons. Under s. 183(2), there are two pre-conditions to granting such an order: a) a determination that "family violence" is likely to occur; and b) the other family member is an "at-risk" family member. An "at-risk" family member is defined in s. 182 of the FLA as "a person whose safety and security is or is likely at risk from family violence carried out by a family member". [88] The framework is predicated on a finding that the conduct meets the definition of family violence: A.B. v. C.D.,

2020 BCCA 11 at para. 162. "Family violence" is defined in s. 1 of the FLA, which is reproduced later in these reasons at para. 186 below. [89] Section 183(3) provides for various provisions that may be included in protection orders. They include, as did the protection orders granted in relation to K.A., restraining communications and restricted attending various places, such a person's residence, work or school. [90] The Court is required to consider at least all of the risk factors identified in s. 184(1) of the FLA: In determining whether to make an order under this Part, the court must consider at least the following risk factors: (a) any history of family violence by the family member against whom the order is to be made; (b) whether any family violence is repetitive or escalating; (c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; (e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems

associated with a risk of violence, access to weapons, or a history of violence; (f) the at-risk family member's perception of risks to the at-risk family member's own safety and security; (g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence. [91] If a child is said to be a family member, s. 185 provides: If a child is a family member, the court must consider, in addition to the factors set out in section 184 [whether to make protection order], (a) whether the child may be exposed to family violence if an order under this Part is not made, and (b) whether an order under this Part should also be made respecting the child if an order under this Part is made respecting the child's parent or guardian. [92] The court in A.B. stated that protection orders are "powerful tools to address family violence": para.

156. They are safety-related orders for an "at-risk family member", breaches of which are criminal offences. The court discussed the legislative framework for protection orders as follows: [162] What is apparent from reading these provisions generally is that the protection order framework is predicated on a finding that conduct meets the definition of family violence in s.

1. Once this is determined, an assessment of factors that include a history of family violence and whether it is repetitive or escalating, can lead to an order restraining or limiting certain behaviour. The orders that may be made under s. 183(3) are clearly directed to protecting the safety and security of at-risk family members--frequently separating parties--from serious physical, sexual, or psychological abuse, and orders that restrain and limit communications form a part of that objective. [163] There is no jurisprudence interpreting these provisions in a comparable context to the case before us. Morgadinho v. Morgadinho, 2014 BCSC 192 and S.M. v. R.M., 2015 BCSC 1344, cases cited by Marzari J., address protection orders in the more usual context of family violence as between separating parties. That said, we would agree with Fitch J. (as he then was) in S.M. (at para. 25) that in considering whether a protection order is necessary, judges should take into account: a variety of factors that frame the risk analysis in determining whether family violence is likely to occur. The inquiry is future oriented, but it takes its shape from past conduct and present circumstances that inform the assessment of risk. [164] The ultimate purpose of a protection order is to prevent future family violence, and the court must assess this risk taking into account the factors under s.

184. A history of family violence, while one factor, is in our view an important one, as a risk analysis will usually begin with past conduct. [Emphasis in original.] [93] Sections 184(2) and (3) address a situation where family members are seeking orders against each other. Those provisions are: If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account (a) the history of, and potential for, family violence, (b) the extent of any injuries or harm suffered, and (c) the respective vulnerability of the applicants. For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made. [94] While the protection orders sought by J.A. against K.A. were not met with a similar application by K.A. which would engage ss. 184(2) and (3), that may have been because J.A. did not give K.A. notice. Nevertheless, in my view, the factors in s. 184(2) would suggest that, in the context of a consideration of the "present circumstances" mentioned in A.B., a relevant factor can also be the respective vulnerability of the parties. [95] In S.M. v. R.M., 2015 BCSC 1344 (referenced in A.B.), Justice Fitch, as he then was, stated: [24] I also agree with the observation made in Morgadinho that

care must taken to distinguish between mutually unpleasant exchanges separating parties sometimes engage in, particularly through the informal medium that email and text messaging has become, and the commission of acts of "family violence" as defined in the Act. Without more, mere incivility is not the sort of conduct the Legislature intended would attract a protection order. [96] Finally, s. 186 provides that the Court may grant a protection order without notice and may terminate it aside or vary it on application by the other party. [97] All of the above demonstrates that protection orders are powerful and serious tools to allow the Court to prevent family violence in the future. It is critical, however, that such powerful relief be granted with the necessary evidentiary record to support that relief in the sense that the family violence must be "likely to occur". Section 184(1)(f) of the FLA allows a consideration of the applicant's subjective perception of risk to his or her safety, however, this perception must be grounded in the evidence: S.M. at para.

52. If not, it will amount to nothing more than speculation. [98] The Court must approach any request for a protection order with caution, particularly in light of the serious consequences that may unfold, not only to the applicant, but also the target of the protection order. This is particularly so where the application is brought without notice where only the applicant's side of the story is before the Court. [99] The day after the Painting Incident, J.A. considered himself then armed with the evidence to substantially disenfranchise K.A. from J.M.'s life and also, evict her from the Family Home and turn her onto the street. [100] The McKimm Protection Order provided that K.A. have no contact or communication with J.A., except to arrange parenting with J.M. In addition, it provided that K.A. was to have no parenting time with J.M. without the consent of J.A. The Order also required that K.A. was not to be within 100 metres of the Family Home. Finally, the Order provided that neither party was to remove J.M. from the Capital Region District. [101] Firstly, in my view, it is highly questionable that any protection order was warranted. J.A.'s affidavit speaks to his concerns about K.A. leaving Canada with J.M. I agree these were valid concerns but the answer to those concerns was perhaps more appropriately a non-removal order, not a protection order. [102] The most substance of

J.A.'s affidavit in support was: I have had growing concerns about the mental health of [K.A.] as a result of her erratic and drastic behavior. Examples of the erratic and drastic behavior include: [103] One of the examples provided by J.A. was false. The other examples from May 2021 included K.A. telling the Children that she wanted a divorce and removing J.A. and J.M. from her life insurance policy. He also alleged that she had threatened to destroy a doorbell, destroyed a porcelain bowl and that she had sold family property without his consent. His most substantial allegation was the Painting Incident, where K.A. was said to have "[thrown] paint at him" to the point where he did not feel safe. [104] J.A. did not disclose to McKimm P.C.J. the background facts of K.A.'s mental distress and that she was battling cancer and other issues. It is also not clear to me from reading the transcript what McKimm P.C.J. considered to be the "family violence" that justified the McKimm Protection Order. The transcript includes J.A.'s counsel's submissions as to the Painting Incident only, not the various examples outlined in his affidavit, one of which was false. [105] At this trial, J.A.'s counsel suggested that K.A.'s "yelling and screaming" at J.A. over the months leading to their separation constituted "psychological or emotional abuse" as supporting McKimm P.C.J.'s finding of family

violence. Yet, J.A. did not make any statement about this "yelling and screaming" in his affidavit filed in support and Ms. Mauro made no such submissions before McKimm P.C.J. [106] I have heard both parties concerning the Painting Incident and I do not consider or find as a fact that J.A. truly subjectively felt unsafe at the Painting Incident. When J.A. encountered K.A., he calmly approached her to take pictures and videos. J.A. made no mention of this to McKimm P.C.J. J.A. also failed to mention in his evidence that he had returned to the Family Home on two occasions almost immediately after the Painting Incident where he exhibited no difficulty or signs of having any fear of K.A. [107] Even accepting J.A.'s evidence that he felt unsafe, there was no evidence to suggest that the Children had been exposed to any of K.A.'s actions that went beyond what can be described as "unpleasant exchanges" as the parties' relationship was falling apart. Indeed, J.A. stated in his evidence that J.M. was asleep during the Painting Incident. In that respect, while arguably the McKimm Protection Order may have been justified in favour of J.A., there was no evidence at that time to question K.A.'s parenting abilities in relation to the Children as their primary caregiver. [108] Further, J.A.'s evidence and submissions to McKimm P.C.J. that he feared "family violence" would likely continue to

happen without a court order was without any evidentiary foundation whatsoever. If nothing else, the parties' separation at that time after the Painting Incident would have lessened, if not eliminated their conflict and fighting. The same can be said for J.A.'s stated concern that K.A. would not obey a court order, there being no history of any such behavior on K.A.'s part. [109] Incredibly, during K.A.'s cross-examination of J.A., he professed to not even understanding that his counsel was seeking this extreme type of order--a protection order--or what it entailed. This was another of J.A.'s attempts to distance himself from any responsibility for the fact that he sought the McKimm Protection Order and well knew what the consequences would be. [110] Considering the matter with the benefit of hindsight, had J.A. told McKimm P.C.J. exactly what was really going on and why, there was a real potential that McKimm P.C.J. would have seen that another and better solution for this family was not a protection order, but instead an order for the parties to live separate and apart and an order that J.M. not be removed from the area by either party. [111] Such a solution would have lessened the conflict between the parties, including their verbal altercations, for their benefit and the benefit of the Children. However, J.A. did not want any such solution because he knew that any dispute

over J.M.'s custody and occupancy of the Family Home was not likely to be resolved by the courts in his favour. [112] Secondly, the McKimm Protection Order had significant and devastating effects upon K.A. and the Children, which continue to this day. Judge McKimm had no evidence as to K.A.'s circumstances that would allow him to consider the effects of that Order. The results of the granting of the Order were, as J.A. intended, severe and devastating for K.A., who was a vulnerable person at the time. She was only made aware of the Order days later when the bailiff arrived at the Family Home to tell her she had to leave immediately. She was then on the street, homeless and having to seek out emergency shelter, while still battling the physical and emotional consequences of her cancer diagnosis. She had limited funds. [113] In addition, despite J.A. seeking the McKimm Protection Order for T.J. as one of the "Protected Parties", once the Order was granted, J.A.'s concerns for T.J. melted away. The Order did not even refer to T.J. [114] Thirdly, the fact that the McKimm Protection Order was granted would significantly colour the entire litigation between the parties that ensued, as the evidence at this trial showed. That Order and its aftermath continues to inform the parties' relationship, particularly as to K.A. and J.A.'s continuing "concerns" about her. [115] In the usual

fashion, the McKimm Protection Order provided that K.A. could apply to set it aside or vary it. K.A. attempted to do that but she struggled to do so. In large part, her vulnerable position--including her difficulty in accessing legal representation and lack of financial resources--meant that she was on her back foot and not able to mount any proper defence, all of which would have been known to J.A. [116] Again, with the benefit of hindsight, the circumstances of this case have caused me to consider what potential terms of any protection order may have been granted. It would have been open to the Provincial Court to grant a protection order only for a limited time, in order to allow the affected party to respond. This may be important if an order is granted without notice, where inevitably the Court will not be aware of all of the circumstances and the order's effect, just as happened here. When significant and serious orders are granted on a without notice basis, the affected party can be without proper resources to challenge the order. In practical terms, and in many cases, effectively the onus moves to the affected party to show that the order is not appropriate--when it should be the case that the moving party has the onus of establishing that continuation of the relief is appropriate. [117] In this case, if the McKimm Protection Order had been time limited to a certain

date, and K.A. had been given the opportunity to return to the Provincial Court within a short period of time to set out her version of the parties' history and address the issues, the result may have been quite different. [118] In early July 2021, J.A. discussed the McKimm Protection Order with Dr. Marchal. She expressed the view that the Order was a "severe" restriction. She also recommended to J.A. that he not seek 100% of care for J.M. due to J.M.'s need to see his mother. In what would be a continuing theme, J.A. ignored this advice and continued to seek to enforce the strict terms of the Order. August-December 2021 [119] In August 2021, K.A. requested that J.A. pay a modest amount ($10,000) to assist her in her living expenses. J.A. refused, just as he would continue to refuse her requests to provide financial support for her over the ensuing years, despite the significant difference in their respective incomes and circumstances. [120] In August 2021, K.A. obtained some legal representation. Her lawyer suggested to Ms. Mauro that the McKimm Protection Order should be set aside as an overreach, so as to reset the situation toward a more cooperative one. This suggestion was flatly rejected by J.A. [121] In July/early August 2021, J.A. would not allow K.A. any personal parenting time with J.M. He would only allow remote visits at first with the promise of in person time if

"thing work amicably". [122] By mid-August 2021, J.A.'s safety concerns about K.A., which were the basis for the McKimm Protection Order, had melted away. J.A.'s lawyer then attempted to use the Order as leverage to get K.A. to sign the separation agreement that J.A. had proposed some time ago. K.A. refused. [123] On August 6, 2021, J.A. filed a notice of family claim ("NOFC") in this Court. Consistent with his approach in the litigation, he sought all parenting responsibility and primary residence of J.M., with K.A. to have parenting time only with his express consent. In response, K.A. sought equal parenting time and shared decision-making regarding J.M. [124] In August/September 2021, supervised parenting for K.A. and J.M. was arranged. These visits generally did not go well given the escalation of the conflict between J.A. and K.A., and K.A.'s anger at J.A., all as a result of the McKimm Protection Order. K.A. displayed her anger at J.A. in front of J.M. which of course was inappropriate. Also, at one point, the supervisor noted that J.A. did not seem equipped to make proper decisions regarding parenting time for K.A. given his participation in the conflict. [125] In early September 2021, when T.J. returned from Ontario, J.A. sought fit to visit his indifference, if not cruelty, on this young boy. When T.J. came to door of the Family Home, J.A. refused him entry to his own

home. T.J. left in tears. [126] In mid-September 2021, K.A. and T.J. returned to the Family Home--accompanied by the police--to pick through a number of Tupperware bins that J.A. had packed up for their personal belongings which J.A. then placed on the front lawn. J.A. also refused even to let T.J. see his little brother despite J.M. being present in the Family Home. [127] After that, J.A. wasted no time in removing the last trace of K.A. or T.J. from the Family Home. He packed the remainder of their personal belongings into boxes and bins and unilaterally decided to place them in storage. [128] Into fall 2021, K.A. continued her own personal battle with cancer, when she had surgery. [129] On October 5, 2021, Dr. Sherman, the family doctor, issued a significant opinion. He referred to the family litigation and K.A.'s recent surgery and K.A.'s stressors as a result. Dr. Sherman stated: It is my medical opinion that [K.A.] has no medical nor mental health issues that would compromise her ability to be a co-parent to [J.M.] at this time. Despite the significant stressors in her life, [K.A.] has demonstrated her care for, and appropriateness with respect to her son in the past and, more recently during observational visits with him. [130] At this trial, Dr. Sherman confirmed the accuracy of his opinion at that time. Yet, this opinion was ignored by J.A. who continued to insist that

his "concerns" about K.A.'s parenting justified the continuation of his total control over any parenting time and contact that K.A. had with her son. [131] J.A.'s counsel's attempted during his argument at this trial to question and have the Court ignore Dr. Sherman's October 2021 opinion. This argument was unpersuasive to say the least. To that point in time, J.A. had relied substantially on Dr. Sherman, including calling him as one of his witnesses. I was left with the argument that I should accept all of Dr. Sherman's evidence, save for that opinion, a nonsensical position. [132] During the course of this trial, K.A. raised other issues concerning Dr. Sherman. Her cross-examination of Dr. Sherman revealed that, in May 2021, the doctor had discussed her medical information with J.A. for the express purpose of having J.A. share that with his lawyer. Dr. Sherman's explanation for this breach of K.A.'s privacy was dissembling at best and concerning. For obvious reasons, this caused K.A. further stress and upset and has contributed to her distrust of Dr. Sherman, her own family doctor, who she then saw as allied with J.A. All Dr. Sherman could finally muster in response to this serious allegation was a brief apology. [133] In October 2021, supervised parenting was arranged through Family Services of Greater Victoria. These visits continued into January 2022. [134] In October

2021, K.A.'s counsel applied to set aside the McKimm Protection Order and it was heard by Judge Mrozinski. I am not aware as to the evidence that was before the court at that hearing and whether it included Dr. Sherman's note. In any event, by this time, K.A. had done herself no favours by displaying her anger and frustration in the course of the supervised parenting. At the hearing, K.A.'s counsel raised various and significant issues regarding the appropriateness of the Order. However, Mrozinski P.C.J. did not have sufficient time to address the merits of the evidence and it was adjourned generally; rather, she discussed a more practical solution in the meantime--or as she stated "rough justice"--to set out a schedule of supervised parenting time for K.A. in the meantime until the matter could be heard properly. [135] As a result, Mrozinski P.C.J. ordered that the McKimm Protection Order be terminated and replaced with another protection order directed toward K.A.'s actions toward J.A. However, the unsupervised parenting was to continue. [136] In November 2021, K.A. was able to secure supportive housing for her and T.J. in Rosalie's Village in Saanich. J.A. refused to have anyone at Rosalie's Village provide any supervision for K.A. and J.M., despite the offer to do so, citing that they were not "qualified" supervisors and that they were biased against him. [137] In December

2021, the matter of K.A.'s application to set aside the McKimm Protection Order was to have been heard by the Provincial Court. However, it was delayed a number of times, and never heard for a number of reasons, including based on J.A.'s lawyer's advice that she was not available until January 25, 2022. [138] At the same time, J.A.'s lawyer and K.A.'s lawyer were attempting to negotiate a consent order to avoid the hearing of K.A.'s application to set aside the various Provincial Court protection orders. In fact, Ms. Mauro, J.A.'s lawyer was very available but was taking other steps behind the scenes to secure yet more advantages for her client, all without telling K.A. [139] On December 7, 2021, the same day she was in court with K.A. before Mrozinski P.C.J. again, Ms. Mauro filed a without notice application in this Court seeking sole parenting and a further protection order. K.A. was not told of this application at all. The application in this Court did not proceed because Ms. Mauro was tied up in Provincial Court. 2022 [140] On January 6, 2022, J.A.'s without prejudice application was heard in this Court. The matter was adjourned by the Associate Judge to January 13, 2022 when it was, again, heard on without prejudice basis. The Associate Judge then granted two orders. Firstly, she granted interim sole parenting responsibility, and exclusive authority over parenting

arrangements and residence of J.M., in favour of J.A. She also ordered that K.A.'s parenting was required to be supervised by Drew van Brunt. Mr. van Brunt was called by K.A. as a witness at this trial. Secondly, she granted a protection order effective January 25, 2022 essentially along the same lines as the McKimm Protection Order in relation to J.A. On January 25, 2022, the Provincial Court terminated the earlier protection orders from that court effective that date. [141] It is not clear to me why the application in this Court in early January 2022 was heard on a without prejudice basis. I cannot fathom any prejudice to J.A. by reason of having to give notice to K.A. since the Provincial Court protection orders remained in place. By all accounts, the Associate Judge did not accept J.A.'s lawyer's rationale in terms of avoiding any challenging behavior by K.A. in court. Rather, she granted the orders on a without prejudice basis because of J.M.'s involvement and the potential impact on him; however, the Provincial court protection orders would have remained in place vis a vis J.M. too. [142] On March 25, 2022, Justice Steeves heard J.A.'s application and granted various relief. He ordered that the Provincial Court and Supreme Court proceedings be consolidated into one proceeding in this Court. He also ordered that J.A. would have exclusive occupancy of the Family Home. He

also ordered a full report by a family justice counsellor pursuant to s. 211 of the FLA (the "Section 211 Report"). [143] On March 28, 2022, Justice Murray made several orders including another consolidation order relating to the Provincial and Supreme Court files, although that order had already been made by Steeves J. At the hearing, J.A.'s lawyer advised of the history of the proceedings and the events leading up to the McKimm Protection Order. Justice Murray commented that this was "not a protection order case". In addition, she referred J.A.'s counsel to the court's comments in A.B. and stated that what J.A.'s lawyer had recounted did not "come close" to meeting the definition of family violence. [144] On March 30, 2022, Murray J. ordered unsupervised parenting time and made various orders including conduct orders. J.A. immediately reported to Dr. Sherman that he was upset and worried. J.A. was yet undeterred in seeking to impose his controls of K.A.'s parenting time. [145] On May 5, 2022, Murray J. again addressed the issue of parenting time by K.A. and she ordered that any change in parenting time was to be reviewed by the Court on the next appearance. Justice Murray unseized herself of applications in this matter. [146] On May 17-18, 2022, the cross-applications of the parties came for hearing before Justice Power. K.A. was self-represented. J.A. was applying to review

parenting time and revert back to supervised parenting time. K.A. wanted the issue of the exclusive occupancy of the Family Home reconsidered even though that matter had only recently been dealt with by Steeves J. [147] On May 18, 2022, Power J. ordered that parenting time revert to supervised parenting time. In doing so, she accepted J.A.'s "concerns" as set out in his application materials. Significantly, K.A. was her own worst enemy in terms of her conduct and behaviour in the Courtroom which Power J. said was uncontrolled and of grave concern to her in terms of the best interests, well-being and safety of J.M. Taking a cautious and conservative approach, she stated that she wanted further information from an independent supervisor and possibly a counsellor, before unsupervised parenting time was ordered and/or adjusted. On a without prejudice basis, Power J. ordered that the costs of the supervisor be paid by J.A., given K.A.'s lack of financial means and that it was J.A. who was bringing the application for further supervised parenting. [148] On May 18, 2022, Power J. also ordered that she was seized of the matter, a decision that has greatly benefitted this Court in allowing continuity and a greater understanding in the decision making process as this matter has proceeded. [149] On June 23, 2022, the parties' cross-applications were heard by Power J. J.A. then had new

(and his current) counsel. K.A. remained unrepresented. Justice Power ordered that supervised parenting continue. The parties were referred to Cascadia Counselling Clinic ("Cascadia") toward improving their relationship. [150] J.A.'s counsel submitted to Power J. that counselling was potentially a better way forward to address the overarching conflict between the parties. This is indeed ironic given that J.A. was the one who significantly escalated the conflict in the first place and sought the extreme restrictions on K.A. that were then in place and causing continuing conflict. [151] On June 23, 2022, Power J. also ordered that, despite Steeves J.'s order of March 25, 2022, J.A. was to maintain the items in storage and not dispose of them without further court order. [152] In the course of the hearing, Power J. considered Dr. Sherman's letter dated June 10, 2022 that referred to the high conflict divorce and child custody proceeding having exacerbated K.A.'s mental health challenges. Nevertheless, Dr. Sherman correctly also pointed out that mental health challenges do not necessarily preclude a parent from safely and effectively parenting a child. Significantly, consistent with his earlier opinion from October 2021, Dr. Sherman stated: In addition, prior to the separation, I did not hear any concerns regarding [K.A.'s] parenting nor safety issues regarding her behavior. [153]

However, the exacerbation of K.A.'s mental health challenges within the context of this high conflict matter caused Dr. Sherman to recommend continued supervised parenting. Power J. considered that she needed more information before she considered the matter. [154] On July 11, 2022, Power J. ordered that the parties were not to bring any further applications with respect to parenting issues unless she approved them. She also ordered that Dr. Sherman, who she understood to be supportive of K.A. and understanding of her mental health issues, could discuss the matter with Cascadia and any other supervisors. Ultimately, Dr. Sherman provided another letter, dated July 7, 2022, recommending a continuation of supervised parenting time. [155] K.A.'s frustration with the court process was further exacerbated when J.A.'s counsel incorrectly drafted the July 11, 2022 order and then also submitted it for entry himself, incorrectly including in the order that that K.A.'s signature was dispensed with. J.A.'s counsel took no steps to confirm and correct these errors even when K.A. pointed them out to him. Again, K.A.'s felt frustrated by what she perceived to be J.A.'s lawyer's aggressive behavior toward her. [156] As it turned out, Power J's intention in June 2022 to introduce a graduated parenting regime would be overtaken by later events. [157] On July 27, 2022, K.A. appeared in Provincial

Court on a without notice basis and sought a protection order in relation to J.A. for herself and T.J. Justice Power considered that this application was in direct conflict with the two consolidation orders by this Court. K.A.'s application was granted by Judge Lowe, after K.A. disclosed to Lowe P.C.J. many of the Provincial Court and this Court's orders, which included Murray J.'s order of March 28, 2022 consolidating the proceedings. [158] In fall 2022, J.A. made the unilateral decision to enroll J.M. at another elementary school in the Saanich area, where he presently attends Grade 4. [159] On October 13, 2022, the parties appeared in Provincial Court before McKimm P.C.J. K.A. was seeking clarification from McKimm P.C.J. as to why he granted the McKimm Protection Order. J.A.'s counsel referred to this Court's order consolidating all proceeding in this Court. Judge McKimm stated that no further proceedings in the Provincial Court were appropriate. He ordered a $1,000 fine against K.A. for the breach of the court orders. Again, K.A.'s emotions and upset got the better of her when, at the end of the hearing, she had to be restrained by the sheriffs. [160] On November 30, 2022, Power J. set aside Lowe P.C.J.'s protection order and directed the parties to set a trial in this matter. She expressed her concern to both parties about the number of interim appearances and that many of

these issues needed to be resolved at a trial. 2023 [161] On February 24, 2023, K.A. appeared before Power J. with counsel and she was granted leave to bring another interim parenting application. [162] On April 24, 2023, Power J. granted a consent order. This order addressed the parameters of the supervised parenting. In addition, she ordered that K.A. engage in dialectical behavior therapy ("DBT") as recommended by Cascadia. Finally, she ordered that J.A. could return all items to the Family Home and cease paying for the storage costs. For reasons that are not clear, many of these provisions were also encompassed within a later order dated June 19, 2023. [163] On June 20, 2023, the parties received the Section 211 Report. The report writer confirmed J.M.'s stated preference to see his mother and T.J. on an unsupervised basis, subject to his concerns about K.A. speaking negatively about J.A. in his presence. [164] In June 2023, Cascadia's services were terminated by K.A. On June 27, 2023, Power J. ordered that the parties could replace Cascadia with another counselling service. [165] On August 31, 2023, Power J. discontinued supervised parenting time and ordered unsupervised day time parenting time. She indicated to the parties that she was prepared to consider unsupervised overnight parenting time at the next appearance. [166] On November 1, 2023, Power J. convened yet

another hearing to consider the matter. Ultimately, she decided that she would interview J.M. On November 3, 2023, Power J. reported the results of her interview with J.M. to the parties. [167] On November 24, 2023, the parties appeared before Power J. to settle the terms of the order she had granted earlier that month. Her transcribed reasons are before me: J.A. v. K.A., 2024 BCSC 681 [Power Reasons]. Justice Power's assessment of the various interim applications is of note and rings true to me based on the trial evidence: [16] In my opinion, it is impossible on interim applications to get to the bottom of the relationship of the parties and to determine in any final way whether there is any merit to the mother's claims of coercive control by the father. That is one reason among many why I have urged the parties to get to a trial date. [17] I will say however, that the father's request to prevent overnight visits and for supervised parenting time on this application was not, in my opinion warranted, or in the Child's best interests, based on the circumstances before me and my interview of the Child. It was the same application the father made in April 2022, when he sought to revoke the mother's unsupervised parenting time ordered by Madam Justice Murray. At that time, I acceded to the application and ordered that parenting time revert to supervised parenting time. [Emphasis

added.] [168] In the Power Reasons (para. 73), Power J. did not consider that J.A.'s application to revert back to supervised parenting was in J.M.'s best interests. She granted mutual conduct orders. She ordered that, commencing in January 2024 (after some ad hoc parenting time given K.A.'s schedule), K.A. was to have regular unsupervised parenting time with J.M. on a two-week schedule: week 1 from Sundays from 12:00 p.m.-6:00 p.m.; and week 2 from Fridays until Sunday at 2:00 p.m., with one additional day per week from after school to 7:00 p.m. [169] At the November 2023 hearings, Power J. advised the parties that they should work toward more parenting time for K.A. as time went on. Yet, the parenting scheduled ordered on November 24, 2023 has remained essentially in place since then, at J.A.'s insistence. 2024 [170] Various conflicts have continued to arise between the parties, given their mutual antipathy and mistrust of each other, now at extreme levels given the course of this litigation and its effects, particularly upon K.A., T.J. and J.M. [171] In April 2024, an incident occurred at one exchange which led to police involvement and K.A.'s arrest for theft of J.A.'s phone, although I understand that no charges will be brought. [172] More recently, on May 26, 2024, just before the trial continued, J.A. refused to bring J.M. to K.A. for her court ordered parenting time,

citing J.M.'s concerns about K.A. yelling at him and having physical confrontations with T.J. After receiving legal advice, J.A. deferred to his ten-year old son's decision not to visit K.A. I have no doubt that J.A. did nothing to assuage J.M.'s concerns, to the extent they existed, in encouraging and supporting his visits with K.A. [173] As above, in November 2023, Power J. expressly told the parties that they should work toward an increase in parenting time for K.A. into the future. That has not happened because J.A. is unprepared to allow any deviation from the current court order. His stated reasons included waiting for the results of the trial to provide consistency and structure. I conclude that J.A. is very unlikely to show any flexibility in terms of the parenting regime and specifically, allow K.A. any more time than as is expressly set out in a court order.

DIVORCE [174] The parties seek an order for divorce. Sections 8-12 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) set out the requirements that must be satisfied in order for me to grant a divorce. I conclude that those requirements are satisfied based on the evidence presented. [175] In particular, I find that the parties have been physically separate and apart since July 1, 2021. I am satisfied that there is no chance that the parties will reconcile. [176] I will address below the reasonable arrangements that are to be made for the support of the Children, having regard to the applicable Federal Child Support Guidelines, SOR/97-175 [Guidelines or Guideline]. [177] I grant the parties an order for divorce which will take effect on the 31st day after the issuance of this Final Order. GUARDIANSHIP / PARENTING OF THE CHILDREN [178] A major focus of this trial has been directed to J.M., and to a much lesser degree, T.J. Indeed, all of the interim orders in both the Provincial Court and this Court address issues relating to J.M. [179] The focus on J.M. at this trial was further emphasized by the fact that J.M. was represented by his own counsel, as was earlier ordered by Power J. in November 2023. Legal Framework [180] The parties agree the parenting provisions of the FLA apply. I would add that I would have arrived at the same result if the analysis had been undertaken pursuant

to the Divorce Act. [181] Each party agrees that the other is a guardian of J.M.: FLA, s. 39(1). [182] Subsection 37(1) of the FLA mandates that, in making orders for parenting arrangements, the best interests of the child is to be the only consideration. In determining what is in the best interests of the child, s. 37(2) of the FLA provides a non-exhaustive list of the factors I am to consider: To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (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 the person's responsibilities; (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; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the

person's ability to care for the child and meet the child's 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; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [183] An order is not in the best interests of the child unless it protects, to the greatest extent possible, their physical, psychological and emotional safety, security and well-being: FLA, s. 37(3). [184] J.A. raises some issues of family violence. [185] In terms of assessing the family violence factors in ss. 37(2)(g) and (h) above, s. 38 of the FLA requires me to consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of

the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [186] "Family violence" is defined in s. 1 of the FLA to include: with or without an intent to harm a family member, (a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (b) sexual abuse of a family member, (c) attempts to physically or sexually abuse a family member, (d) psychological or emotional abuse of a family member, including (i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (e) in the case of a child, direct or indirect exposure to family violence [187] The Supreme Court of Canada has recently discussed the role of family violence in the best interests analysis in Barendregt v. Grebliunas, 2022 SCC 22. Although expressed in the context of a relocation case, the Court's comments apply generally: [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator's parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p.

12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., "A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth" (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. [188] Section 40 of the FLA establishes the framework for making "parenting arrangements", a term that includes parental responsibilities and parenting time. Section 40(3) allows the Court to allocate parental responsibilities between or among the parties. In making such orders, no particular arrangement is presumed to be in the best interests of the child, including that the following must not be presumed: that parental responsibilities should be allocated equally among guardians; that parenting time should be shared equally among

guardians; and that decisions among guardians should be made separately or together: FLA, s. 40(4). [189] "Parental responsibilities" include decisions regarding a number of matters, such as the day-to-day care, supervision and control, education, religion and upbringing and legal and medical issues in relation to a child. Section 41 of the FLA sets out the list of "parental responsibilities" that a guardian must exercise in the best interests of a child: (a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (b) making decisions respecting where the child will reside; (c) making decisions respecting with whom the child will live and associate; (d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity; (f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (h) giving, refusing or withdrawing consent for the child, if consent is required; (i)

receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (k) subject to any applicable provincial legislation, (i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (l) exercising any other responsibilities reasonably necessary to nurture the child's development. [190] Section 42 of the FLA defines a child's time with a guardian as "parenting time" and discusses the guardian's responsibilities during that parenting time. It provides: (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order. (2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. [191] Subsection 43(1) of the FLA reinforces that a guardian must exercise parental responsibilities in the best interests of the child. [192] Section 45 of the FLA authorizes the Court to make orders allocating parental responsibilities and orders regarding parenting time. T.J. [193]

J.A. has made it manifestly clear that he wants nothing to do with T.J. I believe that now, the feeling is mutual. [194] It is appropriate to grant K.A. full parenting rights with respect to T.J. in the circumstances, consistent with how she has been dealing with matters relating to T.J. since the separation. J.M. [195] Ideally, J.A. would like to see supervised parenting time for K.A. continue. However, J.A. now concedes at this trial that he is prepared to have the November 2023 parenting schedule continue which allows K.A. to have unsupervised parenting time. He seeks to solely exercise all parental responsibilities for J.M. [196] K.A. seeks equal parenting time, on a week on/week off basis. She also seeks sole decision making for J.M. [197] My analysis can be best discussed within the context of the FLA s. 37(2) factors, as follows (a consideration of the Divorce Act factors leads to the same result).

1) J.M.'s views [198] One of Power J.'s orders was to appoint a lawyer for J.M. for the purpose of these proceedings, pursuant to s. 203 of the FLA. This order followed from her interview of J.M. where she found J.M. to be an intelligent, warm and mature (for his age) young boy who wishes some say in his future. [199] Ms. Marks has ably represented J.M. at this trial and, in my view, has provided valuable input from her young, but very interested and invested, client. Neither party suggests that it is inappropriate to consider J.M.'s views and I agree. [200] J.M. reports that K.A. was yelling and saying negative things about J.A. in his presence. He wants her to stop doing that. By early March 2024, J.M. said that things were getting better but that K.A. was still making some negative comments. However, J.M. wants to spend as much time as possible with each parent. His counsel reports that J.M. "wants this to be over and for life to go back to normal". [201] J.M.'s counsel has advanced two possible scenarios for parenting going forward, with no particular preference. The first scenario is a parenting schedule with K.A. that is similar to what is in place now. The second scenario is a week on/week off parenting regime. [202] In my view, although he is young, J.M.'s views evidence a maturity and understanding of his needs and the human dynamics of his parents that is deserving on serious weight and consideration: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para. 87; L.C.T. v. R.K., 2018 BCSC 1016 at para.

34. J.M.'s views are a legitimate expression of his wishes as to the outcome of this trial and they represent a reasonable way forward in terms of what is in his best interests.

2) J.M.'s health and emotional well-being [203] This is very much a concern of both parties and the Court. [204] The evidence is that the high conflict proceedings have caused J.M. much distress. In fall 2023, Dr. Sherman reported these concerns and he set out his observations of J.M.'s behaviors that had resulted from this distress. These behaviors are very concerning and must be addressed by the parties immediately. [205] To his credit, there is also evidence that J.M. had shown remarkable resiliency in addressing the situation. I have the distinct impression that J.M.'s legal representation at this trial has shown him that he has considerable agency in expressing his concerns to both parents and that he is attuned to his own welfare. [206] I am satisfied that both parties have the capacity to support J.M.'s mental and physical health, however, they must set aside their antipathy and mistrust of each other in the course of addressing the well-being of their son now and into the future.

3) History of J.M.'s Care / Nature and strength of the relationships between J.M. and his parents and T.J. / J.M.'s need for stability [207] There is no doubt that J.M. loves both his parents and T.J. very much. He wants to spend time with them all. [208] In the years leading up to the separation, K.A. was J.M.'s primary caregiver, a role that she enjoyed and did well. She performed that role in the face of her significant health challenges. [209] J.A. emphasizes that he has been the primary caregiver for J.M. over the last three years but that has been as a result of the court orders he obtained. [210] There is also no doubt that J.M.'s relationship with K.A. has been very seriously and negatively affected by the years of litigation and the fact that his interactions with his mother have been severely restricted and controlled by J.A., in what can only be described as an unnatural environment. [211] As I have said, J.M. has been under the strain of these proceedings for some time now and it is his wish--and that of the Court--to move toward a regularization of the parenting regime, one that frankly should have been put in place from the beginning. [212] I cannot change the past in terms of the damage that has been done to the relationships within this family. However, I can set the table to establish a basis upon which this family can go forward on hopefully a better path. [213] I consider that this factor favours a shared parenting regime as appropriate.

4) Ability of J.A. and K.A. to exercise parental responsibilities [214] J.A. continues to raise the issue of K.A.'s mental state. Specifically, he seeks an order that she continue with DBT and report on it to him. [215] In my view, this relief is neither necessary or desirable. It is indicative of what K.A. fears most--J.A. seeking to control her actions in the hopes of providing him with a breach to be used as ammunition that will allow him to seek yet further controls on her actions, specifically regarding her parenting time. In my view, K.A.'s concerns are valid. [216] As stated in the Power Reasons: [70] The law is that parenting time is the right of the child: J.B.D.K. v. T.A.B., 2017 BCSC 1186 at para.

132. In Pellegrini v. Tkach, 2023 SKCA 85, the Saskatchewan Court of Appeal dealt with a family law issue involving a father who had experienced mental health issues and was self-represented at trial. Madam Justice Drennan, writing for the Court, stressed that parenting time is the right of the child, not the parent, and that any analysis of the best of interests of the child should be centred on the child itself: at para.

22. The court in Pellegrini also confirmed that supervised parenting time is to be confined to clear and exceptional circumstances, and it is not intended to be a long term measure: at para. 16. [217] On May 7, 2024, the eighth day of trial, J.A.'s counsel called Eliot Lowey. Mr. Lowey is a director of Cascadia, a business that provides counselling services in high conflict family cases. Cascadia was involved with the parties from June 2022 until its services were terminated in June 2023. [218] On May 7, 2024, in the midst of the trial and Mr. Lowey's direct evidence, J.A.'s counsel requested a voir dire for the purpose of qualifying Mr. Lowey as an expert to give an opinion as to the necessity of certain counselling in the context of high-conflict family "systems" or dynamics. Counsel's argument was initially directed toward whether K.A. required counselling, and specifically DBT. Counsel asserted this was needed to address the "critical issue" in this litigation, namely K.A.'s alleged continued (since summer 2021) inability to express her hatred of J.A. in front of J.M. Only by way of an afterthought did J.A.'s counsel suggest that Mr. Lowey's opinion was sought in respect of counselling for both parties. [219] J.A.'s counsel pointed to the fact that, at a hearing in summer 2023, Power J. had earlier allowed Mr. Lowey to provide evidence on the interim applications before

her. [220] Specifically, J.A. sought to introduce Mr. Lowey's expert opinion evidence by means of dispensing with the expert witness requirements under the Supreme Court Family Rules, R. 13-7(6)(c), citing P.E.R. v. C.A.R., 2018 BCSC 339 at para. 50. [221] I ruled against admitting any such opinion evidence, with reasons to follow. First and foremost, J.A. had not sought any report from Mr. Lowey in advance of the trial, despite knowing that it was imminent. No explanation was provided for this complete disregard of the Rule, including on the due diligence consideration outlined in R. 13-7(6)(a). Further, J.A.'s counsel's reliance on P.E.R. was misplaced, given that the facts in that case were highly distinguishable. In P.E.R., both counsel were eliciting the opinion evidence, with respondent's counsel having already examined the doctor and the Court also expressly allowed the respondent to obtain a rebuttal report: paras. 49-50. This alleviated any prejudice concerns, per R. 13-7(6)(b). [222] Here, I considered that this was a blatant attempt to take advantage of K.A., a self-represented litigant. J.A. did not address at all the considerations in the Rule. K.A. was completely blindsided by J.A.'s lawyer's submissions and it was clear that J.A. and his counsel intended that she would have no opportunity to rebut Mr. Lower's evidence. [223] K.A. readily admits that she has

struggled with mental health issues even pre-separation, which were exacerbated by her cancer diagnosis and later, the disintegration of the marriage. Yet, as Dr. Sherman has repeatedly stated in the course of these proceedings--correctly--that does not disentitle her from participating in her child's life. [224] During these proceedings, in June and November 2023, Power J. ordered that K.A. continue with the DBT, which she did. [225] It remains the case that K.A. continues to receive counselling for her issues, following from her earlier counselling sessions which included DBT. She reports that she has had to forego some counselling at this time because she simply does not have sufficient financial resources to pay for it. At times, she has been forced to decide between paying for counselling and paying for food for her and the Children. [226] Ongoing counselling is something that I encourage, as K.A. navigates the new parenting regime that I am ordering as a result of this trial. I decline to order that K.A. participate in further DBT counselling sessions, as J.A. seeks. This is repetitive of what K.A. has already completed and is unnecessary. [227] J.A. has sought an order that any breach by K.A. of this requirement would allow him to apply to vary K.A.'s parenting time. This is nothing more than J.A. seeking unnecessary controls over K.A.'s behavior, just as he did in the

past. I have no doubt that any such order would lead to further conflict between the parties as J.A. would seek to capitalize on any mistake that K.A. might make to secure himself a benefit. [228] I would also add that the evidence supports that J.A. also has mental challenges for which he has and is receiving counselling and therapy. In November 2023, Power J. also ordered that he seek counselling options, which I understand he did. I would also encourage J.A. to continue those efforts for his benefit and the benefit of J.M. particularly. [229] Hopefully, J.A. will gain some insight from that counselling into his apparent inability to separate his own interests from those of J.M. I remind him again that he has an obligation to foster a positive relationship between J.M. and his mother and his brother, rather than simply acting as a passive observer as he has done in the past. [230] J.M.'s comments about K.A. continuing to disparage J.A. in his presence remains a concern. I am satisfied that those concerns are dissipating to a degree and will continue to do so once the new parenting regime is in place and this family moves toward a more stable environment. [231] I am also satisfied that K.A. understands the importance of refraining from such behavior for J.M.'s sake and that any such comments must stop--and stop now. K.A. is well aware of the distraught that J.M. feels in

response to such comments and she must now avoid that happening as is reasonably possible for J.M.'s sake. In addition, K.A. is an intelligent woman and she must know that, if such behavior continues, she risks alienating J.M. to the point where he will not want to live with her and T.J., something that she has now fought years to regain. [232] I understand the challenges K.A. faces in light of the fact that T.J. remains very angry and upset regarding J.A., and that T.J. has transferred those feelings to J.M. to a degree. I acknowledge that K.A. is attempting to balance the needs--and best interests--of both Children in that respect. As with the parties, I would encourage K.A. to arrange for counselling with the brothers to assist in that regard.

5) Family violence issues [233] I have already addressed my skepticism, if not outright disagreement, regarding J.A.'s allegations of family violence leading up to the separation (as did Murray and Power JJ.). [234] I do not agree that there are any family violence concerns at this time that need to be addressed by the orders sought by J.A. My concerns regarding comments by K.A. in presence of J.M. about J.A. can be addressed through the conduct orders that I am granting.

6) Appropriateness of an arrangement that would require J.M.'s parents to cooperate on issues affecting him [235] The poisoned well of the parties' relationship is such that any cooperation between them is unlikely. It is clear that there is a need to lessen the number of transfers of J.M. between the parties and, to the extent that is necessary, allow for a neutral spot for that to occur. [236] In my view, a week on/week off rotation best fits the bill to achieve this. In addition, the transfers can take place at J.M.'s school where he can be dropped off and then picked up by each parent without the other being present. Unless and until the parties have regained some semblance of cooperation regarding J.M.'s parenting, they should abide by the court orders and not seek to alter them, so as not to invite any further conflict. [237] This same issue arises in relation to the parties exercising their parenting responsibilities under the FLA. Each party seeks sole decision making power given their own conclusions that cooperation is not possible and any attempt to require it will provide a source of conflict and controversy, which is inarguably the case: A.R. v. J.R., 2023 BCSC 2266 at para. 89. [238] As I have discussed above, I have unfortunately concluded that J.A. has continuously throughout the court proceedings given primacy to his own interests, rather than that of J.M. The

harms that have resulted are evident. To the contrary, throughout this trial, K.A. has repeatedly shown that she has the ability to put aside her own feelings against J.A. where J.M.'s best interests are at stake. [239] An example is K.A.'s agreement to maintain Dr. Sherman as J.M.'s doctor (despite her issues with Dr. Sherman). [240] Another example is K.A.'s agreement to allow J.M. to travel with J.A. given the importance that she places on travel as a life experience (despite J.A. seeking to control any of her travel with J.M., which might have given rise to K.A. having a tit-for-tat response, but she did not). [241] On the issue of travel, J.A. seeks an order that he be allowed to veto any travel plans by K.A. with J.M. I have absolutely no doubt that J.A. will not approve any travel by K.A., in his ongoing attempts to control her parenting with J.M., which would certainly lead to further conflict and court proceedings. There is no evidence to support J.A.'s "concerns" that K.A. is a flight risk in terms of removing J.M. from the jurisdiction if any international travel occurred. [242] Overall, I consider that K.A. is better suited to be the parent making the FLA parenting decisions for J.M. and in his best interests. There is, however, one exception. J.M. is adamant that he does not wish to change his school back to the French school, as K.A. wishes. I agree that J.M. has had enough stress and disruption in his life and that it is in his best interests to maintain his present schooling. Accordingly, K.A. will not be allowed to change J.M.'s present elementary school save by agreement of the parties or court order.

7) Any civil or criminal proceeding re J.M.'s safety, security or well-being [243] As I have said, despite many allegations by J.A., there has been no finding that K.A. had breached any of the protection orders. I accept that McKimm P.C.J. imposed a $1,000 fine based on his conclusion that K.A. had breached an order of that court. [244] No other breaches of this Court's orders--including that of Murray and Power JJ.--have been proven to my satisfaction. [245] The specifics of the parenting issues are set out in the Appendix attached. They also include certain conduct orders, which I consider to be in the best interests of J.M., including minimizing the impact of conflict between the parties on J.M.: A.B. at para. 187.

8) Summary re J.M. Best Interests [246] After considering all of the above factors, and the overall circumstances, I conclude that an equal sharing of parenting time with J.M. as between the parties, with K.A. having primary residence of J.M., is in J.M.'s best interests. [247] I also conclude that it is in J.M.'s best interests to grant K.A. full decision making with respect to the parenting responsibilities, with the exception noted above, and subject to K.A. keeping J.A. apprised of any major decisions she is making regarding J.M.

GUIDELINE INCOMES [248] Both parties have provided their recent Form F8 and other documentation regarding their incomes. J.A.'s Income [249] Tax documentation regarding J.A. indicate the following Line 150 income, which has been a mix of mostly employment income and some LTD payments (before deduction for union dues): 2018 $97,798 employment income 2019 $164,747 employment income 2020 $162,438 employment income 2021 $127,784 employment income / LTD 2022 $141,897 employment income / LTD 2023 $145,122 employment income [250] After calculation of the amounts net of union dues and a dividend adjustment, I find that J.A.'s Guideline income is: $126,125 for 2021; $140,258 for 2022; and $143,061 for 2023 and 2024. K.A.'s Income [251] In June 2022, K.A. was granted medical retirement by Health Canada. [252] Tax documentation regarding K.A. indicate the following Line 150 income: 2020 $79,155 mostly employment and some LTD 2021 $60,777 some employment but mostly LTD 2022 $70,732 some employment but mostly LTD of $61,718 [253] K.A. reports Guideline income in her Form F8 of $61,718, arising from monthly LTD payments of $5,143 that she has been receiving from Sun Life. I accept K.A.'s evidence that she remains in receipt of these LTD benefits as her only source of income. [254] J.A. seeks to impute income to K.A. as of January 1, 2023 in the amount of $88,169. This amount is based on

K.A.'s belief that her LTD payments of $61,718 are about 70% of what her income would have been. [255] J.A. relies on K.A.'s statement during trial that she would like to return to work as soon as possible. He asserts that she intentionally decided not to return to work in January 2023. [256] However, I accept K.A.'s evidence, including the medical documentation submitted by her, that she is still unable to return to her prior position or anything similar, given her ongoing physical and mental health issues. In fact, her tentative physical and mental health was evident to me throughout the trial. Currently, she is still undertaking therapy to address her post-cancer treatment. I do not find that K.A. is intentionally unemployed in the circumstances. [257] Even if K.A. was able to obtain a job that accommodated her now current physical and mental challenges, there is no evidence that it would yield an income greater than she is currently receiving by way of LTD benefits. [258] After calculation of the amounts net of union dues and other gross-ups for non-taxable income, I find K.A.'s Guideline income to be: $60,019 for 2021; $70,785 for 2022; $61,718 for 2023 and 2024.

CHILD SUPPORT [259] No child support has been paid by either party since their separation on July 1, 2021. J.M. Support (Retroactive and Future) [260] The Table child support amount payable by K.A. since separation, based on her 2021-2024 incomes, is:

YEAR

INCOME

MONTHLY AMOUNT

TOTAL 2021 (July-Dec) $60,019 $567 $3,402 2022 (Jan-Dec) $70,785 $674 $8,088 2023 (Jan-Dec) $61,718 $584 $7,008 2024 (Jan-July) $61,718 $584 $4,088 TOTAL (as of July 2024): $22,586 [261] Accordingly, this results in a retroactive award of basic child support for J.M. payable by K.A. to July 1, 2024 of $22,586. This amount will be paid to J.A. from K.A.'s share of the net sale proceeds of the Family Home. [262] In addition, based on the shared parenting arrangement that I have ordered, J.A. will be required to pay ongoing set-off child support for J.M. of $717 per month on the first day of each month commencing on August 1, 2024. This is based on J.A.'s 2024 Guideline income of $143,061 ($1,301 per month) and K.A.'s Guideline income of $61,718 ($584 per month). J.M. Section 7 Expenses [263] J.A. seeks payment by K.A. of her share of the cost of J.M.'s counselling sessions with Cascadia in the 2022/early 2023 timeframe. Those costs are $3,665. [264] The vast majority of these charges were incurred in 2022. For 2022, the sharing is 60% for J.A. ($140,258) and 40% for K.A. ($70,785). [265] I agree that these counselling costs are an appropriate special and extraordinary expense for J.M.'s benefit. K.A. will pay 40% of that amount ($1,466) from her share of the net sale proceeds from the Family Home. [266] Any other future and appropriate special and extraordinary expenses, in

accordance with the FLA, will be shared between the parties based on their respective 2024 Guideline incomes, as above, adjusted in J.A.'s favour for the fact that J.A. will be paying spousal support to K.A., as I have ordered below. This results in a 60%/40% sharing as between J.A. and K.A., respectively. [267] The parties should consult with one another if they are proposing to enrol J.M. in any activities for which s. 7 expenses will be sought to be shared. J.M. should be consulted in respect of any such activities, as he has requested. T.J. Child Support [268] K.A. seeks child support from J.A. with respect to T.J. as he is a child of the marriage. J.A. denies that he, as T.J.'s stepfather, has any responsibility for T.J.'s support. [269] K.A. confirmed at this trial that T.J.'s father in Ontario. He supports T.J. as best he can from time to time and that there is no formal agreement or court order setting out what support is required to be paid by him. This support includes some payments to K.A. on certain occasions and also, he pays for T.J.'s flights to Ontario for regular visits. In addition, T.J.'s father has established a RESP for T.J. to which he contributes. [270] The Guidelines address the ability of the court to grant a child support order against a stepparent in an amount that is "appropriate": 5. Where the spouse against whom a child support order is sought

stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child. [271] The obligations of a stepparent to provide child support is also addressed in the FLA: 147. (4) A child's stepparent does not have a duty to provide support for the child unless (a) the stepparent contributed to the support of the child for at least one year, and (b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child. (5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (a) is secondary to that of the child's parents and guardians, and (b) extends only as appropriate on consideration of (i) the standard of living experienced by the child during the relationship between the stepparent and the step-parent's spouse, and (ii) the length of time during which the child lived with the stepparent. [272] J.A. is a "stepparent" of T.J. since he is the spouse of K.A. and he lived with them both from 2013-2021: FLA, s.

146. I find that the requirements of s. 147(4) have been complied with. J.A. contributed to the support of T.J. for eight years prior to separation in July 2021. In addition, K.A.'s counterclaim for support for T.J. was filed in October 2021, within one year of the separation. [273] J.A. opposes any award that would require him to pay for T.J.'s child support, both retroactively and in the future. In support, J.A.'s counsel refers to H.(U.V.) v. H.(M.W.), 2008 BCCA 177 and R.L.D. v. J.R.J.M., 2023 BCSC 299. [274] Relying on the court's comments in H.(U.V.) at paras. 38-40, J.A.'s counsel submits that before considering the stepparent's obligation, the Court must determine the duty of the "other parent" and quantify that duty if possible. The court at para. 38 referred to the need for evidence that addresses the other parents' circumstances. Similarly, in R.L.D., the Court terminated child support for a stepson, including for the reason that there was insufficient evidence regarding the biological parent's ability to contribute to his support and the Courts' view that insufficient efforts had been made to obtain support: paras. 118-119. [275] I find these cases do not support J.A.'s position that he has no obligation for child support of T.J. In H.(U.V.), the court spoke of the "focus on the children and their needs"; and noted that in cases where biological parents were not

present or not able to pay child support, stepparents "may well be required to pay full Guideline amounts": para. 41. [276] The facts of R.L.D. can be distinguished from the circumstances of this case. The recipient of child support in R.L.D. turned 19 at the time of the trial, so apart from ss. 147(4) and (5) of the FLA, the Court considered well-known factors formulated in Farden v. Farden, 40 A.C.W.S. (3d) 1122, 1993 CanLII 2570 (B.C.S.C.), for assessing whether an adult child attending a post-secondary institution should continue to receive support: para.

105. The Court decided not to extend the child support order not only due to insufficient evidence on the biological father's means, but also due to lack of evidence showing that the child himself took any steps to secure funding for his education: paras. 118-119. [277] In multiple cases, courts have ordered stepparents to pay full amount of child support when biological parents evaded their support obligations and could not be located either in Canada (Code v. McLeod, 2023 BCSC 1686 at paras. 72-75) or abroad (Shen v. Tong, 2013 BCCA 519 at paras. 59-61); or where biological parents were destitute and unable to contribute to child support (Duffy v. Boisvert, 2017 BCSC 500 at paras. 40-42). [278] J.A.'s counsel, however, is correct in saying that the Court needs evidence of T.J.'s father's financial capacity in order to determine the amount of the child support that J.A. must contribute. As the court stated in Sullivan v. Struck, 2018 BCCA 256 at para. 30, the evidence relating to the circumstances of the stepparent and natural parents should be before the court: - When determining the quantum of a stepparent's child support obligations under s. 5 of the Guidelines, the first step in the analysis is to determine the child support obligation of the "other" (i.e. natural) parent. The quantum of the biological parent's obligation will be the table amount, as per the inflexible

rule in s. 3 of the Guidelines (unless one of the discretionary provisions in the Guidelines applies, such as s. 3(2)(b) for children over the age of majority). - The natural parent's obligations are not determined by balancing or apportioning obligations between the natural parent and the stepparent. In other words, a natural parent cannot seek to reduce his or her child support obligation by asking the court to order a stepparent to contribute to that obligation. Any support payable by the stepparent goes toward increasing the total amount accruing to the child, not to helping the biological parent meet the expense of his or her own support obligation. - Once the court has determined the duty of the biological parent in accordance with the Guidelines, the court may determine the stepparent's obligation with regard to the objectives in s. 1 of the Guidelines and the child's standard of living. Section 1 of the Guidelines includes the objective of establishing "a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation". If the biological parents are unable to provide a fair standard of support, the court may order the stepparent to pay child support "on top of" the support provided by the biological parents. - While s. 3 of the Guidelines imposes an inflexible obligation on a biological parent,

s. 5 gives the court flexibility to depart from rigid adherence to the table amounts in relation to stepparents. [279] I have no information regarding T.J.'s father's income or his means to provide support for T.J. from the time of the parties' separation, which is the beginning of the relevant period of time. Even though I can infer from K.A.'s evidence about T.J.'s father that he has modest financial circumstances, that information is not sufficient upon which the issue can be addressed, per the court's direction in Sullivan. [280] I am persuaded in this case that J.A. had a duty to provide some support for T.J. from the time of separation, albeit on a secondary basis. In particular: a) J.A. lived with T.J. and assumed a full parenting role for T.J. for some eight years prior to the parties' separation; b) J.A. assumed a parenting role in relation to T.J., along with K.A., with full knowledge of T.J.'s father's contributions, including that T.J.'s father contributed from time to time to T.J.'s support. There has not been any change from that level of support as between the pre- and post-separation periods of time. J.A. was well aware of the fact that T.J.'s father did not pay any set amount of child support for T.J., but he did contribute to various of T.J.'s expenses and to the RESP; and c) T.J.'s circumstances, along with that of K.A., are considerably diminished from their

standard of living pre-separation, given that they live in assisted housing and on K.A.'s very modest income. [281] I conclude that, as a self-represented litigant, K.A. did not fully appreciate what evidence she required in order to allow the Court to address the issue. Fairness requires that she be given an opportunity to do so. [282] In the above circumstances, I adjourn the determination of the amount of child support payable by J.A. for T.J. from the time of separation until K.A. provides the Court with the evidence regarding any support payments made by T.J.'s father, as well as his financial means from 2021-present. I also adjourn the matter of J.A.'s obligation to pay ongoing child support, both regular and special expenses. [283] K.A. should provide this information by October 2024. If the sale of the Family Home is completed before the matter is addressed by the Court, I order that $25,000 from J.A.'s share of the net sale proceeds be held in trust in respect of K.A.'s retroactive and prospective child support claims for T.J. This will allow any amounts ultimately ordered to be paid to be secured should any sale should be arranged and proceeds distributed before the matter is determined. FAMILY PROPERTY / DEBT DIVISION [284] There are contested issues to be addressed regarding property division. General Principles of Family Property / Debt Division [285]

Presumptively, a right to an equal division of family property arises on the separation date, and each spouse is equally responsible for family debt: FLA, s. 81(b). Family property is determined under the FLA in accordance with Part 5, Division 2, which provides that family property includes all property owned by either spouse on the separation date: FLA, s. 84(1)(a). [286] Both parties allege that they brought property into the relationship that should be excluded property in accordance with s. 85 of the FLA. [287] Subject to a contrary court order, family property and family debt are valued on the date of trial and the value is the fair market value at that time: FLA, s. 87(b). Family Assets / Debts [288] The family assets and debts that existed on the date of separation in June 2021 are few and not controversial. [289] I find that the family assets and their values are as follows. The Family Home [290] The Family Home was acquired in August 2014 for $621,500. Both parties are on title. In addition to mortgage financing, K.A. provided the down payment of $127,621 (the "Down Payment"). [291] There is some evidence of the value of the Family Home. [292] In August 2021, J.A. had the Family Home appraised at a value of $1,100,000. The appraiser noted that it was in unkempt condition and needed substantial work to complete the renovations that had been underway for years. The

appraiser estimated that any purchaser may factor in costs of between $200,000-300,000 to complete and/or change the interior. [293] K.A. has provided the 2024 BC Assessment for the Family Home, indicating a value of $1,463,000 as of July 2023. [294] In January 2024, J.A. hired the same appraiser as before, who valued the Family Home at $1,275,000. The appraiser again noted the unkempt condition and that renovations had been ongoing for years. He noted that some finishing was still to be completed; the further cost to finish the renovations was estimated at around $10,000. [295] On January 9, 2024, the parties consented to an order to list the Family Home for sale and that they have joint conduct of sale. [296] In March 2024, the Family Home was listed for sale at a list price of $1,399,000. Only one offer has been received which was not accepted. [297] As of April 30, 2024, the balance of the mortgage against the Family Home was $336,995.12, which is the only family debt. Accordingly, the equity in the Family Home is approximately $938,000, based on the January 2024 appraisal amount. [298] The parties are continuing their efforts to sell the Family Home, in accordance with the Court's order. [299] In his NOFC filed in August 2021, J.A. sought unequal division of the family property and family debt, without any grounds alleged for such relief. K.A. also sought unequal division

in her counterclaim based on her greater financial contributions and contributions to the household and child care. However, by the time of final submissions, both parties were content to have equal sharing of the Family Home, subject to their respective claimed deductions and K.A.'s excluded property claim regarding the Down Payment. [300] The only significant family debt is the mortgage on the Family Home that will be paid upon its sale. Otherwise, the parties are responsible for their own debts. Vehicles [301] J.A. has a 2004 Nissan Titan, a 2012 BMW motorcycle and a utility trailer. The total value of these items is $14,000 in accordance with J.A.'s Form F8. J.A. claims those assets as excluded property under s. 85(1)(a) of the FLA since he had acquired them before the relationship, with which K.A. agrees. [302] K.A. has a Toyota Corolla which her Form F8 shows as valued at $1,000. K.A. claims the vehicle as excluded property under s. 85(1)(a) of the FLA since she had acquired it before the relationship, with which J.A. agrees. [303] Both parties will retain their respective vehicles as excluded assets. RRSPs [304] J.A. discloses two accounts totalling $4,867 as disclosed in his Form F8. He says that he has since cashed in one (for $4,100) and the other remains at some amount in excess $1,057. K.A. had an RRSP from March 2010 that her Form F8 shows as valued at $90,910. [305] Given the dates upon which all of these investments were obtained, they are excluded property. Neither party presented any evidence of an increase in value over the relationship that would support a basis upon which to share any increase for the purpose of s. 84(2)(g) of the FLA. The parties will retain their respective investments or RRSPs.

RESP [306] In fall 2018, the parties set up a RESP for J.M. As of May 2024, the balance was approximately $20,550. This included monthly contributions since September 2018. [307] The parties will maintain the RESP and not withdraw any monies for J.M.'s benefit, save by mutual agreement or court order. Pensions [308] Both parties have pensions. J.A. has accrued pension benefits during the relationship from his time working for the Canadian Coast Guard. K.A. also has accrued pension benefits with the federal government. Neither party has taken any steps to value their respective pensions and, therefore, the values of the pension benefits that are shareable between the parties is unknown. [309] The parties will take steps under the applicable legislation (Part 6 of the FLA) to share the increase in their pensions over the course of their relationship. The commencement date will be February 1, 2013 to the separation date of July 1, 2021. CPP Credits [310] Each party has accumulated CPP credits which can be shared. The parties agree, and I order, that their CPP plans shall be equalized with respect to the period of the parties' relationship from cohabitation on February 1, 2013 until separation on July 1, 2021. K.A.'s Excluded Property Claim re Family Home [311] K.A. claims the Down Payment ($127,621) as her excluded property, since it was her cash savings that she had prior to the

relationship. [312] J.A.'s evidence is that he and K.A. discussed and agreed to her contribution as essentially a gift to him since the Family Home was to be their "forever house". He also argues that, as time went on, he contributed the lion's share of the renovation expenses in relation to the Family Home. [313] I have been assisted in considering this issue by two decisions, cited by J.A.'s counsel: Dignard v. Dignard, 2024 BCSC 104 and Hagman v. Yasmina, 2024 BCSC 807. [314] Those decisions discuss the presumption of advancement, a concept which means that a transfer of what would otherwise have been excluded property loses that characterization and is, instead, considered a gift to the other spouse: Dignard at paras. 41-48. Since this proceeding began before the presumption was abolished on May 11, 2023, it continues to apply despite the amendment to the FLA in s. 85(3): Hagman at para. 108. [315] The intention of the transferring spouse is key: V.J.F. v. S.K.W., 2016 BCCA 186 at para. 50; Venables v. Venables, 2019 BCCA 281 at para. 95. [316] The onus is on K.A. to provide sufficient evidence to establish that her intention in using her excluded funds (i.e., the Down Payment) was not to gift those funds in part to J.A.: Dignard at para. 43; Hagman at para. 116. [317] K.A.'s evidence contradicts J.A.'s assertion. She says that, when the Family Home was being purchased and

the need for a down payment came up, the parties specifically discussed that she was going to use her own savings when J.A. was not able to come up with any cash for that purpose. K.A.'s evidence is that the parties agreed that, if they ever split up, K.A. would recover the amount of the Down Payment as her excluded property. [318] I accept that K.A. has met her onus. I accept K.A.'s evidence as to her intention in using her savings for the Down Payment, in that it was not to make a gift to J.A. Before the relationship began, K.A. had been diligent is accumulating assets and savings for her financial security. She was also keenly aware that J.A. had not done that and his finances were a bit opaque to her. The parties were fairly early into their relationship. [319] I reject J.A.'s evidence on this issue entirely. I consider that it was self-serving and an ex post facto rationale to secure a larger share of the value of the Family assets, consistent with his other objectives in this litigation. This is particularly so with respect to his assertion that he paid more for renovations than K.A., which in fact post dates the time when K.A.'s intention was formed and which does not negate or detract from that ongoing intention at any time. [320] I find as a fact that, when the Family Home was purchased, the parties specifically discussed and agreed that K.A.'s interest in the Down

Payment would be preserved and repaid to her upon a breakdown of the relationship. It was not a gift to J.A. K.A. is entitled to the Down Payment from the net sale proceeds of the Family Home before any proceeds are distributed to either party. Property Division re Family Home [321] Section 97 of the FLA provides the Court with a wide discretion to give effect to property division in a fair manner. Section 97(2) allows the Court to, among other things, declare ownership of property, order the transfer or sale of property and order that compensation payments be made to achieve that result. [322] After a sale of the Family Home, the net sale proceeds are to be placed in J.A.'s counsel's trust account to be divided in accordance with this Final Order. [323] After payment of the Down Payment to K.A., the amount of the retroactive child support payable by K.A. for J.M., as above, is to be deducted from her respective share of the net sale proceeds. In addition, as noted above, $25,000 from J.A.'s share of the net sale proceeds will held in trust in respect of K.A.'s retroactive and prospective child support claim for T.J. until that issue is determined by the Court. J.A. Claimed Deductions [324] J.A. claims payment from K.A. for a variety of costs and expenses he has incurred post-separation. He seeks an order that these be paid from K.A.'s share of the net sale proceeds of the

Family Home, as follows: a) $5,791.42 for storage locker costs; b) $12,942.34, being 50% of the house insurance, property tax and municipal costs; c) $10,000 for one-half of the materials costs of the renovations performed by him post-separation; d) $729.75 for fees paid by J.A. on behalf of K.A. to Cascadia; e) $833 for one-half of the fees paid to Drew van Brunt by him for parenting supervision; and f) the hearing fees payable to the Court for this proceeding. [325] I decline to order that K.A. pay any compensation to J.A. for the storage costs. The idea of putting K.A. and T.J.'s personal items into storage was J.A.'s idea and he should shoulder all of the costs. In addition, J.A. did not provide any reasonable explanation as to why these items could not have been located in a portion of the Family Home until picked up by K.A., just as he did in March 2022 with respect to their belongings that remained in storage at that time. [326] I also decline to order that J.A. pay the costs associated with maintaining the Family Home since separation. The matter of the status of the Family Home came up early for discussion in these proceedings, when it became apparent that J.A. had no ability or willingness to buy K.A. out of her share. To that extent, it was J.A.'s own decision to continue living in the Family Home, despite the cost. I consider that J.A. was, after July 2021, in no

rush to deal with the Family Home given his comfortable circumstances in relation to those of K.A. I would also note that K.A. incurred her own costs in re-establishing a home after she was required to leave the emergency woman's shelter that she needed to access after J.A. "ousted" K.A. from the Family Home, as she puts it. It would be unfair in the extreme to visit a portion of these costs on K.A. given the respective circumstances of the parties from July 2021. [327] I reach the same conclusion with respect to the materials costs claimed. In addition, J.A. provided no documentary support for such costs and I decline to rely simply on his uncorroborated evidence. [328] The other costs for Cascadia and Mr. van Brunt were only incurred as a result of J.A.'s aggressive and unnecessary litigation strategy in this proceeding. K.A. also covered some of the supervision costs, as she was able to do with her modest income. I decline to order that K.A. share in any of these claimed costs, particularly given the great disparity in their incomes. [329] I would add that, even if I had considered that J.A. had some basis upon which to seek K.A.'s sharing of any of the above costs, I would have considered it appropriate to offset them as against the occupation rent that K.A. claimed against J.A. for his exclusive occupancy of the Family Home. In addition, J.A. has retained the value of the

parties' other assets in the Family Home that were left by K.A. and not later retrieved by her, although any such value was not addressed or determined at this trial. K.A. Claimed Deductions [330] K.A. seeks an order that J.A. pay her the €7,700 that she had placed in her personal belongings which were later unilaterally dealt with by J.A. in the fall 2021. [331] In my view, J.A.'s callous disregard for K.A.'s personal belongings and his rush to remove them from the Family Home is such that he is responsible for this loss. He is to repay K.A. this amount. [332] The equivalent amount of Canadian funds will be credited to K.A. upon distribution of the sale proceeds. K.A.'S SPOUSAL SUPPORT [333] K.A. seeks spousal support on both a compensatory and non-compensatory basis. J.A. opposes any award of spousal support. He denies that K.A. has any entitlement to such support, on either basis. [334] The Divorce Act provides in s. 15.2(4) that the factors to be considered in granting a spousal support order are the "condition, means, needs, and other circumstances of each spouse". The statutory objectives of a spousal support order are set out in s. 15.2(6): An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its

breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [335] The Spousal Support Advisory Guidelines [SSAG] are relevant to the task before the Court on this application: Department of Justice Canada, Family, Children and Youth Section, Spousal Support Advisory Guidelines: The Revised User's Guide (Ottawa: DOJ, 2016). [336] In each case, the court is required to consider the specific circumstances that apply, having regard to relevant factors and the objectives of spousal support under the Divorce Act: Devathasan v. Devathasan, 2017 BCSC 1010 at para.

140. In addition to those factors referenced in s. 15.2(6) of the Divorce Act, factors for consideration include the payee's needs, the standard of living during the marriage, the parties' post-separation standard of living, the disparity of the parties' incomes and earning capacity, the division of assets and the parties' stated current expenses: T.N. v. J.C.N., 2015 BCSC 439 at para. 178 as cited in Devathasan v. Devathasan, 2019 BCSC 661 at para. 349. [337] I agree that no compensatory claim to spousal support has been made out by K.A. By all accounts, when K.A. remained in a caregiver role at home in 2018 when she could have returned to work, it was a relatively short period of time. In addition, there is no evidence to suggest that it harmed her career by the time she did return after those months. [338] However, non-compensatory, or need-based, spousal support is another matter. Again, one of the objectives of spousal support is to relieve any economic hardship arising from the breakdown of the marriage: FLA, s. 161(c) and Divorce Act, s. 15.2(6)(c). [339] In Myers v. Myers, 17 R.F.L. (4th) 298, 1995 CanLII 2274 (B.C.C.A.), Justice Finch spoke of the "needs" basis for spousal support as driven by the circumstances of the parties. He stated: [10] As to the contention that the wife failed to establish any "needs" within the meaning of s. 15(5) of the Act, counsel suggests

an interpretation of the section which, in my respectful view, is not supportable. "Need" or "needs" are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. "Need" does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. "Needs" is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted. [340] In Yemchuk v. Yemchuk, 2005 BCCA 406, the court further discussed the "needs" basis for spousal support: [49] In considering the concept of "need" in the context of a long-term marriage involving a sharing of resources, I am satisfied that it should take into account the relative standards of living of the spouses following the marriage breakdown. In many cases, like this one, where the parties have relatively modest assets at their disposal and no realistic prospect of increasing those assets given their retirement (and pending retirement), it is often not possible to replicate the standard of living enjoyed by the parties when they were living together. The most a support order can do is to attempt to alleviate a significant disparity in their relative standards of living following marriage breakdown. [50] While equalization of the standards of living

of the parties is not a stated objective of spousal support, in long-term marriages in which the parties have approached their roles as a partnership where each contributed their various resources, both economic and non-economic, to the relationship, equality of standard of living (which is not the same as equality of income) may well be the just result. (I leave aside those cases in which the parties, or one of them, are wealthy, since other considerations may apply.) [341] In this case, the post-separation circumstances of the parties could not have been any more different. J.A. continued to garner his substantial salary and stay comfortably in the Family Home, all without providing any interim compensation to K.A. to assist her after he had her ejected from the Family Home. This was so despite her early and repeated requests for funding. [342] K.A., a very vulnerable person at the time that she was ejected from the Family Home, found herself on the street. She was required to seek an emergency shelter. She was homeless for five months until she was able to secure adequate accommodation, assisted living, for her and T.J. [343] Even at this time, K.A.'s circumstances are extremely modest. She has had to use some of her resources to fight J.A. in this litigation and pay for some of the supervision costs that he imposed. Much of K.A.'s participation in this proceeding only

happened because she secured some legal representations through Legal Aid at various times. Her income is only slightly above $60,000 to cover all of her and T.J.'s expenses. Even now, K.A. struggles to cover her expenses. She says that she has occasionally had to visit the Food Bank to feed herself and T.J. [344] I readily conclude that there has been a significant disparity in their relative standards of living since separation, which continues to this time. K.A. has established entitlement to spousal support based on need. K.A.'s ability to work at some point in the future is highly questionable. In contrast, J.A. remains in his high-paying and secure job with the federal government, with full benefits. [345] I have completed DivorceMate calculations under the SSAG using the parties' 2021-2024 Guideline incomes, as above. I have also assumed that J.A. is to receive Table child support for J.M. from separation (July 1, 2021-July 2024) and that shared custody will apply from August 2024. These calculations do not, however, assume any child support for T.J., as it is yet to be determined and if ordered, perhaps require adjustment of these and other amounts. [346] The SSAG indicate a range for spousal support, as I will describe below, for an indefinite or unspecified duration, subject to variation and possible review. [347] The monthly figures (with child support) over the 37

months since separation (July 2021-July 2024) are: Year J.A. Income K.A. Income SSAG Range (low/high) Per Month MidPoint Per Month Total Yearly Amounts (low/mid/high) 2021 (July-December) $126,125 $60,019 $502-$1,402 $955 $3,012 (low) $5,730 (mid) $8,412 (high) 2022 $140,258 $70,785 $645-$1,636 $1,130 $7,740 (low) $13,560 (mid) $19,632 (high) 2023 $143,061 $61,718 $1,042-$2,043 $1,554 $12,504(low) $18,648 (mid) $24,516 (high) 2024 (January-July) $143,061 $61,718 $1,032-$2,039 $1,554 $7,224 (low) $10,878 (mid) $14,273 (high) Totals re Ranges $30,480 (low) $48,816 (mid) $66,833 (high) [348] I award K.A. retroactive spousal support of $57,000 to the time of trial, which is to be deducted as against J.A.'s share of the net sale proceeds from the Family Home. I have awarded this amount toward the higher end of the range in part because of K.A.'s exigent circumstances since the time of separation as compared to J.A. and because of the time value of the payment over the last three years. [349] The parties will be aware that a retroactive spousal support award will normally not give rise to any tax consequences of the parties. However, I am aware of the decision of James v. Canada, 2013 TCC 164, which was discussed in O.O. v. L.M., 2020 BCSC 851. James suggests that such payments can be taxable/deductible if the court order establishes a clear obligation to pay periodic support for a

specified period prior to the court order. An alternate method to avoid the refiling of three years of tax returns would be to arrive at a discount rate. [350] Given that the matter of T.J.'s support is yet to be determined, I will also address this issue at that time and hear from the parties as to what method they prefer. Pending any such determination, 25% of the lump sum award is to be held in trust by J.A.'s lawyer. [351] The SSAG calculation indicates that the duration of support would be 4.25-8.5 years from the date of separation, subject to variation and possibly review. That would be a duration from September 2025-December 2029. [352] I also order ongoing monthly spousal support payable by J.A. to K.A. of $1,500 payable on the first day of each month.

OTHER CLAIMS [353] In her counterclaim, K.A. sought an order of compensation arising from her allegation that J.A. had intentionally inflicted mental suffering on her and T.J. from the time of separation given their vulnerability. [354] In my view, no such relief has been justified by K.A. I appreciate the turmoil and troubles that both she and T.J. have been through over those years and it is unfortunate. For the reasons set out above, I have concluded that J.A.'s approach to this litigation has been objectionable and arguably abusive of the process. However, I intend to address the merits--or lack of merits--of J.A.'s claims under the ambit of the costs award below. K.A.'s counterclaim is dismissed. [355] J.A. seeks penalty orders against K.A., each for $25,000, for breach of ss. 221 and 228 of the FLA, respectively. I am not satisfied that any such orders should be made. [356] Firstly, it is not clear to me that Power J. granted her May 2022 order--prohibiting K.A. from bringing any parenting applications without her leave--under s. 221 so as to engage that section. Even if that was the case, I decline to impose any such penalty. [357] With respect to s. 228, J.A. has failed to establish to my satisfaction that K.A. has been in breach of any other court orders. I decline to order that K.A. has failed to comply with any order and, in any event, I do not consider that any such

penalty is justified in the circumstances here even if K.A., in attempting to comply, has technically been in breach. [358] Finally, J.A. seeks an order declaring that K.A. has conducted these court proceedings in a manner that is a misuse of court process and/or has otherwise acted in a manner that frustrates or misuses the court process. He seeks an order under s. 221 of the FLA that K.A. is prohibited from making further applications or continuing a proceeding without leave of the court for a period of eight years from the date of this Final Order. He cites Williams v. Williams, 2015 BCSC 928 at paras. 137-146 and 150, and Edwards v. Edwards, 2017 BCSC 2514 at paras. 42-43 in support. [359] This relief is also dismissed as yet another example of J.A.'s overreach, aggressive tactics and attempt to control this litigation for his own benefit. There is no evidence before me to suggest any misconduct on K.A.'s part, including in respect of this trial, as J.A. alleged. I acknowledge that, at one time, Power J. did advise K.A. that she was in contempt of Court; however, Power J. did not pursue any consequences as a result and I certainly decline to do so also. [360] Contrary to J.A.'s counsel's suggestion, K.A. has conducted herself in a respectful manner before the Court during this trial. While she has been somewhat disorganized in her evidence and submissions, I conclude that she has attempted to do her best in circumstances where she is without legal representation and still in somewhat exigent physical and mental circumstances. This relief is dismissed.

COSTS [361] J.A. seeks special costs against K.A. or, in the alternative, costs at the more than ordinary difficulty scale. He also seeks his disbursements. [362] J.A. again points to what he asserts is K.A.'s misconduct during this proceeding and at this trial, which I have not accepted is the case. [363] I have considered all of the circumstances in relation to the parties and this trial in respect of what costs award might be appropriate. It will also be apparent from my reasons above that J.A. has been largely unsuccessful in respect of the various issues. [364] I exercise my discretion to order that the parties bear their own costs, subject to any existing costs awards in this proceeding that was granted in any event of the cause. [365] At the end of this trial, K.A. asked that I seize myself of this matter in order to allow some continuity in the proceeding if that is required. She did so without knowing the outcome of my decision. In my view, it is appropriate to provide the parties with a presider who is knowledgeable of the background and the evidence that produced this Final Order in terms of addressing any future issues that might arise. In addition, it would hopefully allow for any more expeditious hearings that might be required in the future but hopefully will not.

FINAL ORDER [366] The Final Order is granted on the specific terms set out in the attached Appendix. "Fitzpatrick J." APPENDIX - TERMS OF FINAL ORDER The Final Order will, in the usual terms, refer to the Children (by their full names and birthdates) as "children of the marriage" or "Child" where identified individually. In addition: Divorce Order 1. Subject to s. 12 of the Divorce Act, the Claimant, J.A., and the Respondent, K.A., who were married at Lachine, Quebec, are divorced from each other. The divorce will take effect on the 31st day after the date of this Final Order. Parenting Arrangements (T.J.) 2. The Respondent is a guardian of T.J. pursuant to s. 39(1) of the FLA.

3. Pursuant to s. 45(1) of the FLA, the Respondent shall have all parenting time with T.J.

4. The Respondent shall have all parental responsibilities for T.J. pursuant to s. 41 of the FLA. Parenting Arrangements (J.M.) 5. The Claimant and the Respondent are guardians of J.M. pursuant to s. 39(1) of the FLA.

6. Pursuant to s. 45(1) of the FLA, the Claimant and Respondent will equally share all parenting time with J.M. The Respondent will have primary residence of J.M.

7. The parties will abide by a week on/week off rotation as between the parties' homes for J.M.'s parenting time, with the commencement date (a Monday) to be chosen by the Respondent. During the school year, exchanges will take place at J.M.'s school where the party will drop J.M. off in the morning and the other party will pick him up from school for the ensuing week (or on Tuesday, if it is a Pro-D day) until dropping him off the next Monday (or Tuesday).

8. In any case where there is to be an exchange of J.M. that occurs directly between the parties, this will occur in the parking lot of the Commonwealth Recreation Centre, or as otherwise previously agreed to in writing between the parties. During any parenting exchanges, the parties shall limit communication to pleasantries only and shall not engage in any argument or discussion of disputed issues, including parenting time.

9. The parties are at liberty to arrange such other parenting time as is agreed between the parties in writing.

10. The Respondent shall have all parental responsibilities for J.M. pursuant to s. 41 of the FLA; a. Making day-to-day decisions affecting the Child and having day-to-day care, control and supervision of the Child; b. Making decisions respecting where the Child will reside; c. Making decisions with whom the Child will live and associate; d. Making decisions respecting the Child's education and participation in extracurricular activities, including the nature, extent and location, provided that no change in J.M.'s current school will be made without the parties' written agreement or court order; e. Making decisions respecting the Child's cultural, linguistic, religious and spiritual upbringing and heritage; f. Giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Child; g. Applying for a passport, licence, permit, benefit, privilege or other thing for the Child; h. Giving, refusing, or withdrawing consent for the Child, if consent is required; i. Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive concerning the Child; j. Requesting and receiving from third parties health, education or other information respecting the Child; k. Subject to any applicable legislation, i. Starting, defending, compromising or settling a proceeding relating to the Child; and ii. Identifying, advancing and protecting the Child's legal and financial interests; l. Exercising any other responsibilities reasonably necessary to nurture the Child's development.

11. The Claimant will exercise the following parenting responsibilities for J.M. pursuant to s. 41 of the FLA: a. during the Claimant's parenting time, making day-to-day decisions affecting J.M. and having day-to-day care, control and supervision of J.M.; and b. requesting and receiving from third parties any health, education or other information respecting J.M.

12. The Respondent shall keep the Claimant apprised as soon as possible of any major decisions made by her in exercising her parental responsibilities for J.M. The Claimant shall make reasonable and best efforts to keep the Respondent apprised of other events in J.M.'s life from time to time.

13. During the spring break from school, the week on/week off parenting schedule will continue.

14. During the Christmas break from school, the normal parenting schedule will be suspended for the period of December 24-26: a. In even years, the Respondent will have parenting time with J.M. from 1:00 p.m. on December 24-1:00 p.m. on December 25, and the Claimant will have parenting time with J.M. from 1:00 p.m. on December 25-1:00 p.m. on December 26 and from 1:00 p.m. on December 31-1:00 p.m. on January 1; and b. In odd years, the Claimant will have parenting time with J.M. from 1:00 p.m. on December 24-1:00 p.m. on December 25, and the Respondent will have parenting time with J.M. from 1:00 p.m. on December 25-1:00 p.m. on December 26 and from 1:00 p.m. on December 31-1:00 p.m. on January 1.

15. During the summer break from school, the normal parenting schedule will be adjusted. Each party will each have a choice of two consecutive weeks of parenting time in the summer months. The Respondent will have first choice for 2024 and the parties will then alternate the person with first choice in later years. The parent with the first choice is to advise the other parent no later than April 1 of that year and the other parent is to indicate his or her choice no later than two weeks from that date.

16. During Halloween, the normal parenting schedule will be adjusted such that: a. In even years, the Respondent will have parenting time with J.M. on October 31 from pickup at school (or 3:00 p.m. if October 31 falls on a non-instructional day) until drop-off at school the following day (or 10:00 a.m. if November 1 falls on a non-instructional day); and b. In odd years, the Claimant will have parenting time with J.M. on October 31 from pickup at school (or 3:00 p.m. if October 31 falls on a non-instructional day) until drop-off at school the following day (or 10:00 a.m. if November 1 falls on a non-instructional day).

17. For Easter and Thanksgiving, the normal parenting schedule will be followed.

18. For Mother's Day, the Respondent will have parenting time with J.M. from 5:00 p.m. on the Saturday evening immediately preceding Mother's Day until drop-off at school the following day.

19. For Father's Day, the Claimant will have parenting time with J.M. from 5:00 p.m. on the Saturday evening immediately preceding Father's Day until drop-off at school the following day.

20. Each party will have the right to have parenting time with J.M. on that party's birthday for a period up to three hours, at that party's sole discretion, so long as they advise the other party of their desired exchange times at least seven days in advance.

21. On J.M.'s birthday, the parent who is not scheduled to have regular parenting time will have parenting time with him as follows: a. If J.M.'s birthday is on a school instructional day, the non-scheduled parent will have parenting time from pickup at school until 5:30 p.m.; b. If J.M.'s birthday is on a non-instructional day, the non-scheduled parent will have parenting time from 10:00 a.m.-1:00 p.m.; 22. The parties will set up a calendar system--such as Google calendar--in which they will input J.M.'s activities and events for the benefit of both parties in terms of their parenting of J.M. and their participation in J.M.'s life.

23. No party is allowed to schedule any new activities (beyond those already in place) on the other party's parenting time, without the express and prior written consent of that other parent.

24. Either party may travel domestically and internationally with J.M. during their parenting time, so long as they provide the other party with a detailed itinerary at least seven days in advance (for travel up to 48 hours) or at least 30 days in advance (for travel longer than 48 hours).

25. The Respondent shall hold J.M.'s passport. In the event that the Claimant will be travelling internationally with J.M., the Respondent shall provide the Claimant with J.M.'s passport at least seven days in advance of the travel, and the Claimant shall return J.M.'s passport to the Respondent within 48 hours of returning from travel. Conduct Orders 26. Under s. 225 of the FLA, other than necessary oral communications at exchanges, the parties shall communicate with each other only in writing and such communication is to be limited to J.M. only.

27. Pursuant to s. 227 of the FLA, the parties will: a. Put the best interests of J.M. before their own interests; b. Encourage J.M. to have a good relationship with the other parent and speak to J.M. about the other parent in a positive and respectful manner and refrain from any negative or hostile criticism, communication, or argument in front of J.M.; and c. Make a real effort to maintain polite, respectful communications with each other.

28. Pursuant to s. 227 of the FLA, the parties will not: a. question J.M. about the other parent or time spent with the other parent other than simple conversational questions; b. discuss with J.M. any inappropriate court or legal matters, including this litigation; c. blame, criticize, disparage the other party to J.M.; or d. speak negatively about the other party in the presence of J.M. Child Support 29. The Claimant is found to be a resident of BC with Guideline income of: $126,125 for 2021; $140,258 for 2022 and $143,061 for 2023 and 2024.

30. The Respondent is found to be a resident of BC with Guideline income of $60,019 for 2021; $70,785 for 2022; $61,718 for 2023 and 2024.

31. The Claimant is awarded lump sum for retroactive Table child support payable by K.A. for J.M. to July 1, 2024 of $22,586 from her share of the net sale proceeds of the Family Home.

32. Commencing August 1, 2024, or until further order of this Court or written agreement between the parties, the Claimant shall pay set-off child support to the Respondent for J.M. in the amount of $717 per month based upon the respective annual Guideline incomes of the parties.

33. The determination of the amount of retroactive and future child support, including special expenses, sought by K.A. for T.J. is adjourned until K.A. provides the Court with the evidence regarding any support payments made by T.J.'s father from July 2021-present, as well as his tax returns for 2021-2023. K.A. is to provide this information to J.A. on or before October 1, 2024.

34. With respect to future s. 7 expenses, and adjusted based on the payment of spousal support, the Claimant, having been found to have an annual Guideline Income of $143,061 shall pay 60% and the Respondent, having been found to have an annual Guideline Income of $61,718 shall pay 40%, including: a. that portion of the medical and dental insurance premiums attributable to J.M.; b. health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; c. extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; d. expenses for post-secondary education; and e. extraordinary expenses for agreed-upon extracurricular activities. The currently agreed-upon activities include hockey, soccer, and parkour.

35. The Respondent shall pay the Claimant the sum of $1,466 as her 40% of the counseling expenses for J.M. for 2022/2023, which sum is to pay from the Respondent's share of the net sale proceeds of the Family Home.

36. On or before June 1 of each year, commencing in June 2025, the parties will exchange financial disclosure, including the previous year's complete tax return, notice of assessment as provided by Canada Revenue Agency, and the most recent paystub or other financial documentation required by the Federal Child Support Guidelines.

37. Following the exchange of financial information, the parties will review and adjust child support, with the new monthly Guideline amounts and s. 7 percentages being in effect from July 1 of each year going forward for the next 12 months. Property Division 38. The Claimant and Respondent will continue to abide by the terms of the interim order dated January 9, 2024 toward arranging a sale of the Family Home as soon as reasonably possible. Any disputes regarding the sale process, including the approval of any sale, will be subject to further court order, failing agreement.

39. All net proceeds of sale of the Family Home will be placed into the trust account of the Claimant's lawyer to be distributed in accordance with this Final Order. Deductions from those proceeds will be paid as follows: a. Payment to K.A. of $127,621; b. The remainder to be divided equally and distributed, subject to the following: i. From K.A.'s share: 1. Payment to J.A. of retroactive child support for J.M. of $22,586 and $1,466; ii. From J.A.'s share: 1. Payment of $25,000 to be held in trust until the issue of the retroactive child support for T.J. is determined; 2. Payment to K.A. of the Canadian equivalent of €7,700; and 3. Payment to K.A. of retroactive spousal support of $57,000, less 25% of that amount to be held in trust pending a determination of the tax status of such payment.

40. The parties will retain their own vehicles and investments (i.e., RRSPs) that are currently in their possession.

41. The credits accrued under the parties' pensions during the relationship from their cohabitation on February 1, 2013 until July 1, 2021 (date of separation) will be equalized in accordance with Part 6 of the FLA.

42. The parties' Canadian Pension Plan credits shall be equalized for the period during the relationship from their cohabitation on February 1, 2013 until July 1, 2021 (date of separation).

43. Each party is responsible for their own debts.

44. The parties will retain J.M.'s RESP to use for his benefit, subject to any withdrawals by the written agreement of the parties or court order. Spousal Support 45. The Respondent is awarded lump sum spousal support of $57,000 from July 1, 2021-July 2024.

46. Pursuant to the Divorce Act, the Claimant will pay to the Respondent for her support the sum of $1,500 per month, commencing on August 1, 2024 and continuing on the 1st day of each and every month thereafter. Costs 47. The parties will bear their own costs of these proceedings, subject to any existing costs awards separate from the cause. Other Relief 48. All other relief sought in the Notice of Family Claim and Counterclaim is hereby dismissed; provided that K.A.'s claim for child support for T.J., including special expenses, is adjourned generally and subject to any later adjustments to the support payments provided for in this Final Order, if child support for T.J. is later awarded and gives rise to any consequential adjustments to those required support payments by the parties.

49. Given the complexities of this Final Order, the parties have leave to appear before me to settle the terms or address any other matter that should have addressed.

50. I will remain seized of this matter for a period of three years, subject to my shortening or lengthening that term in my discretion or unseizing myself for any specific matter or application(s).