J.A. v. K.A.

2025 BCCA 375 J.A. v. K.A.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: J.A. v. K.A., 2025 BCCA 375 Date: 20251029 Docket: CA50051 Between: J.A. Appellant/ Respondent on Cross Appeal (Claimant) And K.A. Respondent/ Appellant on Cross Appeal (Respondent) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Horsman The Honourable Justice MacNaughton On appeal from: Orders of the Supreme Court of British Columbia, dated July 4, 2024 and November 18, 2024 (J.A. v. K.A., 2024 BCSC 1195 and 2024 BCSC 2084, Victoria Docket E212392). Counsel for the Appellant/ Respondent on Cross Appeal: A.R. Atwood-Brewka Counsel for the Respondent/ Appellant on Cross Appeal: J. Morneau Place and Date of Hearing: Vancouver, British Columbia September 4, 2025 Place and Date of Judgment: Vancouver, British Columbia October 29, 2025 Written Reasons of the Court Summary: The appellant, J.A., appeals trial orders that: (1) gave the respondent, K.A., sole responsibility for making parenting decisions for their child; (2) required J.A. to pay K.A. indefinite spousal support; (3) required J.A. to pay child support for his stepson, T.J.; and (4) required J.A. to reimburse K.A. for Euros that went missing in her move from the family home. K.A. cross-appeals the trial judge's costs order. Held: Appeal allowed in part, and cross-appeal dismissed. As to the appeal: (1) The trial judge made palpable and overriding errors

of fact in her assessment of the child's best interests, which in turn was the basis for her decision to allocate all parenting responsibilities to K.A. The terms of the trial order relating to parenting responsibilities are set aside, and the issue is remitted for a new trial. Interim terms are ordered to govern the allocation of parenting responsibilities until such terms are varied by the Supreme Court. (2) The trial judge erred in principle in ordering indefinite spousal support in the circumstances of this case, without a review term. The terms of the trial order relating to spousal support are varied to provide that either party may request a review of spousal support, in relation to both entitlement and quantum, after July 1, 2026. (3) The trial judge erred in relying on inadmissible and unreliable evidence to establish the support obligation of the stepson's biological father, which was a first step to determining J.A.'s responsibility for child support. The terms of the trial order requiring J.A. to pay support and a portion of s. 7 expenses for the stepson are set aside, and the issue is remitted for a new trial. Interim terms are ordered to govern J.A.'s responsibility for child support for his stepson, subject to future adjustment, until such terms are varied by the Supreme Court. (4) There is no basis for appellate interference with the trial judge's order that

J.A. must reimburse K.A. for the missing Euros. As to the cross-appeal: It is unnecessary to determine whether K.A. required leave to cross-appeal the costs order because the decision on appeal undermines the basis for the cross-appeal in any event. Table of Contents Paragraph Range I. INTRODUCTION [1] - [6] II. FACTUAL BACKGROUND [7] - [81] A. The parties' marriage [8] - [14] B. The parties' separation [15] - [22] C. The Protection Order and its immediate aftermath [23] - [34] D. Legal proceedings from October 2021 to May 2022 [35] - [45] E. May 2022 to November 2023 - Justice Power seized [46] - [81] 1. May 18, 2022 [47] - [48] 2. June 23, 2022 [49] - [53] 3. July 11, 2022 [54] - [56] 4. The Provincial Court applications on July 27, 2022, and October 13, 2022 [57] - [58] 5. November 30, 2022-October 5, 2023 [59] - [69] 6. November 1 and 3, 2023 [70] - [81] III. THE TRIAL JUDGMENT [82] - [99] A. Credibility findings [83] - [85] B. Parenting issues [86] - [91] C. Child support [92] - [94] D. Division of family property [95] E. Spousal support [96] - [97] F. Costs and other relief [98] - [99] IV. THE SUPPLEMENTAL JUDGMENT [100] - [109] V. ON APPEAL [110] - [113] VI. STANDARD OF REVIEW [114] - [116] VII. THE APPEAL [117] - [222] A. Issue 1: Did the trial judge err in her assessment of the Child's best interests in giving all parenting responsibilities to K.A.? [117] - [182] 1.

Material misapprehension of evidence [120] - [132] 2. Evidence that was ignored or overlooked [133] - [165] a) K.A.'s conduct prior to separation [135] - [138] b) K.A.'s interactions with professionals retained to assist the family [139] - [143] c) Dr. Sherman's evidence [144] - [153] d) The interviews of the Child and the conduct orders [154] - [160] e) K.A.'s evidence at trial [161] - [165] 3. Discussion [166] - [174] 4. Remedy [175] - [182] B. Issue 2: Did the trial judge err in her award of prospective spousal support? [183] - [203] 1. Failure to impute income to K.A. [187] - [191] 2. A termination or review date [192] - [203] a) Support on non-compensatory grounds [193] - [198] b) Discussion [199] - [203] C. Issue 3: Did the trial judge err in ordering J.A. to pay child support for T.J.? [204] - [218] 1. The determination of this issue at trial [204] - [209] 2. Discussion [210] - [218] D. Issue 4: Did the trial judge err in ordering J.A. pay K.A. €7,700 for the missing Euros? [219] - [222] VIII. THE CROSS-APPEAL [223] - [224] IX. DISPOSITION [225] - [226] X. SCHEDULE A - Reasons for Judgment of the Court: I. Introduction [1] The appellant (J.A., the father) and the respondent (K.A., the mother) are parties to a high conflict family law proceeding that has focussed on parenting arrangements for their son, who is now 11 years old (the "Child"). At an early stage, J.A.

obtained a protection order in Provincial Court that prevented K.A from having contact with the Child, other than as agreed to by J.A. (the "Protection Order"). Since then, the parties have engaged in a protracted and complicated series of legal proceedings over the nature and extent of K.A.'s parenting time with the Child. The parties' positions appeared to become entrenched over time, complicating their ability to achieve a consensual resolution. [2] This appeal arises from the orders made following a trial of the family law claim. At the time of the trial, J.A. had the primary care of the Child and exercised parenting responsibilities pursuant to interim orders that had been issued. K.A. sought an order that the parties share custody of the Child, and that she have all parenting responsibilities. J.A. opposed any change to the existing parenting schedule until K.A. had completed the counselling she had been ordered by the Court to undertake. [3] The trial judge concluded that the parties would share parenting time with the Child on an equal basis. She found that K.A. was the parent better suited to make parenting decisions for the Child, as she had demonstrated an ability to give primacy to his best interests. In contrast, the trial judge found that J.A. had purposefully "weaponized the legal system" to disenfranchise K.A.'s parenting, and to gain full custody of the Child,

all of which was not in the Child's best interests. The trial judge ordered that K.A., with limited exception, would exercise all parental responsibilities under s. 41 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], without the need to consult with J.A. on any decision. [4] On appeal, J.A. seeks to set aside the trial judge's order assigning all parenting responsibilities to K.A. He says that the trial judge made palpable and overriding errors of fact that tainted her view of him and his motives. J.A. further argues that the trial judge ignored or overlooked a large body of objective evidence that legitimized his concerns about K.A.'s behaviour and its impact on the Child. Specifically, J.A. says that the trial judge did not meaningfully address the evidence of K.A.'s history of emotional instability, lack of control, and apparent inability to refrain from making negative comments about J.A. in front of the Child. He says she also failed to address evidence, including the evidence of third parties involved with the family, regarding the Child's emotional distress due to K.A.'s behaviour. [5] While the parenting issues are the focus of this appeal, J.A. also alleges that the trial judge erred in ordering him to: (1) pay prospective spousal support without imputing income to K.A. or including a termination or review date in the order; (2) pay child support for his stepchild

(T.J.) without a proper assessment of the earning capacity and obligation of T.J.'s biological father; and (3) compensate K.A. for €7,700, that she claimed went missing after she left the family home. [6] K.A. cross appeals the trial judge's order that each party bear their own cost of the proceeding. There is an issue as to whether K.A. required leave to cross appeal on the issue of costs alone. II. Factual background [7] A central focus of J.A.'s arguments on appeal is the trial judge's alleged error in ignoring or overlooking evidence that was material to determining the Child's best interests. To assess that argument, it is helpful to begin with a review of the factual background that is not restricted to the findings in the trial judgment. While the parties may disagree on the significance of events that are not addressed in the trial judgment, at least not in detail, the reliability of the objective evidence as to the occurrence of the events is not disputed. A complete chronology will permit a proper assessment of J.A.'s grounds of appeal. A. The parties' marriage [8] J.A. was 57 years old at the time of trial. He had worked for the Coast Guard for over 30 years, most recently as the National Program Manager. [9] K.A. was 54 years old at the time of trial. She was born in the former Soviet Union (now Romania), and her family later moved to Hungary. She speaks fluent

Hungarian. She trained as a nurse in Hungary. [10] K.A. moved to Canada in 2003. She studied nursing at York University, graduating in November 2007. K.A. and her former partner had a child, T.J., who was born in 2008. [11] In March 2010, with the agreement and cooperation of T.J.'s father, K.A. moved with T.J. to Vancouver Island. The parties met in Victoria in 2012. In February 2013, K.A. and T.J. moved into J.A.'s apartment. Shortly thereafter, K.A. obtained a full-time research nursing position at the BC Cancer Agency. [12] Dr. Mark Sherman was K.A.'s family doctor, starting in 2010. After the parties met, J.A. also became Dr. Sherman's patient. The Child has been Dr. Sherman's patient since his birth in January 2014. [13] In July 2014, the parties married. They purchased a home in Saanich (the "Family Home"), and resided there with the Child and T.J. The Family Home was next door to the residence of J.A.'s friend, Robert Spensley, and his wife, Kim Barthel. [14] From 2016-2018, K.A. was on long-term disability from her job at the BC Cancer Agency. During this time, K.A. was struggling with mental health challenges, including Post-Traumatic Stress Disorder ("PTSD"), and she received cognitive behaviour therapy. Eventually, K.A. took a job with the federal government as a medical adjudicator. B. The parties' separation [15] The parties' marriage and home life appear to have

been relatively harmonious until 2020. Starting in 2020, their relationship began to deteriorate rapidly due to the combination of various stressors, including the COVID-19 pandemic. In March 2020, the parties identified that T.J. was having behavioural and learning difficulties, which ultimately led to a diagnosis of a mild form of Attention-Deficit/Hyperactivity Disorder. T.J.'s relationship with J.A. began to fray. In June 2020, K.A. was diagnosed with breast cancer, which understandably caused her distress and increased her pre-existing mental health challenges. [16] In March 2020, the family began to see a family counsellor, Dr. Stéphanie Marchal. At first, Dr. Marchal was engaged to assist the family with the issues that T.J. was having. By the end of 2020, it was primarily J.A. who was attending the sessions with Dr. Marchal to discuss the growing conflicts within the family, including in his relationship with K.A. [17] The parties' difficulties continued into 2021. In April 2021, K.A. alleged that J.A. was physically assaulting T.J. and favouring the Child. She told J.A. he was no longer to speak to T.J. Around the same time, the parties began sleeping in separate bedrooms in the Family Home. J.A. testified that K.A. announced in front of the children that she wished to divorce him. [18] At some point in the Spring of 2021, J.A. began to document his thoughts in a

notebook. The content of the notebook included J.A.'s summary of the conflicts between the parties, his concerns about K.A.'s behaviour, and, anticipating that the parties were headed to a divorce, the questions he wanted to ask a lawyer. K.A. took the notebook, read the contents, and then refused to give it back. K.A. tendered a number of pages from the notebook in evidence at trial. Given the significance of the notebook in the trial judgment, it is useful to reproduce one of the critical passages: Questions for Lawyer -How do I get 100% custody of [the Child] -How can I ensure my wife doesn't take my son (biological) over provincial borders or international border. He has a Romanian passport I believe. -How do we get mediation going so as to get the house sold. -Preferably, I buy her out of the house -How can I protect myself from any accusation she or my step son make -In divorce, what does it mean if you have 100% custody If you have 50% custody As far as doing activities Establishing where you want to live Travel?? [19] J.A. subsequently retained a lawyer. On June 30, 2021, his counsel delivered a draft interim separation agreement to K.A. proposing that the parties agree to a 50-50 shared parenting arrangement for the Child and that they share parental responsibilities (the "June Draft Separation Agreement"). K.A. did not respond to this proposal. [20] In the early

morning hours of July 1, 2021, J.A. awoke to discover that K.A. had painted the word "despicable" about him throughout a room in the Family Home, including on the walls, ceiling, and floor. He tried to take a picture, and K.A. shook a paint brush at him. J.A. ran back to his bedroom, where the Child had also been sleeping, and called the police. The police calmed the parties down and advised them to separate for a while. J.A. agreed to leave the Family Home. [21] That evening, K.A. emailed J.A. to ask him to take the Child for two weeks so that she could recover her strength. J.A. picked up the Child from the Family Home on July 2, 2021. [22] The trial judge found that the date of the parties' separation was July 1, 2021. No issue is taken with that conclusion on appeal. C. The Protection Order and its immediate aftermath [23] On July 2, 2021, J.A. brought an ex parte application in Provincial Court for a protection order pursuant to s. 183 of the FLA. In his affidavit in support of the application, J.A. explained his concerns about K.A.'s mental health due to what he described as her "erratic and drastic behaviour". J.A. stated his belief that K.A. intended to take the Child and T.J. to Ontario and then travel to Hungary. He expressed his concern that if K.A. did travel to Hungary with the children, she would be unlikely to return. J.A.'s affidavit evidence also reviewed the

events of July 1, 2021, when K.A. painted the room in the Family Home. J.A. stated that these events made him feel unsafe, and that he believed the children also felt unsafe. [24] On the same day Judge McKimm granted the Protection Order. The terms of the Order included: a) K.A. must not have contact or communication with J.A., other than through email for the purpose of arranging parenting time for the Child, or in the presence of counsel or a family dispute resolution professional; b) K.A. must not be within 100 metres of any place where J.A. lives or works; c) Neither party shall remove the Child from the Capital Region District without the written consent of the other or further court order; and d) K.A. will have no parenting time with the Child without the consent of J.A. or further court order. [25] J.A. returned with the Child to the Family Home on July 9, 2021. K.A., having been served with the Protection Order, was required to find alternative housing. Thereafter, J.A. resided in the Family Home with the Child. [26] In July and August 2021, the parties communicated regarding K.A.'s parenting time with the Child. J.A. initially refused to allow K.A. to exercise in-person parenting time, insisting that the contact must be by telephone or Zoom. [27] On August 6, 2021, J.A. filed a notice of family claim in the Supreme Court. In relation to parenting issues, J.A. proposed

that he would exercise all parenting responsibilities for the Child, and the Child would reside primarily with him, while K.A. would exercise all parenting responsibilities for T.J., and T.J. would reside primarily with her. [28] By the beginning of August 2021, K.A. had retained counsel. In an August 6, 2021 email to J.A.'s counsel, K.A.'s counsel proposed that: (1) the Protection Order be set aside and replaced by conduct terms and a parenting arrangement agreed to by the parties; (2) the parties agree on a process for dealing with the Family Home; and (3) the parties proceed to mediation. [29] In or around mid-August 2021, J.A.'s counsel delivered a draft interim separation agreement that addressed the topics that had been identified by K.A.'s counsel (the "August Draft Separation Agreement"). The proposed terms included that the Protection Order be set aside by consent and replaced by parenting arrangements agreed to by the parties, including: a) K.A. would have parenting time with the Child on a professionally supervised basis for a period of at least four visits, to be provided by the Greater Island Family Transition Services ("GIFTS") or another agreed-upon organization or person; b) Any requirement for supervision of K.A.'s parenting time would be removed upon the professional supervisor's recommendation; c) K.A. and J.A. would both remain the guardians of the Child,

and would have joint parenting responsibilities; d) The parties anticipated working towards shared parenting of the Child, and would attend mediation or arbitration to resolve any disagreement in respect of shared parenting; and e) In the event that the parties disagreed about any parenting matter not specifically addressed in the agreement, they would engage the services of a parenting coach or parenting coordinator prior to making any court application. [30] The August Draft Separation Agreement also proposed a process for resolving the dispute over who would have interim possession of the Family Home. Specifically, it provided that K.A. would apply for interim exclusive possession of the Family Home, and J.A. would agree to have the application heard on an expedited basis on August 27, 2021. [31] For reasons that are not entirely clear on the record, K.A. was no longer represented by her original legal counsel by the end of August 2021. K.A. did not agree to the August Draft Separation Agreement and did not make a counter-proposal. [32] On October 5, 2021, Dr. Sherman provided K.A. with a letter addressed "To Whom It May Concern". The letter referenced that K.A. had recently completed surgery and chemotherapy for breast cancer, causing her to experience symptoms such as malaise, difficulty concentrating, and depression and anxiety. Dr. Sherman expressed his view that the

current stressors of the parties' separation had worsened some of these concerns. He 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 [the Child] 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. [33] On October 19, 2021, GIFTS produced a summary report of their supervision of K.A.'s parenting time with the Child between August 18 and September 19, 2021. The report described that at the scheduled visit on September 19, 2021, K.A. called the police after J.A. arrived early with the Child in a different car than he normally drove. The GIFTS supervisor advised K.A. that she was cancelling the visit to avoid exposing the Child to a high conflict environment. After the incident on September 19, 2021, GIFTS decided to withdraw further services for K.A. citing "the repeated conflict [the Child] was exposed to". In their summary report, the GIFTS representatives stated: It is the position of the writers that [K.A.] has not demonstrated the ability or level of understanding required to separate the ongoing adult conflicts from her relationship with her son, [the Child]. For this reason, continued supervision is recommended, as well as

ongoing mental health support for [K.A.]. It would benefit [K.A.] and [the Child] for there to be a clear, established schedule for [K.A.'s] parenting time, including adult/child boundaries and behavioural expectations. The power dynamic involved with one parent having sole decision-making ability over the other's time with the child exacerbates this conflict. While the writers have not received communication that [J.A.] intends to refuse parenting time for [K.A.] outright, it is not our impression that he is equipped to confidently make these decisions being directly engaged in ongoing conflict with [K.A.]. To this point, [J.A.] has sought recommendations from Ms. St-Pierre on appropriate parenting time for [K.A.] and has generally followed these recommendations. [34] Starting in October 2021, K.A.'s parenting time with the Child was supervised by Pam Rudy, of Family Services of Greater Victoria. Ms. Rudy continued to supervise these visits through January 2022. Ms. Rudy's observational notes of the supervised parenting time in this period did not reflect any behaviour of concern on K.A.'s part. D. Legal proceedings from October 2021 to May 2022 [35] Following the issuance of the Protection Order, there were a confusing series of proceedings in both the Provincial and Supreme Courts regarding parenting issues. Both parties filed ex parte applications in this period, although

in different courts. The relief sought in the various applications was occasionally repetitive and the orders granted were not always consistent. These events are of some importance in understanding the development of the entrenched dynamic between the parties, and the delay in moving forward with expanding K.A.'s parenting time with the Child. We will briefly review these proceedings. [36] On October 21, 2021, the parties appeared before Judge Mrozinski in Provincial Court on K.A.'s application to set aside the Protection Order. By this time, K.A. had retained new counsel. At the outset of the hearing, Judge Mrozinski expressed concern as to whether the application could be resolved given the time set for the hearing and the fact that it was by MS Teams. The parties' focus then shifted to crafting the terms of an agreement that would set aside the Protection Order by consent and replace it with interim parenting arrangements. The hearing transcript reflects the parties' agreement that K.A. would have supervised parenting time with the Child at least twice per week until November 21, 2021, and after that K.A. would exercise unsupervised parenting time. What was less clear on the record was the mechanism for moving from supervised to unsupervised parenting time, and whether it depended on the views of the parenting time supervisor. [37] There is an entered order of Judge

Mrozinski dated October 21, 2021, setting aside the Protection Order and replacing it with a more limited protection order that K.A. not go within 100 metres of any place where J.A. lives, works, attends school, or worships other than as necessary to pick up or drop off the Children from school or to exercise parenting time. It appears that no order was ever entered to reflect the parties' agreement regarding K.A.'s interim parenting time because the parties could not agree on the terms. [38] In November 2021, K.A. secured supportive housing for herself and T.J. in Saanich. [39] In December 2021, K.A., who was no longer represented by counsel, brought an ex parte application before Judge McKimm in Provincial Court seeking orders relating to her parenting time. The application was dismissed. [40] On January 6, 2022, J.A. brought an ex parte application before Master Bouck seeking a variety of orders pertaining to parenting time. The application was adjourned to January 13, 2022. K.A. did not receive notice of the new hearing date. [41] On January 13, 2022, Master Bouck ordered that: (1) J.A. had interim sole parenting responsibilities for the Child and interim exclusive authority over parenting arrangements with K.A.; and (2) parenting time between K.A. and the Child was required to be supervised by Drew Van Brunt [of Bounce Back Separation and Divorce Strategies]. Master Bouck

also granted a protection order, to be effective January 25, 2022, containing terms that restricted K.A.'s communication and contact with J.A. [42] On January 25, 2022, the parties appeared before Judge Lowe in Provincial Court, who issued an order terminating Judge Mrozinski's protection order as of that date. [43] On March 25, 2022, the parties appeared before Justice Steeves in the Supreme Court on J.A.'s application for various relief. Justice Steeves ordered: (1) the proceedings in the Provincial Court and Supreme Court be consolidated; (2) a report be prepared pursuant to s. 211 of the FLA to address the issues of parenting time, contact, guardianship and parental responsibilities; (3) J.A. would have exclusive occupancy of the Family Home until further court order; (4) K.A. must collect her and T.J.'s personal effects from a storage unit where J.A. had stored the items; and (5) J.A. will continue to pay for the storage unit for 45 days from the date of the order. [44] On March 28 and 30, 2022, the parties appeared before Justice Murray on K.A.'s application for orders relating to parenting time. On March 30, 2022, Murray J. ordered that K.A. would have unsupervised parenting time with the Child on a specified schedule that included overnight visits. Justice Murray also ordered that she would be seized of the proceeding, and that a review would be conducted on April 12,

2022. [45] There is no transcript of the appearance before Murray J. on April 12, 2022. On May 5, 2022, Murray J. ordered that she was no longer seized and that parenting time would be reviewed at the next court hearing. E. May 2022 to November 2023 - Justice Power seized [46] Starting in May 2022, the parties appeared before Justice Power on a number of interlocutory applications, primarily in relation to parenting issues. She seized herself of the proceeding, which provided some continuity in the management of what had clearly become a very complex and high conflict case. Transcripts of several of these appearances were tendered in evidence at trial.

1. May 18, 2022 [47] On May 18, 2022, the parties appeared before Power J. on two applications. J.A. applied to set aside Murray J.'s March 30, 2022, order providing K.A. with unsupervised parenting time with the Child, and replace it with an order that K.A.'s parenting time be supervised by Mr. Van Brunt. K.A. applied for an order that she have exclusive occupancy of the Family Home, and other orders relating to property. [48] Justice Power ordered that K.A.'s parenting time with the Child revert to supervised parenting. Her decision was based on concerns raised in J.A.'s application material and K.A.'s conduct in the courtroom that Power J. described in a later judgment as "uncontrolled and of grave concern to me": J.A. v. K.A., 2024 BCSC 681 at para. 30 [J.A. v. K.A. 2024]. Justice Power ordered that K.A.'s parenting time be supervised by Mr. Van Brunt for 8-10 visits and that a report be prepared by Mr. Van Brunt for use in court. Justice Power also seized herself of the proceeding and directed that a further hearing before her be scheduled by the end of June 2022.

2. June 23, 2022 [49] The parties appeared again before Power J. on June 23, 2022. By this time, J.A. had retained new counsel. His counsel advised the court that J.A. preferred to divert the proceeding to a mediation path and replace the Protection Order with a conduct order. J.A. proposed that the parties work towards unsupervised parenting with the assistance of professional counselling, which he suggested could be provided by Cascadia Counselling Clinic ("Cascadia"). Eliot Lowey was the Director of Cascadia. [50] It is relevant to note that the Child had been regularly seeing "Yuko", a counsellor at Cascadia, since January 2022. [51] Prior to the June 23 hearing, K.A. filed an affidavit that appended a June 10, 2022 letter from Dr. Sherman. In the letter, Dr. Sherman expressed his view that joint custody was in the Child's best interests. He noted that the supervised parenting time [with Mr. Van Brunt] appeared to be going well, and that prior to the parties' separation he had not heard concerns about K.A.'s parenting or safety issues regarding her behaviour. Dr. Sherman acknowledged that K.A.'s anxiety was "prominent" when she was representing herself in court, but he encouraged the court to consider that her mental health challenges "do not necessarily preclude her ability to safely and effectively parent her children". Dr. Sherman then stated: I would recommend that

[K.A.] continue supervised visits in order to -- for her to demonstrate her love and capacity as an effective parent for [the Child and T.J.], and to ensure that there are no safety concerns. [52] Justice Power sought clarification of Dr. Sherman's recommendation for continued supervision of K.A.'s parenting time, specifically in respect to its duration, before ordering unsupervised parenting time. Justice Power ordered that the parties appear before her again on July 11, 2022, and that in the meantime they seek clarification from Dr. Sherman. Justice Power ordered that K.A.'s parenting time with the Child would be supervised until July 11, 2022, and that the parenting time would be "generous" and "as much as the parties can arrange". She also ordered that the parties "forthwith" be referred to Cascadia for counselling "directed at improving relationships between [them] and to assist [them] in improving their parenting abilities". [53] The parties could not agree at the June 23 hearing to a process for the sale of the Family Home, or to the terms of an interim distribution of property. Justice Power ordered that J.A. must continue to maintain K.A.'s personal effects in the storage unit pending resolution of these issues.

3. July 11, 2022 [54] At the next hearing before Power J. on July 11, 2022, Dr. Sherman attended by telephone to provide the requested clarification. He indicated that he had prepared an updated letter dated July 7, 2022. Justice Power had not received a copy of the letter, and so Dr. Sherman read it into the record. The letter clarified Dr. Sherman's view that K.A.'s parenting time should be supervised by Cascadia for a further month or two to ensure the Child's emotional safety. In both his letter and his oral evidence on July 11, Dr. Sherman noted the importance of each party refraining from making disparaging comments about the other in the Child's presence. In his oral evidence, he stated his view that the counselling provided by Cascadia was "essential" to the resolution of the parties' impasse. [55] By July 11, 2022, it appeared that K.A.'s relationship with Dr. Sherman had started to break down due to her perception that he was supporting J.A. K.A. advised Power J. that she had been "fired" by Dr. Sherman the previous week. Dr. Sherman stated that he and K.A. needed to have a further conversation, but that he had concerns about the trust and safety of his office staff. [56] Justice Power concluded that K.A.'s parenting time with the Child should continue to be supervised. She ordered that Cascadia, Dr. Sherman, and any supervisors involved in K.A.'s parenting time, could discuss the case "in any matter that can assist with moving forward to equal parenting". Justice Power also ordered that the parties could not make any further court applications with respect to parenting without her approval.

4. The Provincial Court applications on July 27, 2022, and October 13, 2022 [57] On July 27, 2022, K.A. brought an ex parte application in Provincial Court for a protection order. The order was granted by Judge Lowe. As later observed by Power J., K.A.'s application was in direct conflict with the consolidation orders that had been issued in the Supreme Court, as well as her own order of July 11, 2022, requiring that her approval before any applications concerning parenting were brought: J.A. v. K.A. 2024 at para. 33. [58] On October 13, 2022, K.A. brought a second application in Provincial Court seeking clarification from Judge McKimm regarding the Protection Order. J.A.'s counsel was also present on this occasion. Judge McKimm dismissed the application and ordered K.A. to pay a $1,000 fine. Judge McKimm called for the assistance of a sheriff in removing K.A. from the courtroom after she refused to comply with his direction that the hearing had concluded.

5. November 30, 2022-October 5, 2023 [59] On November 30, 2022, Power J. set aside the protection order granted by Judge Lowe and ordered the parties to schedule an eight-day trial. [60] On February 24, 2023, Power J.A. granted K.A. leave to bring another interim parenting application. K.A. was represented by legal counsel at this time. [61] On April 19, 2023, Mr. Lowey provided a summary report of Cascadia's involvement with the family since Power J.'s July 11, 2022, order. Mr. Lowey noted concerns with K.A.'s escalating behaviours that were perceived by others as aggressive and intimidating, as well as her consistently strong negative mindset towards J.A. He stated that it had been suggested that K.A. participate in Dialectical Behavioural Therapy ("DBT") and mindfulness training to assist her in regulating her behaviour and identifying negative thinking patterns. Mr. Lowey reported that K.A. was referred to a counsellor at Cascadia for a meeting in November 2022, but no further sessions were scheduled due to the counsellor's view that K.A. was unwilling to examine her thinking processes, which is a necessary part of DBT. [62] In relation to K.A.'s parenting of the Child, Mr. Lowey stated: It is important for [K.A.] and [the Child] to have an ongoing relationship, but this can only occur if changes are made such that the escalating situations cease, and she demonstrates a

shift in attitude towards [J.A.]. These changes require that she place [the Child's] best interests front and centre and focus on the present (mindfulness) and not on her previous experiences with [J.A.]. This is necessary to move things forward now. [63] There was another hearing before Power J. on April 24, 2023. Although there is no transcript of this hearing in evidence, it is apparent that Mr. Lowey attended and provided oral evidence. K.A. was then still represented by counsel. By consent, Power J. ordered, among other things, that K.A.'s parenting time with the Child would continue to be supervised, Cascadia would provide clinical oversight of at least one instance of K.A.'s parenting time per week, and K.A. would engage in DBT therapy as recommended by Cascadia. [64] By email dated May 3, 2023, K.A. advised Mr. Lowey that his "performance on Apr 24" caused her "personal distress and it did serious damage". K.A. asked Mr. Lowey to confirm that the client/therapist relationship had terminated. K.A. later sent a "cease and desist" email to Mr. Lowey, stating that she had reported him to the police after he requested payment of Cascadia's outstanding fees. [65] Starting in May 2023, K.A.'s parenting time with the Child began to be supervised again by Pam Rudy. [66] On June 19, 2023, Power J. issued an order that K.A.'s supervised parenting time would continue. [67] On June

20, 2023, a Family Justice Counsellor produced the s. 211 report ordered by Steeves J. on March 25, 2022. The report included a section on the Child's views. As described by the s. 211 author, the Child stated his preference to have unsupervised parenting time with K.A., but also voiced concern that she might become hostile and argumentative with him and speak negatively about J.A. The Child expressed his desire to begin having unsupervised visits with K.A., provided she refrain from being confrontational and badmouthing J.A. [68] On June 27, 2023, Power J. ordered that the Family Justice Counsellor was allowed to speak to Dr. Sherman, and she requested that an addendum to the s. 211 report be prepared to include information provided by Dr. Sherman. The addendum reported that Dr. Sherman supported removing the supervision restriction on K.A.'s parenting time with the Child, provided she received ongoing psychological support. [69] On August 31, 2023, Power J. ordered that K.A. would have unsupervised parenting time with the Child during the daytime. Justice Power indicated to the parties that she was prepared to consider ordering unsupervised overnight parenting at the next appearance.

6. November 1 and 3, 2023 [70] On November 1 and 3, 2023, Power J. heard K.A.'s application for various orders relating to parenting including an order for joint guardianship and shared custody, and an order allowing the Child to travel to Hungary with her for a month in December. K.A. was no longer represented by legal counsel. [71] At the hearing on November 1, 2023, each party accused the other of parental alienation. J.A. gave oral evidence regarding recent events that he stated had occurred during K.A.'s unsupervised parenting time, including K.A. recording conversations. Justice Power indicated that she planned to conduct a judicial interview with the Child when the hearing continued on November 3, 2023. [72] On November 3, 2023, Power J. conducted the interview with the Child and reported a summary of her interview to the parties. Justice Power communicated that while parenting time had been going well, there was an "overarching message" during her interview of the Child that K.A. expressed anger towards J.A. and "trash talked" him to the Child. Justice Power then stated to K.A.: And I - it's - it's critically important that you leave here today understanding - I've tried to make it as clear to you as I possibly can, but it - you can't do that, because it causes him a great deal of stress, and he didn't like being recorded and I - that is not appropriate either, so I am

going to be asking that that not happen, but he clearly - he clearly loves you very much, he clearly loves [T.J.] very much. [73] Justice Power indicated that she intended to increase K.A.'s parenting time, but not to order shared custody yet because a gradual change was in the Child's best interests. She also indicated that she was considering appointing counsel for the Child on her own motion. This was opposed by K.A. [74] On November 3, 2023, Power J. made a series of orders, including conduct orders that bound both parties. Of particular relevance, Power J. ordered: a) K.A. will have unsupervised parenting time with the Child on specified dates in November and December 2023; b) starting January 1, 2024, on K.A.'s return from Hungary, her parenting time will be on a two-week alternative schedule, with week one to be on Sunday from 12 pm to 6 pm, and on week two from pick up at school on Friday until Sunday at 2 pm; c) K.A. will continue to engage in DBT or other counselling at least once per month, and will provide a copy of Power J.'s order to her counsellor; d) J.A. should investigate counselling options to assist him in parenting and developing a respectful relationship with K.A., and will provide a copy of this order to his counsellor; e) The Child may be represented by counsel appointed by the Child and Youth Legal Centre, who would have full power to act for the Child

as though they were a party to the proceeding; and f) Justice Power is no longer seized of the proceeding. [75] In J.A. v. K.A. 2024, issued on April 24, 2024, Power J. provided written reasons for her November 3, 2023 orders. Justice Power explained why she rejected J.A.'s position that K.A.'s parenting time should be supervised: [17] I will say however, that J.A.'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 J.A. 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. [76] Justice Power also did not accept many of the positions advanced by K.A.: [18] In a similar manner, many of the mother's orders sought were either previously dealt with by the Court, or not reflected in my assessment of the Child's best interests after interviewing him and considering all of the evidence available to me on the application. Further, the mother's conduct on the application, including over-speaking, showing disrespect to counsel for J.A. and for the Court, and conducting herself in a manner that I would

characterize as changeable in her demeanour: at times calm and rational, at other times verging on hysteria. This was similar to what I have observed on previous applications. This conduct necessitated the Court standing down so that the mother could compose herself. This conduct also interfered with my ability to hear this matter in an efficient manner and to hear full submissions from each party in the usual way. [77] Justice Power observed that some of K.A.'s conduct had arguably risen to the level of contempt of court. Given K.A.'s physical and mental health issues, Power J. was of the view that a finding of contempt would not assist "in this complex family law dispute": at para. 19. [78] Justice Power concluded that K.A.'s application to take the Child to Hungary for a month was "simply not realistic" given that unsupervised parenting time had only recently recommenced: at para.

74. Justice Power explained: [74] The mother's hatred of J.A. reflects her issues with him rather than the best interests of the Child. Further, the mother's physical and mental health issues, her lack of any respect or trust for the court process, and her unwillingness to trust professionals who have tried to help her throughout the court process such as Dr. Sherman, her general practitioner, and Mr. Lowey of Cascadia Counselling, have exacerbated the challenges in moving the matter forward. [79] Despite all of this, Power J. was satisfied based on the s. 211 report, Ms. Rudy's observations during supervised parenting, and K.A.'s submissions on the application that it was appropriate to move the matter forward by granting K.A. unsupervised overnight visits. [80] The parenting time ordered by Power J. remained in place when the family trial commenced in April 2024. [81] Before turning to the trial judgment, it is important to highlight the parenting issues that had crystallized by the Spring of 2024. On the one hand, it was clearly in the Child's best interests to have a loving bond with K.A. and to spend time with her. On the other hand, K.A.'s seeming inability to restrain herself from voicing her hatred of J.A. in front of the Child raised concerns about the Child's emotional safety. The tension between the objectives of (1) increasing K.A.'s parenting time with the Child,

and (2) protecting him from being exposed to the conflict between his parents, was a theme of the legal proceedings between the parties. Furthermore, K.A.'s conduct in making disparaging comments about J.A. in front of the Child was a focus of the evidence and arguments at trial as it related to parenting issues. K.A. had also exhibited concerning behaviours in court proceedings. III. The trial judgment [82] Following a 12-day trial, the trial judge issued reasons for judgment indexed at 2024 BCSC 1195 (the "Trial RFJ"). A. Credibility findings [83] Under the heading "Overview of Post-Separation/Court Proceedings", the trial judge set out her credibility findings. She noted that the parties had presented "starkly different narratives" regarding the events that occurred since 2021: Trial RFJ at para.

68. The trial judge concluded that K.A.'s narrative "has the most substance": Trial RFJ at para.

71. The trial judge was very critical of J.A.'s actions and motives. She stated: [72] I find that, from early 2021, J.A. has been seeking the means to achieve sole parenting of [the Child]. and also to remove K.A. from the Family Home so that he and [the Child] 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. [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 [the Child] so that he could gain full custody of [the Child] 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 [the Child] pending this trial. [Emphasis added.] [84] In contrast, the trial judge found that K.A.'s behaviour was explained, at least in part, as the result of J.A.'s deliberate strategy to provoke her: [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. [Emphasis added.] [85] The trial judge stated that she had "no difficulty accepting K.A.'s evidence where it contradicts that of J.A.": Trial RFJ at para.

76. B. Parenting issues [86] The trial judge's credibility findings provided the basis for her analysis of parenting issues. [87] The trial judge addressed the issues of parenting time and parental responsibilities through the lens of the factors set out in s. 37(2) of the FLA that relate to the best interests of the child. At trial, J.A. sought to continue the parenting time arrangement ordered by Power J. in November 2023, and to exercise all parenting responsibilities until K.A. completed the DBT treatment that Power J. had ordered her to undertake. K.A. sought shared custody, and an order that she exercise all parenting responsibilities. [88] The trial judge concluded that both parties had the capacity to support the Child's mental and physical health, while noting that they must set aside their antipathy and mistrust of each other. She found that the Child's need for stability, and the serious and negative impact that J.A.'s litigation strategy had on K.A.'s relationship with the Child, favoured a shared custody arrangement. The judge was very critical of J.A.'s attempt to dispense with the requirements of R. 13-7(6)(c) of the Supreme Court Family Rules, B.C. Reg. 169/2009, by having Mr. Lowey testify as an expert witness regarding the importance of certain types of counselling in high conflict family cases. She described this as a "blatant attempt" to take advantage of K.A. as a self-represented litigant: Trial RFJ at para.

222. The trial judge was satisfied that K.A. had received, and continued to receive, appropriate counselling for her mental health issues. [89] In two paragraphs, the trial judge addressed the concerns with K.A.'s persistent negative comments about J.A. in the Child's presence: [230] [The Child'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 [the Child's] sake and that any such comments must stop--and stop now. K.A. is well aware of the distraught that [the Child] feels in response to such comments and she must now avoid that happening as is reasonably possible for [the Child's] sake. In addition, K.A. is an intelligent woman and she must know that, if such behavior continues, she risks alienating [the Child] to the point where he will not want to live with her and T.J., something that she has now fought years to regain. [Emphasis added.] [90] The trial judge did not agree with J.A. that K.A.'s conduct amounted to family violence. She was satisfied that concerns regarding comments by K.A. about J.A. in the Child's presence could be addressed through conduct

orders. The trial judge also found that no other breaches of the Court's orders had been proven to her satisfaction. [91] The trial judge concluded that a shared custody arrangement, on a week on/ week off rotation, with both parents as guardians, would best meet the Child's needs. In relation to the parenting responsibilities, the judge found that J.A. had "continuously throughout the court proceedings given primacy to his own interests", while K.A. had shown she was able to "put aside her own feelings against J.A. where [the Child's] best interests are at stake": Trial RFJ at para.

238. The trial judge concluded that overall, K.A. was "better suited to be the parent making the FLA parenting decisions" for the Child: Trial RFJ at para.

242. The one exception was that K.A. could not change the Child's school other than by agreement of the parties or court order. With that one exception, the trial judge ordered that K.A. would exercise all parental responsibilities for the Child pursuant to s. 41 of the FLA, without the need to seek J.A.'s consent. C. Child support [92] The trial judge determined the income for J.A. and K.A. under the Federal Child Support Guidelines, SOR/97-175 [Child Support Guidelines], for the years 2021-2024. She found that J.A.'s Guidelines income was $126,125 for 2021, $140,258 for 2022, and $143,061 for 2023 and 2024. K.A.'s income (consisting mostly of long-term disability benefits) was $60,019 for 2021, $70,785 for 2022, and $61,718 for 2023 and 2024. Based on that income, the trial judge determined the retroactive support for the Child that K.A. must pay to J.A., and the prospective set-off support for the Child that J.A. must pay K.A. No issue is taken on appeal with the trial judge's determination of child support orders for the Child. [93] K.A. also sought an order that J.A. pay child support for T.J., who J.A. acknowledged to be his stepchild. J.A. maintained that his obligation to pay support for T.J. could not be determined without evidence of the financial capacity of T.J.'s biological father, who had the primary obligation to pay support. The trial judge accepted that she was

required to first determine the support obligation of T.J.'s biological father before considering whether J.A. had a duty to pay further support. However, she rejected J.A.'s submission that K.A.'s claim for child support for T.J. should be dismissed in the absence of evidence about T.J.'s biological father. The trial judge stated: [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. [94] The trial judge ordered that K.A. was to provide this information to J.A. on or before October 1, 2024. D. Division of family property [95] There is only one issue raised on appeal in relation to the trial judge's division of family property. It concerns the trial judge's order that J.A. must reimburse K.A. for the €7,700 she claimed to have placed in a container in the Family Home and which later could not be located. The trial judge found that the order was justified by J.A.'s "callous disregard for K.A.'s personal belongings and his rush to remove them from the Family Home": Trial RFJ at para.

331. E. Spousal support [96] The trial judge found that K.A. had established her entitlement to non-compensatory spousal support, but not to compensatory support. The trial judge completed DivorceMate calculations under the Spousal Support Advisory Guidelines [SSAG]. Those calculations provided a range of monthly spousal support in the years 2021 to July 2024. Relying on the high end of the range, the trial judge ordered that K.A. was entitled to retroactive spousal support of $57,000, which was to be deducted from J.A.'s share of the net sale proceeds from the Family Home. No issue is taken on appeal with the retroactive spousal support order. [97] The trial judge also ordered that J.A. must pay K.A. prospective monthly spousal support of $1,500, payable on the first day of each month. The trial judge determined that K.A.'s Guidelines income for 2024 was $61,718, which consisted of long-term disability benefits. She declined to impute additional income to K.A. She accepted K.A.'s evidence that she was presently unable to return to her prior position, or anything similar, given her ongoing physical and mental health issues. The trial judge's SSAG calculations indicated a duration of support between 4.25-8.5 years from the date of separation. Her trial order did not specify a termination or review date for spousal support. F. Costs and other relief [98] The trial judge stated that it was apparent from her reasons that J.A. "has been largely unsuccessful in respect of the various issues": Trial RFJ at para.

363. However, she exercised her discretion to order that each party bear their own costs. [99] The trial judge acceded to K.A.'s request that she seize herself of the proceeding and directed that she would remain seized for a period of three years. IV. The supplemental judgment [100] Following the trial judgment, both parties filed applications requesting the judge to clarify or modify aspects of her trial order. A hearing date of October 24, 2024, was scheduled before the trial judge to address these issues. [101] J.A.'s application sought, among other things: (1) a direction that either party may attend the Child's activities, including volunteering and coaching, regardless of the parenting schedule; (2) a termination or review date for spousal support; and (3) an order that the Child continue his counselling with Yuko, the counsellor who the Child had been seeing since January 2022. In his affidavit filed for the supplemental hearing, J.A. stated (concerning point 1) that K.A. had refused to consent to him continuing to coach the Child's soccer team, and (concerning point 3) that K.A. had stopped the Child's counselling sessions with Yuko. [102] K.A.'s application sought 36 forms of orders, including orders dismissing any proposals made by the Child's legal counsel and terminating her services, and directing that J.A.'s parenting time with the Child be supervised. K.A. also

sought an order that J.A. pay child support for T.J. In support of her application, K.A. swore a 276-paragraph affidavit, that was filed on October 22, 2024, two days before the hearing. The affidavit contained some limited evidence of the financial circumstances of T.J.'s biological father. K.A. served J.A. with the unfiled affidavit on October 21, 2024. He received a filed version on the day of the hearing. [103] The Child's legal counsel appeared at the hearing and made brief submissions relating to the parenting issues. She stated that the Child was happy to have either parent attend his activities regardless of whose parenting week it was, and that he would like to continue with his counselling with Yuko. After receiving these submissions, the trial judge advised the Child's legal counsel that her involvement in the case was over. [104] The trial judge released reasons for judgment on the applications on November 18, 2024. The reasons are indexed at 2024 BCSC 2084 (the "Supplementary RFJ"). We will review the Supplementary RFJ only to the extent that they are relevant to the issues raised on appeal. [105] The trial judge dismissed J.A.'s request for a termination or review date for spousal support. She found that there was no indication that K.A. had been able to make strides towards obtaining employment in the four months since the Trial RFJ. The trial judge stated, without elaboration, that there was "no basis" for a termination date: Supplementary RFJ at para.

15. The judge found that J.A.'s request for a review date was "only an invitation to continue this bitter and destructive litigation": Supplementary RFJ at para.

18. The trial judge noted that J.A. would still be able to apply to vary spousal support in the event there was a material change in circumstances. [106] The trial judge declined to issue an order allowing J.A. to volunteer at the Child's activities. She expressed concern that "allowing J.A. carte blanche" to volunteer at the Child's activities would simply be a means for him "to continue his efforts to hinder the betterment of that mother/son relationship" to the detriment of the Child's best interests: Supplementary RFJ at para.

71. The judge also refused J.A.'s request to be permitted to register the Child for activities that occurred solely on his own parenting time, and at his sole cost. She viewed J.A.'s request as "nothing more than an attempt to regain sole control over aspects of [the Child's] life that he had before": Supplementary RFJ at para. 61. [107] The trial judge also declined to issue an order that the Child continue in his counselling with Yuko. K.A. stated that she was not happy with Yuko, and that she was looking into other counsellors. The judge saw "no reason to second guess K.A. in this matter" in exercising the judgment assigned to her under the trial reasons: Supplementary RFJ at para.

78. The judge did not address the Child's stated desire--expressed through his lawyer at the supplementary hearing--to continue his counselling sessions with Yuko. [108] The trial judge granted leave to K.A. to have her application that J.A. pay child support for T.J. heard on its merits despite her late delivery of material. She found that J.A. had sufficient time to respond on the merits. The trial judge accepted the evidence set out in K.A.'s affidavit about the financial circumstances of T.J.'s biological father, without addressing J.A.'s objection that the evidence was largely inadmissible hearsay. Specifically, the trial judge accepted K.A.'s evidence that the biological father had retired in 2024, and that his income accordingly had reduced to $22,500 per year. [109] In all the circumstances, the trial judge concluded that it was appropriate to order J.A. to pay $500 per month in child support for T.J. starting July 2024, and 60% of any special and extraordinary expense incurred for him. The judge concluded that this award had no effect on the spousal support ranges she discussed in the Trial RFJ, so no adjustment to the spousal support order was necessary. V. On appeal [110] The primary focus of the appeal is the trial judge's assessment of the Child's best interests, and her order giving K.A. all parental responsibilities for the Child. In this respect, J.A. alleges

that the trial judge committed reversible error by: a) failing to undertake a full analysis of the criteria governing an inquiry into the best interests of the Child; b) misapprehending or ignoring material evidence relevant to the Child's best interests; c) relying on stereotypical beliefs, resulting in manifestly unreasonable conclusions; d) placing inordinate weight on the relationship between the parents, at the expense of consideration of the best interests of the Child; e) making credibility findings on the basis of a misapprehension of evidence, or alternatively the absence of objectively discernable evidence; and f) making palpable and overriding errors of fact. [111] Alternatively, J.A. alleges that the trial judge conducted the trial and the post-trial hearing in a manner that gives rise to a reasonable apprehension of bias. [112] J.A. advances three further grounds of appeal in relation to other issues decided at trial: a) the trial judge erred in law in setting prospective spousal support without consideration of the respective condition, means, needs and other circumstances of the parties; b) the trial judge erred in law in ordering J.A. to pay child support for T.J. without a proper assessment of the earning capacity and obligation of T.J.'s biological father; c) the trial judge erred by misapprehending or ignoring material evidence in ordering J.A. to compensate

K.A. for the missing €7,700. [113] K.A. cross-appeals the trial judge's order that each party bear their own costs despite K.A.'s substantial success at trial. Because K.A.'s cross-appeal is limited to costs, there is an issue as to whether she required leave to appeal and, if so, whether leave to appeal should be granted. VI. Standard of review [114] As set out by the Supreme Court of Canada in Barendregt v. Grebliunus, 2022 SCC 22, the scope of appellate review in family cases is narrow. The role of an appellate court is not to retry the case. This is particularly important in parenting cases where finality is of paramount importance. Absent an error of law or a palpable and overriding error of fact, deference is vital. Moreover, the appellate court must review the judge's reasons generously and as a whole, bearing in mind that the judge is presumed to know the law: Barendregt at paras. 100-104. [115] To establish palpable and overriding error, it must be shown first that the error is palpable in the sense that it is "plainly seen", "plainly identified", or "obvious": R. v. Kruk, 2024 SCC 7 at para.

97. The error must also be overriding, in that it is "shown to have affected the result" or "goes to the very core of the outcome of the case": Kruk at para.

98. A judge's failure to address material evidence on a disputed issue may constitute palpable and overriding error, but only if it gives rise to "the reasoned belief that the [judge] must have forgotten, ignored or misconceived the evidence in a way that affected his [or her] conclusion": Van de Perre v. Edwards, 2001 SCC 60 at para. 15. [116] Findings of credibility are entitled to deference on appeal. However, "an appellate court may intervene where the finding of credibility rests on a misapprehension of the evidence, or is made in the absence of any objectively discernable evidence to support it, and the finding goes to the heart of the judge's analysis": J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 at para.

346. VII. The appeal A. Issue 1: Did the trial judge err in her assessment of the Child's best interests in giving all parenting responsibilities to K.A.? [117] It is useful to first clarify the remedy sought by J.A. in relation to this ground of appeal. In his factum, J.A. sought an order that the parenting time in Power J.'s November 3, 2023, order, be reimposed and the judge's order for shared custody be set aside. At the outset of the hearing, his counsel advised that J.A. no longer pursues that form of relief. He acknowledges that it would not be in the Child's best interests to attempt to move backward and impose a parenting time regime that has not been in effect for over a year. Instead, J.A.'s requested remedy is limited to an order setting aside the trial judge's order assigning all parenting responsibilities to K.A. He contends that the trial judge erred in her assessment of the Child's best interests, which provided the basis for her order. [118] With considerable reluctance, we have come to the view that the trial judge committed reversible errors in her assessment of the Child's best interests that require appellate intervention. We acknowledge the high level of deference that is owed to the findings of the trial judge regarding parenting arrangements. The importance of finality is particularly apparent in a high conflict case such as this. However, deference is

not without limits. We are persuaded that the trial judge committed factual errors that prevented a proper assessment of the Child's best interests. The errors undermine these critical findings of the trial judge: a) Pursuant to the strategy that he formulated in his notebook in the Spring of 2021, J.A. weaponized the legal system against K.A. for the sole purpose of gaining full custody of the Child and remaining in the Family Home; b) The "ruin" of the family is the result of J.A.'s own actions and decisions since July 2021, which were based on the pretext of K.A.'s behaviour; c) J.A. knew he could provoke K.A. to behave inappropriately when she railed against his litigation strategy, and he then used her behaviour to his full advantage; d) K.A. understands the importance of refraining from disparaging J.A. in front of the Child, is aware of the distraught that it causes him, and is also aware that she must avoid such behaviour. [119] It is unnecessary for us to address all of the alleged errors of the trial judge in her analysis of the Child's best interests, or to consider J.A.'s alternative argument that the decisions and conduct of the trial judge gives rise to a reasonable apprehension of bias. In our view, J.A. has demonstrated two errors by the judge that, taken together, are palpable and overriding: (1) she misapprehended material evidence; and (2) she overlooked or ignored a substantial body of material evidence.

1. Material misapprehension of evidence [120] As we have highlighted, the trial judge concluded that J.A.'s early formulation of his litigation strategy to gain full custody of the Child was reflected in the notes he made in his notebook prior to the parties' separation. The trial judge rejected J.A.'s evidence that the notes were only questions for his lawyer. Instead, the judge found that "[t]hese jottings would be an early indication of J.A.'s strategy in the months and years to come": Trial RFJ at para. 49. [121] On June 30, 2021, J.A.'s counsel forwarded the June Draft Separation Agreement to K.A. This was an important event for several reasons, including that it immediately preceded K.A.'s actions in painting "despicable" throughout a room in the Family Home. The trial judge made the following findings regarding these events: [55] On June 30, 2021, K.A. received an email from Ms. Maur[o] [J.A.'s counsel] along with a copy of the separation agreement. As recorded in J.A.'s notebook, J.A. proposed that he have full custody of [the Child]. [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 [the Child] and sole occupancy of the Family Home. [57] In the early hours of July 1, 2021, J.A. woke up to find K.A. painted 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 describe her actions as an emotional outburst to address her feelings (the "Painting Incident"). [Emphasis added.] [122] The parties agree that the trial judge erred in her finding (underlined above) that the June Draft Separation Agreement proposed that J.A. have full custody of the Child. Instead, the June Draft Separation Agreement proposed that the parties share custody on a 50-50 basis, and that they jointly exercise parental responsibilities. The draft itself was not in evidence, however the parties testified consistently as to its terms. [123] K.A. acknowledges that the judge erred in finding that J.A. proposed that he have full custody of the Child at this time. However, she contends that the error is inconsequential and does not undermine the trial judge's critical factual findings about J.A.'s motives. For a number of reasons, we do not agree. [124] First, J.A.'s proposal on June 30, 2021, that the parties share custody of the Child on an equal basis tends to undermine any conclusion that he had, by then, developed a litigation strategy of gaining full custody. Indeed, it is difficult to rationalize such a strategy with an opening proposal of shared custody. K.A. did not respond to the proposal, other than by painting the walls, ceilings, and floors of a room in the Family Home

with the word "despicable" early the next morning. There is little point in speculating how things might have turned out had K.A. meaningfully engaged in discussions with J.A. when the proposal for shared custody was made. [125] Second, the trial judge's factual error in describing the content of the June Draft Separation Agreement tainted the lens through which she viewed J.A.'s evidence that the notes in his notebook simply related to questions he wanted to put to his lawyer. The fact that J.A. proposed shared custody in the June Draft Separation Agreement, after consulting with his lawyer, tended to support his evidence that his notes beforehand reflected the questions he had about the legal process rather than a formed legal strategy to gain full custody of the Child. However, the trial judge assessed J.A.'s evidence about the meaning of the notebook from the premise that his first proposal to K.A. was for full custody. [126] Third, the trial judge's factual error also tainted her perception of the events that followed. The inference arising from the trial judge's reasons is that K.A. was effectively provoked into the painting incident because she was railing against J.A.'s legal strategy, aiming for full custody, as laid out in the notebook and the June Draft Separation Agreement. With the judge's factual error corrected, K.A.'s actions become more difficult to

rationalize, and J.A.'s concerns about her behaviour more firmly grounded. It was objectively not "despicable" for J.A. to propose a shared parenting arrangement. [127] Fourth, and relatedly, the trial judge's error also caused her to err in her characterization of the parties' communications in August 2021, once K.A. had retained counsel. The trial judge found as follows: [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. [128] It is not unclear what evidence the trial judge was referring to in stating that "this suggestion was flatly rejected by J.A.". The evidence of the communication between K.A.'s then-counsel and J.A.'s counsel, Ms. Mauro, in August 2021 suggested that both parties wanted to adopt a more cooperative path forward. An email sent by K.A.'s counsel on August 6, 2021, stated that she and Ms. Mauro were "on the same page" in wanting to work together to reduce the conflict. Indeed, it was J.A.'s counsel who drafted the August Draft Separation Agreement, which attempted to reduce the conflict by proposing a process for the parties to work towards shared custody. [129] Despite this evidence, the trial judge found as follows: [122] By mid-August,

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. [Emphasis added.] [130] It is also not clear what evidence the trial judge is referring to in stating that J.A.'s safety concerns about K.A. had "melted away" by mid-August of 2021. The August Draft Separation Agreement proposed that concerns about J.A.'s parenting of the Child would be addressed through a period of supervised parenting before the parties moved to shared parenting. [131] In any event, the trial judge's finding that J.A.'s lawyer used the Protection Order as "leverage to get K.A. to sign the separation agreement that J.A. had proposed some time ago" reflects a further material misapprehension of the evidence. The June and August Draft Separation Agreements were different in substance, but neither proposed that J.A. would have full custody of the Child. As we have reviewed, the August Draft Separation Agreement, which was in evidence at trial, addressed the issues raised by K.A.'s then-counsel in her communication with J.A.'s counsel. J.A. proposed that: (1) the Protection Order be set aside by consent; (2) K.A. have at least four supervised parenting visits with the Child as a first step towards shared

custody; (3) the parties jointly exercise parenting responsibilities; and (4) the dispute over interim possession of the Family Home be addressed in a court application to be scheduled for late August. [132] The trial judge's errors on these factual issues fundamentally undermine her critical finding that J.A. had formed a legal strategy before the parties' separation to gain full custody of the Child and keep possession of the Family Home. This error in turn taints the trial judge's assessment of J.A.'s credibility, and her conclusion that he gave primacy to his own interests instead of the interests of the Child. It is unnecessary for us to decide whether these factual errors by the trial judge are alone sufficient to justify appellate intervention. There is a related, and more pervasive, error by the trial judge in her failure to grapple with, or even refer to, a large body of evidence that contradicted her key factual findings in her assessment of the Child's best interests.

2. Evidence that was ignored or overlooked [133] The parenting time dispute between the parties at trial focussed on J.A.'s assertion that K.A. could not be relied on to act in the Child's best interests due to her hatred of J.A., and her inability to regulate her behaviour in expressing that hatred. J.A. argued the evidence showed that K.A. had persisted in making negative comments about him to the Child, thus involving the Child in the conflict between the parents, and that she lacked awareness of the emotional impact of her conduct on the Child. The argument and evidence on this point was relevant both to the assessment of K.A.'s capacity to act in the Child's best interests and the assessment of J.A.'s motives for resisting a move to shared parenting over the previous three years. [134] Within this context, we conclude that the following evidence was either ignored by the trial judge or was not considered or examined in her assessment of the Child's best interests. a) K.A.'s conduct prior to separation [135] There was evidence at trial from third parties that tended to support J.A.'s assertion that K.A.'s open hostility towards him, and her inability to regulate her hostility in front of the children, pre-dated the parties' separation. [136] The parties' neighbours, Mr. Spensley and Ms. Barthel, testified that after K.A.'s cancer diagnosis in June 2020, the conflict between

her and J.A. became more evident. From their property, they could hear K.A. frequently yelling at J.A. in an angry voice, repeatedly stating things like "shame on you" and calling J.A. "the devil". K.A.'s screaming sometimes went on for more than an hour, and occurred, on Mr. Spensley's estimation, on hundreds, if not thousands, of occasions starting in early 2021, and intensifying in June 2021. Mr. Spensley also testified that he witnessed the Child expressing fear of K.A.'s yelling countless times. [137] K.A.'s pre-separation behaviour was also reflected in clinical notes from Dr. Marchal, who was counselling the family in the pre-trial period, which were entered as an exhibit at trial. J.A. testified that the notes were consistent with his recollection of the counselling sessions with Dr. Marchal. The notes recorded that K.A. showed up unexpectedly at an appointment that J.A. had scheduled with Dr. Marchal in early June 2021. K.A. shouted for most of the hour-long session about how terrible J.A. was and how he had ruined everyone's life. K.A. repeated several times that she "hates him from the bottom of her heart", and stated that she wanted a divorce. [138] The significance of this evidence is the context it provides to J.A.'s decision to seek a Protection Order in early July 2021. The trial judge found that since early 2021, J.A. had been seeking the means to achieve sole parenting of the Child and to remove K.A. from the Family home. She concluded that when the painting incident occurred on July 1, 2021, "J.A. saw his chance and he took it": Trial RFJ at para.

72. However, there was evidence, other than from J.A., about K.A.'s objectively concerning behaviour towards him for many months prior to the parties' separation, its growing intensity, and its impact on the Child. This evidence is not addressed at all by the trial judge. Without context, the painting incident is minimized by the trial judge as an isolated event--effectively orchestrated by J.A.-- rather than as a further escalation of an already concerning situation. b) K.A.'s interactions with professionals retained to assist the family [139] As we have reviewed, both GIFTS and Cascadia ended their involvement in providing parenting supervision and counselling services to K.A. due to her aggressive behaviours and lack of insight regarding the impact of those behaviours on others, most importantly the Child. [140] We have already reviewed the circumstances that led GIFTS to terminate their provision of services to the family due to K.A.'s behaviour at the final parenting time session on September 19, 2021.The trial judge only briefly referred to this evidence. She stated: [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. [141] The trial judge did not review the substance of the report from GIFTS in September 2021, which provided context for their recommendation that K.A. continue to be supervised in her parenting time with the Child. For example, the GIFTS summary report noted that K.A. had "made divisive comments" through a parenting time session in front of the Child that placed him in a position of conflict. She used the phrase "When I have you " during a conversation with the Child that implied ownership and alluded to the custody fight. GIFTS reported that the Child modified his behaviour in response to the conflict, such as avoiding calling J.A. "Dad" in front of K.A. and instead using his first name. The summary report described K.A. as "lacking insight into how her actions can negatively affect [the Child] and the effect that this conflict has on him". [142] We have also reviewed the circumstances surrounding the May 2023 termination of Cascadia's services to K.A. The trial judge did not review this evidence at all, other than to observe that "Cascadia's services were terminated by K.A.": Trial RFJ at para.

164. The trial judge also did not review the evidence that the purpose of Cascadia's involvement with the family, which was ordered by Power J., was to facilitate an increase in K.A.'s parenting time with the Child. The trial judge did not review the content of Mr. Lowey's reports to the Court on April 19 and June 14, 2023. In his final report of June 14, 2023, Mr. Lowey concluded: The Writer initially was in support of more mother and son parenting time. This is now not the case. Until [K.A.] recognizes that some of her decisions and actions are not in her son's best interests and in fact, are likely not in her best interests, it is recommended that no additional parenting time occur other than what is currently being provided by Family Services. In the Writer's opinion, [K.A.], needs to develop an alternative decision process that yields more positive outcomes, such as not escalating with professionals as she has done numerous times, and that helps move her towards her goal of having more parenting time with [the Child]. [143] Mr. Lowey also testified at trial. The trial judge ruled that he could not provide expert opinion evidence on the question of the necessity of certain types of counselling, such as DBT, in the context of a high conflict family situation. Mr. Lowey did testify as a fact witness regarding Cascadia's involvement with the family. He reiterated that K.A.'s

extreme and negative attitude towards J.A., and its entrenched nature, made it impossible for Cascadia to assist the parties in effective co-parenting. Mr. Lowey's fact evidence at trial is not addressed in the trial judgment. c) Dr. Sherman's evidence [144] The trial judge placed heavy emphasis on Dr. Sherman's letter of October 5, 2021, stating his opinion that K.A. had no "medical nor mental health issues that would compromise her ability to be a co-parent to [the Child]". The trial judge refers to this as a "significant opinion": Trial RFJ at para.

129. The trial judge stated: [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 K.A. had with her son. [145] We note, parenthetically, that because the trial judge misapprehended the content of the August Draft Separation Agreement, she did not address how this finding could be reconciled with J.A.'s apparent willingness in August 2021 to consent to having the Protection Order set aside. [146] More concerningly, the trial judge also does not address Dr. Sherman's evidence regarding events after October 5, 2021, and how they changed his views. As we have reviewed, in his letter of June 10, 2022, and the clarification letter of July 7, 2022, Dr. Sherman recommended that K.A. continue to have supervised visits with the Child for a period of one to two months to ensure there were no safety concerns. There are two points to note. First, it was K.A. who tendered this evidence at a hearing before Power J. by appending Dr. Sherman's June 10 letter to her affidavit. Second, it is apparent from the transcripts that Dr. Sherman's opinion influenced Power J. in making parenting orders. [147] In his evidence at the hearing before Power J. on July 11, 2022, Dr. Sherman

stated that he was concerned about the Child's emotional safety given K.A.'s disparaging comments about J.A. Dr. Sherman gave similar evidence when he testified at trial. He stated that the Child had been exhibiting anxiety and regressive development behaviours for an extended period of time. Dr. Sherman also testified that beginning in November 2023, the Child reported to him that he found the transitions between K.A. and J.A.'s house to be difficult because he did not know whether he should believe the bad things his mother was saying to him about his father. As described by Dr. Sherman, the Child often felt angry, sad, and confused, and then would cry and later apologize to J.A. Dr. Sherman testified that this had been a "repeated pattern" since November 2023. [148] Dr. Sherman also testified at trial to the events that led him to move K.A. to another physician in his practice in February 2023, and then to let her go as a patient from the practice in March 2024. Dr. Sherman's evidence was that K.A. had repeatedly engaged in such behaviours as: yelling and swearing in front of other patients; verbal threats to Dr. Sherman; making derogatory comments about Dr. Sherman and his clinic; recording him and his staff without their permission; and demanding that he produce the private medical records of J.A. Dr. Sherman testified it was the pattern of K.A.'s behaviour that was the

main concern, as these were not isolated instances of dysregulation. [149] The trial judge quoted Dr. Sherman's letter of October 5, 2021, and referred to his evidence at trial that the letter accurately reflected his opinion at that time. The trial judge did not review Dr. Sherman's evidence of his more recent observations of the Child, and the distress and anxiety he exhibited due to K.A.'s behaviour. She did not explain why she considered the opinion he expressed in his letter of October 5, 2021, to be significant, while disregarding his more recent views. [150] K.A. argues, in essence, that it can be inferred that the trial judge did not place weight on Dr. Sherman's evidence because she was critical of his conduct in breaching K.A.'s privacy. K.A. points to this passage in the Trial RFJ: [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. [151] Respectfully, this is not a fair summary of Dr. Sherman's evidence. Dr. Sherman did not agree that in May 2021 he had discussed K.A.'s medical information with J.A. "for the express purpose of having J.A. share that with his lawyer". Rather, Dr. Sherman testified that when K.A. and J.A. were still together, he had concerns about K.A.'s mental health and he discussed those concerns with J.A. Dr. Sherman stated that he believed it was appropriate to have such a conversation when both spouses were his patients in a family practice. When K.A. returned to this line of questioning later in Dr. Sherman's evidence, he noted that K.A.'s mental health difficulties were well known to J.A. and others, and stated: "if this was an affront to you, I apologize". The following exchange ensued: THE COURT: I - I think that she's not - [ ] saying she's affronted. She's saying it's a breach of your professional obligations. That's what she's saying. K.A.: Yes. DR. SHERMAN: And I don't think it is a - THE COURT: To be - to be - K.A.: Yes. DR. SHERMAN: -- a breach of my - THE COURT: -- pretty clear about it. DR. SHERMAN: -- professional - K.A.: And - you are - afraid that you come into trouble and that's why you are putting me in a mental state - DR. SHERMAN: K. - K.A. -- because - DR. SHERMAN: -- I - K.A.: -- Dr. Sherman, let's go -

let's go because I don't think so you're going to actually admit that. [ ] At this point in the transcript, K.A. moved onto a different topic. [152] If Dr. Sherman's evidence was, as characterized by the trial judge, "dissembling at best", this can perhaps be explained by the fact that he was not given an opportunity, without interruption, to respond to K.A.'s allegation that he breached his professional obligations. [153] In any event, the trial judge does not rely on Dr. Sherman's alleged breach of the duty of confidentiality in May 2021 to conclude that there are frailties in his evidence about events that occurred after this date. The trial judge does not review his evidence regarding his concerns about K.A.'s conduct during her parenting time, and the behaviours Dr. Sherman observed in the Child that were the basis for his concerns. d) The interviews of the Child and the conduct orders [154] The Child was interviewed twice before trial: by Power J. and by the author of the s. 211 report. Both times, the Child reported that while he wished to have unsupervised parenting time with K.A., he wanted her to stop speaking negatively about his father. The trial judge briefly mentioned the content of the s. 211 report: Trial RFJ at para.

163. She referred to Power J.'s interview of the Child without discussing Power J.'s summary of its content: Trial RFJ at para. 166. [155] At trial, the Child's lawyer provided a written "Summary of the Child's Views and Positions" setting out the information the Child provided to the lawyer over the course of their 11 meetings. In relation to J.A., the Child stated that his father "is the only safe place for me". He conveyed that J.A.'s home is calmer, and the Child likes things to be calm. While K.A. had told the Child that J.A. took him away from her, the Child did not think that was possible. The Child reported that J.A. did not say negative things to him about K.A. [156] The trial judge's reasons did not refer to the Child's views about J.A., and the Child's belief that he provided a "safe place". [157] In relation to K.A., the Child reported that when he is at K.A.'s house, she and T.J. both speak very poorly about J.A., which causes the Child to experience "significant sorrow and distress". The Child stated that he would like it if K.A. was able to restrain herself from speaking negatively about J.A., but he did not think she could or would stop given that she did not stop even after Power J. told her to. In early March 2024, which was shortly before the start of the trial, the Child reported that K.A. was refraining from saying as many negative things about J.A., but

was still saying some. [158] The trial judge did not refer to the direction that Power J. gave to K.A. to stop making negative comments about J.A. in the Child's presence, or the Child's view expressed to his lawyer that he did not believe K.A. could stop making such comments. In rejecting J.A.'s submission that K.A.'s conduct constituted family violence under s. 37(2)(g) of the FLA, the trial judge stated: [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. [159] In finding that K.A.'s comments in the presence of the Child could be addressed by conduct orders, the trial judge did not address the evidence that since at least March 2022, K.A. was already bound by conduct orders that prevented her from making negative comments about J.A. in the Child's presence. In closing submissions at trial, J.A.'s counsel listed the conduct orders that had been made over time, including in Murray J.'s order of March 30, 2022, and Power J.'s orders of April 24, 2023, August 31, 2023, and November 3, 2023. J.A. argued that K.A. had breached these orders by continuing to disparage J.A. in front of the Child up to the time of trial. However, the trial judge concluded that: [244] No

other breaches of this Court's orders--including that of Murray and Power JJ.--have been proven to my satisfaction. [160] In reaching this conclusion, the trial judge did not review the terms of the conduct orders that had been issued by Murray and Power JJ., or the evidence suggesting that K.A. had continued to repeatedly disparage J.A. in front of the Child while the conduct orders were in effect. e) K.A.'s evidence at trial [161] Key to the trial judge's assessment of the Child's best interests was her conclusion that K.A. understood the importance of refraining from disparaging J.A. in front of the Child and was aware of the distress such comments caused the Child: Trial RFJ at para.

231. The trial judge did not review K.A.'s trial evidence that directly contradicted these findings. [162] K.A. testified she did not say negative things about J.A. in front of the Child, and the Child was influenced by J.A. to say otherwise. She stated that she did not trust the Child. She stated her belief that the report from the Child's lawyer at trial was one-sided and "just focusing to destroy me", and that it contained J.A.'s views, rather than the Child's views. K.A. also stated her belief that the Child had not been truthful in his interview with Power J. In cross-examination, K.A. agreed that she continued to believe that Power J. and counsel for J.A. had conspired against her. K.A. repeatedly accused J.A. of parental alienation. [163] In final submissions, the trial judge attempted to elicit an assurance from K.A. that she understood the importance of refraining from disparaging J.A. in front of the Child, while pointing out that such conduct can be very damaging to a child. The trial judge summarized J.A.'s submissions for K.A. and explained to her that the main issue in terms of parenting was J.A.'s concern that K.A. would not comply with conduct orders. In response, K.A. denied making negative comments about J.A. in front of the Child, stated her view that the Child had been "influenced by [his] father and his lawyer" to make such allegations, and talked about how

upsetting the court process had been for T.J. She also stated that she had caught the Child lying to her. [164] When directly asked by the trial judge whether she understood that disparaging J.A. to the Child was not acceptable, K.A. responded by describing how J.A. must have been sending threatening anonymous letters to himself to frame K.A. for criminal harassment. She then stated that J.A.'s lawyer was somehow able to get court orders without proper evidence just by expressing his wish. [165] Accordingly, the trial judge's finding that K.A. understood the importance of refraining from disparaging J.A. in front of the Child is inconsistent with K.A.'s evidence at trial. K.A. did not acknowledge that she disparaged J.A. in front of the Child, nor did she acknowledge awareness of the impact that doing so would have on the Child. The trial judge's failure to address K.A.'s evidence is a concerning and significant omission in her assessment of K.A.'s ability to give primacy to the Child's best interests.

3. Discussion [166] We have made the point that a central focus of the parenting issues at trial was K.A.'s negative comments about J.A., and their impact on the Child. To illustrate the importance of this issue, it is useful to reproduce a portion of the closing submissions of the Child's lawyer at trial: [The Child] has spoken to multiple people multiple times about the significant emotional distress he experiences due to his mother's inability to restrain herself from speaking negatively about his father, including to his doctor, witnesses Robert Spensley and Kim Barthel, his father, Justice Power, and his lawyer. While [K.A.] denies speaking negatively of [J.A.] to or in front of [the Child], the clear and consistent evidence of [the Child] is the opposite. [ ] I would submit that the evidence shows a pervasive pattern of behaviour where [K.A.] does not consider the full impact of her behaviour or of [T.J.'s] behaviour on [the Child]. The bulk of the evidence, again, I would submit shows that she is engaging in this behaviour where [the Child] continues to be exposed to the significantly negative messaging. Submissions from [the Child's] father's counsel has stated that this negative speech is the primary, if not the only, significant parenting concern. Solutions in this situation are difficult to find. [167] The issue of K.A.'s repeated negative messaging about J.A., despite its centrality at trial, is not addressed in any depth in the trial judgment. The trial judge appears to acknowledge there was an issue with K.A.'s conduct. She states that the Child's report that K.A. continues to disparage J.A. in his presence "remains a concern": Trial RFJ at para.

230. However, the trial judge makes no findings about the nature, persistence, or seriousness of K.A.'s conduct. She does not reference K.A.'s evidence denying that she makes such comments and suggesting that the Child was being influenced by J.A. and the Child's lawyer. Nevertheless, the judge finds that K.A. "understands the importance of refraining from such behaviour for [the Child's] sake": Trial RFJ at para. 231. [168] In making these findings, the trial judge overlooked K.A.'s own evidence and a substantial body of trial evidence suggesting that K.A.'s behaviour, largely driven by her hatred of J.A., presented a risk to the Child's emotional safety. The evidence came from seemingly objective parties, including Dr. Sherman, Mr. Lowey, Mr. Spensley and Ms. Barthel. There was also the evidence from the Child himself that K.A. persisted in disparaging J.A., even after being directed to stop by Power J., and while there were conduct orders in force. This evidence, on its face, raised concern about K.A.'s ability to act in the Child's best interests, rather than in her own interests. The evidence was diametrically opposed to the narrative presented by K.A. Yet the trial judge accepted K.A.'s narrative without grappling with, and indeed largely ignoring or overlooking, the evidence that contradicted K.A.'s narrative. [169] Further, the trial judge could not have effectively

assessed K.A.'s credibility without some effort to address the cogency of the evidence that contradicted her view of events. If, as the trial judge apparently found, K.A. had persistently disparaged J.A. in front of the Child, then K.A.'s denial of this conduct in her trial evidence, and her suggestion that the Child was being untruthful, cast doubt on her credibility as a witness. However, the trial judge did not address the apparent conflict in the evidence and gave no reasons for finding K.A. to be credible, other than her perception of K.A. as the victim and J.A. as the aggressor: Trial RFJ at paras. 72-82. [170] The trial judge's adverse credibility findings about J.A. are also undermined by her misapprehension of material evidence and failure to grapple with the substance of the evidence that challenged K.A.'s narrative. We have already reviewed the material misapprehensions of the evidence by the trial judge in relation to the content of the June and August Draft Separation Agreements and J.A.'s willingness, in August 2021, to work towards a solution that would reduce the conflict between the parties. These errors undermine the trial judge's critical finding that J.A. had purposefully weaponized the legal system to gain full custody of the Child, which in turn coloured her view of J.A.'s credibility. [171] The trial judge's failure to grapple with the evidence that we have summarized above also meant that the trial judge assessed J.A.'s motives without relevant context. The trial judge concluded that the limits on K.A.'s parenting time with the Child since the parties' separation resulted from "his actions and his decisions": Trial RFJ at para.

73. However, this ignores the evidence that professionals involved with the family, including Dr. Sherman and Cascadia, independently recommended that K.A.'s parenting time be supervised based on their assessment of her behaviour and its impact on the Child. It also ignores the struggle of the parties and the court over the course of this proceeding, as reflected in the various transcripts and orders, to reconcile the Child's interests in spending time with K.A. and his interests in being protected from K.A.'s persistent negative messaging about J.A. The orders that K.A.'s parenting time be supervised were not issued by J.A., but by judges (including Power J.) exercising independent judgment, at times guided by the advice of professionals. [172] We do not suggest that the trial judge was bound to accept the evidence of K.A.'s concerning behaviours, or the views of the professionals as to how they impacted the Child. However, the evidence was material to the central parenting issue at trial: the emotional distress experienced by the Child due to K.A.'s apparent inability to refrain from disparaging J.A. in his presence. The trial judge was, at a minimum, required to address the evidence and to explain how it could be reconciled with her findings or to explain her reasons for rejecting it. Without such an analysis, the trial judge's assessment of the Child's best interests was

incomplete. [173] The trial judge placed significant emphasis on the Protection Order that was granted on July 2, 2021. Eight pages of the Trial RFJ are devoted to the Protection Order. This includes the trial judge's critique of the evidence that was before the Provincial Court, and her view, "with the benefit of hindsight", that a Protection Order either should not have been issued or should have been issued on a time-limited basis: Trial RFJ at paras. 100-117. While the Protection Order was obviously relevant in providing context for the conflict between the parties, the question for the trial judge was not whether a Protection Order should have been issued in 2021, but rather what parenting arrangements were in the Child's best interests at the time of trial in 2024. In our respectful view, the trial judge's focus on remedying perceived past injustices to K.A. distracted her from a full consideration of the Child's current best interests. [174] For these reasons, we conclude that the trial judge made palpable and overriding errors of fact that justify appellate intervention. The trial judge's material misapprehension of evidence, combined with her failure to address the substantial body of evidence that contradicted her findings, undermines her assessment of the Child's best interests. The errors go to the core of the trial judge's finding that K.A. "is better suited to be the parent making the FLA parenting decisions" for the Child in his best interests: Trial RFJ at para. 242.

4. Remedy [175] In light of our findings, we set aside Terms 9, 10, and 11 of the trial judge's July 4, 2024, order, which address parenting responsibilities. We also set aside that portion of Term 5 stating that K.A. "will have primary residence of the Child". The term "primary residence" is not found in the FLA, which speaks only of the allocation of parenting responsibilities and time. The use of this term is confusing in an order that provides for shared parenting. [176] The appellant requested that this Court substitute its own order for the allocation of parenting responsibilities, rather than remit the issue for a new trial. He proposes that parenting responsibilities be given to him, or, alternatively, that parenting responsibilities be shared, and the parties be required to make an effort to reach agreement on decisions and to engage a mediator or parenting co-ordinator where they cannot agree. [177] We appreciate that the parties and the Child have a strong interest in finality in this very challenging proceeding. However, it is not properly this Court's function to grant a remedy that would require a fresh assessment of evidence or make findings on what provisions for the exercise of parenting responsibilities are in the Child's best interests. The only remedy consistent with the role of an appellate court, and the role of the Supreme Court in exercising ongoing

jurisdiction to review parenting orders, is to remit this issue for a new trial. [178] We do consider it necessary in the circumstances of this case to make an interim order to bridge the gap between the release of this Court's judgment, and the parties' re-appearance in the Supreme Court. In her post-trial application material, K.A. sought the termination of the lawyer's representation of the Child, stating that they were not an impartial advocate and had expressed views that were influenced by external factors rather than a true understanding of the Child's needs. K.A. stated her intention to end the Child's counselling with Yuko (despite his desire to continue), and to restrict the Child's contact with Dr. Sherman. She also stated that the Child has lied to her and engaged in "troubling behaviours" such as showing a heightened loyalty to J.A. K.A. no longer takes him to his hockey and soccer activities because she believes his interest in continuing these activities stems from J.A.'s manipulation. Throughout her affidavit, K.A. asserts that J.A. has engaged in parental alienation. On this basis, she applies to limit J.A.'s parenting time with the Child to supervised visits. [179] K.A.'s application material, read in light of the errors in the trial judgment that we have identified, causes us concern that leaving sole control for parental decisions in her hands pending a new

trial is contrary to the Child's best interests. Instead, we order on an interim basis that the exercise of parental responsibilities will be as set out in the order attached to this judgment as Schedule A. With limited exception, the order provides that the parties will share s. 41 FLA parental responsibilities, and that disagreements will be resolved by application to the Supreme Court. One exception is that J.A. will have final decision-making authority in relation to health care decisions, including counselling services, for the Child. The terms of Schedule A will only be in place until they are replaced or modified by orders of the Supreme Court. We leave it to the Supreme Court to decide whether a lawyer should be appointed to represent the Child on any future appearances in that Court. [180] We acknowledge that the interim order we are making is imperfect given the entrenched hostility between the parties and the very real prospect that they will not be able to agree on anything. As we have emphasized, the terms of the interim order will only remain in place until they are varied by orders of the Supreme Court. [181] In his further submissions on remedy--provided at the direction of the Court--J.A. also requested a variation of terms 24 (possession of passport) and 25 (methods of communication between the parties) of the trial order. These are matters beyond the scope of

this appeal. The trial court is the proper venue for either party seeking further variations of the trial order. [182] Finally, J.A. expresses concern with the trial judge continuing to be seized of this proceeding, although he acknowledges this is not an order that can be appealed. A judge's determination that they are seized of a case is more in the nature of a procedural direction or instruction than an order or decision that is within the jurisdiction of this Court. This Court does not interfere in the trial court's management of its files by ordering that a judge unseize themself: N.R.G. v. G.R.G., 2017 BCCA 407 at paras. 62-63; S.R. v. A.B., 2021 BCCA 28 at paras. 72-73. J.A.'s remedy, if he considers fairness requires the trial judge to unseize herself, is to raise his concerns with the trial judge or the Chief Justice, as set out in N.R.G. and S.R. B. Issue 2: Did the trial judge err in her award of prospective spousal support? [183] On appeal, J.A. does not challenge the trial judge's determination that K.A. was entitled to spousal support on non-compensatory grounds. Instead, he argues that the judge erred in failing to impute income to K.A. without medical evidence that she was disabled from working, and in failing to order a termination or review date for spousal support. [184] J.A. also raises an issue about the trial judge's failure to redetermine spousal support

following her order made in the Supplementary RFJ that he must pay monthly child support for T.J. We address this issue later in the reasons when determining J.A.'s appeal from the order that he pay child support for T.J. [185] J.A.'s appeal from the trial judge's award of prospective support is focussed on the trial judge's failure to order a termination or review date for spousal support. J.A. argues that K.A. presented no medical evidence to demonstrate that she was currently incapable of working or that she would be disabled from working in the future. He says there is no justification for an order for indefinite support in these circumstances, particularly given the trial judge's conclusion that K.A. was entitled only to non-compensatory support. [186] While acknowledging the deferential standard of review that applies to a trial judge's determination of spousal support, J.A. says the judge committed legal errors that justify appellate intervention.

1. Failure to impute income to K.A. [187] The court has a broad discretion to impute income to a spouse for the purpose of spousal support. The test for imputing income due to a spouse's unemployment or underemployment is one of reasonableness, having regard to their ability to earn income in light of such factors as their age, education, health, work history, and work availability. The party seeking to impute income must establish a basis for such an order: Zilic v. Zilic, 2021 BCCA 107 at para. 19. [188] At trial, J.A. argued that an income of $88,169 should be imputed to K.A. as of January 1, 2023, based on her evidence that her long-term disability benefits for that year (totalling $61,718) were 70% of what her income would have been. The trial judge rejected this argument, stating: [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. [189] The evidence at trial regarding K.A.'s capacity to return to work was far from clear. K.A. tendered limited and dated medical evidence. The most recent medical evidence was Dr. Sherman's letters of June 10 and July 7, 2022. Those letters highlighted that, as of that date, K.A. was in remission from breast cancer, and that the treatments she had undergone--which included surgery and chemotherapy--had left her with slower cognition and difficulty focusing. Dr. Sherman also indicated that K.A. suffered from significant PTSD with concurrent anxiety and panic disorder, and that her mental health had deteriorated through the stress of the high conflict family proceeding. [190] In her direct evidence at trial, K.A. testified that it was open to her to return to employment with the federal government if a position becomes available. She stated that she would like to return to work, and that she would have been back at work already had it not been for the litigation, which became her "full-time job". However, in cross-examination, she stated that she was still undergoing post-cancer treatments that affected her capacity to work. [191] In our view, it was open to the trial judge on the evidentiary record to conclude that it was not reasonable to impute employment income to K.A. as of January 1, 2023. There was evidence

that K.A.'s cancer had been in remission since 2021. However, there was also evidence that the cancer had a continuing impact on her physical and mental health as of the time of trial. The question of whether K.A. had the capacity to return to full-time work as of January 2023 was a question of fact. We see no palpable and overriding error in the trial judge's conclusion that in the circumstances of this case, it was not appropriate to impute income to K.A. in 2023 and 2024.

2. A termination or review date [192] As we have reviewed, the SSAG calculation relied on by the trial judge indicated a duration for spousal support of between 4.25-8.5 years from the date of separation; which would mean termination dates from September 2025-December 2029: Trial RFJ at para.

351. The trial judge's initial spousal support order did not specify a termination or review date for spousal support. At the supplementary hearing, the trial judge rejected J.A.'s request that such a date be set. Her reasons are set out in the Supplementary RFJ as follows: [14] There is no indication in the minimal time since the Reasons were issued - almost four months - that K.A. has been able to make any strides toward regaining employment. [15] I see no basis upon which to set any termination date for spousal support. [16] As for any review, J.A.'s counsel suggests a review date of July 2026. [17] I conclude that setting a review date is not appropriate under s. 15.2 of the Divorce Act. R.S.C. 1985, c. 3 (2nd Supp.). In doing so, I am mindful of the comments found in Leskun v. Leskun, 2006 SCC 25 at paras. 36-39 as to when review orders may be justified and, if so, on what terms. [18] After the lengthy and extremely contentious litigation history of this matter, I resolved the issue of spousal support based on the evidence before me where the relative financial circumstances of the parties were not in doubt, including into the near future: Schmidt v. Schmidt, 1999 BCCA 701 at para. 9; Westergard v. Buttress, 2012 BCCA 38 at para.

23. J.A.'s suggestion for a review date, only two years after that time, is only an invitation to continue this bitter and destructive litigation. a) Support on non-compensatory grounds [193] It is important to note that the trial judge found that K.A. was only entitled to non-compensatory support. In Shen v. Tong, 2013 BCCA 519, this Court explained the basis for such an award: [77] Underlying the principle of non-compensatory support is the recognition that marriage "creates interdependencies that cannot easily be unravelled when the relationship ends": Bracklow at para.

30. Entering into marriage creates a basic social obligation between spouses that can give rise to expectations and obligations that are, in certain circumstances, recognized by law to persist for a reasonable time after marriage breakdown: Bracklow at para.

32. As in this case, when a marriage breaks down the goal of financial self-sufficiency is sometimes not immediately attainable and non-compensatory support is required. [194] Shen has some parallels to this case. The parties in Shen lived in a marriage-like relationship starting in September 2004, were married in January 2008, and separated in August 2011. Accordingly, the total length of the relationship was approximately seven years. The appellant mother had sole custody of a child from a previous relationship. The biological father was not in the picture and the respondent treated the child as his own. He was ordered to pay child support. The appellant had been unemployed for several years after she suffered injuries in a motor vehicle accident. By trial, she was earning a minimal income ($12,000 annually). The trial judge found that the appellant was entitled to non-compensatory support based on the financial interdependence that arose during the parties' relationship. She ordered the respondent to pay the appellant monthly spousal support of $1,500 for a period of one year, at which time support would terminate. [195] On appeal in Shen, the Court agreed that the trial judge had erred in determining the amount and duration of spousal support. Among other things, the Court found the judge erred in finding that the appellant could achieve economic self-sufficiency within a

year and in calculating spousal support based on the length of the parties' marriage and not the total length of the relationship. The question then became one of the appropriate remedial order. Justice Garson, for the majority, framed the issue in the following terms: [85] Ms. Tong's counsel suggested at the hearing of this appeal that spousal support should, pursuant to s. 15.2 of the Divorce Act, be subject to review in two years given the uncertain nature of her ability to secure remunerative employment. It is tempting to resolve this case on the basis of such a review, but I have concluded that the appropriate disposition is to fix a term after which spousal support will terminate: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R.

920. At para. 39 of Leskun, Binnie J. admonished trial courts to resist resorting to such a review. He said, in part: a trial court should resist making temporary orders (or orders subject to "review") under s. 15.2 .. Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances [86] Both Bracklow at paras. 53 and 54, and Rayvals v. Rayvals, 2004 BCCA 630, indicate that indefinite awards may be unfair to a payor spouse despite the needs of a disabled partner: see also Rayvals v. Rayvals, 2008 BCSC 176 at para. 27, with which I agree. The SSAG commentary does list disability as a potential exception to the suggested duration of support, however, it also notes that many cases of illness or disability can be accommodated within the SSAG formulas: Spousal Support Advisory Guidelines (Ottawa: Dept. of Justice, 2008) at s. 12.4. In my view, based on the evidentiary record, this is an appropriate case to apply the SSAG and fix a termination date for spousal support. [196] The Court determined that it was appropriate to order monthly spousal support of $2,000 for a period of three years from the date of the judgment due to various factors, including: (1) the parties' relationship was of relatively short duration; (2) the appellant was employed, albeit earning a

modest income; (3) she received a reapportionment of family assets; and (4) she owned other non-family assets. The Court held that in these circumstances, the appellant's entitlement to non-compensatory spousal support should be of limited duration. In other words, the Court found that the circumstances were "not so exceptional that this Court needs to look outside the SSAG to determine the duration or quantum of support", and that the respondent "should not be required to pay indefinite support": at para. 87. [197] In her concurring judgment in Shen, Justice D.M. Smith agreed with the majority's disposition of the appeal but, in relation to spousal support, wished to add comments of her own. Justice D.M. Smith noted that "[w]hile compensatory support should continue until compensation for the economic disadvantages of marriage and its breakdown are achieved non-compensatory support is less straightforward": at para.

98. She cited Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 23, which clarified that it is wrong to suggest that if the entitlement to spousal support is based on need then the quantum of support must always equal the amount of the need. For example, as stated in Bracklow: 54 [a] spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future. [198] Justice D.M. Smith observed that initial orders for spousal support are typically for an indefinite period, with their duration addressed through variation or review applications. However, she concluded that an order for $2,000 in monthly spousal support for a fixed term of three years was appropriate in this case. In reaching this conclusion, she pointed to the length of the parties' relationship, the various forms of financial assistance that the respondent had provided to the appellant since their separation, and the unlikelihood that the appellant's circumstances would change in any material way. b) Discussion [199] As illustrated in Shen, the issue of the quantum of spousal support (which includes both amount and duration) can be more complicated in cases where the entitlement to support is based only on non-compensatory grounds.

Entitlement to compensatory support must continue until the recipient spouse has been compensated for the economic disadvantages due to the marriage and its breakdown. However, as Bracklow makes clear, need-based spousal support does not necessarily continue until there is no need. [200] In the present case, the trial judge did not consider the circumstances relevant to the question of the quantum of spousal support in declining to order a termination or review date. The circumstances included: (1) the parties' relationship was relatively short; (2) K.A. received a disproportionate share of the proceeds of the Family Home due to the recognition of her claim for an exclusion (approximately $127,000); (3) the parties shared custody of the Child; and (4) K.A. appeared to have strong employment prospects and no medical condition (at least not one supported by medical evidence) that left her permanently disabled from working. [201] We acknowledge that there was uncertainty about the timing of K.A.'s return to work. That uncertainty might justify deferring the question of duration to a review hearing at some future date. However, in our view the uncertainty did not warrant an order requiring J.A. to pay indefinite spousal support to K.A., subject only to a variation application if he could demonstrate a material change in circumstances. The effect of the trial judge's order was to shift to J.A. the burden of proof that K.A. had no continuing need. The only reason given by the judge for declining to order a review term is that it would constitute "an invitation to continue this bitter and destructive litigation": Supplementary RFJ at para.

18. This reason might explain setting a termination date rather than allowing for future review. However, it does not warrant an order for indefinite support in circumstances where such an order is not justified by the principles underpinning an award of non-compensatory support. [202] We also acknowledge the comments of Justice Binnie in Leskun v. Leskun, 2006 SCC 25 at para. 39, encouraging courts to avoid, as much as possible, making temporary spousal support orders that are subject to future review. However, in the circumstances of the present case, the principled choice is between setting a termination date for spousal support or to permit a future review. This Court is not well positioned to set a termination date given the state of the evidence about K.A. and her health issues. Furthermore, as we are ordering a new trial of other issues, a term permitting the review of spousal support is of less practical concern in terms of the finality of the proceeding. [203] For these reasons, we conclude that the trial order should be amended to provide that either party may request a review of spousal support, in relation to both entitlement and quantum, after July 1, 2026. That timing should permit the parties to have any review heard at the same time as the other issues we are remitting to the trial court, assuming they consider this to be expeditious. C. Issue 3: Did the trial judge err in ordering J.A. to pay child support for T.J.?

1. The determination of this issue at trial [204] We have already summarized the circumstances of the adjudication of this issue. K.A. did not serve her application material by October 1, 2024, as required by the terms of the trial order. Instead, she served J.A. with unfiled material a few days before the hearing, and he only received filed material on the day of the hearing. J.A. objected to the late delivery of material, maintaining that he was prejudiced in being able to respond to and test K.A.'s evidence. J.A. also objected that much of the evidence provided by K.A. was inadmissible hearsay. [205] It appears from K.A.'s affidavit evidence that no order has ever been made, even by consent, to set the support obligations of T.J.'s biological father (who we will refer to as "M."). K.A. deposed that she and M. "have collaborated constructively to support T.J.". She reported that M. lived in Ontario, and that he and T.J. had a close relationship. K.A. reported receiving sporadic financial contributions from M. prior to 2021, including by way of contributions to T.J.'s Registered Education Savings Plan. However, between 2021 and 2024, M. paid her a total of approximately $60,000 through lump sum payments. K.A. did not provide documents to evidence any child support payments she received from M. [206] In relation to M.'s income, K.A. provided copies of his notices of assessment

for the years 2021, 2022, and 2023, which reported an income of $84,210, $77,573, and $36,556, respectively. She also provided a screen shot of a letter sent to M. in July 2024, indicating that his application for monthly Canada Pension Plan benefits was approved. Otherwise, the evidence about M.'s income consisted entirely of K.A.'s evidence, without supporting documents. K.A. stated that M. had heart surgery in May 2023 that affected his work capacity thereafter. K.A. deposed: 13) His 2023 total income came from two different sources. Employment income of $36,556 and disability income for which I was not able to gather paper copy, but [M.] reported it was $891.80/week.

14) In late January 2024, he returned to work after heart surgery but struggled to meet the demands of his role as a tool and die maker. The physical nature of the job, along with his recovery, made it challenging for him to perform at his previous level. His endurance was impacted, and the intricate tasks were physically taxing. Additionally, the emotional strain of his recovery, coupled with T.J.'s and my vulnerable situation, further hindered his ability to manage work demands.

15) He retired as a tool and die maker in July 2024, resulting in a significant decrease in income. His total income was $32,992 in 2024 prior to retirement. As of July 2024, his monthly Canada Pension Plan benefit is $1,205, and he expects to receive approximately $677 monthly from Old Age Security. [207] K.A.'s affidavit evidence did not describe the source of the employment and income information that is set out in these paragraphs, other than indicating M. reported to her that he received disability income, in addition to employment income, in 2023. She does not explain why M. could not provide direct information about his income despite their apparently cooperative relationship. [208] In a section of her affidavit headed "Impact of M.'s Retirement", K.A. described that M. faced "existential challenges" due to his declining health and his economic circumstances. She stated that he is no longer competitive in his field due to advances in technology. Once again, K.A.'s affidavit does not state the source of this information. K.A.'s affidavit appends two pages of bank records that are said to illustrate M.'s mortgage obligations. K.A. offers the opinion that M. will be unable to fulfill the obligation of paying child support "without incurring significant hardship". [209] The trial judge accepted K.A.'s evidence without addressing J.A.'s objection that much of it was

inadmissible hearsay. Significantly, she accepted K.A.'s evidence that M. retired in July 2024, and that his income reduced at that point to approximately $22,500 per year. The trial judge concluded that in these circumstances, it was appropriate to order J.A. to pay monthly child support for T.J. in the amount of $500, commencing in July 2024. Additionally, she ordered that the parties share any special and extraordinary expenses incurred for T.J., with 60% of the expenses allocated to J.A. and 40% to K.A.

2. Discussion [210] There is no disagreement between the parties as to the applicable law. J.A. acknowledges that he is T.J.'s stepparent and, accordingly, that he may be ordered to pay child support. Section 5 of the Child Support Guidelines provides: 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. [Emphasis added.] [211] Section 5 provides the trial court with discretion to determine what child support order is "appropriate, having regard to these Guidelines and any other parent's legal duty to support the child". This may be contrasted with the presumptive rule in s. 3 of the Child Support Guidelines that the support obligation of a biological parent is to be determined in accordance with the table amounts. [212] This Court has held that s. 5 of the Child Support Guidelines requires that where child support is sought from a stepparent, the legal duty of the biological parent must be determined first in accordance with s. 3: H.(U.V.). v. H.(M.W.)., 2008 BCCA 177 at paras. 38-40. Once the duty of the other parent is determined, the court can then establish the stepparent's obligations by examining that duty and the Child Support Guidelines: H(U.V.). at para.

40. If the biological parent is 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 parent: H(.U.V.). at para.

41. Both the stepparent and the biological parent, or at least the evidence relating to their circumstances, should be before the court: Sullivan v. Struck, 2018 BCCA 256 at para. 30. [213] The present case is unusual as T.J. is now 16 years old, and M. has never paid regular monthly child support to K.A., either pursuant to an agreement or a court order, despite his apparent ability to do so. This is not because K.A. was unable to enforce M.'s legal obligation to pay child support, such as occurred in Shen where the biological spouse moved to a jurisdiction where a support order could not be enforced. M. has apparently always been involved in T.J.'s life and been available as a support to both T.J. and K.A. Rather, K.A. chose not to ask for support, beyond the voluntary payments M. made on occasion, and she now says that M.'s circumstances now are such that he is unable to contribute. [214] The central issue on this appeal is whether the trial judge erred in accepting K.A.'s evidence regarding M.'s current circumstances, either because it was inadmissible hearsay or because its late service caused prejudice to J.A. We consider it unnecessary to address J.A.'s argument that the trial judge should not have permitted K.A. to file her material three weeks past the deadline provided by the judge's own order. In our view, the trial judge erred in law in admitting K.A.'s evidence

despite its hearsay nature when the conditions for the receipt of hearsay evidence were not established on the record. Specifically, there was no explanation of why it was necessary for the evidence to come from K.A. instead of directly from M., and the evidence was unreliable in the absence of any explanation by K.A. of the source of her knowledge of M.'s income. [215] The critical fact found by the trial judge was that M.'s annual income had reduced to approximately $22,500 by July 2024. There was no reliable and admissible evidence to support this finding. It may be inferred that K.A. was told this information by M.--indeed at times K.A. references income information "reported" to her by M.--although her affidavit is not clear on this point. It is also not clear why M. could not have provided the evidence himself, including the financial records to demonstrate his income. [216] Although we do not need to address it as an independent ground of appeal, the late delivery of K.A.'s material compounded the issues with her evidence because J.A. was deprived of any opportunity to cross-examine her on it. As a result, there was no sound evidentiary basis for the trial judge to determine M.'s child support obligation, which was a necessary first step to determining J.A.'s obligation, if any. [217] For these reasons, we would set aside the trial judge's order requiring J.A. to pay

child support and s. 7 expenses for T.J. and remit this issue to the trial court for redetermination. As this is an issue of child support, we do not consider it appropriate to simply dismiss K.A.'s claim due to the evidentiary deficiencies we have identified. Rather, K.A. should have a further opportunity to adduce sufficient evidence to permit a proper determination of M.'s support obligation, and J.A. should have the opportunity to test the evidence. We will make an interim order that J.A. continue to pay $500 per month towards child support for T.J., and 60% of s. 7 expenses, pending the new trial to account for the possibility that J.A.'s responsibility to pay support for T.J. at that level may be affirmed (or even increased) following a new trial of the issue. Each of the parties may seek reimbursement from the other if the ultimate support order is either higher or lower than this interim order. [218] There is also the issue that J.A. has raised about the trial judge's failure to recalculate spousal support after determining his monthly obligation to pay child support to T.J. The trial judge commented that the extra monthly $500 support payment did not affect spousal support. J.A. maintains that this is incorrect. Given that we have ordered there may be a review of spousal support, which could potentially occur at the same time as the re-trial of other issues, J.A. can

raise this issue in the trial court in the event that his obligation to pay child support for T.J. is confirmed. D. Issue 4: Did the trial judge err in ordering J.A. pay K.A. €7,700 for the missing Euros? [219] The trial evidence regarding the €7,700 is not straightforward. K.A.'s evidence is that, prior to the parties' separation, she placed €7,700 in an orange trash can in the Family Home for safe keeping, and the funds ultimately went missing. After the Protection Order was issued, K.A. was allowed a brief opportunity to collect her and T.J.'s personal effects from the Family Home. After that, J.A. placed their possessions in a storage facility. [220] Each party accuses the other of misconduct in dealing with K.A.'s possessions in the Family Home. J.A. maintains that K.A. did not respond to his numerous requests for her to collect her belongings and caused him to incur financial expense in maintaining a storage locker for a prolonged period of time. K.A. accuses J.A. of simply dumping her belongings on the front lawn of the house before taking them to storage and failing to make efforts to look for the Euros despite her request that he do so. [221] There is evidence in the record that K.A.'s then-counsel made requests through J.A.'s counsel in September 2021 that J.A. look for an orange trash can containing a large amount of Euros. J.A.'s counsel responded that all of K.A.'s

belongings were in the storage unit, and she should retrieve them. [222] Given the factual record, we see no basis for appellate interference with the trial judge's conclusion that J.A. should compensate K.A. for the missing Euros. Our view should not be taken to endorse the trial judge's observation that J.A. showed a "callous disregard" for K.A.'s possessions. However, there was sufficient evidence for her to conclude that J.A. had knowledge of the location of the Euros, and in light of that knowledge, and his possession of K.A.'s belongings, it was reasonable to impose the responsibility on him for their loss. Therefore, we would not accede to this ground of appeal. VIII. The Cross-Appeal [223] K.A.'s cross-appeal is limited to the trial judge's order that each party bear their own costs, despite her finding that K.A. was the substantially successful party. J.A. maintains that K.A. requires leave to cross-appeal in these circumstances. [224] We do not need to resolve the question of whether K.A. required leave to appeal the costs order, given that the remedies we are granting to J.A. on appeal fundamentally undermine the basis for her cross-appeal in any event. We would dismiss the cross-appeal even if K.A. did not require leave. IX. Disposition [225] We allow the appeal to the following extent: a) Terms 9, 10, and 11 of the July 4, 2024 order are set aside, and the issue of

the allocation of parenting responsibilities is remitted for a new trial; b) Pending a new trial, the exercise of parenting responsibilities will be as set out in Schedule A to this judgment; c) The terms in Schedule A only apply until such time as they are varied by order of the Supreme Court; d) Term 5 of the July 4, 2024 order is varied to remove the provision that K.A. "will have primary residence of [the Child]"; e) The Terms of the July 4, 2024 order regarding spousal support are varied to provide that either party may request a review of spousal support, with respect to both entitlement and quantum, after July 1, 2026; f) Terms 1(a) to (c) of the November 18, 2024 order are set aside, and the issue of J.A.'s responsibility for child support for T.J. is remitted for a new trial; g) On an interim basis, and until these terms are confirmed or varied by the Supreme Court, J.A. will continue to pay $500 per month in child support for T.J., and 60% of his s. 7 expenses, subject to the ability of either party to claim reimbursement from the other if J.A.'s responsibility for child support ultimately increases or decreases. [226] The cross-appeal is dismissed. "The Honourable Mr. Justice Harris" "The Honourable Justice Horsman" "The Honourable Justice MacNaughton" X. SCHEDULE A Interim allocation of parenting responsibilities The following terms shall govern the allocation of parental responsibilities only until such time as the terms are amended by order of the Supreme Court of British Columbia: 1. Pursuant to ss. 40 and 41 of the FLA, all of the enumerated parental responsibilities in s. 41 are allocated to each party.

2. The parties will exercise their parental responsibilities as follows: a. During their parenting time, each party will make day to day decisions affecting the Child and exercise control and supervision of the Child; b. Each party must advise the other of any significant matters affecting the Child that arise during their parenting time; c. Neither party may change the Child's school without the consent of the other or a court order; d. Each party has the obligation to consult with the other party about any significant decisions concerning the Child, including decisions related to their health, education, extracurricular activities, general welfare and other matters, and the obligation to try to reach agreement on those decisions; e. In the event the parties cannot agree on a significant decision despite meaningful consultation and their best efforts: i. J.A. will make final decisions regarding the Child's health, including counselling services, and K.A. may apply to the Court for directions if she considers J.A.'s decision to be contrary to the Child's best interests; ii. J.A. will make the final decision regarding extracurricular activity that falls within his parenting time and K.A. will make the final decision regarding extracurricular activity that falls within her parenting time; and iii. With respect to any other significant decision, either party may apply to the

Supreme Court in the event that agreement cannot be reached. f. Each party has the right to obtain information concerning the Child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers; and g. In the event of the death of either party, the surviving party will be the only party with decision making responsibility for the Child.