L.L.L. v. S.T.

2024 BCSC 136 L.L.L. v. S.T.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.L.L. v. S.T., 2024 BCSC 136 Date: 20240130 Docket: E082462 Registry: Vancouver Between: L.L.L. Claimant And S.T. Respondent Before: The Honourable Justice Veenstra Reasons for Judgment Counsel for the Claimant: J.F. Brown Counsel for the Respondent: R.L. Taylor S.T. Dinsley (February 10, 2023 only) Place and Dates of Trial: Vancouver, B.C. January 23-27, 30-31, February 1-3, 6-10, March 27-31, April 3-6, May 8-12, 16, 23, June 8-9, 19, 28-30 and July 4, 2023 Place and Date of Judgment: Vancouver, B.C. January 30, 2024 Table of Contents Introduction. 4 Facts. 5 Parties' Background and Initial Relationship. 5 Commencement of Litigation and Parenting to 2015. 15 The Initial Interim Orders and Events in Kelowna. 26 The Move to Vancouver 36 Mother's Day 2017 and the Aftermath. 47 October 2017 to March 2018. 74 The Section 211 Report 80 April 2018 to July 2019. 84 August 2019. 106 The September 2019 Trial and The Hague Convention Proceedings. 125 Events Since the Respondent's Return. 134 The Trial 169 Reliability and Credibility. 182 Issues. 190 Issue #1: Parenting of M.T. 190 Positions of the Parties. 190 Claimant 190 Respondent 197 Claimant's Reply. 200 Legal Context 201 Best Interests of the Child. 201 Family Violence. 202 Alienation. 204 Supervision. 206 Guardianship. 207 Parental Responsibilities. 208 Analysis. 208 M.T.'s

health and emotional well-being. 215 M.T.'s views, unless it would be inappropriate to consider them.. 218 The nature and strength of the relationships between M.T. and significant persons in M.T.'s life. 218 The history of M.T.'s care. 218 M.T.'s need for stability, given her age and stage of development 218 The ability of each of the parties to exercise their responsibilities. 219 The impact of any family violence on M.T.'s safety, security or well-being. 220 The appropriateness of an arrangement that would require the parties to cooperate on issues affecting the child. 220 Any civil or criminal proceeding relevant to the child's safety, security or well-being. 220 Conclusions on Parenting. 221 Child Support 222 Fine. 224 Issue #2: Setting Aside the Basran Order. 224 Legal Context 224 Positions of the Parties. 227 Respondent 227 Claimant 228 Analysis. 230 Costs. 234 Conclusion. 234 Introduction [1] The parties are the parents of two children: a son, L.T., who is now 18 years old, and a daughter, M.T., who recently turned 12. [2] The respondent alleges that the parties lived in a marriage-like relationship from 2004 to 2007. The claimant says that their relationship was on-again, off-again, and was not "marriage-like" for purposes of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] (which was the applicable law at the time). [3] This is the second trial of this

proceeding. The respondent did not attend the first trial in September 2019. At the time, she was in Greece with M.T. contrary to two orders of this court. Justice Basran dismissed the respondent's claims for spousal support and for interests in the claimant's property on the basis of the law of constructive trust. He adjourned generally those issues dealing with parenting arrangements and child support. [4] The respondent returned to Canada with M.T. in August 2021, and a trial was scheduled to deal with those parenting issues. As such, the primary issue for determination is where M.T. should be primarily resident, the extent to which the other party should have parenting time, and whether that parenting time should be supervised. Those issues are governed by the Family Law Act, S.B.C. 2011, c. 25 [FLA], and in particular the best interests of the child pursuant to s. 37 of the FLA, with appropriate consideration to any allegations of family violence pursuant to s. 38 of the FLA. An order for payment of child support will follow from my determination of those issues. [5] The parties agree that, given L.T.'s age and maturity, no parenting orders are necessary with respect to him. [6] On September 23, 2022, the respondent filed a notice of application seeking an order pursuant to Rules 21-6(3) and 14-7(77) of the Supreme Court Family Rules setting aside the order of Justice

Basran made on September 4, 2019 dismissing the respondent's financial claims. On September 28, 2022, an order was made by consent by Justice Douglas, directing that the respondent's application filed September 23, 2022, be adjourned to the trial. [7] Thus, the second major issue for determination at this trial is whether the order of Justice Basran should be set aside. That involves consideration of whether: · The respondent's failure to appear at the September 2019 trial was "wilful or deliberate"; · The application to set aside the order was made "as soon as reasonably possible"; · The claims that Justice Basran dismissed (for spousal support and for an interest in the claimant's property) are "worthy of investigation"; and · In light of all of the circumstances, it is in the interests of justice to set aside the order. Facts [8] There is significant overlap with respect to the facts that underlie these two issues. As well, the evidence presented at trial was extensive and, at times, was presented in a manner that seemed anything but chronological. I have found it necessary, not only with respect to the substantive issues but also with respect to questions of reliability and credibility, to analyze the evidence in a chronological manner. I will thus go through the evidence chronologically before delving into the issues. Parties' Background and Initial Relationship [9] Both

of the parties to this matter are of Greek heritage, although both were born in Canada. [10] The claimant lived in the Lower Mainland. He owned a restaurant in Vancouver from about 1990 until about 2007 or 2008. In addition, his parents owned a restaurant in Abbotsford, in which the claimant and his siblings played various management roles. In about 1999, the claimant purchased a house in the Point Grey area of Vancouver (the "Point Grey House"), which he owned for just over 20 years. [11] The respondent grew up in northern B.C. In about 1999, she opened a restaurant in Prince George along with her mother. She ran the front of house operations. Prior to opening the restaurant, she had travelled in Europe for an extended time. [12] The parties met in the late summer of 2004, when the claimant was 36 and the respondent was 29. The respondent missed a connecting flight on her return from a trip to New York. She stayed with a family friend, who invited her to a get-together at the claimant's house. They began dating very shortly thereafter. The respondent travelled back from Prince George to Vancouver in mid-October, and again for a week around Halloween. [13] The respondent has pleaded that she and the claimant were in a marriage-like relationship from December 24, 2004 to August 23, 2007. With respect to that pleading, she gave evidence that she came back to visit the claimant at

his home shortly before Christmas 2004, at which time he asked her to move in with him, which she agreed to do. The respondent says that the claimant told her he wanted a serious relationship, he would be interested in having a child, he did not want her working, and eventually he would want her to "sign an agreement". [14] The claimant, on the other hand, gave evidence that the respondent came to visit him around Christmas in 2004, and spent some time at his house. He said that the relationship at this time was okay, but not as good as earlier on, and that he was not sure if he wanted the relationship to continue. His evidence was that the claimant returned to Prince George in early January. [15] The respondent said they had an argument in early January, because she wanted to return to Prince George to attend her niece's birthday party, while the claimant did not want her running off to see her family all the time. She did acknowledge in her evidence that she took what she saw as a "small break" in the relationship. [16] The respondent gave evidence as to her concerns about her relationship with the claimant. She described him as aggressive and violent at times; said that he was very possessive and did not like her talking to her family, and that he was addicted to drugs, including cannabis, hashish and cocaine. She said that she would leave because of these concerns, but then

come back when the claimant said he would change. [17] The claimant acknowledged occasional recreational use of cannabis, but denied any use of hard drugs like cocaine or hashish. [18] At some point in February 2005, the respondent discovered that she was pregnant. She was in Prince George at the time - her evidence was that she was there to visit her parents. She said she told the claimant about a week after she found out. [19] In about late February, the claimant came to Prince George and proposed to the respondent at her parents' home. She said yes. They had a dinner to celebrate the engagement. However, within a short period of time, they decided not to proceed with wedding plans. The claimant purchased the ring from Costco on February 20, 2005 (his financial records show an expense of $14,310 that day) and it was returned to Costco on April 4, 2005. [20] The parties travelled together to Hawaii in about May 2005. The respondent said that the claimant was angry and volatile, and this was one of the worst vacations she had been on. The documents adduced include a WestJet invoice showing that the respondent took a one-way flight from Vancouver to Prince George on May 25, 2005. [21] Approximately 10 WestJet invoices with respect to flights taken by the respondent from 2005-2007 are in evidence. Three of them show the respondent's address as being the Point Grey House,

including the invoice for the May 25, 2005 flight. The remainder of them show the respondent's address as being her parents' home in Prince George. [22] The claimant's evidence was that in the times from 2005 onward, the respondent came from Prince George to Vancouver from time to time to visit him - usually combining such a trip with visits to her relatives on the Sunshine Coast. He said that at times there were months between her visits to his home. [23] The evidence includes an invoice from a dentist in the Point Grey area for dental work on June 3, 2005, which shows the respondent's address as the Point Grey House. The claimant says that the respondent was visiting and needed to see a dentist in a hurry because of a painful tooth issue. He says that he arranged for her to see his dentist. He says that she was not living with him at the time. The respondent, on the other hand, points to this as evidence that she was living with the claimant in June 2005. [24] The respondent called a witness, a Mr. Morgan, who did not know either party but testified that at some point in 2005, while he was doing construction work in the Point Grey area, he had seen two people in a car arguing, and that the man was yelling and pounding the steering wheel. He said the passenger got out of the vehicle and walked away, and he approached her to make sure she was okay. He gave her his contact

information. The passenger - who was the respondent - subsequently arranged for Mr. Morgan to provide a statement to her lawyer. [25] The respondent acknowledged that she was in Prince George for the two months prior to L.T.'s birth in September 2005. She explained that she wanted to have her mother's support for the final part of the pregnancy. [26] The claimant came to Prince George on few occasions during this two-month period. The documentary evidence includes invoices from WestJet and Air Canada showing flights to Prince George on August 19, 2005 and back to Vancouver on August 26, 2005, as well as two further flights to Prince George in September 2005. [27] L.T. was born at the hospital in Prince George in September 2005. The claimant was present when he was born. He said he was trying to get along better with the respondent. The claimant's credit card statements and various flight records indicated that he was flying to Prince George every few weeks, staying at a local hotel, and spending significant amounts at Costco - he said these were to buy baby supplies and groceries. [28] The respondent's evidence was that she came back to Vancouver in October. The evidence indicated that the claimant flew to Prince George on October 22, and incurred expenses there over the next five days, following which he rented a vehicle on October 30, 2005. It may well be that this reflects

an occasion on which the three of them drove to Vancouver. There is a further dental bill for the respondent having dental work done in Point Grey on November 22, 2005. [29] The claimant was not asked specifically about the respondent coming to Vancouver in the late fall of 2005. His evidence as to the respondent coming from time to time is set out above. I note that in a 2018 section 211 report, the author noted in her discussion of the parties' history (which was attributed to both the claimant and the respondent, and in which they were said to be "primarily aligned in terms of timing and major events") that when L.T. was one or two months old, the respondent and L.T. came to Vancouver and visited for a few weeks, but that at this time, the claimant and respondent were not getting along, so the respondent went back to Prince George. [30] The respondent's evidence was that, while in Vancouver, she and the claimant painted a room for the baby, but did not set up a bed there for him because she kept him in a basket in the master bedroom. Her evidence was that the claimant would "get stoned" and fall asleep watching TV, and told the respondent his only job was to pay for things. [31] The claimant's evidence was that after the late fall of 2005, the respondent came to Vancouver from time to time, sometimes staying only a few days, sometimes staying for a few weeks, and often

continuing on from Vancouver to visit her relatives on the Sunshine Coast. His evidence was that when they were getting along, the respondent would stay with him, and that sometimes they were intimate. On other occasions, she would stay in a hotel. [32] The respondent's evidence was that she and L.T. spent Christmas Day 2005, at the home of the claimant's parents. The evidence includes a WestJet invoice for a flight for the respondent and L.T. to Prince George on December 26, 2005. [33] The respondent's December 2005 income tax return showed that she filed it on the basis that her marital status was "Single". Her evidence was that the claimant told her that they were not doing their taxes together. Her line 150 income was $0. [34] The claimant has produced several deposit receipts from the Royal Bank of Canada ("RBC") for dates in 2006. His evidence was that he calculated the amount of child support he was to pay, with information from a government website, and would either give the respondent a cheque or make a cash deposit directly into her account at RBC. He said the respondent arranged for him to be able to do so at the RBC branch in Point Grey, notwithstanding that her account was in Prince George. The respondent's evidence was that he told her this was spending money for her, and only later took the position that it was actually child support. The first such deposit was

on January 13, 2006, and was in the amount of $450. [35] Another WestJet invoice shows a ticket for the respondent to fly from Vancouver to Prince George on March 12, 2006. The address for the respondent on this invoice is her parents' home in Prince George. [36] Other documents show the claimant flying to Prince George on March 26, 2006, making various expenditures including $1,130 at Costco, and returning to Vancouver on April 3, 2006. [37] A second RBC deposit slip shows a deposit of $800 on April 19, 2006. [38] A further WestJet invoice shows the respondent and L.T. flying from Prince George to Vancouver on May 5, 2006. The documents indicate that the respondent saw dentists in Vancouver on May 17 and 26, 2006 - a statement with respect to that work shows her address as the Point Grey House. A further WestJet invoice shows the respondent and L.T. flying to Prince George on June 10, 2006. Both the May and June WestJet invoices from 2006 show the respondent's address as being in Prince George. [39] Further RBC receipts show the claimant depositing $260 on June 22, 2006, and then on June 28, 2006, depositing a further $140 and paying $300 toward a Visa card. [40] WestJet invoices from the summer of 2006 show the respondent and L.T. flying from Prince George to Vancouver on July 1, 2006, and flying from Vancouver to Prince George on August 25, 2006. The July invoice shows the

respondent's address as Prince George, while the August invoice shows her address as Vancouver. [41] At some point, there was construction with respect to a fence around the back yard of the Point Grey House. The claimant's evidence was that he replaced an existing fence that was old, rotting and falling apart. The respondent's evidence was that the claimant had seen her talking to a neighbour, became very angry, and the next thing she knew a big fence was being built. She saw it as a way to prevent either her or L.T. from having any interaction with the neighbours. [42] The respondent gave evidence that the claimant told her not to speak to the neighbours. The claimant said the only conversation they had about the neighbours was when he told the respondent about having seen the police come and break down the front door of one neighbour's home with a battering ram - he thought based on what he had seen that they should be careful in their interactions with that neighbour. [43] There is an RBC deposit receipt for $400 on September 23, 2006. [44] WestJet invoices indicate that the claimant flew from Vancouver to Prince George on September 25, 2006, and from Prince George to Vancouver on September 29, 2006. [45] There is an RBC deposit receipt for $300 on October 20, 2006. [46] WestJet invoices indicate that the claimant flew from Vancouver to Prince George on November 3, and from

Prince George to Vancouver on November 5, 2006. [47] There are RBC deposit receipts for $800 on November 25, 2006, and for $400 on December 16, 2006. [48] On December 18, 2006, the claimant spent $13,390.50 at Tiffany & Co. There were further monthly payments to Tiffany & Co. of just over $2,200 for the first half of 2007. [49] On December 20, 2006, the claimant flew to Prince George. It appears to be common ground that the claimant proposed marriage for a second time, with a ring purchased from Tiffany & Co. Once again, the respondent accepted the proposal. [50] The respondent's evidence is that at the time of this second proposal, she and the claimant "were still together", but that she had gone to Prince George to spend Christmas with her family. There was a dinner with her family to celebrate the engagement. [51] The claimant flew back to Vancouver on January 2, 2007. [52] The parties agree that the second engagement was also broken off. The claimant's evidence was that once that happened, he asked for the ring to be returned, but the respondent refused. The respondent's evidence was that he told her to keep the ring and the Volvo and said that was their "settlement". [53] There were further RBC deposit receipts showing the deposit of $300 on January 10, 2007 and $200 on January 26, 2007. [54] On January 12, 2007, a retail replacement valuation was obtained from Tiffany's,

showing the value of the ring as $23,700. [55] The respondent's 2006 income tax return again showed her marital status as single. Her only income for the year was a child care benefit of $600. Her evidence was that she was not single; rather, she said that the claimant refused to do their taxes together, and that she had no choice but to file her return showing that she was a single person. [56] There is a WestJet invoice showing a flight for the respondent and L.T. from Vancouver to Prince George on March 15, 2007. The invoice shows the respondent's address as Prince George. [57] There are also WestJet invoices for the claimant to fly from Vancouver to Prince George on March 26, and from Prince George to Vancouver on March 27, 2007. There is a further WestJet flight invoice for a flight for the claimant from Prince George to Vancouver on April 16, 2007. [58] As can be seen, there are not always matching flight itineraries in the documents for either party to be travelling in each direction between Prince George and Vancouver. [59] On April 29, 2007, there is a further deposit to RBC for $700. [60] The claimant travelled to Greece from May 15-21, 2007. It was common ground that the respondent was not part of that trip. [61] It appears that the claimant was in Prince George on June 1-2, 2007, as he incurred various expenses there including car rental. There do not appear to be

corresponding airfare expenses in the materials before the court. [62] On June 4, 2007, there is a further deposit to RBC for $800. [63] The respondent and L.T. flew from Prince George to Vancouver on June 17. The WestJet invoice shows the respondent's address as Vancouver. They flew from Vancouver to Prince George on July 8, 2007. The WestJet invoice for the latter flight shows the respondent's address as Prince George. [64] On July 12, 2007, there is a further RBC deposit for $800. [65] A WestJet invoice indicates that the respondent and L.T. flew from Prince George to Vancouver on July 26, 2007. The respondent's address on the invoice is Prince George. The claimant's credit card shows various hotel expenses on Vancouver Island in the first half of August 2007. A WestJet invoice indicates that the respondent and L.T. flew from Vancouver to Prince George on August 23, 2007. [66] The respondent has pleaded that the marriage-like relationship ended on August 23, 2007. Her evidence was that she was living with the claimant in Vancouver, with only occasional visits to Prince George, until that date, and that after August 23, 2007, she lived at her parents' home until 2015. [67] The respondent acknowledged that, from December 2004 to August 2007, she did not make any mortgage payments or pay for any renovations to the property. She could not recall if she ever paid for utilities.

She recalled being part of the decision to get a California closet system for a closet. She paid for a few groceries. The claimant paid for her flights, for dental work, and for vacation travel. [68] The respondent's evidence at trial was that it was when L.T. was about three years old that she decided to leave the claimant. [I note that at the date of separation stated in the Counterclaim, L.T. had not yet reached the age of two.] The respondent said that she had concluded that she just did not love the claimant any more, that she did not believe she could love someone that caused her that much pain and so much trauma, and that she had concluded that she was just a possession to him. She said that her mother had come to visit them, and told the respondent that based on her observations, it was time to pack up her things and walk away from the relationship. [69] The claimant, on the other hand, said that he was not really clear when the relationship was over, because it had been on and off. His evidence was that he and the respondent would not see each other for a long time, then get together and get along really well for one or two days, and then start fighting again. His evidence was that it never seemed to be a true relationship; that he tried to get along with her for the sake of L.T.; but that it simply did not work out. [70] The respondent's 2007 income tax return again

shows her marital status as single. The only income is the child care benefit plus a small amount of interest income. [71] The claimant's evidence is that he sold his Vancouver restaurant in either 2007 or 2008, and thereafter worked as an employee for his parents' restaurant in Abbotsford. His evidence was that, throughout, he has been able to do a significant amount of his work online. [72] There are further WestJet invoices indicating that the claimant flew from Vancouver to Prince George and then back to Vancouver on January 19, 2008, and that he did the same on June 3, 2008. Commencement of Litigation and Parenting to 2015 [73] The present action was commenced on July 18, 2008, when the claimant filed a Writ of Summons and Statement of Claim seeking an order for a paternity test. In it, he alleged that the claimant had paid financial support to the respondent for L.T. since birth, but had concerns about paternity. [74] On August 21, 2008, the respondent retained counsel (Ms. Taylor, who has been counsel on and off since 2008 and was counsel at the present trial), who filed on her behalf a Statement of Defence and Counterclaim. In them, the respondent alleged that the parties were spouses as defined by the FRA, having commenced cohabitation on December 24, 2004 and ceased cohabitation on August 23, 2007. She asserted that there was an agreement between the parties, whereby

the claimant agreed to pay child support of $800 per month, but that the claimant had unilaterally lowered that amount to $700 per month after separation. She also sought spousal support pursuant to the FRA, and asserted an interest in the Point Grey House on the basis of resulting trust, a constructive trust and/or quantum meruit, claiming that in the circumstances, contributions to the family, child care and homemaking services within the relationship warranted a share of the family assets in her favour. She filed a certificate of pending litigation ("CPL") against title to the Point Grey House. [75] On October 29, 2008, the claimant filed a Statement of Defence to Counterclaim, denying that the parties had ever cohabited or engaged in a marriage-like relationship, and that as a result the court had no jurisdiction to order spousal support pursuant to the FRA. He also denied any circumstances that would give rise to an interest in any of his assets. [76] The WestJet invoices in the evidence indicate that the claimant made a further day trip to Prince George on October 6, 2008, and then returned again on November 14-15, 2008. [77] The parties and their counsel attended a judicial case conference before Justice Warren on December 11, 2008. No order was made at the judicial case conference. Thereafter, no steps were taken in this litigation until 2014. The parties had a

paternity test done privately that confirmed that L.T. was the claimant's son. [78] There were further RBC deposit slips in evidence reflecting: · A deposit of $1,400 on January 23, 2009; · A further deposit of $1,400 on another date in 2009 (unfortunately, the month and day are no longer legible); · A deposit of $580 on February 11, 2009; and · A deposit of $700 on March 23, 2009. [79] There are not a lot of documents in the record confirming events from 2009 to 2012. The parties gave evidence of occasional visits in either Vancouver of Prince George during that time, but with few specifics as to date. It appears that there was a flurry of document collection activity after litigation was commenced in 2008 - most of the WestJet invoices and dentist bills have notes indicating that they were printed in the fall of 2008. It may be that document collection efforts were less of a focus for the parties after the litigation appeared not to be moving forward. [80] The claimant acknowledged that at some point in 2009 he hired a private investigator. He said this was because he was uncertain whether the respondent was still living in Prince George. The investigator obtained information on someone other than the respondent. The respondent did not learn of this until several years later when she, without consent, obtained access to the claimant's email account and reviewed a number of

his old emails. [81] L.T. gave evidence that he recalled visiting the claimant's home in Vancouver, when he was about 4 years old (so likely in 2009 or 2010), and recalls that he told his father a joke. [82] Both parties gave evidence about an incident which occurred on the night of June 23-24, 2010. The respondent gave evidence that she had come to Vancouver for the summer with L.T. (who would have been nearing his fifth birthday), and they were staying in a condo unit in downtown Vancouver. The fire alarm went off in their building during the night, and they could not get back in. The claimant offered to let them stay at his place. The respondent and L.T. stayed in the claimant's room, while he slept on the couch on the main floor. For some reason, L.T. went downstairs during the middle of the night and tried to wake up the claimant. The respondent's evidence was that the next she heard was a big thump followed by L.T. screaming, having been thrown across the room. The claimant's evidence was that he had just had bicep surgery, and was asleep on the couch having taken prescribed medication as part of his recovery. During the night, he recalled having felt pressure on his body and shaken his arm, and when he woke up L.T. was on the floor upset. [83] The respondent took L.T. to a doctor the next day in order to document the incident. The doctor's clinical notes record the

history as related to him by the respondent that "she was in another room when she heard a cry and found her son on floor crying". In cross-examination at trial, the respondent insisted that she was present and saw what happened. [84] L.T. began kindergarten at a Catholic school in Prince George in September 2010. The claimant paid any required private school fees. The first report card was issued November 23, 2010. The claimant's evidence was that the respondent refused to share report cards with him, and that he had to go to the school to request copies. When he did receive the initial report card, he was concerned that L.T. was described as "approaching expectations" (rather than meeting or exceeding expectations) in some categories, and that he had 15 absences and three late days recorded in the first two-and-a-half months of school. His evidence was that the respondent told him that L.T. was either sick, or had a headache, or did not want to go to school. [85] Absent and late days at school were an issue between the claimant and respondent throughout the time the children were living with the respondent. The respondent asserted that L.T. was often late in arriving at school because of disturbed sleep due to enlarged adenoids or sleep apnea. She says that the schools were aware of this, and that they were provided with doctors notes to explain this. However, the schools

continued to record absences and late days, and to raise concerns about them in L.T.'s report cards. The respondent has never produced any of the doctors' notes she claimed to have had. [86] The respondent and L.T. came to Vancouver for Christmas 2010. The respondent testified that the claimant booked them a hotel room for the trip. The claimant, respondent and L.T. also went to Whistler for New Year's Eve. The parties' evidence as to what happened that evening was starkly different. It is common ground that they had discussed having separate hotel rooms, but that the three of them ended up staying in a one-bedroom suite at a hotel, with a large bed and a pull-out couch. The claimant's evidence is that this was all that was available. It appears to be common ground that the parties had a nice dinner and walked around the village for a while, stopped at the kids' area for L.T. to play, then returned to the hotel. The claimant's evidence is that, after L.T. had gone to sleep, he and the respondent had consensual sex. The respondent's evidence is that she did not consent, but rather woke up from a deep sleep to find the claimant on top of her. [87] The respondent discovered in February 2011 that she was pregnant. She did not advise the respondent until about August 2011. [88] The February 2011 report card for L.T. showed a total of 30 absences for the school year to date, plus

seven late days. The narrative portion of the report described L.T. as a happy and relaxed child who "especially enjoys the social aspects of kindergarten". It continued to say that "[a]s discussed, due to the many days that he has missed, he is experiencing some difficulty. I will continue to encourage him to complete the written work in the time allocated. Thank you for the help you are providing at home." [89] The respondent, in her evidence at trial, disagreed that L.T.'s report cards reflected concerns about his attendance. Her evidence was that the schools all knew that he had medical reasons for non-attendance, but despite that, he did really well in school. [90] M.T. was born in the fall of 2011. At some point after her birth, the claimant travelled to Prince George to see her. The claimant's evidence was that this occurred about three weeks after her birth, and that he was "not well-received but received". The respondent's evidence at one point was that the claimant actually arrived when M.T. was four days old, and that he only saw her briefly then left the next day. At another point, she gave evidence that the respondent came the day after M.T. was born, and did not see her then, and in fact the claimant did not meet M.T. until she was seven or eight months old. [91] It is common ground that the respondent has consistently been reluctant to permit the claimant to

spend time with M.T. [92] L.T. began Grade 1 in September 2011. His November 2011 report card reflects 14 absences and 11 late days in the first three months of the year. He is described as "approaching expectations" in numerous categories. The narrative comments include notes that L.T. is "progressing slowly this term with assistance and needs to keep working hard", and that "[d]ue to L.T.'s absence for many days this term he has had difficulty catching up". [93] M.T. received a standard set of infant immunizations at the end of November 2011. The respondent's evidence was that she had a bad reaction to the immunizations, including a high fever and high-pitched crying. Her evidence was that she took M.T. to the emergency department, and that the doctor there told her that it would be up to the respondent whether she wanted M.T. to have further vaccinations. It appears from her evidence that the respondent believes that this initial vaccination may also be connected to M.T.'s autism. [94] The respondent gave evidence that she chose not to have either of her children vaccinated again in future years. She gave evidence that M.T. was very healthy despite the lack of vaccinations. However, on cross-examination, she acknowledged that she had denied the claimant parenting time with M.T. on many occasions on the basis that M.T. was ill. [95] A second term report card for L.T.'s Grade

1 year was dated March 5, 2012. It indicated that in January and February 2012, L.T. was absent five times and late 11 times. The teacher commented that L.T. had "improved this term and is realizing he can work very hard when he sets his mind to it". [96] The claimant gave evidence that he had a private paternity test done with respect to M.T. when she was one or two years old, which confirmed that she was his daughter. He did not recall whether he told the respondent he was doing this, and she says that he did not advise her of it. [97] As noted above, there is a dearth of documentary records from 2009-2012. The record at trial included most of the claimant's credit card and bank statements beginning in about mid-December 2012, and series of text messages between the parties from most months from April 2013 onward. [98] There were also a number of medical records in evidence. Among the earliest of these was a consultation letter by a paediatrician, Dr. Chaudhry, who saw M.T. in February 2013 regarding an assessment of respiratory difficulties. The respondent's evidence was that she had taken M.T. to Dr. Chaudhry because of concerns about developmental delays; however, none of the medical records in evidence reflect such a visit. [99] The record did not contain any report cards for L.T. for the final term of Grade 1 and the first term of Grade 2. It is not clear why. The second

term report card for Grade 2 (March 15, 2013) is missing the first page (which would normally show absences). The June report card for Grade 2 appears to indicate that L.T. did not attend the school in the fall of 2012. The report card contains an addendum noting that L.T. had been attending the school's learning resources centre, four days a week, for 40 minutes each time. The teacher commented that: It is a pleasure to have [L.T.] back at our school. He is a quiet observant student who benefits from working in a small group. He has a good attitude toward learning and is open to instruction. In the short time he has been back, [L.T.] has already shown more confidence as a student. [100] The claimant's evidence was that, over the years that the parties' children were growing up in Prince George, he attempted to travel to Prince George monthly to the extent possible. The respondent, on the other hand, testified that the claimant did not really take an interest in L.T. until he was eight or nine years old (which would have been late 2013-2015), and that prior to March 2015, the claimant's visits were sporadic - he would visit for a weekend, then they would not hear from him for months. [101] The credit card records show a number of trips by the claimant to Prince George, including February 23-25, 2013, March 21-25, 2013, July 18-August 2, 2013, August 11-15, 2013, September

24-October 1, 2013, October 26-November 4, 2013, and December 4-10, 2013. The text messages between the parties indicate that at times the respondent would ask the claimant to come on a different weekend - for example, on November 17, they had an exchange in which the claimant indicated an intention to visit on the November 23-24 weekend, and the respondent advised she had plans for that weekend and asked the claimant to instead visit on the first weekend of December. [102] The texts demonstrate an inflammatory style of communication on the part of the respondent, at times demanding urgent action, at times failing to respond to follow-up messages from the claimant on that action, and at times adding gratuitous insults to what would otherwise be mundane exchanges on routine parenting matters. [103] For example, on May 4, 2013, the respondent texted the claimant at 1:07 pm, advising that he is "really rude", then advising that she needs him to get new glasses for L.T. "asap". At 2:30 pm, the claimant responded with pictures of four possible frames for his glasses, to which the respondent replied. Four days later, on May 8, 2013, the claimant follows up asking if the respondent had gotten the glasses yet, to which there is no response, leading to a further follow-up text on May 10, 2013. [104] On May 21, 2013, the respondent texted advising that she had just left a voicemail and

that she needed insurance "tomorrow" for the Volvo. A similar series of texts occurred on November 20-26, 2013, when the insurance for the Volvo needed to be paid again. [105] There are also texts from time to time with respect to the payment of child support - for example, on Saturday, November 30, 2013, the respondent texted complaining that she would not get access to the child support that had been deposited until the following Monday, December 2, 2013. [106] On June 18, 2013, there is a text in the evening asking the claimant to call L.T., who had just attempted to call the claimant but did not get through, and adding a comment that the claimant is "such a disappointment". [107] On June 19, 2013, there is a text from the respondent, who had been unable to reach the claimant by phone, and saying "I guess your [sic] busy talking to your boyfriend - don't forget to wear your purple plaid shirt". A regular theme of the respondent's communications with the claimant, up to the time of trial, was the suggestion that he is homosexual. The respondent's family also repeated these suggestions. The respondent family is of a very traditional Greek Orthodox tradition, and these suggestions were clearly viewed by them as derogatory of the claimant. [108] The June 2013 report card for L.T. shows that from April through June, L.T. was absent on 17 occasions and late on 26 occasions. The

teacher's written comments note: [L.T.] has improved his reading fluency and demonstrates good comprehension orally. He has more difficulty writing his ideas on paper. [L.T.'s] absences and arriving late to school impacts his learning as he is constantly trying to catch up on the work he has missed. Hopefully this will be less of a problem for him next year. [109] Similarly, the November 26, 2013 report card for L.T. shows 11 absences and 33 late days for the school year to date, and a comment from the teacher that "regular attendance is important for [L.T.'s] success." [110] The claimant continued to visit Prince George regularly as 2014 began. The documents indicate he made visits on January 4-8, January 30-February 4, March 1-3, April 4-8 and May 3-6. [111] The March 2014 report card for L.T. showed fewer absences (three in January, five-and-a-half in February), but continued to show a significant number of late days (15 in December, 16 in January, 12 in February). The written comments include a note that regular attendance is important. The respondent claimed that by this time, the school had a doctor's note with respect to medical reasons for L.T. to be late, so she did not know why the school continued to show L.T. as arriving late. She agreed that no such note had ever been produced - but said that either she gave the school her only copy of it, or alternatively, it was

in documents in Prince George that she had not had time to sort through. [112] On May 22, 2014, the claimant texted the respondent to advise that he planned to travel to Prince George. They exchanged texts about an agreement that was apparently being considered at the time between counsel for the parties. At around this time, the respondent and the children went to Kelowna for an extended time. The respondent acknowledged that she had pulled L.T. out of school early. [113] The claimant's financial records indicate that he was in Kelowna from May 30 to June 3, 2014. There are a number of inappropriate texts from the respondent to the claimant on June 3, 2014, in which she advises him that L.T. says the claimant is a loser, demands money for groceries, makes demeaning comments about a "she" (it appears the respondent believed there was a new woman in the claimant's life), and asserts: For your information. Btw.. We don't have an agreement. You do not even fall under a gaurdian under tbe new leg and I am not giving it to you. The new fam law act if you don't understand. [114] Although L.T. had been withdrawn from school several weeks earlier, his school in Prince George issued a year-end report card on June 26, 2014, noting difficulties in measuring L.T.'s progress due to his absences, and recommending that he continue with learning assistance in Grade 4. [115] There are a number

of texts surrounding the claimant's visits to Kelowna from July 6-10 and August 4-7, 2014. For the first visit, the claimant had initially advised of plans to come for a week, but the respondent advised that he could visit for "up to four days". For the second visit, although the claimant changed the dates to accommodate the respondent's requests, he had to wait several hours after the agreed time to see L.T. and was only able to see M.T. for a few minutes during the trip. Although the respondent in her evidence insisted that she always accommodated the claimant's requests to spend time with his children, the texts surrounding these incidents suggest that time with the children was not always available. [116] The respondent and the children returned to Prince George in the fall of 2014. The claimant visited Prince George to see the children on the weekend of September 5, 2014, then again on the weekend of October 3, from November 7-12, and for the weekend of December 5. [117] By the fall of 2014, M.T. was three years of age. At some point, M.T.'s paediatrician encouraged the respondent to have M.T. assessed for possible developmental delay. M.T. was initially seen by a speech language pathologist from Northern Health in December 2014, resulting from a referral made September 30, 2014. There was a hearing assessment on December 2, a speech screening on December 16, and a report

on December 22. The clinician noted that M.T. did not demonstrate age-appropriate receptive language skills and her speech language development needed to be monitored and evaluated further. The clinician recommended a referral to the Child Development Centre to assess M.T.'s motor skills; however, the reports indicate that the respondent advised that she wanted to think about whether to pursue that. [118] It is not clear whether the respondent initially shared the results of these assessments with the claimant. Nothing in the documents suggested that they were shared in 2014 or 2015. The claimant gave evidence that by about this timeframe, he had concerns with M.T.'s development. He said that he raised concerns with the respondent, and advised that he would pay to have their daughter assessed. He said that when he first raised concerns, the respondent was adamant that "nothing's wrong with my daughter". [119] On December 18, 2014, the claimant signed a six-month lease for a property in Prince George. His evidence was that he did so in order to be closer to his children. His evidence was that he stayed there for about two months, but that he moved back to Vancouver when the respondent moved to Kelowna in early 2015. The respondent's evidence was that she did not find out about the claimant's house until after she had moved to Kelowna. The claimant's evidence was that L.T. had

visited him at the house and had played with some of the children in the neighbourhood - he included in evidence a note from one of the neighbours whose sons had played with L.T. and were interested in seeing him when he was next by. [120] The respondent, although stating that she had never been to the house, gave evidence that it was too close to the river to be safe for children. The claimant's evidence was that the neighbourhood was full of children and that the proximity to the river was not a concern. The Initial Interim Orders and Events in Kelowna [121] The claimant filed an amended notice of family claim in this proceeding on September 19, 2014. As noted above, the initial statement of claim sought only a paternity test. It was amended to add claims for guardianship, an equal allocation of parenting responsibilities and generous parenting time. [122] On February 11, 2015, the claimant filed a Notice of Application seeking orders that he be a guardian of the children, have parental responsibilities, and have scheduled parenting time with each child (including Thursday afternoons to Monday mornings with L.T. and weekend overnights with M.T.). The Notice of Application gives the respondent's address as Prince George, and is clearly premised on the parties both residing in Prince George. It was initially returnable on March 10, 2015. [123] At some point in February or March

2015, the respondent moved to Kelowna. The evidence is not clear as to precisely when that occurred. [124] The respondent was served with the Notice of Application on February 20, 2015. She retained counsel - a Mr. Lowther - who initially sought an adjournment. When the application first came on for hearing, Master Harper ordered that it be adjourned to March 16, 2015, on condition that the respondent advise through counsel of her current civic address, as well as the school that L.T. was attending. [125] The application was heard further by Master Muir on March 16, 2015, who confirmed that service was effected on February 20, 2015, ordered that the Notice of Application be amended to provide a more detailed "Legal Basis" section, and who directed that: On an INTERIM INTERIM basis the Claimant will have access to the Children every second Saturday and Sunday from 9am to 6pm in Kelowna. The Children are not to be removed from Kelowna without consent. Visitation of the Children on these terms is scheduled to commence this coming weekend 21 March 2015. [126] The respondent arranged to have the matter brought back before Master Muir on March 20, 2015. At that time, Master Muir ordered that access would remain as previously ordered with respect to L.T., but that with respect to M.T., access will be for three hours (9 am to noon) on alternating Saturdays and Sundays, with access to

occur in the presence of the respondent. [127] No formal orders were taken out with respect to the orders made by Master Muir, nor were any steps taken prior to 2017 to obtain an order varying these "interim interim" orders. [128] It appears to be common ground that, after Master Muir's orders were granted, the claimant travelled to Kelowna every second weekend to spend time with the children. The claimant's evidence was that, during these visits, he would often end up purchasing groceries - he said that this was because L.T. would tell him that the fridge was empty. [129] On March 24, 2015, the claimant texted the respondent asking what kind of treatment M.T. was getting for her speech. The respondent responded "I already told you. Really?" The claimant asked for details as to when and what M.T. was getting help in, and specifically whether M.T. was seeing a speech pathologist. The respondent testified that she was too busy to respond, and that she had provided him verbally with what she thought was sufficient information. [130] A speech language pathologist from Interior Health, a Ms. Loyer, wrote to the respondent on April 8, 2015, following up on a recent meeting and assessment. She noted that, while they were discussing M.T.'s speech and language development, the respondent had asked if there was a reason why she is so delayed, which led to a conversation about the "red

flags for autism" they were seeing. Ms. Loyer then summarized five recommendations which they had discussed, including asking the family doctor for a referral for an autism assessment, obtaining an occupational therapy assessment from Starbright Children's Development Centre ("Starbright"), and obtaining private speech language therapy. Ms. Loyer advised that she would book a follow-up appointment in May. [131] On April 27, 2015, the claimant texted the respondent advising that he had found three possible speech pathologists for M.T., and asking whether she wanted the contact information so they could get M.T. started. The respondent did not respond. When asked about this in cross-examination, she could not remember the claimant having provided such names. [132] On May 11, 2015, M.T. had an initial speech language therapy appointment with Ms. Loyer. In her clinical notes, Ms. Loyer recorded that the respondent had said she would go to her doctor now for a referral because she is seeing the signs of autism now, that other moms on the playground were mentioning it too, and that she had had to remove M.T. from preschool because of difficulty with directions and having major tantrums. [133] On May 17, 2015, the claimant texted the respondent "Can we talk about [M.T.] please?" [134] Ms. Loyer wrote to the respondent again on July 20, 2015, setting out in detail the behaviours that

she had observed that appear to be similar to characteristics of autism spectrum disorder ("ASD"), one being difficulty with transitions. She concluded: Similar findings were noted when [M.T.] was screened in December 2014 by a Speech Language Pathologist in Prince George. I believe we have seen enough similarities to ASD that it is worth a referral to IHCAN (Interior Health Children's Assessment Network) for an Autism assessment. [135] On July 23, 2015, Starbright wrote to the respondent, noting that the centre had received a referral for M.T. and had attempted to call to schedule orientation appointments on three occasions from July 7-21 and emailed the respondent on a further occasion, but had been unable to reach her. They asked the respondent to contact them, and advised that "If we have not heard from you by August 14, then we will assume that you no longer have concerns regarding your child's development and do not require our services at this time." It appears from Starbright's clinical records that intake orientation paperwork was submitted on August 14, 2015, but that efforts to contact the respondent in late August, 2015 were unsuccessful, as there was no reply to a voicemail or an email, and a letter was returned due to the wrong address. There was no further contact between the respondent and Starbright until early 2016. [136] When asked about the time it took to

access Starbright's services, the respondent testified that there was a long waiting list but that they eventually got in. [137] On October 8, 2015, the respondent attended a walk-in clinic in Kelowna with M.T., and obtained a referral to a paediatrician - Dr. Szombathy. Dr. Szombathy saw the respondent and M.T. in mid-November, and completed a referral form to IHCAN. The referral letter noted that M.T. had been demonstrating developmental delays dating back to approximately 18 months of age, and that at that time, the paediatrician in Prince George had suggested an autism assessment; however, the respondent was not accepting of that possibility and shortly thereafter relocated to Kelowna. The letter noted that the speech therapy provided by Ms. Loyer was limited to one session per month. Dr. Szombathy noted that his overall impression, from the history and from his observation of M.T., was that she has a significant intellectual disability and may well be on the autism spectrum. He requested an evaluation on an urgent basis. [138] L.T.'s report card for the first term of Grade 5, dated November 30, 2015, indicated a total of 10 absences and 35 late days for the school year to date. The teacher's comments included a note that "Coming to school regularly, on time, and well-rested would help [L.T.'s] learning and confidence as he often misses critical instructional time when he

is absent or late". L.T.'s marks ranged from C's in academic subjects to A's in drama, music, P.E. and visual arts. [139] When asked about the days absent and late, the respondent advised that the school had a doctor's note to excuse L.T., but they just chose to record it anyway. Her evidence was that L.T. was not well-rested because of his sleep apnea. When asked why this doctor's note had not been produced, the respondent stated that it had been provided to the school and she had not retained a copy. [140] On December 16, 2015, the respondent took M.T. to an optometrist for an initial eye examination, and advised the optometrist that M.T. was sitting very close to the television screen while watching. The optometrist was unable to perform a proper examination, and advised that she return in a year for another assessment. [141] Also on December 16, 2015, the property manager for the respondent's apartment (which was a unit in a strata development) wrote to advise of complaints of violations of the strata's noise bylaws and provided her with an opportunity to respond. [If she did respond, her response is not in evidence.] The claimant obtained a copy of this notice as well as of a complaint email sent by a unidentified neighbour to the strata corporation, complaining about regularly being awakened by the respondent's daughter "screeching" and "having a fit" in the hallway.

There was some suggestion that the respondent placed M.T. in the hallway as a means of discipline - which the respondent denied ever doing. [142] The respondent lived in a series of three apartments during the 16-17 months she spent in Kelowna. One of her neighbours from that time, a Mr. Ansell, had two children aged six and seven who played with L.T. and M.T. regularly. His evidence was that he would sometimes take care of the respondent's children and vice versa. Mr. Ansell eventually met the claimant when the claimant was skiing with L.T. at Big White, and relayed to the claimant concerns about the respondent's parenting - which led to Mr. Ansell being called as a witness at the trial. [143] Mr. Ansell described the respondent as a very loving mother, but one who struggled with dealing with behaviour and could regularly be heard screaming at the children. He described the apartment as messy, with floors not regularly mopped, puddles of juice on the floor, piles of clothes everywhere, and the bathrooms not cleaned. Mr. Ansell said that he recognized that M.T.'s communication skills were "off", and tried to encourage the respondent to seek help, but that she was quite resistant. [144] Mr. Ansell said that the respondent had to move out of her first apartment at a time when he was considering moving out of his unit to live with his then-girlfriend, and that he agreed to sublet

his place to the respondent for the three to four months that remained in his lease term. He was unhappy because the respondent did not pay the final month's rent and left the unit in a mess (including with a broken television that belonged to him). [145] The respondent finally made contact with Starbright staff on January 7, 2016. She advised the staff member she spoke with that she wanted to get M.T. into a preschool or a daycare program, and that they were still waiting for the IHCAN assessment. They had a discussion about funding, and the Starbright staff member advised that Starbright would assign the respondent a consultant who would work with her to find a preschool program that might be in a position to accommodate M.T.'s special needs. [146] The IHCAN assessment occurred the next day, January 8, 2016. M.T. was assessed by a psychiatrist, Dr. Morris, who concluded that M.T. met the criteria for an ASD diagnosis, that her cognitive testing was well below average, and that while a diagnosis of an attention-based disorder was not provided at the time, she strongly recommended ongoing monitoring with respect to that. Dr. Morris made a number of recommendations, including that: · The respondent open a file with the Child/Youth with Special Needs ("CYSN") division of the Ministry of Children and Family Development ("MCFD"); · M.T. participate in intensive, early intervention

with appropriately trained behavioural intervention ("BI") specialists; · M.T. should have both speech and language therapy ("SLT") and occupational therapy ("OT"); · M.T. would benefit from a structured setting such as a daycare or preschool with individualized adult assistance; and · The parents consider, with Dr. Szombathy, whether there should be further assessment for ADHD and anxiety. She referred the respondent to various resources, and recommended an updated cognitive assessment in Kindergarten or early Grade 1. [147] Dr. Morris' assessment report was not provided to the claimant until much later. [148] The respondent was in touch with a Ms. Brandon, an occupational therapist at Starbright, on January 15, 2016. She advised Ms. Brandon that she was looking into BI programs and was considering whether to pursue OT through Starbright or privately. A tentative OT intake appointment was scheduled for February 5, with the respondent to confirm with Ms. Brandon whether she wanted to proceed. That intake appointment was subsequently rescheduled twice, and ultimately occurred on February 26, 2016. M.T. thereafter had OT sessions with Ms. Brandon on March 11, April 1 and April 22, 2016. Nothing in evidence indicates any further OT sessions prior to the fall of 2021. [149] A different Starbright staff person, Ms. Ulrich, reached out to the respondent with respect to supported

child development ("SCD") services. As I read the document, SCD services would have provided support assistance to M.T. while she attended preschool. Ms. Ulrich connected by phone with the respondent on January 18 and 28, but each time, the respondent advised that she was busy and would call back. They eventually spoke on February 18, 2016, at which time they discussed the respondent's efforts (unsuccessful to that point) to find a preschool. Ms. Ulrich noted being advised by the respondent that she had decided to delay M.T.'s enrolment in kindergarten. Ms. Ulrich advised her that Starbright would not be able to provide SCD assistant support once M.T. was kindergarten-aged. [150] At about the end of January 2016, the respondent moved to a new apartment. The claimant assisted with the move. His evidence was that the apartment was full of toys and food mixed together, that there was a trail of juice boxes from the kitchen right out into the hallways, and that the cabinets were damaged. The claimant said that he was advised by the respondent that she had keyed the cabinets, and that she thought it was funny. [151] On February 24, 2016, the respondent opened a file with CYSN and initiated an application for autism funding. A Mr. Cambridge was assigned as the responsible social worker. Although the respondent's evidence was that it took a few months to get the autism funding in

place, the documents indicate that her application was submitted on February 25, 2016, the approval letter was dated March 1, 2016, and the funding agreement was signed on March 20, 2016. [152] L.T.'s second term report card indicated that for the months of December, January and February, he was absent 10 times and late 41 times. The teacher's comments included a note that "As discussed, coming to school regularly, on-time and well-rested would help [L.T.] feel more prepared, confident and motivated in his learning". [153] On March 22, 2016, the claimant contacted MCFD's child protection division. [In these reasons for judgment, given that two different divisions of the same Ministry played roles from time to time, I will refer to the child protection division as MCFD, and to the Child/Youth with Special Needs division as CYSN.] MCFD's notes have been produced, and the claimant verified that they accurately reported the concerns that he raised, which he says came in part from a conversation he had with Mr. Ansell. [154] The MCFD files note concerns reported by the claimant that: · The apartment was not kept in a clean state; · M.T. spends excessive time right in front of the television set; · So far as the claimant is aware, M.T. does not speak, yet is not being taken to any sort of speech therapist; · He believes M.T. may be autistic but she has not been diagnosed; ·

Neighbours had expressed concern that M.T. is disciplined by being put out into the hallway; and · Neighbours also hear the respondent regularly yelling at L.T. and escalating situations. MCFD recorded that there were no allegations of physical abuse of the children, but that the respondent was reported by neighbours to be very verbal and threatening. [155] Two social workers visited the respondent on April 6, 2016. They observed M.T. inside and L.T. playing outside, and described the apartment as "untidy but not below community standards and not a safety hazard". The respondent advised the social workers that she yells at her son, but that it was in response to her son swearing at her. She explained that she is loud because "she is European and her entire family is loud". She denied locking her daughter in the hallway, and advised that her son misses school because of health reasons. She mentioned that she was waiting to access counselling through CYSN's autism resources. [156] The MCFD files record that the respondent had, on April 7, contacted Mr. Cambridge of CYSN and reported being distraught at having been visited by MCFD social workers. Mr. Cambridge advised that the respondent was actively working to access resources for her daughter, and that he had connected the respondent with a behavioural consultant and hoped they would soon be speaking. [157] Later that day, the

MCFD social workers contacted the claimant and advised him that they had assessed the concerns, but that "due to FOI cannot discuss the outcome of the assessment", and that if he did not feel his children were safe his option was to "apply for custody through the courts". They closed the file on the basis there were "no Section 13 concerns" (that being a reference to the specific criteria for a child in need of protection in the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46). [158] It is noteworthy from the concerns reported by the claimant to MCFD that he had not yet, as of March 2016, been told by the respondent that M.T. had been diagnosed with ASD and had at least some speech therapy. [159] On April 25, 2016, the Autism Funding Branch wrote to the respondent, advising that M.T. had been enrolled in the Autism Funding Under Age 6 Program, and that from then until M.T.'s sixth birthday, they could access up to $14,667 to assist with the cost of purchasing autism interventions. The letter further advised that, once M.T. had reached the age of six, the annual funding amount would be $6,000. [160] Dental invoices indicate that in April 2016, L.T. had a new patient exam, followed by more substantial dental work over three days in May and June 2016, which were paid for by the claimant's credit card. The claimant said that he was asked to pay for dental work for

L.T., but was otherwise provided no information. [161] On May 10, 2016, the respondent spoke again with Ms. Ulrich of Starbright. Ms. Ulrich recorded being advised that M.T. was currently in preschool, and that given that Starbright would be unable to provide SCD services after M.T. was eligible for kindergarten in the fall (even if not enrolled), the respondent declined further SCD services. [162] The Starbright OT, Ms. Brandon, attempted to contact the respondent on various occasions in May and June 2016, seeking to schedule the next OT session. On June 20, 2016, she wrote to the respondent advising of the unsuccessful attempts to contact her, and advising that they had not gotten through either by phone or by email. The respondent in her evidence at trial said that she was not sure if she received that letter, and that she recalled simply that Starbright had a long waitlist and there were other things going on. [163] The respondent, when asked on cross-examination exactly what therapies were underway in Kelowna, stated that there was weekly SLT and bi-weekly OT, but she could not remember who the service providers were, and that all of the relevant records were in boxes in Prince George that she had not had time to access. She also referenced a Ms. Richardson who, it appears from a reference in the MCFD documents, is a behavioural consultant. Apart from this one reference,

no other document evidenced any role for Ms. Richardson. [164] The respondent also gave evidence that, by the time she had all the supports arranged for M.T. in Kelowna, she was planning to move to Vancouver. [165] On July 18, 2016, Ms. Brandon wrote to the respondent again, advising that M.T. was discharged from Starbright's OT program on the basis that they were unable to contact the respondent. [166] At some point in late June, the respondent was advised that she was being evicted from her apartment. Despite a lease that prohibited pets, she had purchased a dog - she said that it had been recommended as something that would be beneficial for M.T. Her evidence was that her landlord found out about the dog and gave her a one-month notice to move out. In her view, the landlord was going through a nasty divorce and wanted to sell the apartment so "used [the dog] against me". Thus, the landlord was at fault for her eviction. [167] Once it became known that she was being evicted from this third Kelowna location, at some point before the end of July 2016, a decision was made to move to Vancouver. The Move to Vancouver [168] The parties both agree that it was the claimant's suggestion that the respondent and the children move to Vancouver. However, they have different recollections as to what was discussed leading up to that decision. [169] The claimant's evidence is that he said

that he would contribute the money he had been spending travelling regularly to Kelowna to the respondent for a period of time, to help her with rent. He also said that they discussed him being able to spend more time with the children. His evidence was that there was no specific agreement as to how long he would pay rent, or how much additional time he would spend with the children. [170] The respondent's evidence was that the claimant promised to buy her a condominium in Vancouver that would be put in her name, in which she could live with the children, and that when the children were older the condominium could be sold. At one point, her evidence was that she would keep all of the profits when the condominium was sold; at another point, she gave evidence that the profits would be shared between the claimant and respondent. The respondent denied that there was any discussion about the claimant having more time with the children if they were living in Vancouver. [171] The respondent's brother (G.T.) gave evidence. He said that he was told by the claimant that he was going to buy a condo, that it would be put in the names of the respondent and the children, and that way he would get to see the children more. G.T. did not recall where the conversation took place, but believed he was told this once in person and once over the phone. [172] The claimant denied having any

conversations with G.T. about buying a place for the respondent when she moved to Vancouver. [173] Whatever the discussion may have been, it is common ground that at the end of July 2016, the respondent packed up her apartment, put all of her furniture in a storage locker in Kelowna, and then she and the children travelled to Vancouver, where they spent the next several weeks staying at the claimant's house. [174] After a few months, during which the respondent's father and G.T. paid for the storage locker, G.T. travelled to Kelowna, loaded everything from the storage locker into a trailer, and took it to Prince George. The trailer and contents have apparently remained in Prince George ever since. [175] In Vancouver, the respondent and the children initially stayed at the Point Grey House. The respondent and M.T. slept in the master bedroom on the upper floor, while the claimant and L.T. slept in the basement. The claimant's evidence was that this was not a particularly happy time, as he and the respondent were constantly arguing. The respondent would be angry with him any time he went out. His evidence was that the respondent, when angry, would chase him around the house and slap him, once "cuffed" M.T. in the face for biting her, and would yell at L.T. for wanting to stay in the basement with the claimant rather than upstairs in a room with his mother and sister. [176] The

respondent, on the other hand, claimed that the claimant often would leave her and M.T. on their own at the house, and go away to do activities with L.T. She claimed that the claimant would lock the door to the basement so she could not come downstairs to see L.T. at night. She also claimed that the claimant constantly smoked cannabis in the house. The claimant's evidence was that he used cannabis outside, only late at night and never in the presence of the children, and that it was not every day but rather only a few times a week. [177] The respondent put in evidence a recording she made on her iPad when the claimant was knocking on her bedroom door late at night demanding a flashlight. She argued that this was evidence of the claimant's violent and threatening nature. The claimant's evidence was that the respondent had taken his iPhone and he needed either the phone or the flashlight and was demanding it back. [178] The respondent also claimed that, once they had moved to Vancouver, L.T. stopped showing her any affection and became like a "soldier" for his father. She felt that the claimant allowed L.T. to play violent video games, which she would not, and to go out "just on his own". She felt that the claimant would buy things for L.T., which she could not afford to do. She also claimed that the claimant would keep L.T. out late at night despite her insistence that he be

home in a timely manner. [179] The claimant, on the other hand, testified that he did activities with L.T. that L.T. enjoyed, and that he left it to L.T. (who by this point had his own phone) to make arrangements with the respondent as to how late to stay out. He said that, if the respondent asked for L.T. to be brought back earlier than L.T. wanted, L.T. would phone the respondent and then advise the claimant that she had agreed to let him stay out. [180] The claimant gave evidence as to one occasion in August or early September 2016 on which he and the respondent had an argument, and that the respondent ended up chasing him (the claimant) around the house, yelling at him, and while doing so grabbed a frying pan and threatened to hit him. He said that this was all in full view of the children, and that L.T. grabbed a pot and told the respondent not to hit his dad. [181] The respondent testified that the claimant had told her there were lots of resources available in Vancouver for autistic children, and that she had anticipated that when she arrived he would have a complete program set up for M.T. This assertion was never put to the claimant. Generally speaking, the claimant's evidence was that the respondent excluded him from any information about diagnoses and recommended programming for M.T., and it is unclear how he would have any knowledge base on which to set up a program

for M.T. in the short time between the decision to move to Vancouver and the actual move. [182] In September 2016, L.T. began to attend elementary school at Queen Mary Elementary in Vancouver. The claimant regularly drove him to school, which he said was in order to ensure that L.T. got to school on time. At some point in the fall of 2016, M.T. was enrolled in a preschool in Kitsilano. Although M.T. turned five in September 2016, and would ordinarily have attended kindergarten beginning that month, the respondent had decided that M.T. should start kindergarten late. [183] The claimant registered L.T. for football. The respondent claimed that he did so without her consent, and also wrongfully used the claimant's surname on the registration. It appears that although the respondent did not consent to the registration in advance, she agreed to allow L.T. to continue in the program. [184] In mid-September 2016, the parties found a furnished two bedroom plus a den apartment available for rent in Kitsilano (the "Kitsilano Apartment"). They went to view it on September 14, 2016, and concluded it was acceptable. The landlords advised that the earliest date it would be available was September 21, 2016. A residential tenancy agreement was signed on September 17, 2016, for a term ending August 31, 2017, at a rent of $3,650 per month. Both the claimant and the respondent were listed as

tenants; however, it was common ground between the parties that it was at all times intended that the claimant would continue to live at the Point Grey House. [185] The respondent testified that after she moved to the Kitsilano Apartment, the claimant had "zero" involvement with M.T. The claimant's evidence was different. He acknowledged that there were times that the respondent would not allow him to see M.T. for weeks at a time. However, his evidence was that he would often invite M.T. and the respondent to join in activities, such as going to the park, to a trampoline place, to the pool or to the aquarium, and sometimes the respondent would allow that to happen. The claimant said that, in his view, M.T. needed to get out of the house and have some fun, and that she spent too much time stuck in the Kitsilano Apartment. The claimant also gave evidence that there were five or six times in Vancouver (but prior to May 2017), when the respondent would drop off M.T. to stay at his place for an evening while she would go out until the wee hours of the morning. [186] The claimant also gave evidence that he would regularly buy clothes and toys for the two children, as well as pay for activities. There is a series of texts on November 12, 2016, in which the respondent claimed that the claimant buys L.T. whatever he wants, but nothing for M.T. The claimant responded by noting that, the

previous day, he had purchased $500 worth of clothing for M.T. The respondent replied with "F--- you !!!! All you did was complain you f---er !!!!", followed by a series of insults. [187] The respondent agreed that, in 2016, it had been recommended that she have counselling with L.T. She said that she did not feel the need to. When L.T. would get "mouthy" to the respondent, or be mean to his sister, she "wouldn't tolerate that" and would sometimes yell at him. She explained that she would have to deal with L.T. in that way because he started "acting evil" towards her. [188] The claimant gave evidence that at times L.T. would be a bit argumentative with the respondent, particularly when she argued with him. The claimant said that if L.T. said something inappropriate, he would tell L.T. not to talk to his mother like that. [189] L.T. in his evidence recalled that at times, he and his mother would get along and would be "cool", while at other times "we'd argue and fight". Sometimes the arguments would be about him wanting to spend more time with his father, but there were other things they argued about as well. [190] Over the balance of 2016 and early 2017, there were multiple texts from the respondent to the claimant, demanding to know where L.T. is. It appears that the claimant was almost always the one to drive L.T. to school, making sure he was there on time, and to pick him

up after school. At times, L.T. would go to spend time with friends or go to the claimant's home. The claimant's evidence was that when he got texts from the respondent, asking about L.T., he would tell L.T. that he needs to call his mother. On a number of occasions, the claimant replied to the respondent's texts, saying that the respondent had spoken with L.T. by phone. When asked about some of the respondent's texts to him, demanding that L.T. be taken home, the claimant stated that in response to any text of that sort, he would ask L.T. to contact his mother. The claimant's evidence was that, in almost all cases, L.T. would then advise him that his mother had agreed he could continue with whatever activity he was involved in. [191] The claimant also testified that at times, L.T. simply did not want to go home and spend time with his mother - that L.T. would say that the respondent is "not fun", "doesn't do anything", or does not "take us anywhere". The claimant testified that he encouraged L.T. to spend time with his mother. It is clear, however, that the claimant believed that L.T. should be able to spend time with friends, should be involved in extra-curricular activities, and should assume responsibility for dealing with his mother in respect of his interest in those things. [192] The claimant described the respondent's communications during this timeframe as being

"confrontational" and argumentative. This is certainly borne out by many of the texts that were put in evidence. There are regular threats to go to court, and threats that if the claimant did not comply with whatever the respondent wanted, she would insist that he only see L.T. every second weekend. The respondent regularly used vulgarity in her texts. Other texts continued to raise questions about the claimant's sexuality - accusing him of "hiding in the closet" and asking him why he "pretends" to be heterosexual. [193] In early October 2016, the Abbotsford restaurant which employed the claimant burned down. The claimant's evidence was that this was a devastating loss for his family, given that it was a busy, well-established restaurant with long-time staff. The claimant's evidence was that the fire was investigated by the police and the circumstances were reviewed by the insurance company which provided coverage for the loss. The claimant's evidence was that these authorities concluded that the fire was caused by an unhoused person. The claimant's evidence was that the restaurant was rebuilt over the next year-and-a-half, with insurance paying for most of the cost and his parents borrowing additional funds to cover what insurance did not. The claimant also gave evidence that the insurance company also covered management salaries (including his) for the first twelve months for

which the restaurant was closed. [194] The respondent had a different theory as to the loss of the restaurant. There are numerous texts in which she suggests that it was the claimant and his brother who had the restaurant burned down. The evidence indicates that the respondent repeated this allegation verbally on a number of occasions as well. She repeated it at trial. It is not clear whether she really believes the allegations, or whether it is simply reflective of her deep anger at the claimant. Nothing in evidence suggests there is any concrete basis for the respondent's view. [195] On October 25, 2016, the respondent texted the claimant with information on a house for rent that she had found on Craigslist, at a rent of $5,000 per month. The claimant's evidence was that this reflected the respondent being unhappy with the Kitsilano Apartment and wanting to move - even though the lease continued until the end of August 2017. The respondent asserted in evidence that she found the smells from a nearby delicatessen to be overpowering and they made the Kitsilano Apartment difficult to live in. [196] The respondent took steps in the fall of 2016 to start SLT for M.T. in West Vancouver. She had an initial meeting with a Ms. Davies on October 28, 2016, with periodic appointments beginning in November 2016. The respondent's evidence was that she attended and participated in all of

the various SLT sessions with M.T. The respondent's evidence was that the cost of this therapy (which the respondent recalled was approximately $150 an hour) was covered by the autism funding. [197] The claimant's evidence is that he was asked to drive the respondent and M.T. to North Vancouver several times for speech therapy. Although the respondent still had the Volvo SUV that had been purchased for her several years earlier, she preferred to have him do long city drives. The claimant's evidence was that he went into the building once, but otherwise was not welcomed in and was told to wait outside. He said that he did not know who the speech therapist was until much later. [198] On October 31, 2016, at the request of the respondent, the claimant texted the landlord of the Kitsilano Apartment to advise that the respondent would be moving out at the end of November 2016. The landlord responded noting the terms of the lease as to payments upon early termination. The respondent ultimately did not move out at that point in time. [199] Also in November 2016, the respondent hired a Ms. Lebedeva to work with M.T. as a behavioural interventionist. Ms. Lebedeva did that work by coming to the preschool that M.T. attended and working with her for three hours a day, three days a week. Ms. Lebedeva gave evidence at trial. She described her focus as working on social skills, transitioning,

communication and emotional regulation. [200] M.T. has demonstrated difficulties with transitioning between activities throughout her life. Work aimed at building capacity to manage transitions features prominently in the evidence of and reports prepared by people who have worked with her right up to the trial. [201] On December 9, 2016, a Ms. Marzo emailed the respondent, advising that she was a behavioural consultant who works at the same agency as Ms. Davies (the speech therapist). Mr. Marzo noted that she had been referred to the respondent by Ms. Davies, and suggested they set up a time to meet. The respondent replied to this email on January 13, 2017, advising that she would like to set up a meeting. Ms. Marzo responded on January 17, 2017, that she was away until the end of January, but asked about availability to meet the following month. The respondent did not reply to this until February 14, 2017, asking Ms. Marzo to call so they could arrange a time to meet. Ms. Marzo responded on February 23 that she had had a family emergency the past two weeks, but that she would call on the weekend. Ms. Marzo sent a follow-up email on March 6, saying that she had tried calling. It appeared that they never actually made contact. With respect to this exchange, the respondent gave evidence that she had tried to set something up with Ms. Marzo, but that it did not work out because of

a family emergency on Ms. Marzo's part. [202] G.T. testified that in December 2016, he came to Vancouver to pick up the respondent and the children to drive them to Prince George a visit. He said that, while he was speaking with the claimant, the claimant told him that it would be easy for him to "destroy your sister" - that he could "make her look crazy and take the children away from her". The claimant denied ever saying any such thing. [203] It appears that in early January 2017, there were further discussions about the respondent moving out of the Kitsilano Apartment. The landlords did a partial walk-through of the apartment (they were not permitted into the master bathroom / closet area) and identified a number of areas of damage, including food stains on the wall as well as damage to the piano. It appears that once again it was decided that the respondent would not move out. [204] The claimant described one incident, which was said to be a few months after the respondent moved into the Kitsilano Apartment. He said that he was called by the respondent and told to come over. When he arrived, the respondent was sitting on her couch wearing a shirt and nothing else. She told him that L.T. was in his room. The claimant said that he went to see L.T., who told him "she beat me up". The claimant said that L.T. had a cut on his chin and a mark on his arm from pinched skin. The

claimant said that the respondent was listening at the door as he spoke with L.T., after which he spoke with the respondent and emphasized that she could never do anything like this again. The respondent denied this incident. [205] L.T. gave evidence that he recalled one occasion when he and mother had an argument in 2016 or 2017, in which she took away his cell phone, he went back into his room, and his mother hit him. He did not provide further details about this. [206] On March 3, 2017, the respondent saw a Dr. Squires, who was a neurologist at the UBC Movement Disorders Clinic, for assessment of palatal myoclonus. The clinical notes reflect the respondent reporting that she had been in a motor vehicle accident three years earlier, and since then had begun to notice clicking in her ears. The notes report that the respondent planned to move back to Kelowna in July. The doctor recommended that she speak to a different specialist with respect to the possibility of injections. The notes indicate that when he suggested injections, the respondent became quite anxious. As a result, he provided her with a referral to a psychiatrist at Vancouver General Hospital, but suggested that if she was going to be moving shortly, it might make sense to wait until she moved back to Kelowna. [207] A friend of the respondent, J.S., gave evidence at trial. He said that on or about January 20,

2017, while he was waiting to pick up the respondent to take her to a dinner, the claimant returned L.T. and he observed a heated conversation between the claimant and the respondent. He described the claimant's language as "abusive". [208] In the second half of March 2017, the respondent and the children travelled to Prince George to visit the respondent's parents. J.S. drove them to (and from) Cache Creek to meet up with a family member. He described L.T. as being withdrawn on the way up, but very happy and talkative on the way back to Vancouver. The respondent said that L.T. was so "loving" while in Prince George and said that he did not want to go back to Vancouver. [209] J.S. also gave evidence about a time when he picked up the respondent at the claimant's house, and that he heard the claimant say to the respondent that one day you will "pay the price". J.S. also said that the claimant told him that he would get "his buddies from Abbotsford" to "take care of" J.S. The claimant denied ever saying these things, and denied ever seeing J.S. at his house. [210] J.S. acknowledged on cross-examination that the evidence he gave about these events was very different from what he said in an affidavit sworn in June 2017. He agreed that in the affidavit, he said that it was the respondent who had told him that the claimant had said that she had better "break up with her boyfriend or

he would get his buddies in Abbotsford to take care of him" - at trial, however, he insisted that he had heard this directly from the claimant. J.S. agreed that in the affidavit he had said that he had gone on some dates with the respondent, but explained that by that statement he simply meant that they had attended dinners with a group of four or five friends. At trial, both J.S. and the respondent denied there had ever been a romantic relationship between them. [211] On April 20, 2017, the respondent was seen at Vancouver General Hospital for anxiety and moderate agitation. She said that she had felt light-headedness after she had brought in cleaners to do some house-keeping at the Kitsilano Apartment. The admission form shows J.S. as being her spouse or partner. The respondent denied ever having described J.S. in this manner. She said they simply asked her who would pick her up from the hospital, and she gave the name of J.S. [212] The claimant also gave evidence that he had taken the respondent to hospitals - both in Prince George, on the Sunshine Coast and in Vancouver, on multiple occasions. The claimant's recollection was that these generally arose from the respondent saying she was feeling anxious and needed to be checked out by a doctor. The respondent did not agree that the claimant had taken her to hospital "multiple" times, but agreed it had happened "a few" times -

once for a reaction to seafood, once when she had broken out in hives due to an allergy, and once for a panic attack. [213] The respondent gave evidence that, in the spring of 2017, she saw a doctor, "told him what's going on", and was provided with a prescription for Cipralex. At one point, she described this as having happened in March 2017. At another point, she said it occurred two weeks before Mother's Day (which would be at the end of April). [214] There were more texts in early May 2017, about the lease of the Kitsilano Apartment. On May 2, the respondent texted the claimant saying "Tell them you will not drop off a cheque until this issue is resolved. We want out of the lease. They are completely dependent on your $." The claimant testified that the respondent really wanted to end the lease on the Kitsilano Apartment early because she found it noisy, and she did not like the smells from the nearby deli. [215] There was a series of texts on Saturday, May 13, 2017 (the day before Mother's Day), in which the claimant asked if they could go swimming with the children. The respondent replied to the claimant, starting with "You are going to hell for what you are doing. Sick bastard. You have completely turned my son against me and have alienated him from me and his sister". The text continued with various swearwords, and a threat to go to court on Monday morning. When the

claimant continued to respond with "Can we take the kids for a swim?", the respondent stated "Go drown you son of a b----". When the respondent demanded that L.T. be delivered to her home immediately or she would call the police, the claimant advised that L.T. was Pokémon hunting with a friend, and reiterated the suggestion that they go for a swim at 1:00. It is not clear whether any swimming occurred that day. Mother's Day 2017 and the Aftermath [216] There was extensive evidence about events of Sunday, May 14, 2017, which was Mother's Day that year. [217] The claimant's family had made reservations for a Mother's Day brunch at the Pan Pacific Hotel in Vancouver. It was attended by the claimant's parents, his sister and her partner, as well as the claimant's brother and his two children. The claimant gave evidence that he invited the respondent to attend, told her that L.T. was keen to go, and that she agreed to come along with M.T. The respondent's evidence was that she had spent the day repeatedly calling for L.T. to come to her place, and that she understood the only way to see L.T. that day was to come to the brunch. She said that she quickly got herself and M.T. ready, and the claimant and L.T. came to pick them up. [218] The claimant said that, on the way down to the brunch, the respondent asked L.T. where his present for her was, to which L.T. responded that he had a

card for her but had left it at the claimant's house. The claimant's recollection was that the respondent replied to L.T. "that doesn't do me any good". After the meal, the claimant said that the respondent continued to ask L.T. about why he had not gotten her a present, to which L.T. responded "I'm just a kid". [At the time, he was 11 and a half years old.] [219] The respondent's evidence was that, at the brunch, L.T.'s main focus was on talking to his cousins and to the claimant, and that the claimant on several occasions stepped outside the restaurant to talk to his brother. She decided she wanted to leave, and announced that she would take a taxi home. The claimant insisted on driving her. [220] It is common ground that on the way home they stopped at a park where the children played. The respondent said that she did not want to do so, but that the claimant insisted on it. [221] On the way back from the park back to the Kitsilano Apartment, the claimant says that the respondent and L.T. argued because L.T. wanted to go do other things that afternoon, while the respondent insisted that he come back to her place. The claimant said that he tried to persuade L.T. to go with his mother because it was Mother's Day, but L.T. was insistent that he would not. The respondent's evidence was that L.T. claimed that his father had told him that he did not have to go with her if he did

not want to. [222] What happened when they pulled up outside the Kitsilano Apartment is highly disputed. The claimant's evidence was that they were all getting out of his vehicle and, as he turned around, the respondent struck him in the face, causing his sunglasses to cut his eyebrow which began to bleed, following which the respondent grabbed his sunglasses and threw them into the street. In response, he grabbed her sunglasses and threw them on to the street. The claimant's evidence was that the respondent then kicked L.T. in the shins and chased after him, calling him a "little f---ing bas--rd" and a "traitor". M.T. fell to the ground crying, and the claimant picked her up to attempt to comfort her. As that was happening, the respondent began to key the claimant's vehicle, ultimately keying every panel on the vehicle other than the roof. L.T. began to video-record her. At some point while the parties were outside, L.T. grabbed the respondent's phone and smashed it on the ground. [223] The respondent's evidence is that when they pulled up outside the Kitsilano Apartment, she asked L.T. to get out, but he refused. Then, when she, M.T. and the claimant were all out of the vehicle, she and the claimant argued - with her telling him that he is the worst father she had ever seen, wanting to keep her son away from her on Mother's Day. The respondent said that she then turned away

from the claimant following which he said "hey, come back", grabbed her by the hair and spun her around. She then grabbed his sunglasses and "flung" them. Her evidence was that the "little nick" on his eyebrow was caused by the sunglasses as she was pulling them off, and not from her hitting him. She said that he then grabbed her sunglasses and threw them into traffic, following which L.T. got out of the car and started yelling and screaming and swearing at her. She said that she pulled out her phone so she could call for help, but that the claimant instructed L.T. to grab it from her, which he did, and then he smashed it to pieces on the ground "and he was very happy". The respondent's evidence is that L.T. then threatened to kill her with a rock, following which she sat on the ground and cried. [224] Later on in her evidence, the respondent acknowledged having keyed the claimant's vehicle, but it was not clear from her evidence where in the sequence of the above paragraph she recalled that having occurred. [225] The recording taken by L.T. was in evidence. It is three minutes and 40 seconds long, and the first 35 seconds shows the respondent methodically keying various panels of the vehicle. The video begins with the respondent in the process of keying the car, and L.T. saying "look what she's doing to the car", along with some swearing at his mother. At one point, he turns

the video toward his father and says "look what she did to my dad". A cut next to the claimant's left eye is visible on the video. The claimant is seen holding M.T. who can be heard crying. The respondent at one point turns to L.T. and says "you like that, little punk"? She then shows him her broken cell phone, and asks him if he likes that. He says that he does, and asks her if she is proud of keying the vehicle. They then call each other "bas--rd". Finally, the respondent says "you're not my son anymore", "I don't know you" and "I don't want to know you". The video ends with the respondent sitting on the sidewalk and crying. [226] The respondent's evidence was that after she had sat down on the sidewalk crying, the claimant helped her upstairs, following which she sat on the couch and cried some more. She asked for a phone to call her parents, but neither the claimant nor L.T. would give her their phones. [227] The claimant's evidence was that he helped her up to the apartment, which he described as extremely messy, with food, and garbage and clothes all over the place. He said that while they were up there, she went up to L.T., called him a "f---ing traitor", gave him a "huge smack in the face", and said she wanted to kill him. The claimant said that he told the respondent not to ever hit her child again. Then she asked L.T. for his phone so she could call her mother, but

that L.T. refused. [228] The respondent denied having slapped either the claimant or L.T. She initially denied that L.T. had ever claimed to be struck by his mother. When confronted with the police interview notes, which record L.T. saying exactly that, she continued to assert that she had not struck L.T., and insisted that if she had hit him, she would have left a mark. [229] L.T. in his evidence stated that his mother slapped him across the face on that occasion. [230] The claimant and L.T. left the respondent and M.T. in the apartment and went outside. As they were there, two police officers arrived - having been called by a neighbour who had observed what went on outside. The police officers split the claimant and L.T. apart and interviewed each of them separately. They then went upstairs, arrested the respondent, and took her out from the back side of the building (so that the children could not see what happened). The respondent spent that night in jail. [231] The police officers left the two children with the claimant who took them back to his house. The police officers also called MCFD, whose intake notes reflect a report that the respondent had slapped and kicked a child. [232] The claimant's evidence is that he had a visit later that day from a Vancouver police officer, and then later in the day by someone from MCFD who asked the claimant to sign a safety plan. The

claimant said he was told that if he had not agreed to the safety plan, the children might have been taken away. The safety plan provided that: · The children were to reside at the claimant's home; · The respondent was not to be alone with the children; · The claimant was to call the police if the respondent was to contact him or attend his home; · The claimant was to call MCFD if the respondent indicated that she wanted to resume care of the children; and · The claimant would participate in ongoing MCFD involvement. [233] The respondent was charged with three counts: · Uttering threats to cause death or bodily harm, contrary to s. 264.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46; · Assault contrary to s. 266 of the Criminal Code; and · Mischief $5,000 or over, contrary to s. 430(4) of the Criminal Code. [234] The ICBC cost estimate to repair the claimant's vehicle was just over $16,800. [235] On May 15, 2017, the respondent was released on bail in the amount of $500, without deposit and without sureties, subject to various conditions including that she: · Not have contact with the claimant, except for the purposes of dealing with parenting issues; · Not contact or communicate, directly or indirectly, with L.T. except in the company of a person approved by the claimant, or except as set out in a court order made subsequent to her release, or except through legal counsel

or a family justice counsellor; · Not attend any residence, work place or educational facility known to her to be that of the claimant or of her son or daughter; and · Not be within a one block radius of the claimant's home. [236] Beginning on Monday, May 15, 2017, the claimant began taking L.T. to school and M.T. to her preschool. He was in touch with Ms. Lebedeva, had a discussion with her about M.T.'s needs, and arranged for her to continue her work at the preschool. Later, he also arranged for her to work with M.T. at his house dealing specifically with toilet training. He also arranged for a nanny to spend time at the house so that he could continue to work remotely while the children were at home. [237] The claimant also retained his current lawyers, Ms. Pietrow and Ms. Brown. [He had previously been represented in 2008 and in 2015 by a Mr. Rose.] [238] The claimant had noticed that M.T. was holding her mouth. The claimant's sister's partner (G.L.) was a retired dentist. The claimant arranged for G.L. to look in M.T.'s mouth. G.L. gave evidence that she saw multiple cavities and one really large hole in a back molar which looked quite painful. She referred the claimant to a paediatric dentist who specializes in children with special needs. Ultimately, M.T. required six crowns, a couple of fillings and an extraction. [239] MCFD's files indicate that they began conducting

interviews on Tuesday, May 16, 2017. [240] The respondent's mother and G.T. came from Prince George to Vancouver. G.T. first texted the claimant on May 16, asking if he could stop by the house in an hour to see the children. The claimant initially responded that they had plans for tutoring, swimming and for a dinner with the claimant's parents, but suggested they meet the next day. That meeting did not occur on May 17, and there are several days of texts leading up to a text (unfortunately undated but likely a week or so later) in which the claimant advised that he was in communication with the social worker about "the issue of the children having contact with their mother". [241] There are also several texts from this time sent to the claimant from the cell phone of the respondent's mother. These texts are clearly sent by the respondent, using her mother's phone - when the claimant asks for confirmation as to who is sending the text, the sender responds "Who do you think this is". Those texts demand time with the children. [242] On Monday, May 29, 2017, the respondent and her mother showed up at M.T.'s daycare. Ms. Lebedeva gave evidence that she had advised the respondent not to do so, because it would be confusing for M.T. The respondent and her mother arrived at a time of transition from outdoor to indoor activities. As noted above, transitions have always been a challenge

for M.T., and she became quite distraught, crying on the floor and not participating in the program. The respondent used her cell phone to take video of M.T. in this distraught state. [243] The respondent was insistent that that her attendance at the preschool was not in violation of any order binding on her - noting that the MCFD safety plan only prohibited her from being alone with M.T. She did not, in her evidence, address how her attendance would not be a breach of the terms of her bail release order - and in particular, the term that she not attend any educational facility known to be that of either of her children. [244] The respondent's mother gave evidence that she and the respondent attempted to visit the preschool again the next day (May 30, 2017), but that the preschool staff would not allow them in. [245] On May 30, 2017, the day after the respondent's attendance at M.T.'s preschool, the claimant filed a without notice application seeking orders on an interim basis declaring that the claimant is a guardian of both L.T. and M.T. and granting him all parenting responsibilities. The application also sought a protection order restraining the respondent from contact with the claimant and either of the children. [246] The application was heard that afternoon by Master Muir. Ms. Brown spoke to the application on behalf of the claimant, noted that there were both a release

order with terms and a safety plan in place, but that she had been advised by MCFD that it might at some point "pull" the safety plan. [247] Master Muir granted a protection order pursuant to s. 183 of the FLA, restraining the respondent from communicating with the claimant, except for purposes of dealing with parenting time, and restraining the respondent from communicating with either child except for supervised contact as may be ordered by the court. The order also specifically prohibited the respondent from attending at or entering the claimant's home, L.T.'s school, or M.T.'s preschool. [248] Master Muir also granted a second order declaring on an interim basis that the claimant was a guardian of the children, allocating him all parental responsibilities, prohibiting the respondent from removing the children from the Lower Mainland, and requiring that the children's passports be delivered to and held by the claimant's lawyers. [249] Both orders contained specific provisions giving the respondent liberty to apply on seven days' notice to set aside any of the orders made. [250] In the course of her evidence at trial, the respondent expressed concern multiple times about the fact that this application was made ex parte. She argued that, given that the safety plan remained in place, there was no reason she could not have been given at least some notice. She also said that Mr.

Lowther, who had acted for her in March 2015, was still her lawyer. While nothing had happened to remove Mr. Lowther from the record in this proceeding, there is nothing in the record to indicate that he had any involvement in this matter after March 2015 until June 2017. [251] Mr. Lowther made contact with Ms. Brown on June 1, 2017. Ms. Brown wrote to Mr. Lowther later that day, making various information requests, including a request for a list of all of M.T.'s treating professionals as well as disclosure of medical records, and noting that the claimant was interested in arranging for the respondent to have supervised visits with M.T., provided that they occur with a professional supervisor. [252] Mr. Lowther responded to the letter by disagreeing that supervision should be required. He did not respond to the document requests contained in the letter or to the request for information on M.T.'s treating professionals. The respondent's evidence was that she was busy dealing with the criminal proceedings and did not have time for much else, while Mr. Lowther was busy dealing with MCFD to attempt to have the safety plan set aside. She also stated that she was quite certain that the claimant knew who all of M.T.'s various treating professionals were. [253] The respondent was repeatedly critical during the evidence she gave of the claimant's failure to have speech language therapy

in place for M.T. by early June. She suggested that this was because the claimant did not want the various therapists to see what stress M.T. was under in his home. [254] Although she did not respond to the request to identify the treating professionals, on or about June 1, 2017, the respondent requested that Ms. Davies (the speech language therapist) prepare a "progress report". In that report, Ms. Davies confirmed that the respondent had sought her out to help improve M.T.'s communication skills, and that she had been working with M.T. since November 2016, seeing her three to four times a month, which included providing "strategies for [the respondent] to help encourage skill development outside our sessions". She noted M.T.'s ongoing difficulties with transitions, that M.T.'s emotions are intense, and that she requires a lot of adult support to regulate them. The materials in evidence at trial did not indicate when Ms. Davies' update was communicated to the claimant. [255] On June 3, 2017, the claimant took M.T. for an eye examination. The examination indicated that she was nearsighted and required prescription glasses, which the claimant obtained. He gave evidence that prior to the glasses he had noticed her squinting and sitting very close to the television, and observed that once she had glasses she was able to see much better. The claimant was also provided with a

referral to a specialist paediatric ophthalmologist, and eventually an appointment with the specialist was obtained for December 2017. [256] Beginning on June 7, 2017, the respondent began counselling with a Ms. Kambolis. Ms. Kambolis was at all material times a registered clinical counsellor. In 2017, she was also a PhD candidate in mind-body medicine (which degree she subsequently completed, thereby becoming Dr. Kambolis). The respondent's evidence was that she found Ms. Kambolis through research on the internet, was impressed by work she had done on trauma and violence, and thought she would be a really good fit. The initial appointment with Ms. Kambolis was on June 7, 2017, with follow-up appointments on June 22 and 29, 2017. [257] The claimant also took M.T. to see Dr. Gartner, a specialist in paediatric dentistry, on June 8, 2017. Dr. Gartner recommended a general anaesthetic appointment in the circumstances, given that there were large cavities between the primary molars which could well involve the nerves of the teeth. The dental surgery took place on June 21, 2017. The cost was just under $4,500 which was paid by the claimant. [258] Also on June 8, 2017, the claimant took L.T. to the first of many counselling sessions with a registered clinical counsellor, Bonnie Gallagher. Ms. Gallagher began seeing L.T. regularly and, after some initial resistance, the respondent as

well. One of the primary goals of this counselling was the restoration of a relationship between the respondent and L.T. The counselling was initiated by the claimant, and Ms. Gallagher's fees were paid by him. Over the next two years, Ms. Gallagher made recommendations for a reintroduction of parenting times with L.T. and, eventually, overnight visits which generally went ahead in accordance with her recommendations. [259] Ms. Gallagher gave evidence at trial. She provided helpful insights as to her dealings over the course of two years with the claimant, the respondent and L.T. She noted that one of L.T.'s big requests was to be able to go out and do things more - she described him as an 11-year-old boy who wanted to do things that were adventurous. She provided the claimant with advice as to how to be supportive to his son, emphasized the importance of keeping L.T. out of the middle of the conflict, the importance of having positive interactions with the respondent and of not blaming her for what happened, to help L.T. to feel safe, and to encourage him to work to mend his relationship with his mother. Her observation was that the claimant tried to reassure L.T. that while he and the respondent did not get along, that had nothing to do with L.T. Ms. Gallagher also advised the claimant to reassure L.T. that he would not be forced to visit or spend any significant length of

time with the respondent - in Ms. Gallagher's view, it was important to empower L.T., because he was a boy who felt very out of control. [260] When giving her evidence, Ms. Gallagher was appropriately cautious as to how much to disclose of her conversations with L.T., given that he is not a party to the action. She commented that she had discussed with L.T. how to talk to his parents about not speaking about the other parent, and that he learned to do that quite well. [261] She observed that L.T. seemed to enjoy spending time with the claimant, saw him as a role model, was interested in his work and in the restaurant, and enjoyed the activities they participated in together. When asked about a comment in a report of Dr. Bell (discussed below) that the claimant had been "keenly aware" of the time lost with L.T., and specifically how the claimant demonstrated that, she noted that this happened in very positive ways: the claimant was very caring, committed to helping L.T. with school, to talking with him about anything he wanted to, to sharing activities, and buying presents. [262] When asked about the relationship between L.T. and the respondent, Ms. Gallagher observed that it was difficult for the respondent, who tried very hard to connect with L.T., and to reassure him that he was safe with her. She told him repeatedly that she loved him and regretted what happened between

them. Ms. Gallagher noted that initially, L.T. tended to push away from her, which was difficult for her. [263] On cross-examination, Ms. Gallagher agreed that L.T. laid some blame on his mother for not having had much contact with the claimant when he was young. She said, however, that she did not believe that the claimant ever said this to L.T. in so many words; rather, the claimant sometimes expressed feeling frustrated when he tried to see L.T., and that L.T. was a bright child, very aware that there was conflict, and able to pick up on how his parents feel. She commented that L.T. struggled with a constant conflict: he loved his mother, but he was traumatized and upset by the conflict between his mother and his father. [264] Various issues arose in the summer of 2017 with respect to payment for those providing services to M.T. There are a number of communications between the claimant and Ms. Lebedeva, and between the claimant and the Autism Funding Branch, as the claimant attempted to have Ms. Lebedeva paid for the ongoing work she was doing. The autism funding was in the respondent's name, which meant that she had to approve every payment. It is not clear whether the respondent was asked to authorize payment for the work of Ms. Lebedeva's after May 2017. It took until September for the paperwork to be processed so that funding was in the claimant's name. [265] On June 12,

2017, MCFD wrote to both the respondent and the claimant, advising that it had completed its assessment of the report made to it on May 14, 2017, concluding that safety concerns have been addressed, confirming that the respondent had agreed that she understood the laws with respect to physical discipline of her children, and advising that the safety plan was no longer in effect. [266] There was a further exchange of letters between the lawyers on June 14 and 15, 2017, with Ms. Brown advising of the arrangements for counselling for L.T. with Bonnie Gallagher, for dental work on M.T., and for a further specialist eye exam for M.T. Mr. Lowther responded that his client intended to apply to set aside the order and asked that "your client not proceed with any of the matters relating to the children, that you mention in your letter". As well, Ms. Brown continued to propose supervised parenting time, which Mr. Lowther stated his client continued to be unwilling to accept. Ms. Brown also asked about commissioning a s. 211 report, to which Mr. Lowther did not respond. [267] In a further letter dated June 19, 2017, Ms. Brown advised that the claimant would not be holding off on any medical or dental appointments, followed up on the paperwork required for professional supervised visits, and asked again about the s. 211 report. Ms. Brown then wrote again on June 23, 2017, seeking Mr.

Lowther's availability for applications to enforce the order of Master Muir with respect to passports, for a s. 211 report, and for disclosure of medical records. [268] Mr. Lowther responded to these letters by filing a without notice application on June 28, 2017, returnable that day, seeking an order setting aside the order of Master Muir, an order that both children be forthwith delivered to the respondent, an order that claimant have only supervised access, a declaration that the respondent is the sole guardian of both children, and orders for payment of support as well as an order requiring the claimant to ensure the respondent has paid accommodation in Vancouver unless and until she chooses to relocate herself and the children. The without notice application also sought an order that the respondent be permitted to relocate. [269] Although the application was filed on a without notice basis, Ms. Brown attended and, after a brief (approximately 13-minute) hearing before Justice Groves, the application was adjourned to July 5, 2017. On an interim basis, Justice Groves ordered that the respondent have supervised parenting time with M.T. in the presence of a Ms. Evangelista (the nanny who had been recently hired by the claimant) on June 28, 29, 30 and July 4, in the presence of Ms. Lebedeva on July 1 and 2, and in the presence of the respondent's mother on July 3. [270] Later

that evening, Ms. Lebedeva advised the claimant by text that the respondent had requested that an extra hour be added to her time with M.T. on two days that weekend. The claimant responded advising Ms. Lebedeva that he agreed to that request. [271] L.T.'s school report card for the end of his Grade 6 year (June 2017) was in evidence. It shows a total of seven-and-a-half absences over the full school year, with zero late days. The report card indicated, however, that L.T. was not yet meeting expectations in a number of areas, and the teacher's comments recommended that L.T. work with an after-school tutor in all academic areas to help fill in gaps in his understanding of those different subject areas. [272] On June 29, 2017, Ms. Brown wrote to Mr. Lowther raising concern that certain letters in the materials for the June 28 application appeared to have been taken from the claimant's computer without his consent, and asked to confirm that Mr. Lowther had an iPad which the respondent had taken from the claimant's house in late August or early September 2016, and which the respondent had told him was given to her lawyer. [273] During her supervised parenting time on July 4, 2017, the respondent arranged for a session with the speech language therapist, Ms. Davies. At the respondent's request, Ms. Davies wrote a letter "to whom it may concern" after that session, commenting that

M.T. had retained some but not all of her language skills after having had no sessions for two months, and that when it was time to leave she became very distressed. [274] The claimant's evidence was that, as soon as he learned Ms. Davies' identity, he arranged for M.T. to have ongoing speech language therapy with her. Those sessions began on July 11, 2017. [275] As noted above, the respondent's application was adjourned by Justice Groves to July 5, 2017. The hearing that day did not result in any further orders; rather, the various applications before the court were adjourned generally after an incomplete hearing. [276] Also on July 5, 2017, the claimant filed a notice of application seeking a s. 211 report, production of a list of documents to include all medical records, and the signing of authorizations for third party production of the respondent's medical records. [277] The respondent had a fourth session with Ms. Kambolis on July 6, 2017, in which they reviewed the pending court cases, both criminal and family. Afterward, the respondent dropped off an affidavit she had filed in this proceeding. On July 9, 2017, Ms. Kambolis prepared a "diagnostic assessment summary". A letter presumably based on this document was provided to the respondent's criminal lawyer (Mr. Foster) and formed part of the record at the July 13, 2017 hearing described below. [278] In this document,

Ms. Kambolis comments that the respondent "presents as deeply regretful for her actions that included damaging the car of her ex-partner", recommends that she continue with counselling treatment, notes that while she shows elevated symptoms of anxiety and trauma, she does not currently meet criteria for a specific mental health diagnosis, and recommends that she continue to receive regular care from her family doctor, who could deal with any ongoing needs for medication. [279] There are texts between the parties on July 10, 2017, in which the respondent demanded to see L.T. The claimant responded that L.T. does not want to visit right now but provided Ms. Gallagher's telephone number and invited the respondent to speak with Ms. Gallagher. The respondent was initially resistant to and suspicious of Ms. Gallagher's involvement, although as noted above, that subsequently changed. [280] The respondent's criminal charges were resolved before Judge Meyers of the Provincial Court on July 13, 2017. Mr. Foster had negotiated with Crown counsel for a plea bargain, by which the respondent would plead guilty to the charge of mischief and the Crown would stay the two other charges. Transcripts of both the sentencing hearing and the Reasons for Judgment of Judge Meyers were in evidence. [281] At the sentencing hearing, Crown counsel alleged that, in addition to the damage to the claimant's

car, the respondent knocked the claimant's sunglasses off his face, slapped him, and then slapped and kicked L.T. Crown counsel noted, however, having spoken with Mr. Foster at length about what the respondent had been doing since being charged, and her personal circumstances, and advised the court that for the purposes of sentencing, the Crown was agreeable to a plea to the mischief charge in resolution of the case. Crown counsel proposed that an appropriate sentence would be a conditional discharge, with various conditions including counselling with respect to anger management and no contact with either the claimant or L.T. except as authorized by a family court order. [282] The respondent's defence counsel, Mr. Foster, argued that rather than a conditional discharge, the court should give an absolute discharge. Mr. Foster made a number of allegations with respect to the claimant, suggested that the respondent's actions were in part due to her having commenced the use of Cipralex shortly before the Mother's Day incident, and presented a six-page report from Ms. Kambolis, who was said to have seen the respondent approximately six times. [283] Mr. Foster also advised that the respondent disputed the allegation that she had slapped or kicked her son, although the respondent did not dispute a physical altercation with the claimant. Having heard that, Judge Meyers asked Crown

counsel whether she intended to tender evidence to prove the disputed facts. Crown counsel acknowledged that she did not have witnesses on hand to provide that proof. At para. 15 of his Reasons, Judge Meyers noted the respondent's commitment to continue with counselling and concluded at paras. 17-18 that: [17] I am here to sentence you for keying the car. I was given quite a bit of background which may have made your counsel uncomfortable. Your counsel wondered, [the respondent] is not being sentenced for that, why is the Crown telling me about all this when the Judge is only sentencing you for keying? However, all the facts are important to me because it explains what happened, so as your counsel cannot say, well, she was on meds but do not talk about some of the other outrageous behaviour. But he has denied some of that and the Crown are not in a position to prove the slapping or kicking of your child. So I cannot consider those things as aggravating features to consider. In other words, I am going to sentence you on the basis that you keyed the car. I am going to sentence you on the basis that you were under enormous stress; that you had taken meds which may have precipitated, not necessarily cause but brought it all out. It may happen again and to prevent that, you have gone through Michelle Kambolis. [18] So, you are a woman who is 42, who has lived an otherwise

law-abiding life and has this crazy incident, and I call it a "crazy" incident, whether your counsel agrees with that is irrelevant at this stage, but something very out of character for you, I am not prepared to saddle you with a criminal record [284] Judge Meyers accepted the submission of Mr. Foster and granted the respondent an absolute discharge. [285] The parties exchanged several texts on July 14, 2017. The claimant advised the respondent that M.T. would be available on the following week for six hours on each of the Monday, Thursday and Friday. The respondent demanded that she see both M.T. and L.T. every day. With respect to [L.T.], the claimant asked the respondent once again to speak with Ms. Gallagher, to which the respondent replied "Are you telling me the counsellor is advising you to keep my son from me?" [286] The claimant's application filed July 5, 2017, was returnable on July 18, 2017 in regular Master's chambers. The hearing did not proceed that day. [287] The respondent saw Ms. Kambolis again on July 19, 2017. One of the topics discussed was the respondent's efforts to see L.T., and the respondent expressed concern that L.T. had been sent to see Ms. Gallagher without her consent. [288] There were further texts between the parties on July 20, 2017, with respect to the respondent's desire to see L.T. The claimant noted that there is a protection order in

place, that the respondent should not be attempting to contact L.T. directly, and that he encouraged the respondent to speak with Ms. Gallagher about working on a reasonable plan for L.T. to have contact with her. The respondent replied, incorrectly asserting that there was no protection order in place because she had been granted an absolute discharge. [289] There are also several texts in the second half of July in which the respondent asserted, first, that the claimant had blocked her number on L.T.'s phone and, after the claimant pointed out that the protection order remained in place, that the claimant had blocked the respondent's mother's phone number from L.T.'s phone. It appears that the only basis for this assertion was that L.T. was not answering phone calls placed to him from either of those phones. The claimant denied ever having blocked their numbers on L.T.'s phone. [290] On July 23, 2017, the landlords of the Kitsilano Apartment gave notice that the lease would be terminated effective as of the September 1, 2017, the date specified in the lease, and that the landlords would be showing the apartment to prospective new renters beginning on August 14, 2017. The respondent was adamant in her evidence that she was not evicted from the Kitsilano Apartment - it appeared from her evidence that she did not consider herself to be evicted unless an eviction notice was

placed on her door (as had happened in Kelowna). [291] There are texts on July 24, 2017, between the claimant and Ms. Lebedeva, and between the claimant and the respondent, all focused on potty training. It is clear that there were issues with the respondent continuing to put M.T. in diapers, and not cooperating with efforts at potty training. Ms. Lebedeva texted the claimant, noting the problems this created with potty training, but also that: I am getting texts from [the respondent] and feel involved more than I need and should. I am here for [M.T.] and not taking anyone's side, but now I need your help to deal with that please. [292] The respondent retained a new lawyer, Ms. Specht, who filed a notice of appointment on July 27, 2017, as the new lawyer for the respondent, in place of Mr. Lowther. [293] It appears that the respondent continued to have parenting time with M.T. three days a week, generally in the presence of the nanny hired by the claimant. M.T. also continued to have sessions arranged by the claimant with Ms. Lebedeva and Ms. Davies - mostly during times she was not with the respondent, although Ms. Lebedeva also spent some time working with M.T. at the respondent's home as well. [294] The respondent also began to have parenting time with L.T. starting on August 17, 2017. Although these sessions were not as frequent as the respondent wanted (and tried to demand

in texts sent to the claimant), the evidence indicates that the claimant was taking direction from Ms. Gallagher as to the timing and initiation of such sessions. [295] On August 23, 2017, Ms. Specht filed a further notice of application, returnable on August 31, 2017, seeking to have the two orders of Master Muir set aside, to return M.T. to the primary care of the respondent, and for L.T. to be with the respondent at least 50% of the time. [296] The claimant's efforts to access autism funding to pay Ms. Lebedeva and Ms. Davies continued over the course of the summer. On August 24, 2017, CYSN advised the claimant that there was $6,720 in autism funding for M.T. remaining for the use year ending at the end of September 2017. A new Autism Funding Agreement was finally issued on August 28, 2017, which the claimant signed and returned on August 30, 2017. [297] On August 25, 2017, Ms. Davies issued a further progress report, noting that she had two sessions in July and three sessions in August with M.T., with the claimant attending either three or four of the sessions and the respondent attending the other(s), that all of M.T.'s caregivers reported that they were applying the strategies that had been recommended, and that M.T. had made good progress. [298] A series of emails and texts in late August 2017 reflect efforts by the landlords of the Kitsilano Apartment to ensure that the

respondent would move out when the term ended on August 31, 2017, and efforts by the claimant to secure a response from her. The respondent ignored all of these communications and did not move out at the end of August. [299] Two outstanding applications were heard by Master Taylor on August 31, 2017. With respect to the claimant's document production application, he ordered production of the respondent's MSP records dating back to January 1, 2016, but dismissed the other production orders sought on the basis there was an insufficient foundation for the requests. He did not deal with the application for a s. 211 report. [300] With respect to the respondent's application to set aside the protection order made by Master Muir, he set aside paragraphs 2, 3(ii), 3(iii) and 4 of the order, which left in place paragraphs 1, 3(i) and (5). The provisions remaining in place required that the respondent: · Paragraph 1 - not communicate with the claimant, except for purposes of dealing with parenting issues; · Paragraph 3(i) - not attend at, near or enter the claimant's home; and · Paragraph 5 - not possess a weapon or firearm. [301] Those provisions remained in place until their automatic expiration (pursuant to s. 183 of the FLA) on the one-year anniversary of the order (May 30, 2018). [302] With respect to the other order made by Master Muir, Master Taylor: · Deleted para. 2, which had

allocated all parenting responsibilities to the claimant; · Ordered that neither party remove the children from the Lower Mainland (effectively replacing paras. 4 and 5 of the Muir order); · Adjourned the respondent's application for specified parenting time; and · Ordered the claimant to pay 80% of the costs of the application. [303] Master Taylor's order left in place the declaration that the claimant was a guardian of the children as well as the requirement of the Muir order for the respondent to deliver the children's passports. [304] There was a difference of views between the parties as to parenting time and decision-making authority after Master Taylor's order was pronounced. The formal order was not entered until September 26, 2017 (when the matter was back before Master Scarth). On September 1, 2017, there was a series of texts between the parties about M.T.'s parenting time with the respondent. The respondent demanded to know why M.T. had not been delivered to her at 12:30 pm. The claimant said the lawyers were "communicating about a schedule". Later in the day, he stated that "In light of your lawyer's position I cannot agree for you to have time with [M.T.] today as I am concerned you will not return her to me." [305] Also on September 1, 2017: · the claimant advised the respondent that M.T. had been registered to start school the following week at the school that

L.T. had been attending; and · the landlords of the Kitsilano Apartment commenced an application for dispute resolution at the Residential Tenancy Branch. They texted both the claimant and the respondent to advise them of this, and that at the earliest opportunity they would be obtaining a writ of possession and enforcing it by way of a bailiff. Although the documents relating to the proceeding were put in evidence, the respondent was adamant in her testimony that the landlords had never started a proceeding against her. [306] On September 6, 2017, the Residential Tenancy Branch gave notice that the landlords' claims would be heard on November 28, 2017. The landlords also provided, on September 7, 2017, a monetary order worksheet giving notice that, in addition to vacant possession, they would be seeking orders for payment of $4,560 for damage to the Kitsilano Apartment plus $3,650 for lost rental income. [307] September 5, 2017 was the first day of school. The claimant took M.T. to the kindergarten orientation session which he attended with her. The respondent and her father both came as well. The claimant's evidence was that, during the orientation session, the respondent came over, picked up M.T. and carried her outside. The claimant followed them out and asked them to allow M.T. to return to finish the session. It appears to be common ground that M.T. was eventually brought

back into the orientation session. [308] The next day, each party filed a notice of application: the claimant seeking an interim order as to parenting time until the outstanding applications could be heard on the merits, an order for M.T. to attend Queen Mary Elementary School, and an order that Ms. Gallagher be asked to prepare a report on L.T. and his counselling. The respondent applied for an order that both children be immediately returned to her sole care with a police enforcement clause and a $5,000 fine. This was premised on an assertion that Master Taylor had implicitly reactivated the March 2015 "interim interim" orders which limited the claimant to weekend parenting time which was to be exercised in Kelowna. [309] The parties' respective applications for interim orders were heard by Master Scarth on September 7, 2017. At that time, a two-day hearing had been reserved for September 25-26, 2017, so Master Scarth dealt only with what was to happen in advance of the hearing. She ordered that: · M.T. would be in the primary care of the respondent, with the claimant to have four hours of parenting time on each of September 17 and 24; · L.T. would be in the primary care of the claimant, with the respondent to have four hours parenting time on each of September 16 and 23; · The respondent was to "continue to gather information" with respect to a school for M.T. and provide

that to the claimant by September 20, and in the interim M.T. was not required to return to Queen Mary Elementary; · The parties were to obtain a "psychological assessment" of L.T. by September 25; · The respondent was to obtain the name of a new behavioural interventionist and advise the claimant of that person by September 20; · The claimant was given short leave to bring an application for third party document production returnable on September 12; and · All other matters were adjourned to the hearing on September 25, 2017. [310] The respondent was very unhappy by this point with Ms. Lebedeva, who had provided an affidavit in this proceeding at the request of the claimant. The reference to a new behavioural interventionist indicated that Ms. Lebedeva would no longer be working with M.T. [311] On September 12, 2017, Master Taylor granted orders for production by MCFD and by the police of their files with respect to the parties. [312] Counsel for the parties agreed that Dr. Michael Elterman would be retained to conduct the psychological assessment ordered by Master Scarth. On September 12, 2017, Ms. Pietrow wrote to Dr. Elterman, with her letter having been approved by Ms. Specht, confirming that he was being retained to complete a psychological assessment of L.T. to address his anger towards his mother, his disrupted relationship with his mother, and to provide a written

report for the court on or before September 25, 2017. Dr. Elterman was authorized to contact Ms. Gallagher in the course of conducting his assessment. He was also provided the video evidence from Mother's Day. [313] Dr. Elterman interviewed L.T. at his office on September 13, 2017. Dr. Elterman was called to give evidence at trial. He described L.T. as confident, socially poised, alert, intelligent and forthcoming, with "no ambivalence in his demeanour". [314] The respondent moved out of the Kitsilano Apartment on September 14, 2017. Her evidence was that G.T. travelled to Vancouver to help her move, and that after moving out, she stayed with an aunt in Vancouver until the end of September. A condition inspection report was in evidence, noting a number of items for which the landlords claimed compensation. The claimant accepted that the report was fairly presented; the respondent disputed some of the landlords' claims but acknowledged others. On September 20, 2017, the claimant entered into a settlement with the landlords of the Kitsilano Apartment. In addition to forfeiting the security deposit, the claimant paid a further $5,475 in settlement of the claim. [315] The claimant had, while M.T. was in his care, arranged a referral to a paediatrician, Dr. Kitson, and an appointment had been scheduled for September 15, 2017. The claimant advised the respondent of the appointment,

and the respondent attended that appointment with M.T. In a consultation report, Dr. Kitson described M.T. as "extremely anxious" at this appointment, and noted that as a result it was decided to defer a physical examination until later. The appointment consisted primarily of the respondent advising Dr. Kitson of M.T.'s background from her perspective. [316] On September 18, 2017, Dr. Elterman provided his report to the parties' counsel. He commented that L.T. had developed a "disrupted relationship" with his mother. Dr. Elterman noted that his assignment was limited to meeting with L.T., and that he had not met or spoken with either parent. He noted that L.T. was caught up in issues between his parents, and described L.T.'s anger at his mother as: real but situational, it is partly posturing, partly serving to act as his father's agent and, partly reacting to his mother's reaction at being rejected by him. He noted that a full s. 211 report would be able to look more closely at the parents' behaviour and other variables not available by just interviewing L.T. [317] Dr. Elterman's report was tendered as evidence by the respondent, and he was called for cross-examination with respect to it. With respect to the conclusion noted above, it was put to him that his conclusions were in the nature of a finding of alienation; he responded that he had not assessed for alienation, and

that what he had identified was a child going into his teens who wants to advocate for himself because he knows where he wants to live. Dr. Elterman explained that in his view, that is not in itself sufficient for a finding of alienation. He noted as well that, before considering whether there is alienation in a particular situation, it is essential to consider whether there is a "justified refusal". He further noted an unusual feature in this case - that although L.T. expressed a desire to live with his father, he was open to continuing to have a relationship with his mother and see her from time to time on the weekends. Dr. Elterman's experience is that in many cases - involving both justified refusals and alienation - the child will not want to see the other parent at all. [318] On Thursday, September 21, 2017, Ms. Brown wrote to Ms. Specht, noting issues outstanding in advance of the hearing that was scheduled for the following Monday, September 25, 2017. Her letters set out the issues then-outstanding between the parties with respect to the litigation. She provided comments on the draft orders of Master Taylor; she reiterated her proposal that the parties exchange lists of documents on September 30; and she followed up on requests for copies of all video and audio recordings made by the respondent with respect to the claimant, for return of the claimant's iPad, for return

of all documents obtained without his consent from his laptop, for the respondent's MSP records, and for the proposals for M.T.'s schooling and a new behavioural interventionist as ordered by Master Scarth. [319] On September 21, 2017, the respondent discharged her counsel (Ms. Specht) and filed a Notice of Intention to Act in Person. That notice was faxed to the claimant's counsel at 4:45 pm on September 24, 2017 (a Sunday). The respondent represented herself at the hearing on September 25 and 26, 2017. [320] Master Scarth gave oral reasons for judgment at the conclusion of the hearing on September 26, 2017, which have been transcribed. Master Scarth began by noting the limitations on interim orders, citing G.J.U. v. J.L.U., 2017 BCSC 1352 at paras. 27-28: [27] First, [on an interim application] the court is in no position to make findings of credibility based on the affidavit material presented [It is often the case that] [t]he parties disagree on many salient facts that impact the orders being sought, including each [other's] ability to parent the children. As a rule, it will be left up to the trial judge to determine which party's version of events is true and accurate. The exception to the rule is where there is objective evidence corroborating one affiant's statement of fact. [28] Second, the parties are reminded that interim orders, including those that vary or modify

earlier orders, are designed primarily to maintain the status quo and provide short terms solutions until the evidence and issues can be more fully canvassed at trial [321] She noted that in this case, the parties' evidence diverges on many matters which are central to the applications. She noted that she had ordered during the hearing that a s. 211 report be prepared by Dr. Bell, which would be before the Court at a trial, and commented [at para. 29] that "what is necessary is to have orders in place to provide the parties with some certainty pending the preparation of the s. 211 report". She concluded that M.T. should continue to reside primarily with the respondent, noting in particular that this had been the case in the past other than from May 14 to September 7, 2017, and that given that decision, it was appropriate that the respondent have the authority to make decisions with respect to therapies for M.T. pending the receipt of the s. 211 report. Given what was said by Dr. Elterman, Master Scarth ordered that L.T. reside with the claimant. [322] She ordered that the respondent would have parenting time with L.T. every Sunday for five hours, while the claimant would have parenting time with M.T. every Saturday for five hours. She also ordered that M.T. be registered at and attend Queen Mary Elementary, and that L.T. continue to attend counselling with Ms. Gallagher. [323]

She ordered that there be interim child support of $2,000 per month, and in addition provided: [36] There will also be an order, and this will be made pursuant to s. 218 of the Act which permits the court to make other orders as required, that the father pay the mother's rent pending the trial. The amount of rent needs to be determined, but in my view it is appropriate that the father pay the amount representing rent to the mother, rather than having the father on the lease. There is no doubt that it is necessary for the mother to have some accommodation in Vancouver pending the outcome. It appears that she intends to bring an application to relocate, but given the circumstances here, in order for her to engage in the counselling with [L.T.] and allow parenting time for the father with [M.T.], the mother has to reside in the Lower Mainland and specifically Vancouver. Up to now, the father has been paying her accommodation costs, pursuant to the agreement that the parties reached in September 2016. What that agreement amounted to will be an issue for trial, but there is no doubt, and the father does not dispute, that he agreed to pay for the mother's accommodation in order that the children could be closer to him. [37] The suggested figure for rent that I propose is $3,500 a month. It would be rent for a two bedroom apartment. There was some issue as to whether it would be

furnished or unfurnished. I do not propose to get into that kind of detail, but unless I am hearing submissions that $3,500 is excessive, the order will be for that amount. [324] With respect to the information to be provided to Dr. Bell, she listed certain specific information, and further provided that Dr. Bell could be provided "such other documents as the court may direct or the parties may agree to in writing". [325] Master Scarth ordered that a trial be scheduled for April 2018. On September 29, 2017, the claimant filed a Notice of Trial scheduling the trial for 15 days commencing on April 9, 2018. [326] Also on September 29, 2017, the respondent finalized M.T.'s registration at Queen Mary Elementary. She began attending on October 5, 2017. [327] Although the claimant's lawyers prepared a draft formal order with respect to Master Scarth's judgment shortly after it was given, as a result of changes of counsel and disputes over the wording, the order was not entered until January 18, 2018. October 2017 to March 2018 [328] On October 3, 2017, the claimant texted the respondent, reminding her of the appointment for M.T. with the specialist paediatric ophthalmologist on December 4, 2017. Despite a further reminder sent the week before the appointment, the respondent did not take M.T. to this appointment. [329] On October 5, 2017, the respondent entered into a lease of a

furnished two-bedroom plus den apartment in Yaletown (the "Yaletown Apartment") for $3,995 per month. [330] On October 6, 2017, Ms. Pietrow wrote to Dr. Bell confirming her appointment for the s. 211 report, enclosing a draft of Master Scarth's order, and providing the documents specifically listed in Master Scarth's order. The letter noted that Master Scarth had specifically requested that Dr. Bell assess the respondent's concern of alleged parental alienation and of the estrangement between L.T. and the respondent. The letter of instruction advised Dr. Bell that if she required other documents, she should advise, and that there might be additional documents provided to her "pursuant to an agreement between the parties in writing" or as ordered by the Court. [331] As noted above, the restaurant that the claimant worked at had been destroyed by fire in October 2016. His evidence was that the insurance policy continued to pay his salary for one year, but that it took approximately one-and-a-half years for the restaurant to re-open. As a result, beginning in October 2017, he was without income for several months. [332] On October 18, 2017, a new lawyer (Mr. Wilson) advised the claimant's lawyers that he had been retained by the respondent. [333] In mid-October 2017, Ms. Kambolis arranged for a Ms. Burke of her office to begin assisting as a behavioural consultant for M.T. Ms.

Burke did a "home observation" on October 13, 2017, and attended an Individualized Education Plan ("IEP") meeting for M.T. at Queen Mary Elementary on November 7, 2017. [334] The IEP, which was prepared by school staff, noted areas of concern including: · Struggles with transitions or disruptions to routine; · Frustrated when unsuccessfully attempting to communicate; · At times attempting to bite peers or adults when dysregulated; and · Challenges with motor skills like holding a pencil. It also noted that M.T. would have a full-time student support worker, Ms. Fleming. As the year went by, the respondent hired Ms. Fleming to provide additional services outside of school hours. [335] Ms. Davies continued to provide speech language therapy to M.T., seeing M.T. four times in September and October 2017, and at her school on November 2, 2017. [336] Dr. Bell began working on her s. 211 report in mid-November 2017, having initial meetings with the claimant on November 14, 2017, and with L.T. on November 20, 2017. [337] The claimant made various information requests in the last final months of 2017, seeking information on who would be providing behavioural intervention services to M.T. The respondent did not respond. [338] On November 23, 2017, the respondent's new counsel Mr. Wilson provided the respondent's first list of documents in this proceeding. The list contained only 31

documents. When asked about this, the respondent said she did not know why so few documents were on it, and that she had provided "all the documents" to her lawyer. [339] On November 29, 2017, Ms. Brown wrote to Mr. Wilson raising concerns about the F8 Financial Statement and List of Documents that the respondent had provided. [340] On December 18, 2017, Master Scarth made various orders including provision for the claimant to have a special parenting time session with M.T. for purposes of the s. 211 report and for the respondent to produce a number of additional documents. The deadline for such disclosure was January 5, 2018. [341] On January 8, 2018, Ms. Brown wrote to Mr. Wilson to follow up on the disclosure ordered by Master Scarth, and with respect to additional categories of documents that had been demanded on November 29, 2017, for which the 35 days to respond had now passed. Mr. Wilson responded on January 9, 2018, with an amended list of documents that added seven new documents (for a total of 38 disclosed), and advised that he would provide the balance of what had been ordered by Master Scarth within a few days. [342] On January 10, 2018, Dr. Bell observed both children at the claimant's home. This visit had originally been scheduled for December 11, 2018, but had to be rescheduled because there had been issues securing the presence of M.T. [343] In January 2018, the

respondent retained a new speech language therapist, Ms. Sullivan. Ms. Sullivan attended an initial meeting at Queen Mary Elementary which Ms. Davies also participated in. Her first regular session with M.T. was on January 17, 2018. Her notes of that session include reference to difficulties M.T. had with transitions, especially in saying goodbye. [344] On January 20, 2018, the claimant advised that he had picked up the new glasses for M.T., and asked about when the paediatric ophthalmologist would be rescheduled. The respondent did not respond. [345] On January 23, 2018, Dr. Bell observed both children at the respondent's house. The respondent had arranged for her mother (who lived in Prince George) to be present during this session. Dr. Bell testified that she did not know that the respondent's mother would participate in the visit until she arrived, but expressed the view that she did not think the grandmother's presence had any impact. [346] On January 27, 2018, the respondent texted the claimant asking if she could have extra time with L.T. when his grandfather visited. The claimant responded by asking if he could have extra time with M.T. in return. The respondent did not reply. The parties had a similar exchange on February 4, 2018, in which the respondent responded that she would not agree to the claimant having any extra time with M.T. [347] Dr. Bell contacted Dr.

Elterman on January 30, 2018, to follow up on the comments in Dr. Elterman's report. Dr. Bell recorded in her report that, in this conversation, Dr. Elterman told her "his impression was that there might have been some parental alienation on the part of the father". Dr. Elterman was asked about this when he was cross-examined at trial. His evidence was that he was quite sure he would not have suggested that there was alienation in the circumstances of this case; rather, he would have identified a number of things or "streams" happening here, and a variety of hypotheses that could be considered, of which alienation was just one potential hypothesis that could be investigated. He agreed that the respondent's behaviour in the video of the May 14 incident might also support a hypothesis of justified refusal, which would have to be reviewed as part of a deeper analysis of the situation. [348] Dr. Bell also spoke with Ms. Gallagher on February 8 and again on February 15, 2018. The report notes Ms. Gallagher as commenting that L.T. is gradually warming up to his mother in their counselling sessions, but is quite afraid that his mother would take him away from his father. She did note that L.T. had advised her that he had become aware at some point that, when he was a baby, the respondent would not let the claimant see him. [349] On February 6, 2018, Mr. Wilson filed and served a

notice of intention to withdraw as lawyer. He filed a notice of withdrawal on February 15, 2018, which was served on the claimant's lawyer on February 16, 2018. It provided that the respondent's new address for service was the Yaletown Apartment. [350] On February 13, 2018, the claimant filed a notice of application seeking orders to postpone the trial start date by 10 weeks (from April 9 to June 18, 2018), with the new date to be peremptory on both parties. The application also sought orders that the respondent provide an accessible address for service (given that she lived in a secure building with no access for a process server), as well as various directions with respect to steps remaining for trial preparation. The notice of application set out multiple grounds for seeking the adjournment, including: · Delays in completing Dr. Bell's report, including as a result of the respondent's initial failure to make M.T. available for a home visit at the claimant's home, with Dr. Bell presently unable to give an estimated date for completion of her report; · Withdrawal of the respondent's counsel; · The respondent's failure to comply with document production orders made in December 2017; · Resultant delays in the examination for discovery of the respondent, and the lack of any examination for discovery having been scheduled of the claimant; and · The claimant's desire to be present

for the anticipated reopening of the restaurant for which he was general manager in April 2018. [351] This application was heard by Master Scarth on February 20, 2018. The respondent was represented by a new lawyer, Ms. Cheema. Master Scarth ordered that the trial be adjourned to June 25, 2018 (a week later than sought by the claimant) for 12 days, with the new trial date to be peremptory on both parties. Master Scarth also instructed counsel to communicate with Dr. Bell and ask that she deliver her report by March 16, 2018, directed that examinations for discovery be completed by April 20, 2018, and directed the respondent to use her best efforts to obtain the medical records she had been ordered to produce by March 12, 2018, and if she was unable to do so, to provide an explanation to the claimant's counsel. [352] The respondent asserted at the trial before me that the adjournment of the April 2018 trial date was solely because the claimant wanted to open his restaurant. It appears from the documents that she has made this allegation to others in the past. It is clear from the contemporaneous documents that this is not accurate. The respondent was at least as much to blame for the adjournment, as reflected in Master Scarth's order that the new date be peremptory on both parties. [353] On February 23, 2018, Dr. Bell had a telephone call with Ms. Kambolis, who advised Dr. Bell

that the respondent "took responsibility" for the Mother's Day incident. [354] On March 7, 2018, the parties had an exchange of texts in which the claimant advised that L.T. was commencing tutoring with Sylvan, and also asked about the respondent's position on L.T.'s outstanding immunizations. The claimant noted that L.T. had not had his immunizations since 2005, and that he intended to have the immunizations brought up to date. The claimant noted that when he had raised this in October 2017, the respondent had asked for time to talk to her doctor. The respondent replied: Well then I guess we disagree just like everything else. Perhaps you should do some research on immunizations and the long term side effects that are associated with some vaccines. Just because you want to portray yourself and satisfy yourself as the better parent by immunizing again the operative word being PORTRAY. [355] The claimant responded that he had spoken to his doctor about the risks involved in immunizations, and that his doctor had said that the real risk is not getting your child immunized. The immunization went ahead. [356] Also in March 2018, M.T. began working with behavioural interventionists from Harbourside Family Counseling ("Harbourside"), with their work arranged with and directed by Ms. Burke. The Section 211 Report [357] Dr. Bell's s. 211 report was delivered by email to the parties'

lawyers on March 16, 2018. Later that afternoon, Ms. Pietrow emailed Dr. Bell asking about a number of documents that were referenced in the report that the claimant was unaware were being provided to Dr. Bell. Ms. Pietrow pointed out the provision in Master Scarth's order that if there was to be any further information provided to Dr. Bell, it was to be provided by agreement of the parties or further order of the Court. Dr. Bell responded that, because the additional documents that the respondent had provided contained court stamps, she had assumed that the claimant already had copies. [358] Dr. Bell attended the trial for cross-examination by the parties. She acknowledged that the additional documents provided by the respondent included affidavits in which the respondent, G.T. and the respondent's ex-boyfriend made a number of allegations against the claimant. As well, allegations had been made that the claimant had withheld his signature with respect to M.T.'s autism funding - an allegation which the records at trial show was untrue. Dr. Bell did not recall whether she asked the claimant about any of those allegations. [The claimant gave evidence that he was never asked about them.] However, some of those allegations feature prominently in Dr. Bell's summary of the matter and clearly coloured her assessment of the claimant. Dr. Bell was critical of the claimant as having

difficulty seeing the perspective of the respondent on matters, and struggling to say anything positive about her. [359] In cross-examination, Dr. Bell noted that the respondent's struggles with emotional regulation are obvious. However, she ascribed to the claimant an "exaggerated passive" role - in her view, at the time of the keying of the car on Mother's Day, he should have put M.T. back in the vehicle and intervened with L.T. to help L.T. calm down. She said that in her meetings with the claimant, he did not understand how unhealthy it was for L.T. to be allowed to lose control at the level exhibited in the video. She commented that, although the claimant was a lot more level-headed and less reactive in responding to situations, he also displayed less empathy and thus less understanding of the emotions at play. [360] Dr. Bell described the dynamic she observed as including the respondent being "so reactive" and saying hurtful things that would naturally push L.T. towards his father, while his father is consistently playing the "good guy" and supporting L.T. in treating his mother in a certain way. [361] Dr. Bell agreed that she had recorded in her report the respondent's allegations from the affidavits provided to her that, in 2017, the claimant was sending her "multiple intrusive text messages". She said, however, that having not been provided with any text messages to

back up the claim, she ascribed that allegation little weight. [362] Dr. Bell made clear in cross-examination that, in her view, a five-year-old s. 211 report is no longer valid - in her opinion, such a report says nothing about the current needs of the children or the psychological functioning of the parents. [363] Dr. Bell commented in her report that the respondent had been accessing appropriate services for M.T., and is on the right track for learning further strategies, and that it will be "imperative" that the claimant begin working with appropriate professionals and do more research into parenting a child with autism. She noted that the claimant had claimed in their meeting that the respondent refused to share information with him about the professionals working with M.T. and the work they were doing. Dr. Bell's comments in her report seemed somewhat skeptical about this, although in cross-examination she said it was not a surprise that the claimant eventually (as discussed below) had to get a court order to get the full name of M.T.'s speech therapist. [364] Dr. Bell concluded that the needs of M.T. are best served by having a close and loving relationship with both parents, but that any transition to increased parenting time for the claimant needs to be handled with care. She recommended that M.T.'s therapists be able to work with the claimant as well as the

respondent, and noted that it is important that the respondent be supportive of this transition. She emphasized the importance of both parents being involved in M.T.'s therapies, and that the claimant should be involved in taking M.T. to some of her appointments. She suggested that, until age eight, M.T. spend 20% of her time with the claimant and the balance with the respondent. [365] With respect to L.T., she recommended that the parties work with Ms. Gallagher with a goal of moving toward L.T. spending 20% of his time with the respondent. She suggested that L.T. spend time with his mother when M.T. is with her father, so that he would have one-on-one time with his mother. She noted that, regardless of which home he is in, L.T. would need to be involved in extra-curricular activities and to see friends [366] As noted above, Dr. Bell was specifically instructed to comment on the respondent's concern of parental alienation. Dr. Bell concluded that "this is a valid concern". She explained this conclusion as follows: · What she understood to be Dr. Elterman's conclusion that it was his sense that parental alienation had occurred; · Her understanding from Ms. Gallagher that L.T. had been given "a lot of one-sided information" by the claimant about the respondent having not allowed the claimant in earlier years to spend time with L.T.; · Her view that, despite his silence in the

video of the May 14, 2017 incident, the claimant had in effect "joined in" L.T.'s verbal attacks on his mother; and · The commonality between the reasons given by L.T. for not wanting to live with his mother and the concerns expressed by the claimant about the respondent's parenting. [367] It was suggested to Dr. Bell in cross-examination that this case required her to determine whether there was alienation or justified estrangement. Her response was that, in this case, both exist. [368] In cross-examination, Dr. Bell described alienation as existing where a child is (a) systematically rejecting one parent, (b) refusing any contact with that parent, and (c) highly aligned with one parent over the other. She noted that alienation can occur in very subtle ways - including simply being allowed by one parent to do a lot of fun and preferred activities rather than doing less preferred activities with the other parent. [369] Dr. Elterman was also asked to describe alienation. He agreed that it arises in a high-conflict situation, where the parents are angry with each other. The key feature he described is that the child feels that, in order to be acceptable to the parent who is "doing the alienating", they have to take on that parent's view of the non-favoured parent - that they perceive their attachment with the favoured parent to be contingent upon them rejecting the non-favoured

parent. He noted that alienation can be intentional or unintentional, and can be mild, moderate or severe - but that the key element is that the child feels they have to choose a side. [370] Ms. Gallagher was asked about the comments attributed to her by Dr. Bell. Her recollection was that she and Dr. Bell did not have a lengthy discussion about alienation. She believes she told Dr. Bell that L.T. had reported that his mother had been trying to steal him from his father, but that she was not clear whether L.T. had been told that in conversations or whether that reflected his trying to figure out his situation in the context of the trauma. [371] On March 18, 2018, the claimant texted the respondent asking: "Why are you telling [L.T.] and discussing what Dr. Elterman and Dr. Bell and what section 211 says? That information shouldn't be shared with [L.T.]." The respondent replied that "I suggest you stop using [L.T.] as your agent and go do research on Parental Alienation and the damaging effects it has on children." The claimant responded "You shouldn't be discussing what the results from the section 211", to which the respondent replied "I didn't discuss the 211 with him the only thing I said was that he would be spending more time with me whatever else we need to discuss will be with [Ms. Gallagher] present". April 2018 to July 2019 [372] M.T. was due for a check-up with the

dentist in March 2018. Rather than take her back to the dentist who had performed the work in 2017, in May 2018 the respondent took M.T. to a new dentist. [373] There are texts from the claimant to the respondent on March 14 and 21, 2018, advising that the claimant wished to take L.T. to Prince George to see family and friends on the final weekend of March 2018, which would have meant changes to the respondent's parenting time. It appears that the respondent did not consent and that the trip did not occur. On March 21, in response to that request, the following text exchange occurred: Resp: I just called [L.T.] and he is speaking extremely rude to me calling me annoying and telling me he doesn't want to talk and hung up on me. I want you to know the damage you are causing to [L.T.'s] emotional well being. And you continue even after the all the professionals have recognized your parental alienation. Clmt: I will talk to [L.T.] about being rude to you and hanging up. Resp: You will talk to him? You are causing it! Clmt: He told me the you were trying to fight with him and he wanted to get off the phone and hung up. I told him that he shouldn't hang up on you and be rude. [374] The respondent's father was in Vancouver in early May 2018. The claimant agreed to two extra parenting times for L.T. with his mother during that week. The respondent ignored all suggestions that the

claimant have extra time with M.T. in return. [375] There was a trial management conference before Master Bouck on May 15, 2018. The respondent's lawyer provided a new, unfiled Trial Brief which listed over 20 witnesses to be called by the respondent. Master Bouck granted leave for the amended trial brief to be filed, ordered that a further five days be added to the trial (subject to the availability of counsel, which was to be confirmed), ordered that by May 25 the respondent provide answers to requests outstanding from her examination for discovery on May 3, 2018, and directed that there be a further trial management conference on June 11, 2018 (two weeks before the trial was to commence), to confirm that the case would be ready to proceed. [376] The respondent did not provide the responses to outstanding discovery requests by the May 25, 2018 deadline. [377] M.T.'s school conducted a review of her IEP on May 25, 2018. The review report noted that M.T. had greatly ameliorated her ability to regulate effectively for a school setting, and that incidents of biting had been greatly decreased. [378] The claimant filed an updated trial brief on June 1, 2018. That document indicated that the respondent had added yet further witnesses since the trial management conference, and that the respondent's lawyer had a scheduling issue with respect to the extended trial dates. [379] On June

8, 2018, a requisition was filed adjourning the June 25, 2018 trial by consent. [380] On June 12-13, 2018, the parties exchanged texts. The respondent advised that she planned to go on holidays with M.T., and advised that if the claimant would not consent, she would make an application. The claimant responded asking what was being proposed in terms of holidays, and noting that he would like to have some more parenting time, including overnights. The respondent did not reply to this. She agreed in her evidence that Dr. Bell had recommended that M.T. have increasing time with her father, but said that she was not willing to follow that recommendation at the time. [381] After the trial was adjourned, Ms. Pietrow advised Ms. Cheema that the claimant was refinancing his property and would be bringing an application to remove the CPL that had been filed nearly 10 years earlier in 2008. Ms. Cheema advised that she would no longer be representing the respondent. Ms. Pietrow noted that until a notice was filed to formally remove Ms. Cheema from the record, she was required to deal with Ms. Cheema, as Ms. Cheema remained counsel of record. A request to appear before Master Scarth was submitted to the registry with respect to the contemplated application - in response, the court registry advised on June 13, 2018, that the application could be heard in regular chambers and that Master

Scarth was seized of parenting issues only. [382] On June 18, 2018, Ms. Pietrow wrote again to Ms. Cheema, advising that a court application was being prepared, noting that because of a refinancing it was necessary to register a second mortgage against the property which required that the CPL be lifted, suggesting that the money to be spent on a court application could be better spent on the children, and asking that the respondent reconsider. [383] Ms. Cheema responded later that day by sending Ms. Pietrow a Notice of Withdrawal of Lawyer. A Notice of Withdrawal is a document that can be filed and served pursuant to Rule 21-4(6) only once seven days have passed after all parties to the action, as well as the withdrawing lawyer's client, have been served with a Notice of Intention to Withdraw: Supreme Court Family Rule 21-4(5). It does not appear that ever happened in this case. [384] That became moot when, on June 19, 2018, the respondent filed a Notice of Intention to Act in Person, which she emailed to Ms. Pietrow on June 20, 2018. That notice provided two means by which the respondent could be served: by delivery to the Yaletown Apartment, or by email to her email address. [385] On June 22, 2018, Ms. Pietrow emailed to the respondent the email she had sent to Ms. Cheema on June 18, 2018, and asked one last time for her to agree to the removal of the CPL to allow the

refinancing to occur. The respondent replied that she was "not interested in discussing anything with you", that she intended to retain new counsel, and that "if you are going to be making applications in regards to the CPL which I am certain you are very aware I am not interested in removing anytime soon I would be requesting adjournment". [386] The respondent explained that she thought the bringing of such an application was inappropriate, and that she was a busy parent who was being "bombarded with court applications". It is not clear what applications she was referring to by this - the only application filed in the prior six months was the February 13, 2018 application to adjourn the trial date, to which the respondent did not even file a response. [387] On June 25, 2018, the claimant filed a notice of application and supporting affidavit for cancellation of the CPL. These documents were served on the respondent twice by email: once at 12:57 pm, and once at 1:19 pm. In the cover email, Ms. Pietrow noted that the matter was urgent because the lender had indicated that, after that week, the interest rate would be increasing by 1% which on a $700,000 loan was significant. At 1:41 pm, Ms. Pietrow received an email from the hosting service advising that delivery of the second email had failed. There was nothing to indicate that the first email had not been delivered. [388] The

respondent subsequently claimed that she had not received either email. She also asserted that, in her view, a paper copy of the application had to be served to the Yaletown Apartment as well. That is incorrect, as the Notice of Intention to Act in Person included her email address for service. [389] Mr. Schreiber represented the claimant at the June 28, 2018, hearing. The respondent did not attend. Mr. Schreiber advised the court that the respondent had been served and they were not aware whether she would appear, but that she had said she would not agree to remove the CPL. In her evidence at trial, the respondent repeatedly accused Mr. Schreiber of having lied to the court. I note that, based on evidence at trial, there was no reason for Mr. Schreiber not to have believed that the respondent had been served properly by email. It was not until much later that the respondent alleged that she had not received either email. [390] Master Tokarek granted an order cancelling the CPL from title to the claimant's home. However, he added a term that the cancellation was without prejudice to the right of the respondent to apply for a further CPL after the new mortgage had been registered, and was also without prejudice to the right of the claimant to apply to have any such new CPL cancelled. [391] The respondent never applied to the court registry to reissue the CPL in accordance with

the provisions of Master Tokarek's order. [392] M.T.'s end of the school year report card indicated that she had learned to identify numbers up to 10 and almost all of the letters of the alphabet. [393] The parties exchanged several texts over the first few days of July 2018. Several of these texts reflect the respondent complaining that L.T. is not answering her calls, and accusing the claimant of blocking her number on L.T.'s phone. The claimant responded that L.T. had called her back multiple times shortly after her calls to him and she did not answer. The respondent's position in all of these texts is that any time L.T. does not answer her calls, it is because the claimant has improperly blocked her number; however, if she does not answer calls from L.T., it is simply because she is a busy mother. [394] On July 9, 2018, the claimant filed an application seeking production of records from various medical and other practitioners treating the children. The respondent did not file an application response, but attended court to oppose the application. Master Scarth granted the order, with minor variations, noting as she did so Dr. Bell's recommendation that "both parents be actively involved with [M.T.'s] therapy regimen. While medical decisions could be primarily made by the mother, it is important for [the claimant] to be apprised of [M.T.'s] progress and be involved when

possible." Master Scarth also noted that the trial dates that had been booked had been lost, and encouraged the parties to book a trial date as soon as possible. [395] Master Scarth also commented that one of the applications was for the respondent to sign a consent form for the claimant to receive information from M.T.'s current speech therapist who was known only as "Emily". When asked by Master Scarth, the respondent advised the court that she was not sure of Emily's last name. [I note that, by this point, the claimant and M.T. had been seeing Ms. Sullivan several times a month for over six months, including a session just three days before the hearing before Master Scarth.] Master Scarth directed the respondent to provide an invoice showing her last name to Ms. Pietrow within 14 days. The respondent finally provided Ms. Sullivan's name to Ms. Pietrow on August 10, 2018. [396] In early August 2018, the claimant had parenting time with M.T. They went swimming at the UBC pool, then back to the Point Grey House to prepare some food. The claimant's evidence was that he turned away momentarily with his back to M.T., and that she leaned against the stove and suffered a burn mark on her stomach. The claimant took M.T. to the emergency room to be checked by a doctor and advised the respondent what had happened. A few days later, the respondent took M.T. to a walk-in clinic in

Yaletown and obtained a copy of the doctor's notes, which she tendered as evidence supporting her view that the claimant will leave M.T. unattended. The doctor's notes confirm that the doctor was advised of ongoing court proceedings, that the respondent had been advised of the circumstances of the burn by the claimant, and that the doctor found "no possibility of child abuse in exam". [397] There was a further judicial case conference on August 21, 2018. At that time, the respondent was still self-represented. She was ordered to file an updated F8 financial statement on September 14, 2018, the judicial case conference was scheduled to continue on September 18, 2018, and the respondent was instructed that if she retains counsel she is to have her counsel contact the claimant's counsel. The judicial case conference did not proceed in September 2018 - it was adjourned multiple times until it eventually occurred in early January 2019. [398] On October 5, 2018, the claimant filed a notice of application seeking to strike out the respondent's property and spousal support claims, to reduce the amounts of the child support and interim rent payments, to increase the claimant's time with M.T., to permit the claimant to participate in some of the speech therapy sessions, and to specify a treating paediatrician and dentist for M.T. A further notice of application was filed on October 11,

2018, seeking third party document production. [399] On October 11, 2018, MCFD received a report of allegations that M.T. had stated to the respondent that the claimant "licks" her on her vagina. The claimant said that he learned of this allegation from L.T., that he then contacted Ms. Gallagher to let her know, and that Ms. Gallagher called MCFD. The claimant's evidence was that, despite his mother's insistence that M.T. had said this, L.T. did not believe her. The respondent said that L.T. only became aware of her concern because M.T. had made the allegation in front of both her and L.T., she was shocked to hear it, and she felt it was her duty as a mother to ask L.T. about it. [400] MCFD's review of the situation noted that the parents were "continuing to engage" in high-conflict litigation, and that the week prior to the disclosure the father had submitted an application for increased parenting time with M.T. MCFD interviewed both M.T. and L.T. with no disclosures of concern, the claimant adamantly denied the allegation, and the respondent provided conflicting information about what had actually been said by M.T. After conducting collateral reference checks, MCFD concluded that the concerns reported were not substantiated. On October 26, 2018, a social worker wrote to the claimant advising: During our observations, it was evident that you are committed to meeting your

daughter's daily needs and ensuring her ongoing safety and well-being. I encourage you to continue providing your daughter with an open and supportive environment in which to grow. The letter concluded that no child protection concerns had been identified and advised that MCFD's file would be closed. [401] On October 19, 2018, Ms. Taylor (who had represented the respondent in 2008) filed a Notice of Appointment and began representing the respondent. [402] On October 26, 2018, the respondent obtained from Ms. Burke of Harbourside an updated "Functional Assessment of Behaviours" with respect to M.T. This is in the nature of a progress report, and was referenced by the respondent in closing submissions as indicative of the progress M.T. made while in the care of the respondent. The assessment notes that there has been significant progress in decreasing certain problematic behaviours, that M.T. still finds transitions, highly stimulating environments and novel stimuli to be challenging, and that M.T. responds well to being offered choices for non-preferred tasks. It recommends that M.T.'s schedule be set up to minimize the number of and have consistent transitions, and that she continue to have one to one support in the classroom, weekly SLT support at home, and three weekly BI sessions at home. The report notes the importance of M.T. being supervised at all times, as she may

choose unsafe behaviours such as touching hot items, and that she does not have the ability to communicate details when she becomes injured. [403] The respondent gave evidence that the claimant was frequently in contact with Harbourside, asking that they limit their services to the $6,000 per year of available autism funding. The respondent's evidence was that there were many emails to this effect. I note that Harbourside was ordered to disclose its entire file with respect to M.T. and nothing in the file shows the claimant ever making such a request. [404] On October 31, 2018, the claimant obtained an order for production of CYSN's files with respect to M.T. [405] On November 16, 2018, the claimant filed a further notice of application seeking further third party document production. [406] On November 28, 2018, the respondent filed an application returnable on November 30, 2018, seeking a CPL against the Point Grey House, as well as orders: · Terminating the claimant's guardianship of M.T., · For L.T. to spend 50% of his time with the respondent, · For retroactive child support, and · For the claimant to undergo a hair follicle test. [407] On November 29, 2018, the respondent obtained a brief report from Ms. Gallagher, who confirmed that she had been providing counselling both for L.T. and through joint sessions from June 2017, with the most recent session on October 16, 2018.

Ms. Gallagher reported that the respondent had attended all sessions as required, and indicated that she is motivated to improve her relationship with her son. She noted that L.T. was, for some time, reluctant to re-establish a relationship with her but has become agreeable to extend Sunday afternoon visits to sleeping overnight one night a week. [408] The various outstanding applications were all before Justice Kent on November 30, 2018. Justice Kent ordered that the action be scheduled for a 19-day trial to commence on September 3, 2019, that there be a judicial settlement conference on a date convenient to both parties, that the two summary trial applications that were before him be adjourned to the trial, and that the various applications for interlocutory orders continue before him at a two-day hearing to be scheduled. [409] On January 17, 2019, the parties had the rescheduled judicial case conference. The only orders that resulted were directions that the parties seek the earliest possible dates to continue the hearing before Justice Kent for two days, and that the parties should obtain a detailed progress report from Ms. Gallagher. [410] Ms. Gallagher provided a four-page report dated February 28, 2019, which provides a useful snapshot of the views of L.T. at the time. Ms. Gallagher noted that L.T., who would soon be turning 14, was a polite, intelligent and mature young

man who is "highly sensitive to the conflict that persists between his parents". She noted that, in recent interactions, L.T. indicated that he loved both parents, knew they would never get along, but still "wished they would". She commented that, regardless of the improvement in L.T.'s relationship with his mother, he has indicated that he does not want to spend more time with her - he reluctantly agreed to spend a few more hours as well as one overnight stay each week. She noted the importance both she and Dr. Bell had ascribed to the respondent having one-on-one time with L.T., but that the respondent insisted on always having M.T. with her when with L.T., which among other things made it difficult for them to share in the sort of activities that L.T. was interested in. As she noted: [L.T.] indicates that when his sister [M.T.] visits with his father she is happy and he expresses not understanding why this time has not increased. While it does not appear that either parent discussed [the respondent's] intention to relocate with [L.T.] he is very aware of this intention and has commented that he will not go. [L.T.] has already relocated several times when his mother has moved and the possibility of having to move away from his friends and father impacts his feelings of constancy and security regarding where his home will be and time spent with his father and friends. Such

concerns reinforce his feeling of being caught in the middle of the conflict between his parents. [411] Ms. Gallagher summarized her observations as follows: there is a strong bond with both parents and an ability to provide a caring healthy environment in which the children may thrive. While [L.T.] still presents somewhat defensively in sessions with his mother he is able to become more relaxed and express a positive attachment to her as the session progresses. In sessions with his father [L.T.] presents as relaxed, strongly attached and affectionate toward his father. He does however still tend to idealize his father and lean toward blaming his mother for the adversarial relationship between his parents. I believe that this is the result of [L.T.'s] awareness of how they feel toward each other rather than something engendered by what the parents relate verbally to [L.T.]. [412] Ms. Gallagher recommended that there be ongoing twice-monthly meetings with the parents, monthly meetings with the respondent and L.T. together, and that the respondent spend one-on-one time with L.T. in order to participate in activities together. [413] The parties continued their hearing before Justice Kent on March 4, 2019. The result of the hearing was that Justice Kent: · Varied the order of Master Scarth to reduce the amount of child support to $1,500 per month, with such payments to be subject

to an accounting on a retroactive basis; · Ordered that on each Monday, each party was to inform the other party in writing of all professional, medical, dental, speech therapy, behaviour consultant, behaviour intervention appointments and counsel, with particulars as to the name, address and contact information for each such professional; · Granted the claimant leave to further amend the notice of family claim; · Made various orders for third party document production, including an order that Dr. Bell provide her testing results to Dr. Korpach (a psychologist retained by the claimant to review Dr. Bell's report); · Permitted each party to conduct a further five hours of examination for discovery of the other; · Directed that there be a trial management conference not later than June 30, 2019; and · Instructed that he remained seized of the pending applications of both parties. [414] On March 12, 2019, Ms. Pietrow wrote to Ms. Taylor noting that, the day before, Ms. Taylor had raised the issue of parenting time for spring break. She asked that Ms. Taylor provide her client's detailed proposal including any travel. She also noted that the respondent had not yet advised the claimant of any professional appointments that M.T. had in the time since Justice Kent's order of March 4, 2019, and asked that Ms. Taylor ensure that her client complied with the order. The respondent did not

do so. [415] At about this time, the claimant got in contact with Ms. Sullivan. The evidence indicates that he obtained her contact information through the college that regulates speech therapists. They spoke on March 14, 2019, and thereafter exchanged emails. Ms. Sullivan began providing copies of her invoices to the claimant. Over the course of the next two weeks, Ms. Sullivan identified the amounts for which autism funding coverage was not available, and requested a total of $1,680 from the claimant. [416] At around this time, Harbourside provided its invoices to the claimant, including some for which autism funding coverage was not available, and the claimant made payment. [417] The invoices from Harbourside for BI services for the first half of 2019 show a fairly irregular schedule for BI. When asked about this, the claimant asserted that there was another, private behavioural interventionist whose invoices had not been produced. [418] On March 19, 2019, Ms. Pietrow wrote again to Ms. Taylor asserting that the respondent continued to be in breach of Justice Kent's order for provision of information as to professional services provided to M.T. When asked about this at trial, the respondent said that the claimant knew exactly what programs M.T. was involved in, and that he paid for some of them. She said that there were so many court orders that it was hard for her to keep

up. [419] On March 21, 2019, Ms. Pietrow wrote again to Ms. Taylor noting that she had still not received a proposal for spring break travel (as requested on March 12), and asserted that the respondent is now telling L.T. that the claimant is not letting him go to Prince George. Ms. Pietrow stated that the respondent should not be discussing those matters with L.T., and put forward a proposal on behalf of the respondent. Ultimately, the parties were able to agree to arrangements for travel during spring break. [420] The record includes a series of weekly texts from the claimant to the respondent advising whether any professionals were seen by L.T. the previous week. Up to July 2019, there were no such texts from the respondent to the claimant with respect to M.T. The respondent, when asked about this, asserted that the claimant knew M.T.'s schedule, and that she thought the order only applied where there was a change. [421] On April 2, 2019, there was a further exchange of texts between the parties as M.T. required new glasses. The claimant asked whether M.T. had ever had the eye exam that he had arranged for (and the respondent had not taken M.T. to) in 2017. The respondent advised that it would take months to organize an appointment with the specialist, and that M.T. cannot go without her glasses, and demanded that the claimant provide new glasses immediately using the old

prescription. [422] Also on April 2, 2019, Ms. Pietrow wrote to Ms. Taylor noting that she had asked why the respondent was not complying with Justice Kent's order to provide information weekly with respect to professionals, and that Ms. Taylor had advised that the respondent intended to apply to set the order aside. Ms. Pietrow asserted that orders of the court should be complied with unless and until they are set aside. [423] On April 23, 2019, the respondent sent a text to the claimant advising that she was going to be part of a cousin's wedding party and would be travelling to Greece along with her parents, and that it was "very important I attend with the kids as all of their cousins will be there". She asked that she have L.T. for the month of July. The claimant responded that any changes to parenting time and to the non-removal order should be worked out through legal counsel. The respondent advised that her lawyer would be in touch with the claimant's lawyer. Nothing in the record indicates any further discussion of this request over the next five weeks - either through lawyers or the parties directly. [424] On April 25, 2019, the respondent obtained a letter from Ms. Sullivan advising that she agreed that it would be appropriate for M.T. to have a summer break from speech language therapy. [425] In the Harbourside file, there are notes dated May 21, 2019 that the

respondent advised one of the Harbourside staff that she and the children would be leaving for Greece at the end of June and staying there for two months. [426] On May 27, 2019, the respondent filed a notice of application, returnable on June 3, 2019, seeking an order to permit the respondent to travel with both children to Greece from June 30 to August 30, 2019, inclusive, with the claimant to have Skype or FaceTime access to the children during that time. [427] On May 28, 2019, the respondent's application materials were served on the claimant's lawyer after 4:00 pm. Ms. Pietrow wrote to Ms. Taylor on May 29, 2019, advising that the time to respond to the application would not expire until June 5, 2019, and suggesting that the application should be heard on July 4, 2019, with the other applications already scheduled before Justice Kent. [428] When asked why there was a five-week delay between the initial request to travel to Greece and the time the application was filed, the respondent could not recall. [429] In late April, the claimant had asked Ms. Sullivan if they could actually meet face-to-face to have a discussion about M.T.'s therapy and her needs. That meeting occurred on May 30, 2019. Ms. Sullivan's clinical notes for that meeting comment that the claimant had asked for the meeting to discuss M.T.'s goals and how he can support them, that she had waived any fee for

the meeting, that they had discussed examples of strategic activities that the respondent can use with M.T., and that the claimant had many good questions that demonstrated understanding. [430] Lawyers for both parties appeared before Master Tokarek on June 3, 2019, with respect to the respondent's travel application. Master Tokarek instructed the parties to ascertain whether Justice Kent was or was not seized. [431] The parties obtained a half-day hearing before Justice Kent on June 6, 2019. At the hearing, counsel for the claimant expressed concern that the respondent was a flight risk and might not return M.T. to Vancouver by the trial date. It was also clear from the materials filed that L.T. was not interested in a lengthy trip with his mother. At the conclusion of the hearing, notwithstanding the concerns expressed by the claimant through his counsel, Justice Kent agreed to permit the trip, and made a series of orders with respect to travel: · The respondent was permitted to travel to Greece with M.T. for the purposes of attending the wedding on July 20, 2019; · The respondent was permitted to be absent from Vancouver with M.T for a maximum of 30 days, that they were to leave no earlier than Friday, July 5, 2019, and return no later than Tuesday, August 20, 2019; · The terms as to parenting time, as set out in Master Scarth's order, would continue until the time of the

respondent's departure for Greece and resume upon her return; · The respondent was to provide the claimant with "a detailed itinerary of the trip that is arranged, to include the addresses and contact information, telephone numbers, email addresses and the like of all places and hosts with whom the Respondent will be residing with while in Greece", with that itinerary to be provided within two weeks of the date of the order; · The claimant was permitted to travel with L.T., either inside or outside Canada, and if he did, he was to provide the respondent with a detailed itinerary containing the same information as in the itinerary the respondent was to provide to him; · Any changes to the itineraries thereafter must immediately be provided to the other party so that either party may know, throughout their visits, precisely where the other party and child will be located and where they can be contacted; · Each of the parties was to provide to the other any consents necessary to facilitate their international travel; · Each of the parties was to ensure that the other would have contact with the child in their care by Skype or FaceTime; · The respondent was to secure from Ms. Sullivan a plan for continued support of M.T.'s speech and language goals and to abide by such plan whilst in Greece; and · If the parties had disagreements about their time schedules, those were to be raised

before Justice Kent at the hearing on July 4, 2019. [432] Justice Kent also made several orders aimed at preparation for the trial: · The trial shall take place for 19 days commencing on September 3, 2019, which dates are peremptory on both parties, and cannot be adjourned except by consent of both parties or "by leave of the court should truly emergency circumstances exist"; · The respondent was required to attend her examination for discovery on June 11, 2019; · Each party was to file a trial brief not later than June 20, 2019, attend in person at the trial management conference on June 27, 2019, attend in person at a judicial settlement conference on July 3, 2019, and attend the continuation of the hearing before Justice Kent on July 4, 2019; · Prior to the July 4, 2019 hearing, the respondent was to provide the claimant with "firm details respecting her proposed continued residence in Vancouver for the next year, including the location of her residence and all documentation in relation to the matter that is reasonably available, including leases"; · Any obligation on the claimant to make any payment toward the respondent's rental costs for July and August, 2019, is stayed unless the respondent has provided the information required by this order no later than June 25, 2019; · If the respondent fails to comply with any of the deadlines in this order, her permission to remove

M.T. from Canada is revoked automatically without further order of this Court; and · Costs of this order are in the cause, and costs of all previous applications that remain outstanding shall be determined by the trial judge at the conclusion of the trial. [433] The order was signed by Justice Kent and entered on June 20, 2019. [434] On June 10, 2019, Ms. Pietrow wrote to Ms. Taylor (letter faxed at 1:03 pm) requesting that she bring all of her client's listed documents (of which, as noted above, there were 38) to the examination for discovery the next day. She also said: You said that you have a box of documents in your office that you need to go through. If there is anything in that box that you intend to rely on at trial, I expect that it be listed so that I can review it in advance and also discover [the respondent] on the same. [435] The respondent attended the examination for discovery on June 11, 2019. This was the second day of discovery - the first having occurred on May 3, 2018. When asked about whether she had brought the documents that were listed, Ms. Taylor advised that she could not find them, and the respondent confirmed that she had not brought them. She also confirmed that she had not brought with her responses to any of the 30 outstanding requests from her prior examination for discovery. [436] June 12, 2019 was the final BI session before the summer (as

recorded in the documents in evidence). [437] On June 14, 2019, the respondent's parents purchased tickets for the respondent, her mother and M.T. to fly to Greece for one month, departing on July 9, 2019, and to return on August 9, 2019. The respondent's father was travelling separately, and was not scheduled to return until September 9, 2019. [438] On June 17, 2019, Ms. Pietrow wrote to Ms. Taylor setting out sixteen requests for information that were outstanding from the June 11, 2019 examination for discovery of the claimant, and noting that the requests from the initial examination for discovery remained outstanding. [439] On June 21, 2019, Ms. Sullivan prepared a document titled "Language-Rich Summer Holiday Activity Ideas", with suggestions specific to M.T., and provided it to each of the parties. [440] On June 22, 2019, Ms. Taylor provided to Ms. Pietrow a detailed itinerary with respect to the respondent's summer travel plans. That itinerary ended on August 9, 2019, with the respondent and M.T. flying back to Vancouver. [441] On June 25, 2019, the respondent's examination for discovery resumed. Once again, the respondent did not bring any of the 38 listed documents from her amended list of documents, and provided responses to only a few of the outstanding requests from the earlier discoveries. [442] There was a trial management conference before Master Schwartz on June

27, 2019. As directed by Justice Kent, both the parties and their lawyers attended the trial management conference. Master Schwartz made several orders intended to ensure that the parties were ready for trial: · By July 23, 2019, the respondent was to file a response to any outstanding pleadings; · By July 30, 2019, the parties were to exchange lists of the documents they intended to rely on at trial, and to provide to the other copies of any requested documents within 72 hours; · By August 6, 2019, the respondent was to complete any examinations for discovery of the claimant; · By August 13, 2019, each party was to provide the other with a final list of witnesses and a summary of the evidence they expected each non-expert witness would give; · Also by August 13, 2019, the claimant was to provide a draft witness schedule and a draft document agreement, which the respondent was to respond to by August 20, 2019; · On August 14, 2019, the respondent was to attend for a continuation of her examination for discovery; and · Any party being examined for discovery must bring their documents with them to the discovery. [443] The documents tendered at trial include a "Review of Service" dated June 28, 2019, prepared by Ms. Zargari, a behavioural consultant at Harbourside, who had taken over from Ms. Burke. Ms. Zargari noted that as of the end of the school year, M.T. could identify most

emotions verbally and communicate immediate needs most of the time. With respect to transitions, the report noted that M.T. has become more successful with transitioning to "preferred activities", but that it is still challenging to transition to non-preferred activities. Academically, M.T. could recognize and sound out all the letters of the alphabet; could read familiar three letter words, and with one-on-one support could read unfamiliar three letter words. The report noted that M.T. still struggled with her pencil grip and with written output. [444] On July 2, 2019, the claimant texted the respondent (as he had for the past several months) advising that L.T. had seen no professionals the previous week. The respondent responded that M.T. had a session with Ms. Sullivan. When it was put to the respondent in cross-examination that this was the first time she had complied with Justice Kent's order to share such information, she responded "could be". When it was put to her that she knew that if she did not comply, it might impact her trip to Greece, she accepted that that "perhaps" it was a factor, but did not agree that was the only reason she complied. [445] On July 3, 2019, M.T. had her final session with Ms. Sullivan prior to the summer. That evening, Ms. Sullivan texted the claimant to advise him of the session, and said that she had been advised by the respondent that they

would likely restart in late August, but that the respondent would text her closer to that time. [446] Although a judicial settlement conference was scheduled for July 3, 2019, it did not proceed. The record does not indicate why. [It may well have been due to a lack of available judges.] [447] The hearing before Justice Kent that had been scheduled for July 4, 2019, was adjourned to July 18, 2019. [448] The claimant and L.T. travelled to Bermuda, arriving on July 7 and returning on July 15, 2019. [449] The respondent and M.T. travelled to Greece on July 9, 2019. The itinerary that had been provided the previous month stated that they would: · Depart on July 9 and arrive on July 10 in Alexandroupolis, where they would stay with a relative (Helen); · Drive to Patras on July 18 to attend the wedding, staying with another relative (Maria); · Drive back to Alexandroupolis on July 28, again staying with Helen; and · Depart Alexandroupolis by airplane on August 9 at 8:05 am local time, changing planes in Athens and Munich, arriving back in Vancouver at 4:45 pm that day. [450] At the conclusion of the hearing before Justice Kent on July 18, 2019, a number of orders were made including for production of any yet-unproduced Harbourside files with respect to M.T. Justice Kent also made certain orders which were to become effective only if the trial was adjourned, explaining: [1] This is

one of those regrettable cases where the communications between counsel have not been optimum. At least one of the clients is having some difficulty in focusing on getting things done. That is the good news about having a trial date, because it literally forces people to get ready. I am certainly grateful that Master Schwartz has imposed case management and trial management deadlines but I am worried, given the history of this case, that some manoeuvrings may occur to prevent a trial. I think some sort of "Damoclean sword" should be put in place just in case that eventuality comes about. [2] I have sympathy for the position in which [the claimant] finds himself. I accept what I have been told about his financial situation. I appreciate that counsel wishes to conduct discoveries to confirm what she has been told, but the material that has been provided to me along with the submissions of counsel are sufficient to satisfy me that there has, in fact, been a material change in his income, and that he has been in essence "overpaying" for quite some time insofar as child support is concerned and probably also insofar as rent is concerned. I am not making any determination respecting·that rent obligation today, simply because I am not sufficiently satisfied as to the evidentiary basis for making such a final determination, and this is precisely that sort of determination that should

be made at a trial and not on an interlocutory application. [3] I have previously expressed the view that the mother must be much more proactive in addressing the father's financial change in circumstances. I am rather disappointed that she seems to have ignored or at least not abided by my rather pointed suggestion earlier that she proactively seek alternative accommodation at a lesser cost. I am entirely satisfied that it is possible to find a two-bedroom apartment in Vancouver at less than $4,000 a month that is not a slum in the downtown east side or elsewhere in the nether regions of Vancouver. I think that [the respondent] could have done far more than what she has done in terms of securing cheaper accommodation. I predict that even if some sort of rental support obligation is found to continue at trial, it will be of much more modest proportions than is currently in place and that [the respondent] is going to have to confront that reality later if not sooner. It is clear to me that the correspondence provided to me from the property manager is a rather limp ex post facto effort to comply with my earlier suggestion; but it actually underscores how she has not complied. So be it. It was not an actual order made at the time, and she is not in breach of any court order. I rather expect the trial judge will take a dim view of the efforts made. [451] Justice Kent noted that

the applications before him included a continuation of the claimant's October 5, 2018 notice of application seeking a reduction in the rental payments and in child support. He concluded that there was sufficient evidence to reduce child support to $1,050 per month, based on income for the father of $110,000 to $120,000 and imputed income for the mother of $10,000. However, given that the trial was only a few weeks away, he saw no reason to vary the order in the interim time period. He went on at para. 8 to say: [8] Nevertheless, given the history of this case, I am concerned that efforts may be made by the mother to adjourn this trial, the date of which has now been imposed upon her in a peremptory manner. [452] He thus granted an order that was to become effective if the trial was to be adjourned at the instance of the respondent, which reduced the child support to $1,050 per month and reduced the amount of the rental payment from $3,500 to $2,000. He directed that if the trial proceeds, then the order will not become effective, although it would be open to the trial judge to "resurrect the suspended order". [453] With respect to the applications before him regarding the respondent's proprietary claim, Justice Kent commented: [12] Another matter that has been discussed between the parties relates to whether or not there is a claim being prosecuted in this matter by [the

respondent] against [the claimant] under the provisions of the Family Relations Act, R.S.B.C. 1996, c. 128 ("FRA"), in respect of a determination and apportionment of family assets. I gather the most notable asset would be the house owned by [the claimant] and which apparently has a value in the vicinity of $3.5-$4 million, albeit subject to the considerable financing encumbrances. The issue had arisen because of the syntax and structure of the pleadings filed by [the respondent] at an earlier date. Representations were made to the Court at earlier hearings, and again today, that no FRA claim was, in fact, being pursued in this matter and will not, in fact, be pursued in this matter at trial. [13] However, there remains on the pleadings a trust claim by [the respondent] against [the claimant] alleging a beneficial interest in the house and a claim is also being made on a quantum meruit or other equitable basis. It appears that claim is going to be pursued at trial. I am told that various trial management directions have been made by Master Schwartz, including directions respecting the filing of amended pleadings, and that an amended claim has already been filed by [the claimant]. The deadline for the filing of response pleadings and any amended counterclaim is shortly upon us. It is my expectation that the pleading will be amended to eliminate any possibility of a FRA claim

being made, although I gather all parties are anticipating that the trust claim will remain. It is therefore unnecessary for me to issue the declaratory relief earlier sought by counsel for [the claimant] in the previous hearings. [454] The respondent was, as noted above, in Greece as of July 18, 2019. She did not provide a list of the documents that she intended to rely on at trial that Master Schwartz had directed be provided by July 30, 2019. The respondent said that she was not aware of this deadline - notwithstanding that she was physically present at the hearing when Master Schwartz made that order. [455] The respondent's evidence was that the trip to Greece was very nice, that M.T. loved Patras and spent a lot of time with cousins around her age, and a lot of time on the beach. [456] At some point in about July 2019, the respondent was given notice that the Yaletown Apartment had been sold and that she would have to move out at the end of September. She could not recall at trial whether she had been promised free rent for the month of September, but she knew that she would have to move out by October 1, 2019. August 2019 [457] On August 6, 2019, Ms. Pietrow wrote to Ms. Taylor noting the respondent's failure to comply with Master Schwartz's order with respect to a document list, and that the claimant would object to the respondent introducing any document at trial

without consent. [458] The respondent and her mother gave evidence that the mother's osteoporosis and fibromyalgia began to act up on August 4 or 5, 2019. They both said that the mother saw a doctor in Greece. The respondent said that the doctor prescribed painkillers and bedrest. The mother said that she could not move, and the doctor told her she had to stay in Greece to get better. [459] The respondent also gave evidence that M.T. stayed too long at the beach one day and got an ear infection, that she took M.T. to a paediatrician in Greece, and was prescribed amoxicillin. The timing of M.T.'s infection was not clear on the evidence - at times, it was suggested that it happened immediately prior to August 9, and at other times it was identified as having occurred a few days before the respondent's mother became ill. The respondent's mother said that M.T. "had her ears", but "mine was more severe". [460] No medical records from any doctor in Greece with respect to either of these matters were available at trial. The respondent said that she thought some documents from the paediatrician had been left at a place that she stayed in Greece, and that at one point she had asked the paediatrician for a copy of his record but it never came. [461] The respondent's evidence was that she concluded that, as a dutiful daughter, she needed to stay in Greece with her mother. This was despite

the fact that her father was in Greece at the time and that they had extended family there with whom they were staying. The respondent's evidence was that, while M.T.'s ear infection was a consideration, the main reason for being unable to return to Canada as scheduled was her mother's medical problems. [462] The respondent's mother testified that her husband could not take care of her - he was travelling separately, and in any event, he has a problem with his back. Her evidence was that she did not have any other family around - her family is all in Patras, which is an eight to 10-hour drive away. The relatives that they were staying with in Alexandroupolis were all from the respondent's father's side. [463] The respondent's evidence was that she called the travel agency in Vancouver, told them that her mother would need a couple of weeks to recover, and asked them to reschedule the return tickets for the first available flight that would accommodate that. The respondent's evidence was that the travel agent advised her that the first available flight was on September 9, 2019, and that it would cost $1,300 to reschedule the three flights (the respondent, her mother, and M.T.). [464] Coincidentally, September 9 was the day that the respondent's father was scheduled to travel back to Canada. However, they were not placed on the same flights as him. [465] The respondent adamantly

denied that she had always intended to stay longer in Greece. She said that she left a condo full of belongings in Vancouver, took only a suitcase of summer clothes, and had a son back in Vancouver with whom she was working hard to reconnect. [466] The respondent acknowledged that the trial was scheduled to start on September 3, 2019. Her evidence was that she thought it would be okay if she joined the trial for the second week. Presumably, she also thought the claimant would be okay proceeding to trial without the benefit of the discovery that had been scheduled for August 14, 2019. [467] The respondent's evidence was that any earlier flights would have been "thousands of dollars" and they might not have been able to sit together. [468] The documents include an invoice dated August 8, 2019, from Omega Travel Services in Vancouver showing that the three return flights had been scheduled for September 9, 2019, at a cost of $392 each. [469] A Mr. Panos from Omega Travel gave evidence at trial. He was on holiday at the time the tickets were rebooked, and thus could not speak to the specifics of this rebooking and what exactly was requested on the respondent's part. Mr. Panos was able to give some evidence on Omega Travel's general practices. He explained that Omega Travel would have had to rebook the tickets prior to August 8 in order to issue an invoice with that date. The

practice is that the travel agency rebooks the tickets, then issues the tickets, then is billed by the airline, then bills the client. He was unable to say when the flights were actually rescheduled. [470] The itinerary the respondent had given said that she and M.T. would board a flight in Alexandroupolis at 8:05 am on August 9, 2019, ultimately arriving in Vancouver at 4:45 pm that afternoon. Given the 10-hour time difference between Greece and Vancouver, the departure time from Alexandroupolis would have been 10:05 pm on August 8, 2019, Pacific Time. [471] At 8:30 am on Friday, August 9, 2019, Ms. Taylor faxed a letter to Ms. Pietrow, attaching an Appointment for the continuation of the examination for discovery of the claimant at 2:00 pm on the following Wednesday, August 14, 2019. I gather the parties had agreed they would do both examinations on that day (the respondent in the morning, the claimant in the afternoon). It seems clear from this that Ms. Taylor was unaware at that point in time that her client was not on an airplane returning to Vancouver. [472] The respondent gave evidence that she had sent the tickets to Ms. Taylor, and that Ms. Taylor was going to send them to opposing counsel on the Monday, August 12, 2019. However, no email or other correspondence evidencing this was produced. [473] The claimant's evidence was that the respondent called him during the

day (Vancouver time) on August 9, 2019, and told him that she and M.T. were not coming back to Vancouver because M.T. had an earache and the respondent's mother had bronchitis. His evidence was that the respondent did not tell him of any definitive date of return, and did not say she had tickets. He said he told her she had to return in compliance with the order. [474] I note that there are texts from the respondent to the claimant on August 9, 2019, at 10:56 am Vancouver time (8:56 pm in Greece) saying "I'm trying to get thru?" and at 12:12 pm Vancouver time (10:12 pm in Greece) saying "Call you back". At the time of these texts, the respondent and M.T. should have been (according to the itinerary she provided) on an airplane over the Atlantic Ocean. [475] The respondent's evidence was that she contacted the claimant immediately upon changing the tickets, which she thought would have been either August 8 or 9, and told him at that time that he could call the travel agent to get details. She said that his only reaction was to keep asking "when are you coming back?". The claimant's evidence was that it was not until a significant time later that the respondent told him that the tickets were booked through Omega Travel and he could get particulars from them. As set out below, the claimant did not actually contact Omega Travel until August 22. [476] The respondent was challenged

on her evidence with reference to an affidavit she made in November 2021, in which she stated that she called the claimant on August 9, 2019, denied saying that the reason was M.T.'s ear infection and her mother's bronchitis, and claimed that the reason for not coming back in August 2019 was "always my mother's fibromyalgia". In the face of that affidavit, the respondent was adamant that if she booked the tickets on August 8, the claimant knew about it on August 8, and that M.T. did have an ear infection. [477] At 4:10 pm on Friday, August 9, 2019, Ms. Pietrow faxed a letter to Ms. Taylor (and also sent it by email), noting that the claimant had contacted the respondent that day, and continuing: He was informed that [M.T.] has an earache, that [the respondent's] mother has bronchitis and that as a result [the respondent and M.T. and the mother] will not be leaving Greece until September 15th. When [the claimant] said there is a trial in September, [the respondent] said that she does not need to be there at the beginning of the trial. There are various court orders that your client will be in breach of if she does not return [M.T.] to Vancouver before day one of the trial, including: 1. She is supposed to have [M.T.] here in Vancouver by August 9th. 2. [The claimant] is to have his parenting time tomorrow at 10:00 am to 3:00 pm. 3. [The respondent] is to be at her discovery with

ALL of her documents on August 14th at 10:00 am. Please let us know immediately what your client's intentions are, if there will be parenting time each Saturday until trial, if she will be at discovery on August 14th with her documents. [478] At 6:39 pm, the claimant texted a copy of Ms. Pietrow's letter to the respondent. The respondent's evidence was that she did not recall receiving the letter from the claimant, and did not receive it from her lawyer. She suggested that her lawyer might have been away on holidays at the time. [I note that other evidence makes clear that Ms. Taylor was at work on both the Friday, August 9 and the Monday, August 12.] [479] At 6:41 pm, the claimant texted again, asking what address M.T. was at. The respondent did not respond to this, and at trial stated that the claimant already knew where she was staying because he had the itinerary. When it was pointed out to her in cross-examination that the itinerary did not contain any information after August 9, she said that "I didn't leave where I said I would be" and that the claimant should have known that from seeing the background on his FaceTime videos with M.T. [As will be discussed below, it is not clear that the claimant actually had any FaceTime videos with M.T. after August 8, 2019.] [480] At 8:12 and 8:13 pm, the claimant sent two further texts: I do not consent to you keeping [M.T.] outside

of the lower mainland of bc. The court order says [M.T.] is to be back today. I insist you bring [M.T.] back to Vancouver immediately. If you can't make that happen I will have to go to court to get a court order for sole custody and I will come to pick up [M.T.] and bring her home to Vancouver. You were supposed to send your list of all documents to my lawyer on July 30 under the court order of master Scarth and you were supposed to bring [M.T.] back today and you are supposed to be in your discovery at 10 am on August 14 pursuant to court order and you are supposed to deliver all of your witness will say statements by August 13th. We have a trial in three weeks because we didn't settle the case. [M.T.] needs to be back in school and her therapies. [481] The respondent replied at 11:52 pm Pacific (which would have been 9:52 am on August 10 in Greece), stating: That's a lot of threats don't you ever get tired? I said I would be returning. You will come pick up [M.T.] here? I would like to see you try go make your threats elsewhere. [482] At 10:00 am on Saturday, August 10, the claimant sent a text to the respondent, advising that he was at White Spot (which was the designated meeting place for his parenting time) and asking when M.T. would be home in Vancouver. The respondent did not respond to the question as to when M.T. would be back. At trial, the respondent explained that

"This just shows his manipulation". She also suggested that at some point on that weekend she was not receiving texts because either her phone battery had died or the internet was not reliable. [483] Over the course of the weekend, the claimant and his lawyers prepared an application in response to M.T.'s failure to return. As part of that, the claimant did various searches using Expedia (an on-line travel service) which showed that: · For August 13, 2019, there were tickets for two available from Athens to Vancouver via Air Transat at $1,327 per seat, plus multiple different flights available via Air France and WestJet for $2,022, and multiple different flights available via British Airways and American Airlines for $2,205; and · For August 15, 2019, there were similar tickets for two available via Air Transat for $1,275 or $1,379 per seat, plus multiple flights available via British Airways for $2,205. Those searches were included in the materials supporting the claimant's application. [484] When these searches were put to the respondent in cross-examination, her answer was that neither her mother nor M.T. were able to fly on August 13 or 15, 2019. [485] At about 10 am on Sunday, August 11, 2019, the claimant called the respondent and asked to speak to M.T. The claimant recorded the call. The respondent was out, and said she was not sure if she would be back before M.T. had

gone to bed. The claimant asked when they were coming back - the respondent initially said "I already told you." Then, when pressed, she said "September 9 or something " What comes next on the recording is a bit unclear - I heard it as "once they're able to find us tickets". I gather that the claimant heard It as "I haven't been able to find us tickets". What is clear on the recording is the words "able to find us tickets". [486] The claimant then sent two texts: Please call me at 10 am Vancouver time tomorrow and you will be able to speak to [L.T.] and I expect at the same time to speak to [M.T.]. I just spoke to you on the phone and you told me your are coming home on sept 9 or something like that. Please send me a copy of [M.T.'s] ticket with the original return date of Aug 9 to prove you even had one with the court order return date. I am concerned you are breaking the court order and that you are lying to me and I do not consent to [M.T.]'s return home being delayed any further. You still have not told me where [M.T.] is. Who is she with right now and what address. The order says you have to tell me. What is the phone number where [M.T.] is now. [487] The respondent did not respond to these texts. [488] At 2:04 pm that afternoon, Ms. Pietrow sent an email to Ms. Taylor, asserting that the respondent was wrongfully detaining M.T. in Greece, and saying: We need to hear from

you today. This is notice to you that we are preparing an application for sole custody of [M.T.] which we intend to bring on without any further notice to you. Today [the claimant] asked [the respondent] when she is returning [M.T.]to Vancouver, and her response was "I think it's September 9th or something. I haven't been able to find us tickets." So we have situation where [the respondent] has [M.T.] in Greece in an undisclosed location (no address for host and no phone number) with no return ticket to Canada. We consider this to be an abduction of [M.T.] by your client and we will [be] notifying the authorities accordingly. Your client is available by phone. You can call her on her cellphone. Given the history of your client's lack of production of documents and compliance with court orders, we must insist upon documentary proof forthwith of any and all medical records and pertaining to [M.T.'s] alleged current medical condition of "ear infection", and also we now require a copy of your client's and [M.T.'s] flight tickets for their travel from Vancouver to Greece and copies of any return tickets which your client had, if any. We require production of all of this information forthwith. [489] Ms. Pietrow followed up by providing Ms. Taylor with the respondent's cell phone number in Greece. [490] At 7:40 pm that evening, Ms. Pietrow sent a further email to Ms. Taylor: Ruth,

having heard nothing from you about your client's breach of the court orders, I am now attaching my client's Notice of Application for custody of [M.T.]. Had your client had good intentions, she would have contacted you on or before August 9 to let you know that she would not be returning [M.T.] pursuant to the court order so that you could notify me. Instead, I am notifying you that your client has not returned [M.T.] to the jurisdiction of B.C. I will be checking with the Supreme Court Trial Division to see if Justice Kent can hear this application tomorrow or Tuesday, and if he is unable to do so, I will likely ask that another Justice hear the application tomorrow or Tuesday. We will send you an email once we decide when we will be going to court. [491] Ms. Pietrow followed up that email with two further emails (at 7:43 and 7:44 pm) attaching the supporting affidavit of the claimant. [492] The claimant called the respondent again on August 12, 2019, and recorded the call. The claimant asked to speak with M.T.; the respondent advised that she was out for dinner with her cousin, and that M.T. was being cared for by the respondent's mother and father. The claimant asked what address that M.T. was at. The call was disconnected. On cross-examination, the respondent advised that, although her father was there for an evening, he was travelling separately from her mother and was

staying with his sisters at the time, but that none of them were able to help the respondent's mother which was why the respondent had to stay in Greece. [493] On the morning of Monday, August 12, 2019, Ms. Pietrow made efforts to secure a hearing with Justice Kent. That was ultimately unsuccessful. At 12:20 pm, she emailed Ms. Taylor advising: Your client is wrongfully retaining [M.T.] in Greece. Today when [the claimant] called [the respondent] and asked where [M.T.] is, your client hung up. When he called back, she said something about the phone battery? WHERE IS THE CHILD [M.T.]? I am waiting to hear from the Court as to whether Justice Kent will hear our client's application [494] At 1:13 pm, Ms. Pietrow sent a further email to Ms. Taylor saying: Attached is the Notice of Application that I will be filing today. I intend to see if I can get Justice Kent to deal with this today and if he can't do so, I will be asking another Justice to deal with this. If there is no time for another justice to deal with this today, I will be returning to court tomorrow. I am stunned that you have not tried to contact me. [495] At 1:14 pm, Ms. Pietrow faxed a letter to Ms. Taylor, enclosing an unfiled copy of the Without Notice of Application dated August 11, 2019. [496] As will be noted below, Ms. Taylor subsequently filed an application for leave to withdraw as counsel. In her notice of

application, she stated that on August 12, 2019, she received by fax a notice of application, which she forwarded "directly by email" to the respondent, marked "Urgent". In cross-examination, the respondent denied having received this - her evidence was that the first thing she received by email was the resulting order that was emailed to her on August 14. 2019. [497] The respondent gave evidence at the trial of this matter that, had she been aware of the August 12, 2019 application, she would have had her lawyer attend with information about her plans to return in September. She was adamant that she would never "ignore something as serious as this". [498] I pause in the narrative to describe how some of the evidence came in with respect to these matters. The respondent's cross-examination began on the afternoon of May 10, 2023. It included a number of questions about the events of August 2019. The cross-examination did not complete by the conclusion of the day on Friday, May 12, 2023. As the trial was not scheduled to resume for some time, a half-day continuation was scheduled for the afternoon of May 16, 2023 in order to complete the cross-examination. The cross-examination completed at 4:15 pm that afternoon, at which time counsel for the respondent requested and was granted an opportunity to speak with her client before conducting re-examination, and to do the

re-examination on a subsequent hearing day. [499] The trial resumed on May 23, 2023, for that re-examination. At that time, the respondent gave evidence with respect to her discussions with Ms. Taylor during August and the beginning of September 2019, and sought to introduce into evidence an email she said she had sent to Ms. Taylor with instructions. Counsel for the respondent advised that her client was waiving privilege over that email. I directed that, if there was to be a waiver of privilege, it should extend to all communications between them during the relevant time period (from the time the decision was made not to return to British Columbia in early August 2019 until the time Ms. Taylor withdrew as counsel on September 3, 2019). I ordered that all such emails be produced, and that the claimant would have an opportunity for further cross-examination on any new matters raised in the expanded re-examination. [500] When the trial resumed on June 8, 2023, counsel advised that only two emails had been located - both of which were produced by the respondent. Ms. Taylor advised that she had lost access to the email account that she used at the time, and that with the respondent having been through three different sets of counsel before Ms. Taylor resumed conduct of the file, her paper file from the time was not available. I was further advised that, although counsel for the

claimant had requested the original ".eml" file for the two emails, all that was available was Microsoft Word versions of the two emails the respondent had produced. [501] The respondent did not produce any email from Ms. Taylor to the respondent on August 12, 2019 that would match the email referenced by Ms. Taylor in the notice of application filed for her application to withdraw in September 2019. [502] It was put to the respondent that, by the time the claimant's court application was made on August 12, 2019, the respondent had still not provided any tickets or other confirmation of her travel plans. She responded that the claimant ran into court quickly without notice, and that Ms. Taylor was going to provide the information later that morning. [I note that none of the emails produced pursuant to my direction indicated that the respondent had provided any tickets or other flight information to Ms. Taylor.] [503] Ms. Pietrow appeared before Justice Affleck just before the afternoon break on August 12, 2019. The transcript of proceedings that day was in evidence. Ms. Pietrow provided a brief introduction to the matter (pages 1-2 of the transcript), following which Justice Affleck advised he would take the afternoon break and read the application materials. When he returned, he advised that he had read through some of the materials, and in particular the affidavit of the

claimant, and would grant most of the orders sought. He deleted the order sought as to costs, and directed that the order contain a term that the respondent could apply to set it aside on 24 hours' notice. [504] The order as entered included provisions that: · The habitual residence of M.T. was British Columbia, and had been since the date of birth; · An order that M.T. be returned to Vancouver forthwith, and shall reside with the claimant until further order of this court; · Any police officer was authorized to enter and search premises where he or she has reasonable and probable grounds to believe that M.T. may be; · The claimant was authorized to obtain a duplicate passport for M.T. and to retrieve M.T. from any location where she may be and return her to Vancouver; · The respondent was ordered to forthwith inform the claimant as to the current physical whereabouts of M.T., including the residential address where she was located and specific information about her location; and · All orders requiring the claimant to pay either rent or child support are stayed until further order of the court. [505] As the order was not pronounced until the end of the court day, the formal order was revised and presented to Justice Affleck for signature the next day. It was entered on Tuesday, August 13, 2019. [506] On August 13, 2019, at 10:25 am, the claimant texted the respondent, stating

that he was trying to get through on FaceTime and she was not picking up. [507] Ms. Pietrow sent emails to Ms. Taylor that morning. At 10:13 am, she emailed Ms. Taylor to find out about the documents that were to be relied on trial, that were supposed to be provided by July 30. She noted as well that the respondent was supposed to show up with those documents at 10 am the next day, and it did not appear that was likely to happen. The email ended with "You need to call me asap." [508] In a second email, Ms. Pietrow said: "Ruth are you there? The child [M.T.] is not here. Don't you think that you need to call me?" [509] Later on August 13, 2019, the claimant filed an application under the Hague Convention for the return of M.T. [510] One of the emails produced by the respondent is dated August 13, 2019, and is said to have been sent by Ms. Taylor to the respondent at 12:23 pm. The document tendered in evidence indicates that there is an attached document (though it's not clear what the attachment was), and states "This is what happened yesterday while I was in court in New Westminster." The respondent produced this email, and a response to it, during her re-examination (as noted above). The reply she produced stated: He is a moron. Why would he do that and not get me a chance to return? Another easy win for him. When does this end? I had told him [M.T.] and my mother were sick

[M.T.] had an ear infection and my mother has serious back problems and can't walk. I told him I changed our tickets for September 9th. It was first availability. I will call you tomorrow it is midnight here. I see he applied for full custody and got the order if this is the case I need to talk to you immediately. Was the judge informed as to why I had to change my tickets or given my new itinerary? As of now you can let them know I have a return for September 9 it is imperative I speak to you. I informed him to call Omega travel agency to confirm with them new itinerary. Pls let me know your availability. It is 10 hours ahead here. [511] The respondent also initiated a text exchange with the claimant at 12:30 pm: R: I told you I would be returning Sept 9 so I'm not sure why your running to get court orders and you actually think you can come take [M.T.] from me? You are the one complicating everything as usual and let me tell you the laws here are very different from Canada so keep on with your threats!!! C: You didn't say you would return sept 9 but you said I think it's sept 9 or something and that you haven't been able to find tickets. It doesn't sound like you have a return ticket at all. C: Your lawyer finally called my lawyer today. She said she is cancelling her questioning of me for tomorrow and that you won't be at your discovery tomorrow because you are in Greece.

Your lawyer will be waiting for your call at 9 am Vancouver time your lawyer wants you to call her then. After that your lawyer will be calling my lawyer to let us know if you are coming back immediately. The court made an order yesterday that [MT] is to be returned to FORTHWITH. R: I'm sick and tired of you and your twisted legal counsel that have completely brainwashed you and caused so much damage and have completely abused the system mane as many court orders as you like go all out !!!! so keep paying them you fool !!!! C: Just call your lawyer. R: F--- you. You went and got order for full custody you moron? When you knew I was going to return on the 9th? You want to play dirty you f---er then you come here and see what's in store for you !!!!!!!! [512] At 1:08 pm, Ms. Pietrow sent a further email to Ms. Taylor: Thank you for your call moments ago. I confirm your advice that you are cancelling your examination for discovery of my client set for tomorrow at 2 pm. I confirm your advice that [the respondent] is not expected to be at her discovery (which is court ordered) for 10 am tomorrow morning. I will show up in any event to obtain a certificate of no-show. My client has now texted your client and has communicated to her that she is to call you tomorrow morning at 9 am Vancouver time, as you and I discussed would be a good idea. I confirm you will call me tomorrow morning.

I will be back in the office by 11 am. Finally, as discussed, I am waiting for the entered court order made yesterday pursuant to the Notice of Application which I already sent to you. I will send it to you once we have it. [513] At 3:16 pm on August 13, 2019, Ms. Pietrow faxed a copy of the entered order of Justice Affleck to Ms. Taylor. A copy was emailed as well at 3:27 pm. [I note that the times on the correspondence sending the entered order to Ms. Taylor are two hours after the August 13, 2019 email from Ms. Taylor produced by the respondent during her re-examination and discussed above.] The claimant texted a document to the respondent at 2:59 pm (Vancouver time) that afternoon. His text identified the attachment as a court order. [514] The respondent's evidence was that it was after she learned of the order of Justice Affleck that she decided not to return to Canada. Her evidence was that she was still haunted by events of May 2017, when she did not see M.T. from May 14 to late June, and did not have M.T. living with her until the end of September. She had also been through what she described as the trauma and grief of losing her son. She did not want to return to Canada unless it was in a "safe" manner for herself and M.T. In her view, the order of Justice Affleck did not allow that to occur. [515] In her re-cross-examination, the respondent attributed her

decision-making to her P.T.S.D., and opined that she still had a lot of trauma from the summer of 2017. When it was put to her that there was no medical evidence of a diagnosis of P.T.S.D., she insisted that her registered clinical counsellor had diagnosed it. [516] The respondent gave evidence that she spoke with her lawyer. That conversation most likely occurred on the morning of August 14, 2019 (Vancouver time). The respondent's evidence was that she instructed Ms. Taylor to move forward and let the judge know what happened. On her re-cross-examination, the respondent agreed that Ms. Taylor told her that she would be withdrawing from the record, but said that she asked Ms. Taylor not to withdraw until the courts were informed of the reason she had not returned. She said that Ms. Taylor told her that withdrawing was "something she had to do", but that the respondent "was not okay with it". She said that Ms. Taylor advised her that the trial would likely be adjourned as a result of her withdrawal. [517] It was put to the respondent in cross-examination that when she told Ms. Taylor she would not be returning to Canada, notwithstanding the order that had just been made by Justice Affleck, Ms. Taylor advised her that she would be compelled to withdraw as a result of the respondent's refusal to comply with the order. The respondent denied this. The respondent said that Ms. Taylor

said something about the Law Society. Counsel for the claimant put to her that Ms. Taylor would have stated that she had obtained advice from the Law Society as to her professional obligations in light of the respondent's refusal to comply with the order, and told the respondent that if she was not going to return then Ms. Taylor was obligated to withdraw. The respondent's answer to this was that "You'll have to put [Ms. Taylor] on the stand and ask her." [518] The respondent said that Ms. Taylor asked her for an address for service to put on the notice she was preparing, but the respondent would not give her one. [519] The respondent did not attend her examination for discovery on August 14, 2019. [520] Ms. Taylor issued a Notice of Intention to Withdraw on August 14, 2019. It was filed with the Court on Thursday, August 15, 2019. The respondent acknowledged that she did not file an objection to Ms. Taylor withdrawing, and suggested she was not aware of her ability to object. When it was pointed out to her that the notice specifically states that the client may object, the respondent said she was not even sure she received the document. When it was put to the respondent that she had sworn an affidavit in November 2021 stating that she received the notice, she maintained that she was not sure that she ever received it. [521] The respondent gave evidence that at some point in

mid-August, the Greek police stopped by her cousin's place in Alexandroupolis to confirm that she was there. The police advised her that a Hague Convention application had been commenced and that they wanted to confirm that she and M.T. were still at that address. The respondent said that she was shocked to have a visit from the police. [522] The respondent answered a FaceTime audio call from the claimant on Saturday, August 17, 2019, just after 11:00 am Vancouver time. This call was recorded. The claimant asked to speak to M.T., who at times during the call could be heard in the background. The respondent advised that she insisted on speaking to L.T. first. The claimant responded that L.T. was out with friends at that time, and that L.T. had told him he had tried several times to call her but she had not answered. The respondent complained that L.T. always seemed to be with friends. [523] The respondent then began a lengthy diatribe about the current situation. She asserted that the claimant's actions had shown her that "you don't want us to return to Canada". She asserted that her mother "had" bronchitis, her cousin is really sick, and M.T. had an ear infection. She asserted that she had tickets and had a doctor's note, but that "if you think I'm going to return back to Canada with what you've now done" - she asserted that the claimant was going to have to come to Greece and

"we will do our court case here". She asserted that with "what you've done, there's no way I can come back to Canada". She explained that "I was waiting for my tickets to be booked and I was going to send you photos - then you go and run and get an ex parte order" and asked whether "you think I'm going to hand over my f---ing daughter to you?" The respondent asserts again that "that f---ing order does not f---ing stand here", and that the claimant is "going to find out very soon" that the order "means nothing here". [524] At this point in the call, the claimant notes that he can hear M.T. in the background, and expresses concern that she is overhearing the conversation. He asks again to speak with M.T. The respondent says that she has stepped outside. [525] The claimant then notes all the things that were supposed to be done in August to prepare for the trial in September 3, to which the respondent replies: You f---ing go to trial then. You're gonna be there by yourself. [526] When the claimant refers again to the pre-trial orders, she responds: F--- you and your f---ing questions and your f---ing discoveries. F--- you all. That's all I have to say. F--- you all. You caused all of this. So you go to f---ing trial. You go there by yourself. [527] When the claimant notes that there is an order in place that requires her to return to Canada, her answer is: You f---ing come here

and I will f---ing see you in court here. In f---ing court. You think I'm going to f---ing come back after what you've done. You think that f---ing order will stand here? F--- you. [528] Near the end of the call, the claimant again pleads for the respondent to let him talk to M.T. At the very end of the call, the respondent states "Do you think you have any rights here? You better f---ing rethink that." She then disconnects the call without allowing the respondent to talk to M.T. [529] On Monday, August 19, 2019, the claimant filed an objection to Ms. Taylor's Notice of Intention to Withdraw as Lawyer. Pursuant to Rule 21-4(4) and (9), this meant that in order to withdraw Ms. Taylor would have to file an application to the court for leave to withdraw. [530] On August 20, 2019, the claimant filed a notice of application seeking an order that the respondent's Response to Family Claim and Counterclaim be struck as a result of her failure to return to Canada. Master Elwood granted short leave for the application to be heard on August 23, 2019. It was subsequently adjourned to August 28, 2019. [531] On August 22, 2019, the claimant called Mr. Panos of Omega Travel. The claimant and Mr. Panos had known each other when they were children. The claimant asked Mr. Panos if he knew whether the respondent had purchased a ticket for M.T. to return to Canada. Mr. Panos had been on holiday

earlier in the month, and had not been involved in any of the work to reschedule flights for the respondent. Mr. Panos said that he initially put the claimant in touch with a colleague who had been involved in the respondent's tickets. [532] At 12:20 am (Vancouver time) on August 24, 2019, the respondent texted the claimant complaining that she had called several times to talk to L.T. The respondent responded at 8:09 am, pointing out the time difference and that the respondent had been calling in the middle of the night Vancouver time. After a brief exchange about the timing of the calls, the text exchange continued: C: [L.T.] and I will be calling you and [M.T.] at 10 am vanc time. Please pick up. R: I would like [L.T.] to call me as soon as he's up. And I would like a private call with my son. You don't need to be there as usual. Are you happy with the decisions you have made? Do you think that you have made our lives better like you had promised to? You are the biggest f--- up I have ever met and I am so sorry I chose you to have kids with. If I could change one thing it would've been to find a good partner for my kids. You have separated [L.T.] from his true family. For that I will never forgive you. You have NO rights to [M.T.] in GREECE. You Are A NOBODY. [533] This led to an exchange in which the respondent complained about the amount the claimant had spent on lawyers,

and threatened that any judge in Greece would "kick [the claimant's lawyer] to the curb" in Greece. [534] After this text exchange, the claimant sent the respondent a text on August 27, 2019, asking "OK what do you want for you to bring [M.T.] back". The claimant explained that he thought that if he sent the respondent some money, she might come back. The respondent did not respond, and this appears to be the final text exchanged by the parties until October 2019. [535] L.T. was asked when he gave evidence about how his mother explained to him her failure to return from Greece in 2019. He said that they had discussions on FaceTime, and that his mother said that the claimant "did a bunch of stuff so she couldn't come back" and it was all the claimant's fault; however, she said that she would come back if the claimant would buy her an apartment. It's not clear from the evidence whether this latter discussion occurred in August 2019 or at a later point (as will be discussed below) - or both. [536] The claimant's application to strike the respondent's defence and counterclaim was heard on August 28, 2019, but was not successful. Justice Choi concluded that the application should be dealt with at the trial the following week. Ms. Taylor attended that hearing briefly to ask to be removed from the record, and was advised by Justice Choi that she would need to prepare a written notice

of application to withdraw, as required by Rule 21-4(9). [537] The second email string produced (in Microsoft Word format) by the respondent during her re-examination began with an email from Ms. Taylor to the respondent at 3:42 pm on August 28, 2019, commenting that Ms. Taylor was unable to get off the record since she did not have an address in British Columbia that she could use as for the respondent's address for service moving forward, and asking if there was a friend or relative whose address could be used. The string contains a response from the respondent at 10:52 pm (Vancouver time) asking when would be a good time to reach Ms. Taylor. There is then a response from Ms. Taylor dated 11:43 am on Saturday, August 31, 2019, noting that she had to be in court on Tuesday as "notionally" the trial is going ahead. The final email in the string is a reply by the respondent on Monday, September 2, 2019 (Labour Day) at 1:15 pm: As you have to be in court on Tuesday please stress to the judge what has happened with the no consent order and how many times this has occurred. That I indeed have return tickets for Sept 9 and I have proof and a dr's note that [M.T.] and mom are sick. Pls go back to the beginning and how my kids were taken from me and the false allegations that [the claimant] made. I don't know what to say and what will occur at tomorrow's trial but I hope the judge

will see the injustice that has occurred on many levels including the first ex parte order that started everything and how very hard I fought to regain custody. I would like the Judge to know what brought me back to Vancouver and the promises that were made and the alienation that has occurred and started immediately from the moment I moved back. I also believe the sect 211 discusses that. I will call you tomorrow. [538] The respondent gave evidence that she and Ms. Taylor spoke once more before the trial on September 3, and that again she asked Ms. Taylor to inform the court of what had happened. [539] Ms. Taylor did not testify at the 2023 trial, which is not surprising given that she was the respondent's counsel. However, the notice of application she filed in order to withdraw as counsel in September 2019, and what she told the court on September 3, 2019, were in evidence and will be discussed below. The September 2019 Trial and The Hague Convention Proceedings [540] As noted above, the trial of this action was scheduled to begin on September 3, 2019. Justice Kent had ordered that the trial date was peremptory on both parties. [541] On the morning of September 3, 2019, Ms. Taylor filed a Notice of Application seeking a declaration that she had ceased to act for the respondent. On cross-examination, the respondent gave evidence that she did not get a copy of the Notice of

Application and had never seen it before. She did, however, acknowledge that she had deleted many emails over the years because of lack of storage space, and could not say for sure whether she had received it. [542] The Notice of Application asserts that: · Ms. Taylor had received the Notice of Application on August 12, 2019, regarding the failure of the respondent and M.T. to return from Greece, which she forwarded directly by email to the respondent, marked "Urgent"; · Ms. Taylor was contacted by the respondent, and advised her that she would be filing a Notice of Intention to Withdraw; · A copy of the Notice of Intention to Withdraw, as filed on August 15, 2019, was served by email on the respondent; · The claimant through counsel filed an objection; · Ms. Taylor contacted the Law Society for guidance in this matter respecting the situation of removal from the record and confidentiality; and · Ms. Taylor asserted in the Notice of Application that "I am seeking to withdraw as counsel for ethical reasons". [543] The trial of this action came on for hearing before Justice Basran. Ms. Taylor attended the trial and, as the trial was called, asked to be heard with respect to her application to withdraw. The hearing has been transcribed. At the hearing, Ms. Taylor advised the court that she was withdrawing on ethical grounds, and did not have instructions vis-à-vis the trial. [544]

Justice Basran made various inquiries to ascertain that the respondent had notice of Ms. Taylor's application - Ms. Taylor responded that the respondent "was aware on our very first telephone conversation that I would be making this application. I forwarded it to her by email. She telephoned and acknowledged receipt verbally." Ms. Taylor also stated that she had sent the respondent emails "advising her of my attempts to get off the record". [545] Ms. Taylor noted the authorities cited in her application, which dealt with counsel withdrawing for ethical reasons, and explained: as a result of confidential interactions with my client, I cannot continue as counsel. And according to my long discussions with the Law Society, it seriously and quite directly is based on ethical considerations, My Lord. And that is, according to my advice from the Law Society, what I am required to advise the court, that there was proper service, it was properly acknowledged, and that I cannot continue for what - even without the Law Society, which is very clear on that, but for myself, I can't proceed on ethical reasons. [546] Ms. Pietrow then made submissions, which focused on the original Notice of Intention to Withdraw not containing an appropriate address for service for the respondent in British Columbia. Ms. Taylor was invited to respond to that issue, and advised that the address given in her

notice of application was that of the respondent's parents in Prince George, and that was the most appropriate address available within British Columbia. Justice Basran asked the parties to discuss the question of address for service over the morning break. At the conclusion of the break, Ms. Pietrow advised: My Lord, my friend, Ms. Taylor, tells me that she asked [the respondent] for an address for service and delivery, and apparently [the respondent] told Ms. Taylor to use the address set out in this notice of application [the parents' home in Prince George] and to use her email address that's set out in the application And on the basis of that, I'm content. All I wanted to know is that [the respondent] is aware of what the address for delivery will be. So if Your Lordship's prepared to accept that representation of counsel and I've stated it accurately on file. [547] Justice Basran obtained confirmation from Ms. Taylor of the accuracy of the representation (i.e. that the respondent had told Ms. Taylor to use her parents' home in Prince George as the new address for service), and thereupon granted the order for leave to withdraw as counsel. Ms. Taylor was excused from further participation in the trial. [548] At the trial before me, the respondent denied that she had advised or agreed to Ms. Taylor using her parents' Prince George address as her address for service. [549] The

trial then continued with Ms. Pietrow making submissions as to how to proceed in the absence of the respondent. She reviewed in detail events since August 9, 2019, and took the court through a transcript of the August 17, 2019 telephone call (which I have quoted above). Her submissions continued to the end of the day. At 9:30 am the following morning, Justice Basran gave oral reasons for judgment. [550] In those reasons for judgment, Justice Basran noted the respondent's various document production failures, her non-compliance with the trial preparation orders made by Master Schwartz, and her failure to attend at trial. Dealing with the respondent's financial claims, he concluded: [19] [The claimant] seeks the dismissal of [the respondent's] financial claims because: · She has failed to appear at the trial; · She has not diligently prosecuted her financial claims in this matter; and · More specifically, she has obstructed and frustrated the discovery and document disclosure process and in so doing, she has failed to take the necessary steps to advance her claim. [20] Justice Kent warned her in both March and July 2019 to take the necessary steps to advance her counterclaim, and she failed to do so. She has been given ample warnings and second chances, and has provided no explanation for her conduct. Supreme Court Rule 21-6 states that the Court may grant some or all of the

relief sought when a party fails to attend at trial; Supreme Court Rule 4-4(7.1) gives the Court the power to strike out a counterclaim if doing so will further the object of the Supreme Court Family Rules. [21] In my view, it is appropriate in these circumstances to strike [the respondent's] counterclaim. She has not complied with clear orders of this Court with respect to document disclosure and discovery deadlines related to the counterclaim. She has taken perilously little interest in these necessary pre-trial procedures, and as a result, she has not taken the necessary steps to advance her counterclaim. Furthermore, she failed to attend the trial without any explanation whatsoever. [22] As in Eisele v. B.A. Blacktop Ltd. (2004), 15 C.P.C. (6th) 235 (B.C.S.C.), as cited in D'Atri v. Gonzalez, 2017 BCSC 1244, the onus is on [the respondent] to explain her non-compliance. By not attending the trial and providing no explanation for her absence, and failing to disclose documents and attend examinations for discovery, she has not discharged the onus on her to explain her non-compliance. [23] In my view, [the respondent] has already been given a second chance because Justice Kent set clear deadlines for her to meet in respect of her counterclaim. She failed to meet those deadlines. Given her apparent lack of interest in participating in this trial and more specifically in

advancing her counterclaim, it is dismissed on the terms sought by [the claimant]. [551] With respect to parenting matters, Justice Basran noted at paras. 24-26: [24] [The claimant] does not seek to continue the trial ·in the absence of [the respondent] because a lengthy trial may be an unnecessary expense if she fails to return to the jurisdiction, or in the event that she returns, she may seek to set aside orders made in her absence. He has carefully considered the merits of continuing the trial without [the respondent], but has decided that it would be in the children's best interests that it be adjourned. This is because he intends to focus his energy and resources on seeking the return of [M.T.] by making a Hague Convention application to a court in Greece. He seeks to adjourn this trial on the parenting issues so that he may argue in his application to a Greek court that this Court retains jurisdiction over [M.T.] and will determine parenting issues after hearing from both parties. [25] While I am reluctant to adjourn the trial of this long and arduous matter, [the respondent's] failure to return [M.T.] to this jurisdiction has created an unexpected and urgent need for [the claimant] to take steps in Greece to enable him to bring [M.T.] back to this jurisdiction. He believes that adjourning this matter on the parenting issues will assist that process. [26] Accordingly,

the interim arrangements that the children's residence be with [the claimant] will remain in place until further order of this Court. [552] The claimant was awarded costs on Scale B for one day of trial in any event of the cause. [553] The formal order arising from those reasons for judgment was entered on September 4, 2019. With respect to the property claims, it stated: 1. The relief sought in the Amended Counterclaim to Further Notice of Family Claim filed July 26, 20-19, by the [respondent] is hereby dismissed as if heard at trial on the merits, with the following exception: a. The claims of the [respondent] set out in Schedule 2 of her Amended Counterclaim to Further Amended Notice of Family Claim filed July 26, 2019 in respect of parenting arrangements and child support shall remain outstanding. [554] It is this order that the respondent is applying at this trial to have set aside. [555] With respect to parenting matters, Justice Basran ordered that: · The interim primary residence of L.T. would continue to be with the claimant; · The order of Justice Affleck was to remain in full force and effect, including its provision that the interim primary residence of M.T. will continue to be with the claimant; · The one exception to this was that para. 12 of Justice Affleck's order, which allowed the respondent to apply on only 24 hours' notice to set it aside, was set aside,

meaning that the regular times for notice would apply to any such application; · Either party was at liberty to set down a trial seeking final orders on matters of parenting and child support; · Justice Basran ordered a police enforcement clause for any peace officer to locate and apprehend M.T. and take her to the claimant; and · The respondent would continue to be restrained from removing the children from the Lower Mainland. [556] After this order was entered, no steps were taken in this action for the next two years. [557] At some point during the week of September 3, 2019, the claimant had a second conversation with Mr. Panos of Omega Travel. On September 6, 2019, one of Mr. Panos' colleagues emailed to the claimant a copy of the flight reservations for the respondent and M.T. for their return flight on September 9. [558] On September 9, 2019, the respondent's mother travelled home on her own, while the respondent and M.T. remained in Greece. The respondent's father also travelled back that day, although he was on a different flight. The respondent's parents then stayed in Vancouver for several days to pack up the respondent's apartment, and G.T. drove to Vancouver with a truck to take things back to Prince George. [559] The respondent's evidence was that, over the next two years, she lived either at an aunt's home in Alexandroupolis, in a vacant home belonging to her

family in a nearby village, or in an apartment she rented in downtown Alexandroupolis for a period of time. [560] The respondent enrolled M.T. in a public school in Alexandroupolis. An initial report from the school in October 2019 noted that there was initially great difficulty in her arrival and she was often absent, but she gradually developed a good relationship with the teacher and was able to play with her classmates despite knowing very few Greek words. [561] In October 2019, the claimant listed the Point Grey House for sale. It sold later that year, and the claimant purchased a home in Langley to which he and L.T. moved. The claimant described the new home as a contemporary four-bedroom home on a large property with a playroom for M.T., space in the basement for video games and weights, and a trampoline and a swing in the backyard. He said that he made the move for affordability and to be closer to his work. [562] On November 20, 2019, the claimant filed an application in Greece pursuant to the Hague Convention seeking an order from the Greek courts to return M.T. to Canada. A hearing in the Court of First Instance of Alexandroupolis was initially scheduled for December 4, 2019, but the respondent applied for and obtained an adjournment of the hearing to January 15, 2020. [563] The materials in support of the Hague Convention application included an affidavit from Ms.

Lebedeva, who had worked with M.T. as a behavioural interventionist in 2016-2017. The respondent emailed Ms. Lebedeva to advise her that she would be making a complaint against her with the autism network, alleging that she was giving "false information on an international custody dispute". [564] The claimant travelled to Greece in January 2020 for the hearing of the Hague Convention proceedings. Both parties were represented by counsel at the hearing on January 15, 2020, and the claimant gave evidence that when the Greek judge heard that the claimant was there and had not been permitted to see his daughter, she directed the respondent to permit him to see M.T. However, he was not given any one-on-one time with M.T. at any time in Greece, with either the respondent or G.T. being present at all times. [565] The claimant recorded a conversation he had with the respondent and G.T. while he was in Greece. Although not entirely clear, it appears that the conversation occurred on the day of the court hearing (January 15, 2020). In the recording, the respondent told the claimant that if he gets housing for the respondent and M.T., and pays child support, then they'll return - but if not, the respondent said that her life in Greece is okay, she'll stay in Greece and the claimant can come and see M.T. for holidays. [566] The parties exchanged a series of texts following that

conversation, in which the respondent begins by referring back to what she had said earlier. The claimant responds that he does not have "enough money for what you're asking for", and the respondent replies that "if you care about the kids you will figure something out that will work you need to be fair so [M.T.] and I can have a comfortable lifestyle as you do". The claimant's evidence that this was a continuation of the respondent's demands that he buy her a condominium. [567] The parties exchanged a series of texts later in January. The respondent accuses the claimant of never wanting to speak with M.T. on the phone, while the claimant complains that the respondent never lets him talk to M.T. The claimant asks multiple times when can he speak to M.T., which the respondent never answers - other than by saying things like "when you stop with your manipulation". The claimant's evidence was that he attempted several times to speak with M.T., but the respondent would either not allow it or pass the phone to M.T. only long enough for her to realize who it was then take the phone away. [568] On February 13, 2020, Judge Polymenopoulou gave judgment, granting the claimant's application, ordering the respondent to immediately return M.T. to her place of habitual residence, being Vancouver, fining her €1,000, and ordering that in the event of non-compliance she be imprisoned for one

month. [569] The claimant returned to Greece in mid-February, 2020, hoping that he would be able to travel back to Canada with M.T. However, the respondent refused to allow him to do so, and instead filed an appeal and an application for a stay of the initial order. [570] The respondent's application for a stay of the order was heard on March 4, 2020. On April 6, 2020, that application was dismissed. [571] The respondent still did not return M.T. to Canada. [572] Various emails were in evidence between Ms. Pietrow and various Canadian government officials who administer the Hague Convention. It appears from those emails that the practice in Greece is that the police will not enforce an order, even if an application for a stay is dismissed, until the appeal has been decided. [573] On May 6, 2020, the claimant filed a cross-appeal of the order of the Court of First Instance, seeking an increase in the fine and the sanctions for non-compliance. [574] The record contains a series of translations of what appear to be clinical notes from a Greek psychologist who met with M.T. There are four sets of notes from the summer of 2020 (July 7 to August 24) and a further nine sets of notes from the summer of 2021 (June 4, 11, 18, 25; July 2, 9, 16, 23; and August 6). The respondent gave evidence that M.T. was seeing the psychologist throughout her time in Greece (other than during Covid

lockdowns), and not just in the summer, but that she chose to only bring 13 sets of notes to be translated. [575] I note that the translation of the July 7, 2020 notes refers to "First Contact". [576] On September 11, 2020, the respondent's appeal was heard by the Appeal Court of Thrace. Judgment was reserved. [577] In Greece, attendance at school is taken quite seriously and absences are actively followed up on. M.T.'s school in Greece gave notice on October 2, 2020, that M.T. had been absent since September 14, and that despite repeated calls to the mother, the child had not yet re-appeared. An investigating officer was told that M.T. had been sick. [It is not clear why the school was not told this when it contacted the respondent directly.] The school reported on October 21, 2020, that M.T. had started attending school again on October 12, 2020. [578] On March 5, 2021, the Greek appellate court dismissed the respondent's appeal, ordered that M.T. be returned to her place of habitual residence in Vancouver, British Columbia, and in the event of non-compliance mandated a fine of €5,000 and personal detention for a period of five years. [579] The respondent did not comply with this order. [580] On March 12, 2021, M.T.'s school reported that M.T. had not come to school at all other than a few days in February and since then had been constantly absent. [581] On April 8, 2021, the

claimant filed a Petition to the Chief Juvenile Prosecutor of Alexandroupolis requesting that measures be immediately taken to return M.T. to him. [582] The claimant's evidence was that he spent between C$70,000 and C$80,000 on the Greek legal proceedings (not including the costs of his Canadian lawyers), plus a further $10,000 for travel costs and additional costs for a security guard at one point. Events Since the Respondent's Return [583] On August 28, 2021, the respondent returned to Canada with M.T. She did not advise the claimant she was returning, and she had purchased tickets for herself and M.T. to travel to Prince George. The RCMP apprehended M.T. at the Vancouver airport and, as mandated by the orders of Justices Affleck and Basran, delivered M.T. to the claimant's custody. [584] The claimant had been notified by the RCMP that M.T. was on her way back, and was at the airport. His evidence was that, when M.T. saw him, she just stood there for one or two seconds, then opened up her arms, said "Baba" and gave him a hug. He said that she had a pair of broken eyeglasses and an Elsa doll. He said he encouraged her to keep the doll, but that M.T. was insistent that she did not need it anymore and it was put on a shelf. The claimant's evidence is that M.T. was sick and tired of the Frozen video, and at one point asked that a Frozen song be turned off at gymnastics. [585]

L.T. gave evidence that he was very happy to see his sister again. In his view, her speaking skills had deteriorated in the two years since he had last seen her, and she would repeat the same things all the time. [586] The respondent continued on her contemplated flight to Prince George, where she lived for the next several months. [587] M.T. has lived since August 28, 2021 at the claimant's home in Langley. Upon her initial return, she was required to quarantine for 14 days pursuant to the Covid regulations of the time. The claimant took her to the hospital for a check-up, and the doctors concluded that she was healthy other than for decay of her teeth. He obtained a referral from his family doctor to a paediatrician who has a specialty in working with children with ASD, and M.T. has been seeing the paediatrician regularly since. [588] M.T. had an initial dental appointment on September 15, 2021. The volume of dental work required was such that a full anaesthetic appointment was scheduled for November 8, 2021. M.T. has continued since then to have regular dental check-ups. [589] The claimant hired a nanny for a period of time after M.T.'s return to British Columbia. His evidence was that this was a temporary arrangement until he had structures in place. It appears to have remained in place until the end of 2021. [590] Shortly after M.T. returned to Canada, the parties put in

place arrangements for M.T. to have FaceTime calls with the respondent every second day. The claimant gave evidence that he remains present to ensure that inappropriate things are not said, and that the calls are generally about 20 minutes but some are longer and some are shorter. The respondent objects to the claimant remaining present during calls, and says that he cuts them off inappropriately. [591] At some point in early September, the respondent invited L.T. to come to Prince George, and told him that she would get him a plane ticket to come see her at any time. L.T. gave evidence that, at some point, the respondent's father told him that he could get into a taxi with M.T. and he (the grandfather) would pay their way to Prince George. L.T. did not take them up on either of these invitations. [592] The claimant had had discussions a few months prior to M.T.'s return with the neighbourhood elementary school (the "Langley School"), and upon M.T.'s return registered her to attend. She started school once her quarantine was completed. The school was able to provide "full coverage" for M.T., meaning that she would have either a special education assistant or one of the resource teachers with her at all times during the day. [593] The resource teacher who is primarily responsible for M.T., Ms. De Giusti, gave evidence at trial. She said that in the first few months, M.T. had

some times of emotional dysregulation and she would have to call the claimant. However, as M.T. became comfortable with the people at the school, the times of dysregulation became much rarer. [594] The claimant arranged for speech language therapy for M.T., with the first session on October 28, 2021. The therapist, Ms. Becker, also gave evidence at trial. At the time of her first assessment, she described M.T. as being "primarily echolalic", which meant she would primarily repeat phrases she heard other people say, and that M.T. had very little self-generated language. As therapy progressed, she has been better able to self-generate her own language, shows less echolalia, and demonstrates a larger variety of words and phrases. [595] M.T.'s initial IEP at the Langley School was prepared on November 1, 2021. The plan mentions both of M.T.'s parents, and notes that M.T. learns best in a quiet and predictable learning environment with lots of breaks and positive reinforcement, that she likes to play with her peers, and that she wants to make friends and be included. The plan discussed her strengths and stretches. Amongst the "stretches" are: emotional regulation, motor skills, transitions, explaining what is bothering her, loud environments, being out of routine and consistent identification of numbers over three. [596] M.T. began occupational therapy on November 16, 2021. The

therapist, Ms. Hamilton, did an initial assessment that day comprised of an interview of the claimant and observations of M.T. Ms. Hamilton's observations included: · With respect to fine motor skills, decreased grip strength and decreased endurance for fine motor activities; · Difficulties completing various screen exercises aimed at assessing visual motor skills and visual perceptual skills; and · Distractibility and a need for prompting and modelling in aspects of her bathroom routine. [597] The initial plan for occupational therapy focused on increasing visual perceptual skills, motor planning skills, grip strength and endurance, and creating a consistent toileting routine. A February 2022 update report indicated "demonstrated improvements in knowledge of the sequence of her toileting routine", and that they would add a focus on a dressing routine. [598] The claimant obtained recommendations from M.T.'s school as to potential behavioural consultants. He ultimately retained a Ms. Rasmussen of Family Centred Practice Group Inc. He had his first discussion with Ms. Rasmussen in November 2021. She performed a school observation and consultation on January 26 and February 3, 2022, with her report noting particular difficulties with transitions. As well, she developed a plan for an intensive home Applied Behavioural Analysis intervention program. A contract was signed on April 5,

2022, and work began on April 12, 2022. Ms. Rasmussen continues to be contracted for five hours per month, consisting of one in-home observation and a monthly team meeting. She also continues to do periodic school visits to liaise with school staff. [599] From April 2022 onward, M.T.'s regular schedule has involved: · BI sessions on Monday, Tuesday, Wednesday and Friday after school; and · SLT and OT on alternating Thursdays after school. [600] With respect to other activities, the claimant gave evidence that M.T. goes swimming and to gymnastics regularly, that they go to the playground or to his sister's house (where there is also a pool), and that they take out the dog, Buddy. M.T. and L.T. have a trampoline in the backyard that they play on. More recently, M.T. has begun to play some video games. [601] The respondent retained a new family lawyer, Mr. Bellamy, in September 2021. He filed a Notice of Appointment on September 15, 2021, but did not send it to or otherwise make contact with the claimant's lawyer. It appears he began to prepare materials for a contemplated application with respect to parenting time. On November 19, 2021, the respondent made an affidavit in respect of the contemplated application, which was sworn before a Notary Public in Prince George. [602] On November 23, 2021, Mr. Bellamy sent an email to Ms. Pietrow to advise her that he had been retained by

the respondent, and provided her with the Notice of Change of Lawyer that had been filed two months earlier. On November 25, 2021, Mr. Bellamy wrote a letter advising that his client was seeking primary parenting time with M.T. and that he was instructed to apply for that change to parenting time on short notice. He noted in the letter that he was going to be away from December 9, 2021 to January 4, 2022. [603] The respondent gave evidence that she had asked the claimant for parenting time with M.T. by text earlier in the fall, but that the claimant had advised her that any such request had to go through counsel. She had no explanation for why her lawyer had made no contact with the claimant's lawyer until late November. [604] On November 25, 2021, the claimant offered to allow the respondent to exercise supervised parenting time with M.T. That was not acceptable to the respondent at that time. She asserted in her evidence that there was no existing court order requiring supervision, and she did not think she needed to agree to it. [605] On November 26, 2021, Ms. Pietrow wrote to Mr. Bellamy, asserting that there was no urgency to the proposed application, and noting that Mr. Bellamy had been on record since September 15, 2021, without previously making any request. She pointed out that a Notice of Intention to Proceed was required pursuant to Rule 21-2, and no steps could be

taken in the litigation until a month had passed. She noted that the respondent had been having video calls with M.T. every other day, and that the claimant had now advised the respondent that he was agreeable to supervised parenting time with an agreed-upon professional supervisor. She stated that the claimant would not agree to have any application heard on short notice. [606] Later that day, Mr. Bellamy filed a Notice of Intention to Proceed, emailed it to Ms. Pietrow, and confirmed that she was holding December 2, 2021, for argument on the short leave application (that is, on the issue of whether the application was urgent enough that the usual timelines should not apply). [607] On December 1, 2021, at 12:16 pm, Mr. Bellamy emailed Ms. Pietrow to advise that he was instructed that Ms. Taylor had been retained for the short leave and substantive applications. Ms. Taylor appeared in chambers on December 1, 2021, without advising Ms. Pietrow, and obtained an order for an application to be heard the next morning. The notice of application and the supporting affidavit material - including the affidavit that the respondent had sworn on November 19, 2021 - were all served on Ms. Pietrow later that afternoon. [608] The notice of application sought orders that M.T. reside primarily with the respondent, that the respondent have all parenting responsibilities with respect to M.T.,

that M.T. transfer to a school in Coquitlam, and that the respondent have parenting time with L.T. on Saturdays. [609] The application was heard the next morning by Justice Fitzpatrick, who ordered that it be adjourned generally and that a hearing date for a two-day application be obtained from Supreme Court scheduling. She awarded costs to the claimant. [610] M.T.'s report card for the first school term (which ended in early December, 2021) reported that she: is a sweet and social student who loves to be back at school. She has shown huge growth in her transition back to school and we are incredibly proud of her. [M.T.] has had no problem making friends and loves engaging with a variety of peers. She has made progress settling into the classroom in the morning and now feels happy and confident as she enters the door. We are continuing to work on building her independence with hanging up her jacket and backpack in its correct spot. [M.T.] is improving at communicating her wants and needs to those around her, which allows all of us to support her in the best way possible. [611] The report card noted that M.T. was "working on recognizing the sounds of the alphabet and can recognize and repeat most letter sounds", and that she was working on printing her letters. With respect to mathematics, she: has been working daily on her number recognition, place value, representations of

numbers with visuals and counting. She recognizes digits consistently up to fifteen and understands the value of numbers up to five. [612] On December 16, 2021, Ms. Pietrow wrote to Mr. Bellamy, advising that the respondent had contacted the claimant about in-person parenting time over the holidays. She asked that all proposals for parenting time be provided through counsel, and confirmed that the claimant remained open to arrangements for in-person parenting time if supervised by a professional supervisor, with the costs to be paid by the respondent. The respondent again declined - she explained at trial that she did not feel that she should be having supervised parenting time with her own children. As well, at the time, she was still living in Prince George. [613] On January 5, 2022, a new lawyer (Mr. Russ) filed a Notice of Appointment of Solicitor. [614] On February 18, 2022, the respondent through counsel proposed that there be supervised parenting time, with her father and one other person as supervisors. Neither of them was a professional supervisor. This proposal was not acceptable to the claimant. [615] On March 2, 2022, the respondent through counsel provided the names of two professional supervisors. Ms. Brown wrote to Mr. Russ on March 10, 2022, advising that she had contacted both proposed supervisors but had only heard back from a Ms. Passek. Ms. Brown confirmed

that Ms. Passek was acceptable, provided that certain conditions and parameters be agreed upon. She set out those conditions in detail. [616] By follow-up letter sent March 14, 2022, Ms. Brown advised that she had spoken with the other proposed supervisor, a Mr. Athwal, and that his services were also acceptable, subject to the same terms as proposed on March 10. By way of a series of emails on March 14 and 17, it appeared that the parties were ad idem on the terms and had discussed a time and location (Saturday, March 19 in Port Moody). That afternoon, Ms. Brown shared a draft agreement setting out the terms, asked Mr. Russ to advise which of the two agreed supervisors the respondent intended to retain, and asked to see a copy of the contract between the respondent and the supervisor. [617] The respondent complained several times about the terms that Ms. Brown had drafted, which she saw as unreasonable. She said that she felt she had no choice but to agree with them. The terms included restrictions on who could attend a supervised parenting time (limiting it to the respondent, the supervisor and the children) and where they could take place. It was put to the respondent in cross-examination that at this time she was refusing to disclose where she was staying in the Lower Mainland and who she was with. The respondent's answer to this was that "I don't think that in any way

affects my parenting time". [618] On the afternoon of Friday, March 18, Ms. Brown sent a follow-up email, noting that she had not heard back with respect to the requested agreement, and that she had spoken with Ms. Passek who advised that no arrangements had been made with her. Mr. Russ responded that, at that time, his client had been "unsuccessful in obtaining the signature of the supervising agency" and that they would rearrange dates once all signatures are obtained. [619] The respondent gave evidence that Ms. Passek told her she had never been asked to sign anything like the agreement that the claimant's lawyer drafted in this case. However, the texts in evidence included a text exchange between the respondent and Ms. Passek on Monday, March 21, by which the respondent noted that she had emailed the proposed agreement to Ms. Passek, and Ms. Passek texted back to say "I read the terms. That's pretty typical. I left another message with Miss Brown". [620] At some point in early 2022, two days of court time were set aside for the hearing of the application the respondent had filed on December 1, 2021. The hearing was scheduled for April 11-12, 2022. On March 21, 2022, the claimant filed a cross-application, seeking an order that parenting responsibilities for the children be exercised by him exclusively, that parenting time for the respondent be supervised by a professional

third party, that certain conduct orders be granted, that there be a Hear the Child report with respect to the views of L.T., that the respondent be fined for her wrongful denial of parenting time from August 2019 to August 2021, and that the respondent pay retroactive child support. [621] On the evening of March 22, 2022, Ms. Passek emailed Ms. Brown, raising a concern with the wording of the agreement, noting that she is unable to control what the respondent does, and can only terminate the visit if the agreed terms are broken. The next morning, Ms. Brown responded with a proposed variation to deal with Ms. Passek's concern. She also advised that the claimant and the children were out of town for spring break and would be returning on April 1. [622] On March 24, 2022, Ms. Brown emailed again proposing specific times for supervised parenting time on either April 2 or 3, and asking for any further comments about the agreement. [623] Ultimately, Ms. Passek agreed to the revised wording and signed the agreement. The first supervised parenting time occurred from 4 to 6 pm on April 4, 2022 (a weekday), at an A&W restaurant in Port Moody. The respondent described this first visit as a moving and emotional reunion. This was her first time seeing M.T. in person in over seven months, and her first time seeing L.T. in person in nearly 33 months. [624] Ms. Passek prepared a written

report for this and for almost all of the visits that she supervised. In the report, she noted that the respondent gave the kids a long hug and cried tears of happiness, and that the children seemed very happy to see her. She noted that M.T. talked about missing her grandmother, so the respondent FaceTimed with her on her phone. At the end of the two hours, the respondent and the children said goodbye in the restaurant, following which (as per Ms. Passek's report): Supervisor walks kids back to dad. [M.T.] starts to cry a little. She says, where is my dad? Supervisor says, he's right here. Everyone leaves. [625] On Friday, April 8, 2022, an information was sworn initiating criminal charges against the respondent, asserting that the respondent, being the parent of M.T., a person under the age of fourteen, from August 21, 2019 to August 28, 2021 "did take, detain, or harbour [M.T.] in contravention of the custody provisions of a custody order" with intent to deprive the claimant of the possession of M.T., contrary to s. 282(1) of the Criminal Code. A warrant was issued for the respondent's arrest. [626] On Monday, April 11, 2022, the two-day hearing of the outstanding applications commenced before Master Vos. As the hearing was about to resume for the second day on April 12, 2022, two Vancouver Police officers arrested the respondent outside the courtroom. The claimant's evidence

was that the arrest occurred outside the courtroom, that he had neither told the police to arrest her that day, nor had he arranged for her to be arrested, and that it was a surprise to him that the two officers appeared there that day. [627] The respondent in her direct examination said that at the time she was arrested she was standing at the doorway to the courtroom talking to Mr. Russ. On cross-examination, she insisted that the arrest occurred after the proceeding had commenced in the courtroom, with Master Vos already in the courtroom, and that she recalled looking at Master Vos as it happened. She insistent that this arrest prejudiced her greatly, and that until it happened everything had been going well for her in the hearing. She was adamant that the entire arrest had been orchestrated by the claimant and by his lawyers, who had instructed the police when and where to make the arrest. [628] The claimant's evidence was that L.T. learned of the arrest from the respondent's mother, who told L.T. that the claimant had "got the respondent arrested". When asked about this, the respondent's answer was "I don't recall. Was the call recorded?" It was put to the respondent in cross-examination that she had told L.T. that the claimant is trying to keep L.T. away from his mother, and that L.T. needs to know what is going on. In response, the respondent said there are "some things

there that I absolutely believe", but she was unable to recall whether she had said these things to L.T., asked whether L.T.'s cell phone "is being followed" and kept insisting that she needed to "see the conversation" - which appeared to be a reference to her view that her conversations with L.T. were being recorded. [629] On April 14, 2022, Ms. Brown wrote to Mr. Russ asserting that both the respondent and her parents had told L.T. that the claimant had done something to get the respondent arrested, that he is intending to keep the children away from the respondent, and that while she does not "want him to worry about this he needs to know what is going on". Ms. Brown asserted that when L.T. "suggested it was adult stuff and none of his business, she told him he's not a kid, he's a young man and it is his business as his mother is involved". She continued: Your client must cease and desist from making demeaning comments about [the claimant] to [L.T.] and discussing the litigation with him. She must tell her family to do the same. The application for a conduct order against your client is pending and we understand based on your submission to court that she will agree to it if it is mutual. If your client is agreeable to terms, we would expect her to be conducting herself in accordance with the conduct terms pending the order being made. It appears that [the respondent] and

yourself may be under the erroneous impression that [the claimant] arranged for you client to be arrested on Tuesday. There has been a police file open relating to your client's wrongful retention of [M.T.] since 2019. It is the police that recommend charges and the Crown Counsel that approve and lay charges. [The claimant] did not know that criminal charges were approved or that a warrant was issued until the morning of your client's arrest. [630] There was a further supervised parenting time on May 5, 2022 from 5-7 pm at a Milestones Restaurant. L.T. did not attend. The visit included food, some reading, playing with new toys, and a FaceTime visit with the respondent's mother. With respect to the transition at the end, Ms. Passek noted in her report that: Mom hugs and kisses [M.T.] and says, I love you. Don't forget. [M.T.] starts to cry while supervisor walks her back to dad. [M.T.] runs to dad when she sees him. [631] Further supervised parenting times occurred on May 9 and 14, 2022, with both children attending. Ms. Passek's note with respect to the end-of-visit transition on May 9 is: [M.T.] gets upset when it's time to go. [M.T.] says, I'm never going to see you ever again. Mom assures her that she will. Mom says, I promise. Mom hugs both kids goodbye and says, I love you. [L.T.] says, I love you too and squeezes mom's hand. Supervisor walks kids to Dad. [M.T.] runs to

dad crying. [632] The respondent, although released within a few hours of her arrest on April 12, 2022, was before the Provincial Court on May 17, 2022, to formalize her release order. Judge Harris released the respondent without financial obligation, but subject to five conditions, including an order that she reside at a specified address in Port Moody, that she remain within British Columbia, and that: You are to have no contact directly or indirectly with [the claimant, L.T. and M.T.] except in accordance with the following: 1) supervised visitation; 2) phone calls, 3) video calls as directed through Civil Court proceedings, or during any Court attendance through any lawyer who is familiar with this Order and as may be permitted by a Judge, Justice, or Master who is familiar with this Order. [633] Those release terms were renewed on July 19, 2022, and remained in force at the time of the trial of this matter. [634] The hearing before Master Vos, that had started on April 11, 2022, continued for a full day on May 19, 2022. At that time, Master Vos suggested that a trial date should be set. He asked the respondent's counsel about setting trial dates, but counsel advised that he was not presently retained for trial. Master Vos asked him to seek instructions with respect to trial. [635] On May 25, 2022, Ms. Brown wrote to Mr. Russ advising that the registry had 14 days available

for a family trial in this matter commencing October 11, 2022. She noted that Mr. Russ had advised that he did not have instructions to set a trial date, but commented that either party is at liberty to set trial dates. The letter also contained an appointment for an examination for discovery on July 15, 2022, and a Requisition scheduling a trial management conference for August 10, 2022. In the letter, Ms. Brown concluded: If you will no longer be counsel of record for [the respondent], we expect that she will retain counsel who will be available on those dates. If [the respondent] requires the dates to be moved, we expect her to notify us as soon as possible. It will significantly prejudice [the claimant] if this matter continues to be delayed. We expect [the respondent] to cooperate with having this matter proceed in a timely matter, that she will provide full and necessary disclosure, that she will attend her discovery with her documents and prepared to answer questions, that she will attend the TMC and follow any procedural orders made, and that she will attend trial. [636] The respondent, in her cross-examination, accused Ms. Brown of having taken advantage of the situation knowing that the respondent would not have counsel, and that it would be "almost impossible" to find counsel for that trial date. [637] There was a further supervised visit on June 1, 2022. Visits that

were scheduled for June 12 and 16, 2022, were cancelled due to the respondent being ill. [638] On June 13, 2022, Master Vos released his reasons for judgment. Having reviewed the facts, he commented on the difficulty he had in reconciling the allegations contained in the parties' respective pleadings. He noted that the claimant has shown that he is aware of his duty to protect the children's physical, psychological and emotional safety, security and well-being. He commented that the respondent has shown that she is a committed parent, but that she has engaged in troubling behaviour and messaging. He noted in particular concerns about the respondent's poor judgment in keeping M.T. in Greece for some 26 months, her failure to establish that she had made sure that M.T. had proper therapy and schooling while there, and the communications indicating that she was knowingly disobeying and flouting court orders. [639] Master Vos noted at para. 33 the importance of the status quo when the court is dealing with interim parenting orders. At para. 40, he concluded: [40] A status quo has become established with respect to important features in [M.T.]'s day-to-day life. As of the date of this hearing, [M.T.] has been continuously living with her father and brother for almost nine months. She attends school in the area where she resides. The evidence on this application is that she enjoys

school and is doing well at the school. She is receiving therapy and education supports. She has a strong relationship with her older brother. Her father has a flexible work schedule and is able to care for her, assist her with respect to her school assignments, take her to appointments and take her to activities. [41] It is clear, on the evidence, that the status quo of [M.T.] being primarily resident with the claimant is in [M.T.]'s best interests and should continue. [640] He also concluded that the respondent should have parenting time with M.T. so long as it is consistent with M.T.'s best interests, but that in order to minimize any risks with respect to abduction, such parenting time should be supervised and should not include overnight parenting sessions "at this time". He directed that: [43] On an interim basis, the respondent will have parenting time with [M.T.] on Saturday or Sunday of each weekend, from 9:00 am to 5:00 pm. If the parties cannot agree if the respondent's parenting time will be on Saturday or Sunday, it will be Saturday. The respondent's parenting with [M.T.] is to be supervised by a professional third party or a person the claimant consents to. The respondent will pay all costs and fees for the supervision of her parenting time with [M.T.]. [641] He directed that parental responsibilities on an interim basis be allocated under the Joyce model, as set

out at s. B9 of the Supreme Court Family Pick List, with the claimant to have the right to make decisions in the event the parties cannot agree, and the respondent to have the right to apply for directions on any decision she considers contrary to the best interests of the child. [642] Master Vos also made conduct orders which, although initially sought by the claimant, were agreed to by the respondent so long as they were applicable to both parties. The specific conduct orders, as they appear in the formal entered order (which, unfortunately, was not entered until March 2023), are as follows: 9. BY CONSENT, pursuant to section 227 of the Family Law Act, the parties will: a. Put the bests interest of the children before their own interests; b. Encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent in a positive and respectful manner; and c. Make a real effort to maintain polite, respectful communications with the other parent, refraining from any negative or hostile criticism, communication or argument in front of the Children.

10. BY CONSENT, Pursuant to section 227 of the Family Law Act, the parties will not: a. Question the Children about the other parent or time spent with the other parent beyond simple conversational questions; b. Discuss with the Children any inappropriate adult, court or legal matters; or c. Blame, criticize or disparage the other parent to the Children. [643] Master Vos also ordered that the respondent not attend at the claimant's residence or at either of the children's schools, unless the child attending that school is not present. [644] The applications for the respondent to pay a fine for her wrongful denial of parenting time, and for the respondent to pay child support to the claimant, were both adjourned generally, and each party was ordered to bear their own costs of the applications. [645] The respondent gave evidence that, notwithstanding Master Vos ordering that she be entitled to obtain information about the children from their care providers, she was only able to do so from M.T.'s school. Her evidence was that L.T.'s school and the various therapists refused to provide her with any information. Two of the therapists were asked, in cross-examination, if they had refused to provide information to the respondent; both disputed that there had been any refusal. [646] On June 21, 2022, the claimant exchanged texts with Ms. Passek, with respect to a visit scheduled for

Sunday, June 26. Ms. Passek said that she was unable to supervise for more than four hours unless she could take a "bathroom break". The claimant replied that given his concerns about abduction, he was unwilling to have the respondent left alone with M.T., nor was he willing to have L.T. supervise the respondent during a break. He also reiterated that the agreement provided that no third parties were to participate in a visit. Later that day, Ms. Passek noted that the respondent disagreed that third parties cannot attend the visit; Ms. Passek said she advised the respondent to "go through her lawyer on this matter as I'm not able to go against your wishes". Later that evening, the respondent texted Ms. Passek saying that there is no term in the supervision order about third parties attending parenting times, and that Ms. Passek would be hearing from her new lawyer, a Mr. Perrick. [647] On June 22, 2022, Mr. Russ filed a Notice of Intention to Withdraw as lawyer. [648] On June 24, 2022, Ms. Passek texted the claimant to advise that the respondent had agreed to the condition that no third parties attend - but that it was just for this one visit before she appealed to the court. [649] There was a series of texts on June 25, 2022 about the location of the visit the next day. The respondent wanted to have the visit at a park in West Vancouver, as she was returning from a trip to the

Sunshine Coast. The claimant was not keen on that location. Ultimately, Ms. Passek offered to have the visit at her place, which both parties agreed to. [650] On June 27, 2022, the respondent filed a notice of appeal of the order of Master Vos. She was represented, for purposes of the appeal only, by Ms. Taylor. [651] On June 29, 2022, the claimant filed an objection to Mr. Russ' intended withdrawal as counsel on grounds that included the failure to give a proper address for service. The respondent, on cross-examination at trial, agreed that she would not have received anything sent to the address in the Notice of Intention to Withdraw. [652] M.T.'s June 2022 report card reported that: [M.T.] is friendly and enthusiastic. [M.T.] is usually easily redirected back to her task or to her desk when gets off task. [M.T.] is well liked by her teachers and peers due to her social nature. [M.T.] has made gains in her communication skills and we are seeing her connect meaningfully with her peers. [M.T.] is able to let us know when the classroom is getting too noisy, she initiates play with her friends, and has been able to take part in many classroom activities and lessons. [M.T.] can be proud of all she has accomplished this year. [653] The report card noted that M.T. is able to recognize and read many of her peers' names, that she is working at interacting with her peers, listening,

and taking turns to speak. Her IEP progress summary noted that, when calm, she can and does engage in reciprocal conversations about a preferred topic, is not yet independently using strategies, and that when upset, she can become dysregulated quickly and does not stop to think about strategies. It noted that she is beginning to identify some early sight words, albeit inconsistently, and is proficient with numbers up to three. [654] In early July, 2022, the respondent returned to Prince George where she spent most of the summer. [655] On July 14, 2022, the respondent filed a Notice of Intention to Act in Person. [656] The respondent did not attend her examination for discovery on July 15, 2022. When asked about it in cross-examination, the respondent said that she had not agreed to the date, and that it was "very evident" that she did not have counsel at the time and could not go. She also stated that her appeal of Master Vos' order had been scheduled for hearing on July 15. [As noted above, the discovery was scheduled before Master Vos gave his judgment, and in any event, a Requisition had been filed on July 8 resetting the hearing of Master Vos' appeal to July 28, 2022.] [657] In reasons for judgment given on August 5, 2022, Master Robertson noted that the appointment for the examination for discovery had been properly served on then-counsel of record in accordance with the

Rules of Court. She commented: [16] On July 14, the day before the discovery, the respondent emailed the reporting company in response to an email with instructions for appearing remotely or virtually at the discovery and said that she would not attend because she felt she did not have appropriate notice and that she needed counsel to attend with her. [658] Having reviewed the circumstances, Master Robertson concluded that the non-attendance was "likely a choice that was made as a strategic one in order to avoid the examination for discovery". [659] On July 18, 2022, the claimant filed a notice of application to adjourn the hearing of the respondent's appeal until the claimant's application to strike the respondent's pleadings can be heard. This was followed by a notice of application filed on July 22, 2022, seeking an order that the respondent's pleadings be struck as a result of her failure to appear at her examination for discovery. In the alternative, the notice of application sought an order that the trial date of October 11, 2022, be peremptory on the respondent. [660] The various hearings that were scheduled to proceed on July 28, 2022, did not go ahead. The record is not clear as to how they were adjourned. [661] The claimant's application to strike the respondent's pleadings was heard by Master Robertson on August 5, 2022. Ms. Taylor appeared that day on behalf of the

respondent. Master Robertson gave an oral judgment at the conclusion of the hearing. She noted at para. 5 that: Counsel for the respondent is appearing today in somewhat interesting circumstances in that she was not counsel for the purposes of this application, or for the discoveries that the claimant has been attempting to be set down, until midway through this application after I refused to grant an adjournment request, for which she was acting as counsel. [662] Master Robertson noted that, in light of the order of Justice Basran, the only issues remaining on the respondent's pleadings related to parenting. As a result, it was her view that the court hearing the trial should be able to fully canvass and consider the best interests of the children. As a result, she declined to grant the order striking the pleadings, but made orders requiring the respondent to: · Deliver an amended list of documents by August 10; · Attend and bring her documents with her to an examination for discovery, to be scheduled on a mutually convenient date not later than August 31 - and if the parties have not agreed to a date by August 15, the claimant may set it unilaterally; · Pay to the claimant $840 for the cost of her non-appearance, to be paid by August 31; · Deliver a list of witnesses, along with their contact information, by August 10; and · Attend and remain at the trial management

conference on August 10. [663] Master Robertson gave the respondent liberty to file a trial brief at any time up to August 9, and ordered that the respondent pay the costs of the application in the amount of $2,000, to be paid within six months. [664] In her reasons, Master Robertson expressed concern with the lack of compliance by the respondent throughout these proceedings, commenting: [34] I appreciate current counsel, Ms. Taylor's, forceful submission that she intends to ensure that the respondent is now well aware of her obligations in this matter. However, she has been on and off the file such that much of this was done, to be blunt, while she was not on watch. I do not share her confidence that she can somehow keep the respondent compliant. Specifically, there appears to be a history of revolving lawyers at pivotal moments. The respondent can, at any time, dismiss or seek to have Ms. Taylor removed as counsel of record once again. [35] In addition, as much as Ms. Taylor may have very good intentions, ultimately the obligations fall on the respondent. [36] The respondent is the one that has to show up at the discovery. The respondent is the one that has to produce documents, and the respondent is the one that has to ensure that this matter is ready for trial, which logistically means ensuring that trial counsel is retained in a timely manner. [37] As honourable as Ms.

Taylor's may be, there is a real risk that the respondent just does not listen to her advice. That would appear to be a risk that is a significant one in these circumstances. [665] Master Robertson also presided over the trial management conference on August 10, 2022. She directed that the time reserved for trial be extended to 19 days, gave the respondent until August 19, 2022, to provide identification and contact information for the witnesses she had listed in her trial brief, and made various directions with respect to expert reports and documents. [666] The respondent did not deliver the amended list of documents by the August 10, 2022, deadline. [667] On August 11, 2022, Ms. Brown sent an email to the respondent, advising that she understood that the respondent had requested parenting time of four hours on each of September 3 and 4, 2022, and that the claimant was agreeable to that arrangement. She requested confirmation that the arrangements with Ms. Passek had been finalized. On August 23, 2022, the claimant emailed Ms. Passek to ask whether the respondent had confirmed the parenting times on September 3 and 4. Ms. Passek replied that she had not heard from the respondent. The claimant followed up again on August 30; Ms. Passek advised that she had not heard anything further, and that her Saturday time had been booked by someone else. Ultimately, the respondent

confirmed on August 30 for parenting time on Sunday, September 4. [668] The examination for discovery of the respondent was scheduled for August 31, 2022. Despite having received an Appointment and conduct money of $803, she did not attend. Nor did she pay the respondent the $840 by August 31 as ordered by Master Robertson. [669] On September 7, 2022, two lawyers - a Mr. Perrick and a Mr. Evans - filed notices of appointment advising they were taking over as counsel of record for the respondent. [670] The claimant's application to strike the respondent's pleadings was back before the court on September 8, 2022. Master Vos ordered the respondent to attend an examination for discovery on September 19, 2022, and to bring her documents with her. The application to strike her pleadings was adjourned to September 20, 2022. [671] The respondent had a further supervised parenting time with M.T. on the morning of Sunday, September 11, 2022. On September 16, 2022, the claimant texted Ms. Passek following up on the supervision reports. Ms. Passek replied that the respondent had instructed her that she need not do reports for every visit - just "one summary report at the end before court". The claimant responded by advising that he would pay for the reports. Ms. Passek responded: I didn't take any notes last week. Things were as usual. They played. They watched a show. The only thing

significant was that [M.T.] was more upset than usual to leave and mom was trying to comfort her. If you want me to put that in an official report I will. I just don't have the details. [672] The claimant responded that he did not require that, but he would be requesting reports moving forward. [673] The respondent's next supervised parenting time was on September 17, 2022. Ms. Passek prepared a full report on this session. [674] The respondent attended her examination for discovery on September 19, 2022; however, she did not bring her documents with her. [675] The claimant's application to strike the respondent's pleadings, which Master Vos had adjourned to September 20, 2022, was heard by Justice Crossin that day. He ordered that: · The October 11, 2022 trial date be peremptory on the respondent, · The respondent deliver by September 27, 2022, an updated F8 financial statement, her evidence summaries and her amended list of documents, · The respondent respond to all of the outstanding examination for discovery requests by October 3, · The respondent may not bring on any further applications until she has refunded the $840 as ordered by Master Robertson, and · The respondent pay costs of the application in the sum of $1,000, payable forthwith. [676] On September 23, 2022, the respondent filed a notice of application seeking to set aside the order made by Justice Basran on

September 4, 2019, when the respondent did not attend the initial trial of the action. [677] On the weekend of September 24-25, 2022, the respondent moved into a townhome in Langley. At her examination for discovery on September 19, 2022, the respondent gave evidence that she would be moving into this townhome imminently, would be paying rent of $2,800 per month, and would not be living there with anyone else. At some point, she produced a document consisting of pages 1 of 6 through 3 of 6 of a residential tenancy lease form that showed her name as tenant (handwritten in), with the rent showing as $3,000 (handwritten over the number $3,400). The signature page was not included. [678] The evidence at trial with respect to that townhome was difficult to pin down. The respondent advised under cross-examination that the three-page document she had produced was simply "a draft" lease. When challenged with a copy of the actual lease, which was dated August 31, 2022, she agreed that a Mr. Keller was the actual tenant, but pointed out that she was listed as an occupant. Her evidence was that Mr. Keller travelled a fair bit and eventually ceased living there, such that the respondent subsequently was living there on her own. She felt that Mr. Keller's involvement was confidential information that she should not be required to disclose at her examination for discovery - hence, the

answers she gave. She did not feel it was untruthful to say that she was living alone, because in her mind, Mr. Keller was staying on the main floor and she was upstairs by herself, and in any event, Mr. Keller was not staying there long. Her evidence was that Mr. Keller was never at the townhome when her children visited, thus there was no need to disclose that he was the actual tenant. [679] The respondent's evidence is that the $2,800 number she referenced at the discovery was the amount either she or her mother was giving to Mr. Keller for each month starting in October 2022, but that eventually her mother began to pay the full monthly rental. [680] With respect to the monthly rental, the respondent's mother said that the amount was $3,000. The respondent gave evidence that the actual amount was $3,400. When it was pointed out to her that her financial statements sworn on September 26, 2022 and January 16, 2023, both stated that the rent was $3,200, she said that was mistaken. [681] There was a supervised visit on Sunday, September 25, 2022, at Ms. Passek's home. The report contains the following: [M.T.] climbs to the top of the slide. Mom takes a picture. Mom tells [M.T.] not to cross some bars. Its too high. [M.T.] starts to cry. Mom climbs up and asks [M.T.] why she is so upset. Are you scared that it is too high? Do you want to go down the slide? [M.T.] say, my dad is

mean. He grounds me. Mom helps [M.T.] down. [M.T.] runs to supervisor and says, Mommy hurt me. Supervisor says, no she didn't. [682] Also during this visit, the respondent arranged with the parent of a child who had been a friend of M.T.'s when she attended Queen Mary Elementary to come and see them. Ms. Passek had not been previously advised that this was going to happen, and her report notes that she questioned the respondent about whether this was allowed. The respondent advised Ms. Passek that there is nothing in the court order that prevents it. The guests (a parent and her two children, one of whom had been a classmate of M.T. at Queen Mary Elementary) arrived and visited for about 45 minutes, then left. [683] On September 27-29, 2022, the respondent delivered supplemental lists of documents. As noted above, prior to this, the respondent had listed only 38 documents. These lists added a further 136 documents (although many of them were either from the court file or had been produced by third parties at the instance of the claimant). [684] Both the claimant's application to strike the respondent's pleadings and the respondent's application to set aside Justice Basran's order came on before Justice Douglas on September 28, 2022. The parties consented to orders that both applications be adjourned to the trial (which at that time was scheduled to commence only two weeks

later), and that the respondent provide the claimant with copies of all documents from her newly delivered supplemental list of documents. [685] The claimant held a birthday party for M.T. in September 2022. He explained that he asked the teacher who they would recommend he invite, and that nine or 10 of her classmates attended as did various relatives from the claimant's family. M.T. also had a special two-hour visit with the respondent (supervised by Ms. Passek) that day. In her notes of that visit, Ms. Passek notes a comment by M.T. that the respondent should "tell daddy the truth", but that when asked follow-up questions, M.T. said nothing further. [686] M.T. had a supervised visit with the respondent at Ms. Passek's home on October 1, 2022. This was one of many visits where the respondent was interested in going outside, but M.T. preferred to stay in, watch TV and play with her mother. On this occasion, the respondent eventually persuaded her to go to the yard. Ms. Passek noted that at the end of the visit, on saying goodbye, M.T. "starts to cry a little", then is walked to her dad. [687] What turned out to be the final visit supervised by Ms. Passek occurred on October 8, 2022. In her notes of the end of the visit, Ms. Passek recorded that as they were preparing to leave, M.T. stated "Baba is going to be so mad", then when pressed as to why, M.T. said "tell [Ms. Passek]

no". After they left the building, Ms. Passek noted that M.T ran to her dad and cried a little. [688] The trial of this action was scheduled to begin before me on October 11, 2022. However, one of the respondent's lawyers was ill. Mr. Russ attended the trial to speak to an adjournment application, which was granted. The trial was rescheduled for January 23, 2023, with that date being peremptory on the respondent. As terms of the adjournment, the respondent agreed to abandon and not attempt to reset her appeal of the interim order of Master Vos from June 13, 2022, and that she would comply with all outstanding disclosure orders including with respect to production of the files of any expert witnesses she intended to call. I seized myself of the trial, and directed that there be a further trial management conference before me on November 14, 2022, to ensure that everything was in place so that the trial could proceed. [689] On October 13, 2022, Ms. Brown wrote to the respondent's two lawyers (Mr. Perrick and Mr. Evans) advising that the claimant was no longer comfortable with Ms. Passek continuing as the supervisor unless certain issues could be addressed. The first issue was the presence of third parties during parenting time; the second was with respect to the respondent taking M.T. to the bathroom unsupervised; and the third was a concern that the respondent was probing M.T.

for information and using leading questions during parenting time. Mr. Evans emailed Ms. Brown in response on October 15, 2022, disagreeing that supervision was being done in an inappropriate manner, complaining that the day's parenting time had been unilaterally cancelled and alleging there had been a wrongful denial of parenting time. [690] At about the same time, there was a series of texts between the respondent and Ms. Passek, which included at one point the respondent advising Ms. Passek of things she wanted to include in the report for the September 11 visit for which Ms. Passek had not taken notes. [691] The respondent tendered in evidence a video she took of a FaceTime call with M.T. on October 17, 2022. Partway through the video call, M.T. started talking about what sounded like "diarrhea" and iced tea. Shortly after that, she mentioned the words "tell teacher", which led to a number of questions (many of which were leading) from the respondent. The respondent concluded from this conversation that M.T. was saying that her father had bit her when she was going in the car. [692] On October 18, 2022, the respondent attended the Langley MCFD office. She took the video she had taken the previous night. She made a number of allegations of abuse. She asserted that the claimant had withheld M.T.'s therapies for eleven months from the time she went into his custody at the end

of August 2021, and that in recent days M.T. had told the respondent that her father had hit her, bit her and put her in the truck. She also repeated the allegations that had been investigated in 2019 (which are described above). The respondent was asked in cross-examination whether she had told MCFD that she was, at the time, facing charges in the criminal courts. She could not recall. [693] The claimant did not learn of this report to MCFD until late January 2023. [694] On October 19, 2022, Ms. Brown emailed Ms. Evans saying that the claimant had lost confidence in Ms. Passek and withdrew his consent for her to provide supervision. The claimant, in cross-examination, explained that one of his big concerns was that Ms. Passek had allowed third parties to attend the supervised visit without telling him, and that he did not learn of it until he received her report some time later. He also expressed concern that the reports indicated that Ms. Passek was joining in the respondent's questioning of M.T., and that questioning was a breach of the conduct orders. [695] On October 21, 2022, Ms. Brown received an information package from Ms. Turpin-Edmundson of a firm known as "Axiom" with respect to her supervision services. Ms. Brown forwarded that package to the respondent's lawyers on October 24, 2022, proposing that Axiom take over supervision of the respondent's parenting

time. [696] On October 26, 2022, Mr. Evans wrote to Ms. Brown, asserting that nothing improper had occurred at the supervised visits with Ms. Passek, asserting that nothing in Master Vos' reasons prevented third parties from attending a supervised visit, and alleging that the claimant was insisting on a new supervisor in reaction to M.T.'s disclosures on FaceTime calls of having been hit by her father. Mr. Evans went on to say that the respondent would agree to use Axiom for the time being. [697] The first supervised visit with Axiom occurred on October 30, 2022. Ms. Turpin-Edmundson was the supervisor. The respondent's mother was visiting the respondent at the time. The claimant expressed concern about an additional party attending the visit; Ms. Turpin-Edmundson explained to him that her approach is that in the case of immediate family, she will permit attendance unless there is a court order prohibiting it, provided they understand they are subject to the same supervision and reporting as the visiting parent. She advised the claimant to speak with his counsel if he wanted to pursue the issue further. Ms. Turpin-Edmundson included a note in her report that: Note re Axiom policy: Axiom works in the best interest of the child. It is typically seen as being in a child's best interest to know their grandparents. If a party's position is that a child should have no contact

whatsoever with a grandparent, then Axiom would require something from the Court to this effect. The claimant did not further pursue his concerns about the respondent's mother attending the visit. [698] In her notes of the transitions during this visit, Ms. Turpin-Edmundson noted that the claimant was pleasant and positive when dropping off M.T.; that M.T. seemed happy and excited to see her mom, jumping up and down and appearing animated; and that when it was time to leave: [M.T.] made a crying sound, "Whaaa?" and hugged her mom. She held on to her and laid her head on her shoulder. [M.T.] held her hand out for supervisor and then said, "Say sorry", but did not respond when asked why. She appeared happy and excited to see her father. She ran to him and said, "Daddy?*" (*or Dad?") They exchanged hugs, (she smiled and appeared animated), and he helped her into the vehicle. [699] A new IEP was prepared for M.T. on November 1, 2022. The report notes that M.T. learns best in a quiet and predictable learning environment, needs lots of breaks to stay focused and build stamina, is socially motivated and likes to play with peers, and struggles to maintain focus. With respect to "strengths" and "stretches", the report noted that M.T. needs support with emotional regulation, finds transitions very hard, and struggles to explain what is bothering her when dysregulated. [700] On November

3, 2022, the claimant took M.T. to BC Children's Hospital to have her immunizations updated. The documents indicate that the claimant had advised the respondent on October 5, 2022, that he had made the appointment for this, and that on October 28, 2022, the respondent had advised that she did not consent to M.T. having immunizations, but in light of the existing court orders, he had decided to go ahead with this. [701] Ms. Rasmussen prepared a report dated November 4, 2022, with respect to observations she had done during a visit to M.T.'s school. In it, she included a discussion about M.T.'s "habit of approaching peers in her class, specifically the boys, and demand that they apologize to her". Ms. Rasmussen explained in her evidence at trial that school staff had commented that M.T. will occasionally approach either classmates or teachers and demand that they apologize, and that these demands were often out of context, in situations in which the person had not been engaging with her and the request for an apology was not appropriate. Ms. Rasmussen noted that staff were initially getting into long, drawn-out explanations as to why there was no need to apologize. Ms. Rasumssen instead recommended that they offer M.T. another phrase as to how to spark a conversation or get the attention of the adult. [702] On November 4, 2022, Mr. Evans provided responses to a number of the

outstanding requests from examinations for discovery. [703] The next supervised visit was on November 6, 2022. The respondent's mother was again present. Ms. Turpin-Edmundson recorded comments from M.T. to "tell Dad to say sorry", and that her dad had said to "snap at it" (or possibly "snap out (of) it"). Near the end of the visit, the notes indicated that M.T. was telling the respondent to "Tell him sorry". As M.T. was being escorted out to the claimant's vehicle, she again told the supervisor to "tell him to say sorry". The supervisor asked whether she was referring to her father or to the dog - to which M.T. initially said the dog, then also Daddy. When she got to her father, she "said Daddy and ran into his arms" and they exchanged hugs. [704] Ms. Turpin-Edmundson gave evidence at trial. She noted that in some of her reports, she describes M.T. saying her "usual phrases". She explained that there are four or five phrases M.T. uses when she is experiencing "something emotional" - of which perhaps the most common are "say sorry" and "this is weird". Other such phrases appearing in her reports, which M.T. appears to repeat when she is feeling dysregulated, include "that's so rude", "I'm sorry" and "what the hey". [705] On November 8 and 10, 2022, the respondent exchanged texts with Ms. Passek, asking her to supervise a visit on November 12, 2022. Ms. Passek texted the claimant

to confirm that the visit was going ahead that day; the claimant advised that it was not and that any communication about the topic should go through counsel. [706] There was a further supervised visit with Ms. Turpin-Edmundson on November 13, 2022. The respondent made an audio-recording of the final few minutes of the visit, which she played at the trial. It generally matched what was in the supervisor's report. M.T. appeared to be quite sad when told that the time for the visit was almost up, then settled down. However, when the respondent's dog yelped, M.T. was suddenly overwhelmed and began crying again. Both the respondent and the supervisor attempted to comfort her, but the dog can be heard continuing to yelp. The supervisor noted that M.T. called out "Mommy", then took the supervisor's hand and walked out willingly. The supervisor re-directed her attention to her father, and M.T. screamed and ran into his arms, hugging him and hanging on to him. The supervisor noted as well that the respondent remained on her stoop observing. Presumably, she had come out to continue recording. [707] There was a trial management conference on November 14, 2022. The respondent was represented by Mr. Evans, and Mr. Russ participated as well on what he described as a "watching brief". Mr. Evans advised that he and his client were working on completing the outstanding matters (including

production of expert files and some outstanding examination for discovery requests), but that he anticipated being ready to proceed on the scheduled trial date, and there were arrangements in place to ensure that the respondent would have counsel for trial. A further trial management conference was ordered for January 3, 2023, to ensure that the trial would be ready to proceed as scheduled on January 23, 2023, with each party to file an updated trial brief in advance. [708] On November 18, 2022, Ms. Brown wrote to Mr. Evans asking that the respondent not prolong the goodbyes at the end of supervised visits and not follow M.T. outside. The respondent gave evidence that she viewed this request as "very disturbing", and she paid no attention to it because it was "typical" and an example of the claimant "playing the system". [709] The next supervised visit on November 20, 2022, was relatively uneventful. M.T. was noted, on getting ready to leave, to repeatedly use some of her regular phrases including "Tell him say sorry" and "That was rude". The respondent was noted to have comforted M.T. and told her that "she wants her to stay and wishes she could stay". [710] On November 22, 2022, Mr. Evans and Mr. Perrick filed a Notice of Intention to Withdraw as counsel. [711] At about 3:18 pm on Friday, November 25, 2022, Mr. Evans emailed Ms. Brown to advise that the respondent had located

a more affordable supervisor and intended to use that supervisor for the coming weekend. Ms. Brown replied to the email on Sunday, November 27, advising that she would need more information about the proposed new supervisor before her client could advise of a position on the new supervisor. She noted that the respondent had unilaterally cancelled Axiom's supervision for that weekend and was blaming the claimant for missed parenting time. She asked that any changes in supervision be proposed with more notice. This was followed up on November 30, 2022, with an email from Ms. Brown advising that her research with respect to the new supervisor had turned up a case in which Justice Tammen had commented adversely on that individual's evidence and conduct, and that as a result the claimant would not agree to that person doing the supervision. [712] There was a further series of emails on December 1-2, 2022, with Ms. Pietrow dealing with Mr. Evans as Ms. Brown was in a trial. The emails indicate that Ms. Pietrow had difficulty in getting in touch with a further supervisor Mr. Evans had suggested, but she proposed two different potential supervisors that were known to her and that she would recommend to her client. On the Friday afternoon, December 2, 2022, Ms. Pietrow suggested that there was not sufficient time to inquire into the respondent's proposed supervisor, and that the

respondent should not be cancelling the visits with Axiom until a new supervisor has been agreed upon. [713] There was no supervised visit on either the November 26-27 or the December 3-4 weekends. [714] On Monday, December 5, 2022, Ms. Pietrow wrote to Mr. Evans setting out a number of specific concerns with the information obtained from the supervisor proposed by the respondent, and noting as well that there were a number of extra charges on that firm's sheet that would result in that firm being no less expensive than Axiom in any event. [715] Ms. Pietrow wrote again to Mr. Evans on Friday, December 9, 2022, asserting that the respondent had texted the claimant saying that she had booked a supervised visit for that weekend with the firm that Ms. Pietrow had rejected in her letter on Monday. Ms. Pietrow confirmed that the firm was not acceptable to the claimant. [716] There was thus no supervised visit on the December 10-11 weekend. [717] On Thursday, December 15, 2022, Ms. Taylor filed a Notice of Appointment of Lawyer, reflecting that she had been re-retained to act for the respondent. That same day, she filed a without notice application for orders that M.T. reside primarily with the respondent, that the requirement for supervision be cancelled, that M.T. spend the entire Christmas holiday with the respondent, and that the claimant be fined $5,000 for an alleged "repeated

denial of the Respondent's parenting time without cause and in non-compliance with" Master Vos' order. In the alternative, the respondent asked that the choice of professional supervisor be entirely up to the respondent. She also sought an order that the claimant's parenting time be supervised. [718] The application was heard by Master Muir that day on an ex parte basis. Master Muir ordered that the respondent "shall choose the professional supervisor of her parenting time with [M.T.] without interference by the claimant, effective immediately". [719] On Friday, December 16, 2022, Ms. Pietrow sent an email to Mr. Evans at 1:14 pm, noting that she had heard from Ms. Passek on Thursday evening that Ms. Passek was going to be supervising the respondent's parenting time that weekend, and that Ms. Passek would not be doing reports - just one final report at the end for court purposes. It is clear from this email that, as of 1:14 pm on the Friday afternoon, Ms. Pietrow had not been notified of the application made the previous afternoon or that new counsel had been appointed for the respondent. [720] Later that afternoon, another lawyer from Ms. Pietrow's firm (a Mr. Plett) filed a without notice application which was heard at 5:50 pm that evening by Justice Iyer. Justice Iyer ordered that the order of Master Muir be suspended until further order of the Court, with either party at

liberty to apply further upon two clear days' notice. [721] On Monday, December 19, 2022, Ms. Turpin-Edmundson emailed Mr. Evans and Ms. Brown advising that she had been asked by the claimant about her availability. She advised that, although this was her busiest time of year, she would be able to accommodate a four-hour visit on Thursday, December 22, 2022. The email was forwarded to Ms. Taylor. The respondent did not agree to have supervised parenting time on December 22 with Axiom. [722] On December 22, 2022, Ms. Pietrow emailed Ms. Passek, having been advised that the respondent had expressed a desire to have Ms. Passek supervise a visit on December 24, 2022. She asked Ms. Passek to advise as to the location of the proposed visit, whether any third parties would be present, a proposal as to how to continue supervision during any bathroom breaks, and for confirmation that reporting would be done in an unbiased neutral manner and that Ms. Passek would not take direction from the respondent with respect to reporting. Ms. Passek responded that evening, advising that the respondent had promised to wait outside the bathroom door during any bathroom breaks, but that she would leave it to the lawyers to work out the other issues raised by Ms. Pietrow. The next day, Ms. Pietrow emailed Ms. Taylor advising that given the lack of any substantive response on the issues she raised, the

claimant would not consent to a visit supervised by Ms. Passek. She also noted that, in any event, M.T. had a cough, a stuffy nose, and sores on her lips. [723] A few minutes after that email, Ms. Pietrow advised that Ms. Turpin-Edmundson was available to supervise parenting time on December 31, and that the claimant was willing to pay her fees for that one visit on a without prejudice basis. The respondent did not take up this offer. [724] Ms. Taylor responded to these two emails with an email asking for the name, address and telephone number of the doctor who would be seeing M.T. for what Ms. Taylor described as a "medical emergency". The claimant's evidence was that he and M.T. had a telephone appointment with a doctor. The respondent asserted in evidence that it was "shocking" to her that the claimant was satisfied with only a telephone appointment, and did not insist on M.T. being seen in person by a doctor. [725] The respondent had no in-person parenting time over the winter school break. [726] There was a trial management conference on January 3, 2023. Various directions were given with respect to trial. As well, the parties sought directions as to how to deal with the various pending applications with respect to the choice of supervisor for the respondent's parenting time on an interim basis pending trial. I directed that this matter be dealt with in Master's chambers

on January 6, 2023, with each party to be given 20 minutes to make submissions as to who should be the supervisor. [727] The parties appeared before Master Robertson on January 6, 2023, who directed that on an interim basis the parenting supervisor shall be Axiom, with the respondent to pay for supervision and the claimant to pay for reports, subject to a final allocation at trial. [728] The materials before the court included a progress report dated January 12, 2022, from an occupational therapist, Ms. Chan, who had taken over care of M.T. in September 2022. She reported that M.T. had demonstrated improvements in her fine motor skills, visual perceptive skills, visual motor skills and self-care skills, and that they were continuing to work on goals of writing and participating in fine motor activities at school, and to progress M.T.'s independence in her self-care routines. [729] To similar effect is a progress report from the speech language therapist, Ms. Becker, written on January 18, 2023. It noted that M.T. had attended 23 sessions with Ms. Becker, that she had continued to make steady gains in play skills and overall language, that her use of syntax and grammatical structures had improved, and that her language is consistently becoming more grammatically correct. [730] The first supervised visit of 2023 took place on January 14, 2023. This was the first such visit since

November 20, 2022. During this visit, the respondent expressed concern to the supervisor that M.T. was referring to her by a short form of her first name ("S_"). There is a note that when M.T. heard a car honking, she referred to "Daddy", reached for the supervisor's hand and said "take me back". The supervisor also noted that M.T. "may have said bad Daddy", and then "tell Grinch say sorry". [731] The next supervised visit took place on January 21, 2023. Ms. Turpin-Edmundson was not available, so she had arranged for one of her staff (named Tee) to supervise. The respondent asked to have it noted in the report that M.T was referring to her as "S_". The end-of-visit transition was described as follows by the supervisor: 12. [The respondent] had her camera out. [M.T.] took supervisor's hand and went with her. [The respondent] went down the stairs and onto the sidewalk with supervisor and [M.T.]. She requested further affection from [M.T.]. [M.T.] started to make crying sounds, absent tears (supervisor did not see tears). 13. [The claimant] appeared aware that [the respondent] was recording and seemed to get [M.T.] into the truck with haste.

14. The following text was sent by [the claimant] the following day; however, Axiom was not aware of this until the following day (Monday): Hi When [M.T.] got into my car yesterday she informed me that her Pappu (grandfather) smacked her on her butt hard and she was quite upset about this crying saying why would he do this. I was wondering if that actually occurred. [732] On the Sunday evening (January 22), Ms. Turpin-Edmundson emailed the January 14 report to the parties and also advised that the January 21 report, when completed, would include a note that: [M.T.] was hugging her grandma. Her grandpa was behind the grandma and reached around her and patted* (*describe by supervisor as appearing to be a firmer pat). Supervisor could not see [M.T.]'s back from this angle (so could not see where he patted). [The respondent] pushed or otherwise moved his hand away and looked at her mother. [M.T.] did not seem to react to this in the moment. [733] Later that evening, the respondent emailed Axiom, asserting that she was "shocked and appalled at the implication made against my father that kind of innuendo is malicious inappropriate and slanderous", and that "Once again the supervisor has not properly noted the extreme emotional upset that [M.T.] displayed on going back to her father". [734] The videos taken by the respondent at both the start and the end of this visit were in

evidence. The end-of-visit video is taken by the respondent who is following M.T., calling out to her, as the supervisor walks her to the claimant's vehicle, and M.T. reacts to her situation by making crying sounds. [735] Ms. Turpin-Edmundson, in her evidence, noted that during earlier visits, the respondent would remain on her stoop during the end-of-visit transition, but that in 2023, she began to come out to the sidewalk and onto the road in order to video-record the transition. The impact of this conduct on M.T. is apparent in the supervision reports. The Trial [736] The trial of this matter commenced on January 23, 2023, running initially for 15 days through February 10, 2023 (with one day lost for Covid-related reasons, and most of a further day lost due to counsel health issues). [737] There was a voir dire on January 27, 2023, to deal with objections made by the claimant to the respondent seeking to use in cross-examination various videos that had not been listed on any list of documents. I permitted the videos to be tendered in evidence, concluding that in the particular circumstances of this case the factor that weighed most heavily in favour of their use was that the primary issue at trial was determination of the best interests of the children. I understand that some of the documents tendered by the respondent at trial had also not been listed by the respondent; the

claimant made very few further objections given the conclusion I had drawn at the initial voir dire. [738] The claimant's case was completed by early afternoon on Tuesday, February 7, 2023, with witnesses including the claimant, two family members, a current neighbour of the claimant, a former neighbour of the respondent, and numerous service providers, including Ms. Gallagher and the current school resource teacher. [739] In addition to the various fact witnesses, Dr. Bell attended on Monday, February 6, 2023, for cross-examination by both parties with respect to her s. 211 report. Her evidence with respect to the report has been discussed above. [740] Dr. Bell was also asked during her testimony about what each parent could do to prepare M.T. for the transitions involved at the start and end of any parenting time. She commented that she would expect a parent to be enthusiastic and positive about the upcoming transition, not to schedule things like playdates at the same time, and not to talk about what they will do in the child's absence. Dr. Bell said that she would expect parents not to talk about how much they would miss the child, and how it would be so hard when they are away. She said that parents should do what they can to make the transition positive and light so as to take away any anxiety. She noted that transitions can be difficult for any child, but that in most

cases, once the transition has occurred, the child is fine. However, she warned that if a parent starts to backtrack on the transition, it pulls the child back into their attachment relationship. [741] The claimant gave evidence that his invariable practice was that, on the way to a visit with the respondent, he would speak positively to M.T. about the upcoming visit. The Axiom reports almost all comment on the claimant being "pleasant and positive" to M.T. when dropping her off for a supervised visit. The transitions at the end of supervised visits, particularly in 2023, were more difficult. [742] On Wednesday, January 25, 2023, the claimant was contacted by MCFD in respect of the complaint made by the respondent in October 2022. He denied any physical harm or abuse, and advised the investigator that he did not mind MCFD meeting with the children at their schools. In his evidence, he stated that he did not tell either of the children that they would be questioned by MCFD investigators. [743] There was a further supervised visit on January 28, 2023. Both grandparents were also part of the visit. The report was typical of many of the visits that occurred during the course of the trial. M.T. was clearly very happy to see her mother and affectionate with her, and any time M.T. mentioned her father, she would be questioned by her mother. As M.T. began to leave, the respondent

"requested more affection", then followed her out and continued calling out to her, all the while recording video on her phone. M.T. cried as she walked away, then ran to her father once she saw him. [744] There were no supervised visits on either February 4 or 11, 2023 - no visit having been requested by the respondent. [745] An MCFD social worker attended each of the children's schools on February 7, 2023, to interview them. Their notes indicate that no disclosures were made by M.T. Their notes with respect to their visit with L.T. are extensive. The following points that they recorded are notable: · L.T. said that he lived with his father and sister, and that he sees his mother when he wants to; · L.T. seemed shocked that there had been a report to MCFD, and said he was not aware that he would be visited by MCFD workers, but that he did not mind speaking with them; · When asked about consequences for M.T. when she misbehaves, he said that his father gives M.T. "space" or will calmly talk her through a moment when she is feeling upset; L.T. said that he has never had any concerns about his father's behaviour towards or treatment of his sister, and that he has never seen anything physical in his father's treatment of M.T.; · L.T. said that there is no yelling, name-calling or threats in his home, and no inappropriate physical discipline; rather, he said that he is very

protective of his sister, and would tell someone if ever he had concerns, but that in his view M.T. is spoiled and has lots of support - she has people that come in and work with her, she has a tablet and lots of toys, and his father takes very good care of her; · L.T. described his father as kind, patient and caring, and said that he can go to his father with anything; · L.T. commented that his mother can sometimes say negative things about his father or their home in front of M.T., and was concerned that M.T., due her needs, might misunderstand; and · L.T. spoke of his plans to get into the restaurant business, starting at the bottom at the business his father manages; he also spoke of learning to drive, and of his love for cars, including race cars. [746] One piece of information the interviewers obtained from M.T. was that she has a dog, cat and bunny, and their names are Lula and Buddy. L.T. advised the interviewers when they spoke to him that the only pet they have is the dog, Buddy. [747] The claimant was interviewed by MCFD at their office on February 17, 2023. On March 3, 2023, after checks of some collateral references, MCFD wrote to the claimant confirming that their investigation was complete and had resulted in a conclusion that neither L.T. nor M.T. needed protection. MCFD thereafter closed its file. On March 8, 2023, the claimant obtained an order from Master Vos

for production of MCFD's more recent files, and the files were subsequently tendered in evidence at trial. [748] There were supervised visits on February 18 and 25, 2023, which were mostly typical. Both grandparents were present on February 18, and the grandmother was present on February 25. At one point during the February 18 visit, the supervisor recorded M.T. as having commented about going "to drugs" or "do drugs". Although the respondent questioned M.T. about this comment, nothing further was forthcoming from her. [749] There were further supervised visits on March 4, 11, 18 and 25, 2023. The reports from these visits are generally typical. The respondent's mother attended all four visits. The March 4 and 18 reports include notes that M.T. had again made references to "drugs". Again, the respondent's efforts to question M.T. on these comments led to no further information. The March 25 report includes a note that M.T. had said what sounded to Ms. Turpin-Edmundson like "don't do drugs"; however, the respondent insisted that what was said was "go do drugs". In the first three of these visits, as time came to an end, M.T. asked for her father. [750] For the March 25 visit, the report notes M.T. referring to "we don't talk about Bruno". The respondent questioned M.T. on the "we don't talk about" portion of the statement. When questioned at trial, it became clear that the

respondent was not aware of the song from the Disney movie Encanto. The report also recorded the following exchange: [M.T.] said, "Tell Dad snap at it". [The respondent] said, "Your dad says that to you?" and [M.T.] said, "Yea". [The respondent] asked, "And that makes you upset?" ([M.T.] said yea). Seemingly in play (Cinderella going to the ball) [M.T.] said the words Daddy, mean, and don't listen to her. [The respondent] questioned her about this. [M.T.] said don't listen to Cee-Cee (repeated this for Anna and Anna's mom). She seemed somewhat confused (said what the heck). [751] The trial resumed for its first continuation of eight days from March 27 to April 6, 2023. There were unscheduled adjournments on three of those days due to the illness of either the respondent or her counsel. [752] The evidence at trial included a number of videos taken in late 2022 and the first few months of 2023. A number of those videos were of the transitions at the end of supervised visits. Those videos were generally consistent with the reporting from the supervisor, which I have described in some depth in connection with the visits. [753] A few of the videos were of the respondent's evening FaceTime visits with M.T. There were complaints from the respondent that these FaceTime visits sometimes did not occur, if M.T. fell asleep early, and sometimes were cut off. [754] The claimant gave

evidence that, although for the first several months of FaceTime visits he would hold the phone during the visit, in 2023 he began to allow M.T. to hold the phone herself. At times, she would randomly disconnect the call. He began to insist that M.T. say goodbye before disconnecting, and would re-connect the call for that purpose. [755] The respondent also complained that the claimant would sometimes cut off the calls himself. The claimant acknowledged occasionally doing so if he thought the respondent was being inappropriate. [756] The respondent tendered a handful of videos of these FaceTime calls in evidence. She acknowledged that, although she recorded many more, she only produced the ones that she thought were significant. In one, M.T. can be heard to say "don't use that bad word", which led to a number of questions from the respondent asking M.T. what her father had said to her. [757] In another FaceTime call, M.T. comments about her dad swearing at people. This led to a number of questions from the respondent suggesting that the claimant was swearing at M.T. [758] In another FaceTime call, M.T. says words to the effect of "Tell this guy no". This leads to a number of leading questions from the respondent, which appeared to be aimed at putting to M.T. that her father had hurt or touched her. It was in this context that the claimant initially asked the respondent to stop

the questioning, then ultimately cut off the FaceTime call. [759] There were supervised visits on April 1, 8, 15, 22 and 29, 2023. The respondent's mother was present for each of them. With respect to: · The April 1 visit, the supervisor noted a comment from M.T. that seemed to come "out of the blue" to "tell Grandma say sorry"; then, when M.T. mentioned that one should not put a Q-tip in their nose, the respondent questioned her about whether the claimant had tried to put a Q-tip in her nose. At one point during the visit, M.T. used the words "grounded to your room", which led to further questioning by the respondent as to whether the claimant grounded her to her room. In the final five minutes, M.T. commented "miss Dad", as well as "you tell dad say you're sorry". At the end of the visit, the respondent followed M.T. outside and hugged and kissed her on the sidewalk, M.T. made crying sounds as she ran to the claimant and into his arms, while the respondent "appeared upset or concerned and called out to [M.T.] that she loved her"; · The April 8 visit, the supervisor noted that M.T. talked about this being "Mommy time", said "I love you" to her mother more than once, then near the end of the visit, M.T. said to the respondent "Tell Dad you're sorry"; as M.T. walked out of the house, the respondent followed, taking video with her phone; when M.T. got to her father, she said "I

love you Dad" more than once and ran into his arms; · The April 15 visit, M.T. made comments about not swearing at people, there was again a comment to the respondent about saying sorry to dad; and · The April 22 visit, the supervisor noted M.T. referring to drugs again ("Can CeeCee go to drugs"), and there was a conversation about whether the respondent and the grandmother "still love" M.T. [760] There was a minor controversy between the parties with respect to the April 29, 2023, visit. The respondent asserted that M.T. was wearing pants that were too small. The claimant disagreed, said they were the same size (12) as her other clothes, and sent both the respondent and the supervisor a picture a day or two after the visit showing M.T. wearing the pants properly. The supervisor noted as well further references by M.T. during the visit to drugs - although this appears to have been initiated by a question from the respondent. [761] During the May 6, 2023 visit, the supervisor noted M.T. mentioning the words "time out", which led to questions from the respondent about whether her father gives her timeouts. This led to a discussion about CeeCee and CeeCee's mom and dad. The supervisor described the final transition as follows: 15. [M.T.] said she wanted her dad and seemed distressed or somewhat confused. [The respondent] continued speaking to [M.T.] on the street. Supervisor

hastened the exchange along. [M.T.] said Mommy is so mean (seemed emotional and somewhat confused). She ran to and called out for her dad and sounded emotional as she ran into his arms (continued as she got into the vehicle). [The claimant] seemed pleasant. [The respondent] may have been recording. [762] The second continuation of the trial took place from May 8-12, 2023, including the evidence of the respondent's mother and the ongoing evidence of the respondent, who concluded her direct examination (which had commenced on February 8, 2023) at midday on May 10. Her cross-examination began on the afternoon of May 10, but did not complete that week. As a result, a further three hours of trial time was scheduled on May 16, 2023, in order to complete the respondent's evidence. [763] The respondent gave evidence while on the stand in May 2023 about potential employment. She reported that she was just completing the real estate agent licensing course. She also stated that she had obtained a certificate, available on-line, to be able to teach English as a second language. She had also, beginning in May, been working as a behavioural interventionist, supporting a child at her preschool for 8 hours per week, for which the child's parents would pay her $30 an hour. She said that she had received some training from the child's behavioural consultant, and also had her own years of

experience from working with M.T. Finally, the respondent advised that she was thinking that the work that might be most suitable for her would be to work as an educational assistant in the school system. [764] There were two supervised visits on the May 13-14 weekend - the regular Saturday visit, and an extra two-hour visit on Mother's Day. Both grandparents were present on each occasion. The visits were generally typical - including that at the end of each visit, the respondent followed M.T. out to the street, recording with her cell phone, and calling out "I love you" to M.T. [765] After the May 14 visit, the claimant texted Ms. Turpin-Edmundson asking whether she could recommend a different pick-up procedure, expressing concern that both the respondent and her father had been out on the street taking video that weekend. Ms. Turpin-Edmundson advised that she would follow whatever was agreed to between the parties, and that this should be discussed between counsel. Mr. Brown emailed Ms. Taylor on the evening of May 16, 2023, suggesting that the respondent stay in her house at the end of the visit and that the claimant would wait at the end of the block to provide for a less strenuous transition. It appears that this email was not responded to - the lack of an immediate response is certainly understandable, given that the respondent was under cross-examination at the

time. [766] The initial cross-examination of the respondent concluded after 4:00 pm on the afternoon of May 16, 2023. The respondent's counsel asked for leave to speak with her client before commencing a re-examination. As a result, a fourth continuation of the trial was scheduled for May 23, 2023. [767] M.T. had been assessed by a school psychologist on April 20, 2023, for purposes of obtaining an updated psychoeducational report. The report was released on May 18, 2023. The author noted that M.T.'s communication skills are rated in the low range, that M.T. can express herself using short and simple language, but often engages in echolalia (that is, repeating phrases that she has heard). The report recommended that M.T. maintain her primary designation of G (autism), with a secondary designation as a student with mild intellectual disability. It also noted that M.T.'s attention-related challenges appear greater than recognized in previous reports, which had postponed consideration of ADHD, and recommended that there be consultation with a physician to discuss ongoing significant attention-related concerns. [768] The school resource teacher, Ms. De Giusti, was subsequently recalled to give evidence. She was asked why this report had been requested, and explained that when children are diagnosed with autism at a young age, it is difficult to accurately assess cognitive

capabilities. As a result, it is important to update cognitive testing as children grow older. Ms. De Giusti's view was that the report documented M.T.'s progress, and provided a more complete profile, but that nothing in it was unexpected. [769] The respondent, on the other hand, expressed great concern at the report, and argued that she read the report as indicating that there had been minimal progress since M.T. went into the claimant's care. She suggested that M.T. was really struggling in her current situation. [770] There was a supervised visit on May 20, 2023 - the first since the claimant had requested a less disruptive process for transitions. The supervisor noted that when she arrived, the respondent was waiting on the sidewalk near the mailboxes, and explained to the supervisor that "this is ridiculous" and "nobody is going to force" her to stay inside her house. At the end of the visit, M.T. hugged both her grandparents goodbye in preparation for leaving. As noted in the supervisor's report: 8. [The respondent] had [M.T.] sit on the couch and comforted her. [M.T.] appeared possibly sad and made a loud crying sound (screamed). She may have said I miss Dad, Mommy, Papou. 9. [The respondent] accompanied [M.T.] down the street (mailboxes). [The claimant's] vehicle was stopped further down the street. [M.T.] seemed upset or distressed (phrases including re: both her mom

and dad being hurt; don't hurt my dad ). 10. [M.T.] resumed making crying sounds at the corner. Supervisor motioned to [the claimant] to pull up. It is not known if he saw this but didn't move closer, so [M.T.] was walked further down. Supervisor suggested they say goodbye at the corner and then [M.T.] would be walked across the street to her dad. [M.T.] seemed emotionally overwhelmed and upset. She started crying (tears from both eyes). [The respondent] comforted her. [M.T.] screamed no, no, no! and continued to cry. She screamed Dad! (supervisor pointed out his position to her). [M.T.] said take me to Dad. [The respondent] was recording as supervisor and [M.T.] crossed the street [M.T.] stopped midway across the street and seemed very upset. She turned back and stretched her arm back toward [the respondent] (calling Mama!) 11. [M.T.] was crying loudly when she approached [the claimant's] vehicle. She cried even harder as she ran into his arms. This continued as she was helped into the car. [The claimant] said it's the "long goodbyes" (causing [M.T.] to be in this level of distress). End 3:07 pm. [771] When asked about this, the respondent said that the supervisor did not have the power to dictate her behaviour at the time of transition. When it was suggested to her in cross-examination that the prolonged goodbyes are difficult for M.T., the respondent argued that the claimant

"doesn't understand that his daughter is grieving and she needs comforting from her mother", that the claimant does not see "the emotional harm he is doing", and that all this is "a big win" for the claimant. [772] The fourth continuation of the trial was on May 23, 2023. At that time, the respondent began her re-examination. In the course of the re-examination, she sought to introduce the two documents said to be emails exchanged with Ms. Taylor in August and September 2019, which were reviewed earlier in this judgment. After discussion of the appropriate approach to be taken, and consideration of the extent of the waiver of privilege that fairness would require [see S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 45 B.C.L.R. 218, 1983 CanLII 407 (S.C.), per McLachlin J. (as she then was)], the respondent was directed to produce all communications between the respondent and Ms. Taylor from August 8 to September 3, 2019, including any written or electronic communications, notes of any conversations between them, as well as time records for that time period. The trial was adjourned yet again and two further days of hearing were scheduled for June 8-9, 2023. I further directed that, in the circumstances, the claimant would be entitled to re-open its cross-examination of the respondent with respect to the new material. [773] The supervised visit that had

been scheduled for May 28, 2023, was cancelled. The supervisor advised the parties that she had a dental emergency and was not available. [774] The following week, M.T.'s school had a swimming program for all of the grade 5 students. The claimant participated, including going into the water with M.T. After this program, M.T. had a "meltdown" at school. The claimant's understanding was that she had scraped her knee while at the pool. Ms. De Giusti testified that if the school is unable to get M.T. settled after about an hour, they will call the claimant to pick her up. They tried everything in their "bag of tricks" that day and were unsuccessful, so they called the claimant. The claimant's evidence was that, once they had left the school, M.T. quickly calmed down. [775] The respondent heard about this when she was speaking with Ms. De Giusti later that week. It was this incident that led to the respondent's request that Ms. De Giusti be recalled as a witness. [776] There was a supervised visit on June 3, 2023. The supervisor noted that the claimant dropped off M.T. down the street, and that the respondent was already waiting near that drop-off location. [777] The trial did not proceed on June 8, as there were issues with production of the additional documents and, by the afternoon that day, the respondent was feeling unwell. The re-examination was completed on June 9, 2023,

followed by further evidence from Ms. De Giusti about the previous week's meltdown and about the psychoeducational report. [778] Ms. De Giusti noted that she had been working with M.T. almost every school day since September 2021, and that she sees overall progress. Her observation was that while M.T. has some difficult days, there is progress. She observed that progress in academic areas includes greater familiarity with sight words, an ability to retell certain stories by looking at pictures, and an ability to work with numbers up to 20. She observed that M.T. is progressing in terms of her social skills, joining in play with other children, has fewer moments of dysregulation than when she first arrived at the school, and is better able to identify some basic emotions. When asked by the respondent's lawyer if she has seen any "regression", Ms. De Giusti said that she has not - that M.T.'s progress in academics is slow but it's there. [779] Although Ms. Turpin-Edmundson had given her viva voce evidence in early February, the parties by consent continued to submit her supervised visit reports and agreed to have them entered in evidence without the need to recall her. I have treated them as business records, with the notes recorded in the ordinary course of business and admissible on that basis. The final two reports in evidence were for the visits on June 10 and 17, 2023. One

notable feature in each of these visits is that M.T. asked her mother if she could come visit after school. The respondent responded to M.T. by saying that she could visit "anytime you want". [780] There was a sixth continuation of the trial on June 19, 2023. The respondent was cross-examined that morning with respect to the new evidence provided on her re-examination, following which the respondent closed her case. The claimant then was recalled to give reply evidence which was completed that afternoon. [781] The claimant, in his reply evidence, raised concerns that the respondent had on multiple occasions talked with M.T. about seeing her after school, and that this required him to explain to M.T. that she would see her mother on the Saturday. [782] The claimant denied a number of the allegations made by the respondent in her evidence. He denied ever disciplining M.T. He denied ever grounding her, and denied ever yelling at M.T. He acknowledged having told M.T. to snap out of it, and says that she also tells him to snap out of it. He says that M.T. thinks it is very funny. [783] The final witness at the trial was L.T., who testified on the morning of June 28, 2023, followed by the start of closing submissions which then continued until July 4, 2023. [784] Initially, the respondent had included L.T. on her witness list. Ultimately, she decided not to call him as a witness. It

was at one point suggested that I should conduct a judicial interview of L.T. While in many cases, even a child of 17-18 years of age would attend a judicial interview, rather than testify in a more traditional manner, it became apparent that some of the most important evidence from L.T. would be what he had to say about M.T. and her care. Given that, I concluded that it would not be appropriate for such information to be obtained in a manner that excluded counsel and prevented them from posing questions about what was said. [785] Ultimately, the claimant decided to call L.T. as part of his reply case. I gave leave for L.T. to testify by video so that he did not have to be in the same room as either of his parents when doing so. [786] Given the way L.T.'s participation in the trial unfolded, a significant amount of evidence was tendered earlier on as to what he may have said or done at times. Some of that came from the parties and other lay witnesses. Some of it came from Ms. Graham, Dr. Bell and Dr. Elterman. Other evidence as to what L.T. had said was recorded in various documents, including the notes of his interviews by MCFD investigators. All of that evidence has been received and considered in accordance with s. 202 of the FLA. [787] L.T. was asked about his parents' different forms of discipline. He described his mother as using yelling, taking away electronics, and

sometimes hitting. He says that his father's approach is to "talk it out", and that his father has never hit him. He says that his father has never grounded his sister. He says that when M.T. is having a temper tantrum, his father will try to help her calm down and then talk about it. [788] L.T. said that he does not have a "major curfew" - he is expected to come home at a reasonable time, but that varies with time of week and time of year. [789] L.T. said that he spends a lot of time with M.T. Sometimes they will use the trampoline in the yard together. Sometimes he will read to her. When she first came back to Canada, he said she would mimic and repeat things a lot, but that now she can actually respond if asked a question. [790] L.T. said that his father does not say negative things about his mother, but that the opposite is not true. L.T. said that he has made clear that he does not like hearing his parents say things about each other, but that his mother still goes ahead and says things about his father. [791] L.T. said that he is very close to his relatives on his mother's side, and he talks to his cousins frequently. Reliability and Credibility [792] Reliability and credibility are related but distinct concepts. The distinction between them was considered in R. v. Morrissey, [1995] O.J. No. 639, 22 O.R. (3d) 514 (C.A.) at para. 35, cited in United States v. Bennett, 2014

BCCA 145 at para. 23: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. ... [793] In considering credibility, the evidence of a witness must be assessed for "its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions": Faryna v. Chorny, [1952] 2 D.L.R. 354, 1951 CanLII 252 (B.C.C.A.) at 357. [794] A frequently cited list of factors in assessing evidence as to both the veracity of a witness and the accuracy of that witness' evidence is found in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA

296. It includes: · The ability and opportunity of the witness to observe events; · The firmness of their memory; · Their ability to resist the influence of interest to modify their recollection; · Whether their evidence harmonizes with independent evidence that has been accepted; · Whether the witness changes their evidence during cross-examination (or between examination for discovery and trial) or is otherwise inconsistent in their recollection; · Whether their evidence seems generally unreasonable, impossible or unlikely; · Whether the witness has a motive to lie; and · The demeanour of the witness generally. [795] A trier of fact may accept none, part or all of a witness' evidence and may attach different weight to different parts of a witness' evidence: Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at para. 28. [796] In this case, there were significant differences between the facts as remembered by the parties. Each of the parties asserted that their evidence should be believed and the other's disregarded. [797] In my view, the claimant testified in a calm and forthright manner. His calm and forthright manner carried through both his direct evidence and what he said on cross-examination. His manner was the same both when he testified at the start of the trial in January 2023, and when he testified in reply in June 2023. The claimant did not try to guess, nor did he

engage in discernible exaggeration. The claimant had made extensive document production and, through his counsel, obtained extensive third party records. His evidence was consistent with this extensive documentary record, and was also internally consistent. His evidence was not disparaging of the claimant or of any of the other witnesses. He accepted that, particularly in the earlier years that he knew the respondent, he played some role in the conflicts that were inherent in their relationship. The documentary record, including the parties' extensive texts, indicated however that from at least 2017 onward, the claimant has been restrained in his dealings with the respondent and that restraint was consistent with the manner in which he gave his evidence. [798] The one concern I have about the claimant's evidence is that he does not acknowledge having told L.T. that, at a young age, he was prevented by the respondent from spending as much time with L.T. as he would have liked. I found Ms. Gallagher's evidence with respect to L.T.'s interactions with his parents to be careful and thoughtful, and informed by many meetings both with L.T. and with his parents from 2017 to 2019. I note her conclusion that the claimant may not have actually, in so many words, blamed the respondent for his lack of contact in younger years - but that L.T. was highly attuned to how both his parents felt.

I am at the same time mindful of Dr. Bell's concern's as to alignment between what L.T. was telling her and what the claimant was saying, although she was drawing conclusions from a relatively limited exposure to both of them. [799] I suspect that at some point - perhaps even before the respondent and the children moved to Vancouver - the claimant expressed to L.T. his sense of having missed out on time with L.T., and that sentiment made a significant impression on L.T. At the same time, it is clear that Ms. Gallagher made her opinions known to both the claimant and the respondent as to how they should be dealing with L.T., and what sorts of things they should and should not be discussing with him. It is my view in light of the evidence as a whole, the claimant listened to and accepted Ms. Gallagher's advice and was careful not to say things that would add to L.T.'s trauma. [800] Ultimately, this issue does not impact on my views as to the credibility of the claimant. [801] I did not find the respondent to be a credible witness. She was caught in one blatant lie - she testified early in her evidence that the only person who called her "S_" was the claimant, yet later in the trial both her mother and G.T. referred to her by that very name in passing, and acknowledged in cross-examination that that was a name they use for her. The respondent acknowledged that this allegation

(that the only person who called her "S_" was the claimant) also appeared in her affidavit made in November 2021. It was tendered as evidence in support of the respondent's allegation that the claimant was training M.T. to refer to her mother using that name as part of a campaign of alienation, and that the only way that M.T. could have learned of that name was from the claimant. [802] There were myriad other inconsistencies between the respondent's evidence and the documentary record. Many of them are apparent from the factual recitation above. The respondent repeatedly blamed any and all delays in having M.T. assessed and in accessing services while she lived in Kelowna on waiting lists and other systemic delays; it is, however, clear from the documents that a significant part of the delays were, at one point, the respondent's reluctance to proceed with testing and, at other points, unexplained delays in responding to approaches from organizations she had been referred to, like Starlight. Her explanation for her failure to connect with the behavioural consultant, Ms. Marzo, in late 2016 and early 2017, was at best a half-truth when considered in light of the emails in evidence. [803] The respondent's assertion that the claimant was supposed to have set up a full program of services for M.T. so that they would be ready upon their arrival in Vancouver in August 2016 makes no

sense. The respondent had shared little if any information about M.T.'s needs with the claimant, and the decision to move to Vancouver was made less than a month before it actually happened. [804] The respondent's evidence with respect to the Mother's Day incident was also of great concern. My sense was that with respect to this and also later interactions, she would admit only what was specifically recorded on video (or, in respect of some later interactions, on audio). What she admitted at this trial with respect to her interactions with the claimant that day was less than what her counsel acknowledged at her sentencing hearing in 2017. [805] Very little of the respondent's evidence with respect to her failure to return with M.T. in August 2019 was believable. Her evidence at trial departed in material respects from the affidavit she made in November 2021 and what she said in texts and phone calls at the time. Her evidence as to the reason for her decision not to return was inconsistent. She denied having received various documents that were clearly sent to her. Her explanations as to her dealings with Ms. Taylor were inconsistent with what Ms. Taylor stated to the court in the course of her application to withdraw from the record. Although the respondent was insistent that she had sent Ms. Taylor her return tickets for September 9, with instructions that they be provided to

the claimant's lawyers, it is clear that Ms. Taylor never sent any tickets - there is no reason for her not to do so, and the manner in which the respondent ignored all of the direct requests to her by text for those tickets suggests that she did not intend to send them to the claimant. [806] The two email strings that the respondent said had been exchanged with her counsel were highly suspicious. The fact that they were produced only in MS Word format, in circumstances that prevented them being verified against the lawyer's file, is problematic. With respect to the first email string: · The August 13, 2019 email from Ms. Taylor is said to contain the entered order of Justice Affleck, but the time on it is three hours before Justice Affleck's order was sent to Ms. Taylor; · The respondent's email includes a reference to the respondent's mother having back problems. This is the only document from August 2019 that includes any reference to back problems. Even on the recorded call of August 17, 2019, the respondent describes her mother's health issue as "bronchitis". · The email says "I informed him to call Omega travel agency". This is the first reference in any document to a suggestion that the claimant call Omega. The evidence was clear that the claimant's first call to Omega was on August 22 - 9 days later. He was not provided the itinerary until his second call to Omega on

September 6. There is simply no reason that the claimant would not, upon being advised he could get the information from Omega, call them immediately. [807] In my view, to the extent the respondent's evidence as to events leading up to her failure to return in August and September 2019 differs from what Ms. Taylor told Justice Basran on September 3, 2019, I do not find the respondent's evidence credible. To the extent the claimant's recollection of their various conversations in August and September 2019 differs from the respondent's, I accept the claimant's evidence with respect to those conversations. [808] The respondent's evidence as to the circumstances of her occupancy of the townhouse she was residing in at the time of trial seemed to shift regularly. The amount of rent ranged from $2,800 per month to $3,400 per month. Her efforts to conceal the involvement of Mr. Keller in the lease demonstrated a cavalier attitude toward the truth. [809] The respondent had obvious disdain for the claimant and for his lawyers. Her evidence was in many cases neither objective nor reasonable. She was frequently defensive, argumentative, and prone to exaggeration. When confronted with her own prior affidavits that contradicted her evidence at trial, she blamed her various lawyers. She was often incapable of answering questions directly; instead, when difficult questions were asked,

responding with long rants seeking to blame everything on the claimant. [810] Several of M.T.'s caregivers gave evidence - Ms. De Giusti (the school resource teacher), Ms. Becker (the current speech therapist), Ms. Lebedeva (behavioural interventionist in 2016-2017), Ms. Rasmussen (the current behavioural consultant) and Ms. Sullivan (speech therapist 2018-2019). I found all of them very credible. All of them were admirable in their obvious concern for M.T.'s well-being and I found all of them to have a strong understanding of her needs. I recognize that Ms. Lebedeva's relationship with the respondent has not been good since the fall of 2017; however, it was apparent to me that Ms. Lebedeva's primary concern both while she was providing services and while she was testifying was the best interests of M.T. [811] The court also heard evidence from Ms. Gallagher, who was counsellor to L.T. and also had regular dealings with both parents from 2017-2019. Her interactions with L.T. and with the parties over those two years were fairly extensive. Ms. Gallagher had very helpful insights into L.T.'s needs and his relationships with his parents. Her evidence was given in a careful, thoughtful and balanced manner. [812] Mr. Ansell (the respondent's former neighbour in Kelowna) had limited evidence to give. He clearly had a falling out with the respondent when she moved out of the apartment

she was subletting from him, which causes me to consider his evidence with some degree of skepticism. I do accept, however, that there is significant truth to his observations as to the state of housekeeping of the respondent's apartment and her ability at the time to manage the children's behaviours. [813] The claimant's sister and his sister's partner both testified briefly. The claimant's current neighbour also gave brief evidence. None of their evidence was controversial. I had no concerns with the reliability or credibility of their evidence. [814] The two parenting supervisors, Ms. Passek and Ms. Turpin-Edmundson, both gave evidence. I found both of them to be credible witnesses. Ms. Turpin-Edmundson in particular wore her commitment to being independent and impartial as something of a badge of honour. I accept that she was a careful and thorough reporter of events during the visits she supervised. [815] Dr. Kambolis testified as a fact witness and not as an expert. She was clear that it is her obligation as a therapist to accept as true everything her client tells her. To a large degree, much of her evidence was in the nature of confirming what the respondent reported to her during the course of the counselling relationship. While the evidence is thus of reduced value, I had no concerns about the reliability and credibility of Dr. Kambolis herself, but in considering

that evidence, I keep in mind that all of her understanding of events comes from the respondent. [816] The respondent's mother and brother (G.T.) both gave evidence. My view of the mother's evidence - much of which focused on the reason for the respondent not returning to Canada in August 2019 - is significantly coloured by the concerns I have about the respondent's evidence. The mother is clearly concerned about and very supportive of her daughter. Having reviewed her evidence, I have significant concerns that her explanation of the events of August 2019 is simply what she needed to say in order to support her daughter. With respect to G.T., I had concerns about his assertion that the claimant had told him in late 2016 or early 2017 of a plan to, in essence, make the respondent look crazy. It simply makes no sense that a person who had come up with such a plan would share it with the brother of the subject. [817] I did not find J.S. to be a reliable or credible witness. His evidence differed in material respects from what he said in his 2017 affidavit, including as to the nature of his relationship with the respondent. [818] I was somewhat concerned during L.T.'s direct examination at the speed with which he gave his evidence. He had clearly been prepared, was aware of what questions were going to be asked, and had thought about what he would say. That said, his responses were

thoughtful and he was careful when he was not sure of an answer to say so. His tone and demeanour were the same in cross-examination as in his direct examination, and his evidence remained consistent. My conclusion is that L.T.'s evidence was both credible and reliable. Issues [819] As noted at the start of this judgment, there are two key issues for determination: · Where M.T. should be primarily resident, the extent to which the other party should have parenting time, and whether that parenting time should be supervised; and · Whether the order of Justice Basran made on September 4, 2019, should be set aside. Issue #1: Parenting of M.T. Positions of the Parties Claimant [820] The claimant argues that M.T. is a special child, loved by both of her parents and by her extended family, but at the same time, she is also a very vulnerable child. The claimant submits that M.T. requires a stable and consistent home with appropriate professional supports, that the overwhelming evidence is that M.T.'s current situation is good, and that it would be in M.T.'s best interest that the current situation continue. [821] The claimant says that due to the respondent's animosity and hostility toward him, co-parenting is not possible. The claimant submits that the respondent demonstrates a lack of insight into the harm caused by her refusal to cooperate on any aspect of parenting. [822] The

claimant submits that he is the parent that is best capable of meeting M.T.'s needs. He has demonstrated a willingness and ability to put her best interests first, including by supporting the relationship between M.T. and the respondent. He says that he has demonstrated that not only by his support for the respondent's supervised visits since her return from Greece, but that he also demonstrated his efforts to take into account Dr. Bell's recommendations from 2018, including: · Communications to the respondent that remain respectful and focused on the children's issues, without engaging with the respondent's arguments and reactivity; · His support for L.T.'s counselling with Ms. Gallagher, which also included sessions with the respondent; · His support for L.T. to build up his time with the respondent in accordance with Ms. Gallagher's recommendation; and · His efforts to learn about autism and how to support M.T. [823] With respect to the health and emotional well-being of M.T., the claimant says that he has taken care of M.T.'s health including by obtaining dental work, eyecare and vaccinations, that he has at all times obtained and followed the advice of medical professionals, and that he is calm and kind with M.T. and has learned strategies to assist in helping her when she is emotionally dysregulated. He has sought out and put in place a program of BI, SLT and OT, and

works cooperatively with the school to ensure that M.T. is engaged in an educational program that meets her needs. [824] The claimant submits that there was significant harm done in the two years that M.T. spent in Greece as a result of the respondent's poor decision-making - the extent of which will never be fully known. He submits that, although the respondent clearly loves M.T., she appears motivated to demonstrate that M.T. is not doing well emotionally. The claimant points to the respondent's refusal to cooperate in developing a less stressful transition procedure for the end of supervised visits, which he says is to the clear detriment and distress of M.T., and to the extensive questioning of M.T. about the claimant that occurs during FaceTime sessions and supervised visits. He says that these demonstrate the respondent's inability to put M.T.'s interests first. He submits that the respondent's focus is primarily on her role in M.T.'s life, rather than on M.T.'s needs. [825] With respect to the nature and strength of the relationships between M.T. and significant persons in her life, the claimant submits that he, the respondent and L.T. are the most significant persons in M.T.'s life. Having M.T. reside primarily with him will maintain those strong connections with himself and L.T., and he remains willing to support a strong relationship between M.T. and the respondent,

provided that can be done in a safe and secure manner for M.T. [826] With respect to the history of M.T.'s care, the claimant notes that M.T. was in his primary care from May 14 to September 7, 2017, and from August 28, 2021 to the present. The claimant submits that, while he has had a learning curve - particularly in May 2017 when M.T. came into his full-time care with no warning - he has adjusted and always put M.T.'s needs first. He has taken care of her health and made sure to get her proper supports. [827] The claimant submits that the respondent has at times been slow to put supports in place for M.T., took her away from all of her existing supports for two years from 2019-2021, and has at times neglected her dental care and other medical needs. [828] The claimant submits that M.T.'s need for stability is a particularly important factor in this case, given her special needs. He submits that, since August 28, 2021, he has provided stable, predictable and consistent care. He has a plan for M.T. going forward, including ongoing participation in a school where she is well-supported and with a team of professionals outside the school who are supporting her ongoing development. [829] The claimant notes that the respondent in the past has not provided long-term consistency, having moved around from town to town and home to home. He also expresses concern about the respondent's

past actions of cutting off contact with and making unfounded allegations against service-providers who she sees as not sufficiently on her "side". The respondent has no plan for how she would provide M.T. with stability, and has outstanding criminal charges as well. [830] With respect to the ability of each of the parties to exercise parental responsibilities, the claimant submits that he has demonstrated both in 2017 and since 2021 his ability to put the interests of M.T. first and exercise his responsibilities in an appropriate manner - including by taking appropriate steps to facilitate an ongoing relationship between M.T. and her mother. [831] The claimant submits that the respondent has not demonstrated either the inclination or the ability to exercise parental responsibilities appropriately. She communicates only in a negative and hostile way with the claimant and with those who she sees as not sufficiently on her side. The claimant points as examples of this to her reaction to Ms. Turpin-Edmundson upon receipt of the January 21, 2023 supervision report. [832] The claimant submits that, despite her obvious love for M.T., the respondent has demonstrated a lack of insight into her own behaviour, an inability to distinguish between her own perceptions and objective reality, and an inability to distinguish between M.T.'s best interests and the respondent's own needs. She has

persisted in making allegations against the claimant, and takes no responsibility for her actions - including those that have led to criminal charges against her. [833] The claimant further submits that the respondent's decision to remain in Greece for over two years represents a serious lack of judgment as to how best to meet the needs of M.T. She remained in Greece despite the fact that M.T. did not speak the language and was deprived of the services that were in place for her in Canada. The claimant characterizes this as a selfish and deplorable act that caused great harm to M.T., not to mention M.T.'s brother and father. The claimant submits that the respondent's lack of insight into this, and her lack of any real remorse, is clear evidence of the respondent's inability to make appropriate decisions. [834] With respect to family violence, the claimant argues that the respondent's conduct in this litigation constitutes a form of emotional abuse and harassment that constitute family violence. The claimant references the respondent's persistent breaches of court orders, which encompass both procedural breaches and substantive breaches of orders aimed at co-parenting. With respect to the substantive orders, the claimant references the refusal to return from Greece, including her texts and calls in which the respondent "taunted" the claimant to come to Greece and fight for time

with his daughter. Other breaches referenced include the refusal, notwithstanding Justice Kent's clear order, to share information on the services being access by M.T., and the ongoing breaches of the conduct orders during the course of supervised parenting and video calls - in which the respondent regularly pursued questioning of M.T. with respect to the claimant. The claimant also referenced the respondent's conduct in making a complaint to MCFD in October 2022, after requesting and receiving an adjournment of the trial, then when that did not succeed in changing parenting arrangements, bringing a without notice application on the Thursday afternoon before the court's winter break. The claimant also submits that the respondent's continued denigration of the claimant to L.T. is also family violence. [835] The claimant submits that the respondent's actions as a whole demonstrate a failure to take accountability for her own contribution to the conflict and a failure to recognize how her actions harm the children. The respondent submits that this significantly impairs the respondent's ability to care for M.T. and to meet her needs. [836] The claimant argues that this court's final order should provide for ongoing supervision of the respondent's parenting time. The claimant asserts that the respondent has shown that she will not comply with court orders that she does not agree

with. The claimant submits that the court has little information about the respondent's current circumstances, that she continues to believe that she should be the sole parent of M.T., and that she continues to be a flight risk. [837] The claimant submits that, while the supervision reports demonstrate an ongoing strong bond between the respondent and M.T., they also highlight why supervision remains necessary. The respondent continues to use leading questions aimed at creating a record that can be used against the claimant, and also continues to make disparaging comments about the claimant. [838] The claimant submits that the respondent's ongoing denigration of the claimant, her frequent attempts to use leading questions in an attempt to prompt a statement by M.T. that she can use to advance her position with respect to parenting time, her ongoing breaches of the conduct orders, and the family violence that the claimant says the court should find on the facts, all lead to a conclusion that supervised parenting time should continue. The claimant submits that, if parenting time is unsupervised, the respondent's attitudes and behaviours will continue to emotionally harm M.T. M.T. is vulnerable, is prone to echolalia and susceptible to coaching. The claimant also submits that there is an ongoing risk of abduction. [839] The claimant submits that the respondent has demonstrated

through her words and actions that she has no respect for court orders, takes no responsibility for her actions and is effectively ungovernable. The claimant submits that until the respondent can demonstrate that she can abide by court orders, there should be restrictions on her parenting time. [840] With respect to parental responsibilities, the claimant submits that the parties have a dysfunctional relationship, and the circumstances are such that it is preferable for one parent to have final decision-making power. The claimant submits that it is important in this case to consider the ability of each parent to objectively determine what is in the child's best interest, and the ability to engage in constructive dialogue with the other parent. The claimant submits that he has demonstrated that he is the appropriate parent to hold that final decision-making responsibility. [841] The claimant submits that the conduct orders put in place by Master Vos, which restrict the respondent's communication and attendance at his home and at M.T.'s school, should remain in place. The claimant submits that the evidence establishes that despite these orders, the respondent continues to denigrate the claimant, both in communications with him directly and to L.T.; that she has involved L.T. in this litigation; and that she continues to question M.T. about the claimant. All of these are harmful

to the children and the claimant. [842] With respect to child support, the claimant submits that the amount of child support he paid from October 2017 to August 2019 exceeded the amount he should have paid pursuant to his actual line 150 income by a total of $19,228. [843] The claimant submits that he did not pay and should not be required to pay child support for the 24 months that the respondent was living in Greece in breach of the court orders, given that the respondent was there contrary to the orders of Justices Kent and Affleck and the existing court orders provided for M.T. to be primarily resident with him. The claimant relies on Hughes v. Hughes, 2014 BCCA 196 at paras. 98 and 110-112 and Street v. Street, 2017 BCSC 981 at paras. 137-141. [844] He also submits that from June 2017 to December 2022, he has paid over $45,000 in section 7 expenses for the children. [845] Moving forward, the program of therapy that is presently in place for M.T. costs approximately $28,000 per year, of which only $6,000 is covered by the government's autism funding. The claimant has paid the shortfall, with no contribution from the respondent. [846] The claimant submits that the respondent is capable of working. The claimant notes that the respondent was able to reside in Greece for two years without any financial support from the claimant, and clearly has resources available to her. The

claimant submits that the court should impute at least $30,000 in annual income to the respondent - which would reflect her working slightly less than full time at minimum wage. The claimant seeks an order requiring the respondent to pay child support retroactive to September 1, 2021. [847] The claimant submits that the court should order that there be a fine for the respondent's denial of his parenting time with M.T. from August 10, 2019 to August 28, 2021. The claimant seeks a fine of $5,000, which is the maximum permitted by s. 61 of the FLA. He submits that the maximum fine is appropriate given the fact that the retention of M.T. in Greece was contrary to multiple court orders, in light of the nature of the respondent's communications to the claimant during the time of the retention, and in light of the respondent requiring the claimant to commence and pursue Hague Convention proceedings through both an initial claim and an appeal. Respondent [848] The respondent submits that this court should order that M.T. be primarily resident with her, with the claimant to have scheduled parenting time. The respondent says that she is a loving mother who has always provided M.T. a solid home. The respondent says that she has a strong bond with M.T. and that she was deeply involved in M.T.'s therapy from the time of her diagnosis in 2016 in Kelowna, throughout her time in Vancouver from

2016 to 2019, and again during her sessions with the psychologist in Greece. As a result, she intimately understands M.T.'s needs. The respondent submits that returning M.T. to her care would reinstate the true status quo. [849] The respondent says that the claimant has shown his lack of facility with M.T.'s therapy by the many months it took him to establish services after M.T. returned to Canada in 2021. She says that the psychoeducational report that came out during the trial shows that M.T. has been regressing, and attributes that to emotional harm caused by the limited access M.T. has had to her mother since August 2021. [850] She disputes the allegations about her lack of commitment to schooling, saying that the various reports of children in her care regularly missing or being late for school reflect her following the advice of professionals. [851] The respondent says that, to the extent she has made some poor decisions with respect to parenting (the Mother's Day incident in 2017 and keeping M.T. in Greece from 2019 to 2021), those decision are attributable to her P.T.S.D. and to the trauma she has suffered from the claimant's litigation conduct, including what are said to be wrongful without notice orders. She points in particular to the without notice orders in May 2017 that resulted in her losing her parenting time with M.T. until September 2017 - an experience she

says was traumatic both for the respondent and for M.T. [852] The respondent also asserts that the history of family violence supports M.T. residing primarily with her. She references the evidence of Mr. Morgan as to the claimant's angry behaviour in 2005, her own evidence as to M.T. being conceived in 2010 in circumstances in which she did not consent, the evidence of G.T. that the claimant told him in 2016 of plans to drive the respondent crazy, and the evidence of J.S. as to threats made by the claimant in 2017. [853] The respondent asserts that the claimant has alienated L.T. from her, and that since 2021 he has been working to alienate M.T. from her. She relies on the comments of Dr. Bell within her 2018 report with respect to the alienation of L.T. She suggests that the claimant not only alienated L.T. but also weaponized him, so that he is now assisting in efforts to alienate M.T. With respect to the alleged alienation of M.T., the respondent relies on the following: · M.T. calling the respondent "S_"; · The claimant allowing M.T. to hang up on their video calls; and · M.T.'s extreme emotional upset on transitions at the end of the supervised parenting times. [854] To the extent that her parenting time continues to be limited, the respondent submits that supervision is not necessary. She says that she has already suffered everything she could possibly have suffered as a

result of what she says was a wrongful and unnecessary without notice order granted on August 12, 2019. She says that the decisions she made in August and September 2019 were panicked responses based in part on her P.T.S.D. and her reactions to her past experience of wrongful without notice orders in May 2017. Her tone and remarks reflect her panic reaction, and should be understandable given that she had previously "lost her son" as a result of the 2017 orders. She says that she is now invested in building a career and living in the Lower Mainland to be close to both of her children. Supervision is an expense that she simply cannot afford on a permanent basis. [855] The respondent challenges the claimant's guardianship of M.T. She submits that the claimant was not a guardian as of right, and only became a guardian through a without notice application that was wrongfully brought. She says that the May 2017 order granting the claimant guardianship enabled all of the subsequent orders with respect to M.T., as without being a guardian the claimant could not have been given any parenting responsibilities and would be substantially less likely to obtain parenting time with M.T. She argues that s. 52 of the FLA required that the application for guardianship be personally served on her, and that although a court has the ability to waive that requirement, there is nothing in the record

of proceedings from May 2017 that indicates the Master considered whether the need for service should be waived. She submits that subsequent orders have simply "rubber-stamped" that original order, which should not be sufficient. [856] If the claimant is not a guardian of M.T., then he should not have any parenting responsibilities for her. [857] In any event, even if the claimant is to be a guardian, the respondent submits that it is clear they are unable to co-parent, and that given her special knowledge of the needs of M.T. as an autistic child, the respondent should be given full parental responsibilities. [858] The respondent submits that the claimant has failed to pay the amount of support required based on his actual income, and thus seeks an award of retroactive child support. I was provided no calculation of this claim; nor did the respondent provide any sort of detailed response to the claimant's calculation. The respondent includes within this claim child support for the time that she and M.T. were in Greece. It is common ground that the claimant did not pay child support from September 2019 onward. [859] The respondent also seeks an order that the claimant pay child support moving forward. [860] The respondent seeks an order, said to be justified on the basis of s. 226(a) of the FLA, that the claimant pay an amount for rental or mortgage assistance on top of the

amount payable for ongoing child support. The respondent submits that such an order is justified in order to allow her to relocate to the Lower Mainland, and that living in the Lower Mainland has financial consequences beyond just supporting the needs of M.T. She says that such an order is only fair given that her original decision to move to Vancouver was based on her understanding that the claimant would buy her a home in Vancouver. [861] The respondent agrees that there should be ongoing, mutual conduct orders, and seeks costs. Claimant's Reply [862] With respect to the respondent's claim for a rental allowance pursuant to s. 226(a), the claimant submits that: · Any such claim is covered by the dismissal order made by Justice Basran, which preserved only claims for parenting issues and child support; and · In any event, s. 226(a) of the FLA should be considered in light of the purposes of Division 5 of Part 10 of the FLA (as set out in s. 222), and as such should be read to authorize interim (rather than final) arrangements in the context of court processes to resolve family disputes. The claimant submits that s. 226(a) was not intended to authorize final orders providing for ongoing payments above and beyond the support payments provided for in Part 7 of the FLA. Legal Context Best Interests of the Child [863] Sections 37 and 38 of the FLA mandate the test for orders with

respect to parenting arrangements: Best interests of child 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the

child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Assessing family violence 38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and

well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [864] Both parties have cited numerous cases, each of which applies the factors set out in ss. 37 and 38 of the FLA in the context of facts that the parties say have parallels to the present case (as each of them sees the facts of this case). Family Violence [865] Both parties argue that concerns of family violence should impact any order to be made with respect to parenting time. Family violence is defined in s. 1 of the FLA and includes physical abuse, sexual abuse, and psychological or emotional abuse. In the case of a child, it includes direct or indirect exposure to family violence. [866] There is a useful summary of cases on emotional and psychological abuse in C.L.M. v. M.J.S., 2017 BCSC 799 at paras. 360-365 and 392-393: [360] Family violence is not limited to physical violence in the FLA. Rather, the term is broadly defined. Emotional and psychological abuse are the primary considerations in the case at bar. While each case is factually unique, certain general principles emerge from the case authorities. [361] In D.N.L. v. C.N.S., 2014 BCSC 1417, Mr. Justice Pearlman held that demeaning remarks about the other parent to the child, threats to use physical force to compel

the child to accompany the parent and suggestions that the other parent was responsible for the conflict in the family, constitute emotional abuse. In this regard, the court held: [71] As a result of the respondent's derogatory remarks about her mother and maternal grandparents, his outbursts of anger, his refusal to permit the child to return to her mother's home when she becomes distraught in his care, and the child's perception that her father is more interested in scoring points in his conflict with the claimant than meeting her needs, E.M.H.L.-S. is very angry with her father and is apprehensive about any contact with him. She wants no further contact with the respondent until he demonstrates that he is capable of curbing his anger and putting her needs ahead of his own. [72] Under s. 1 of the FLA, family violence includes psychological or emotional abuse of a family member, including intimidation, harassment, coercion or threats. Section 37(2) requires the court, in determining what order is in the best interest of the child to consider the impact of any family violence on the child's safety, security or well-being. I find that the respondent's demeaning remarks about the claimant, his repeated assertions to the child that she has been "brain washed" or manipulated by her mother, his threats to use physical force to compel her to accompany him and his suggestions to the

child that her mother is responsible for the conflict that divides this family constitute emotional abuse of E.M.H.L.-S. That abuse undermines the child's emotional safety, security and well-being. [362] In K.R. v. J.D., 2017 BCSC 182, Mr. Justice Jenkins held that the respondent's derogatory and demeaning comments regarding the claimant, on occasion in the child's presence, "clearly amount to family violence" in that they disturbed the child and caused the child emotional harm: para. 17. [363] In M.W.B. v. A.R.B., 2013 BCSC 885, Mr. Justice N. Brown considered whether a lack of cooperation in selling assets and other aspects of the claimant's litigation conduct was emotional abuse and harassment that constituted family violence. In concluding that it was, the court wrote: [199] I find the [Respondent's] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence. [200] The Respondent's conduct and needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources. [364] In L.A.R. v. E.J.R., 2014 BCSC 966, Mr. Justice Schultes

held that the father's disparaging comments to the mother in the presence of the children and the father's conduct in showing the oldest child lengthy and acrimonious text messages between the parties amounted to emotional abuse constituting family violence: para. 149. [365] The court must also be careful not to label conduct as "family violence" where there is no evidence the child has suffered any physical or emotional harm as a result of the parents' conduct. The provisions in the FLA relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger: L.S. v. G.S., 2014 BCSC 187, aff'd 2014 BCCA 334 at para. 26. [392] I find that the claimant's litigation conduct is also a form of emotional abuse and harassment that constitutes family violence. As I have extensively detailed, the claimant did not cooperate with most aspects of this litigation. She did not cooperate with any aspect of the sale of the family residence. Multiple court applications were required. The claimant did not abide by many Orders, did not respond to correspondence, took matters into her own hands by breaking into the family residence, did not attend court, never did provide full financial disclosure, and was generally obstructionist throughout the litigation. Her attitude about Court Orders was well demonstrated on the day she accused

the respondent of "hiding behind an order like a coward". The claimant's conduct and needless litigation has forced the respondent to incur litigation expenses, damaging his financial well-being and creating undue stress. The litigation has consumed much of his emotional resources, impacting his parenting time with the Child. His damaged emotional state as a result of these things was very evident throughout the course of this trial. [393] Since the Child has been removed from the polarizing behaviours of his mother, the Child's physical, psychological and emotional health has improved. The Child needs stability. Stability was imposed due to the Ministry's actions. The respondent has maintained this stability. Although the claimant breached the PIO on one occasion, it does not appear this breach had any long-term negative effect on the Child. Alienation [867] The respondent argues that the court should consider her allegations of parental alienation in determining the best interests of M.T. As explained in Williamson v. Williamson, 2016 BCCA 87 at paras. 39-41: [39] Parental alienation is a term that has been used in the context of divorce and separation cases to describe a breakdown in the relationship between a child and one of the separated parents. Some courts have said that alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but can also

occur because of deliberate actions, both direct and indirect, on the part of a parent: L.G. v. R.G., 2012 BCSC 1365 at paras. 1-2. Courts have said parents may engage in alienating behaviour without successfully alienating the child from the other parent: L.G. at para. 206. [40] In D.S.W. v. D.A.W., 2012 BCSC 1522, Mr. Justice Barrow thoroughly discussed some of the concepts relating to parental alienation. At para. 64, Barrow J. stated that at the core of parental alienation is: the notion that the child's decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason. If there is a reason given by the child for taking the extreme step of refusing to have a relationship with a parent, it will often be out of all proportion to the decision taken. The reasons for such decisions need to be assessed with the particular personality and experience of the child involved. What may seem a thin or unconvincing rationale for one child may have a much more convincing force in the context of the personality and experience of another child. [41] Barrow J. also observed that parental alienation must be distinguished from estrangement: D.S.W. at para.

28. Courts have said that the difference between estrangement and alienation lies in the cause; estrangement occurs when the child understandably refuses contact with a parent because of that parent's behaviour, and there is a logical and rational reason for the child's rejection of the parent. In the case of alienation, it is said there is little or no objectively reasonable cause for the child's rejection of the parent: N.R.G. v. G.R.G., 2015 BCSC 1062 at paras. 277-278 [868] As noted by Justice Kent in N.R.G. v. G.R.G., 2015 BCSC 1062 at paras. 276-278: [276] In high-conflict separations, both parents commonly attempt to undermine their children's relationship with the other parent. Occasionally children reject one of the parents, resisting or even refusing contact. It is in such contexts that the concepts of "estrangement" and "alienation" are often invoked. [277] The difference between an estranged child and an alienated child lies in the cause; estrangement, sometimes referred to as "realistic estrangement", is the label applied when the child understandably refuses contact with a parent because of the latter's behaviour whether it be physical or emotional abuse, rigid or restrictive parenting, immature and self-centered behaviour, and/or dysfunctional conduct arising from the parent's own psychological or psychiatric issues. In such circumstances, the child's rejection

of the parent may well be a reasonable and adaptive response to the estranged parent's behaviour. [278] An alienated child, on the other hand, is the label frequently applied when there is little or no objectively reasonable cause for the child's rejection of the parent and particularly when it is the product of the other parent's hostility and antipathy towards his/her former spouse and the intentional undermining by the former of the child's relationship with the latter. While the undermining of the relationship can arise from direct or indirect behaviours, in its worst form the parental conduct is expressly designed to alienate the child from the other parent. Such conduct is pernicious and unpardonable. [869] The court in Williamson emphasized the seriousness of an allegation of alienation, and that proof of such a serious allegation requires proper expert evidence: paras. 47-48. Supervision [870] With respect to supervision of parenting time, I note that the courts often consider factors listed by Justice Griffin (as she then was) in F.K. v. M.K., 2010 BCSC 563 at para. 147 (as summarized): 1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access. [871] While not explicitly listed among the F.K. factors, it is clear that the risk of abduction and removal of a child from Canada is also a factor that may be considered: Grant v. Grant, 2006 BCSC 1974 at para. 36; D.F.S. v. L.K.S., 2015 BCPC 363 at paras. 89-90; Shaikh v. Matin, 2017 ONSC 5842 at paras. 93 and 107-108. [872] Supervised access is, in general, intended to provide "a temporary and time-limited measure" and should rarely be used as a long-term remedy: T.M.H. v. P.J.H., 2020 BCSC 804 at para. 247; B.P.M. v. B.L.D.M. (1992), 97 D.L.R. (4th) 437, 1992 CanLII 8642 (C.A.) at para 80. Guardianship [873] Guardianship is important in a case like the present one because pursuant to s. 40 of the FLA, only a guardian may have parental responsibilities and parenting time with respect to a child. [874] With respect to guardianship, s. 39 of the FLA sets out presumptive provisions as to guardianship. Section 39(1) deals with a situation in which a child's parents had lived together with the child: While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. [875] Section 39(3) provides that: A parent who has never resided with the parent's child is not the child's guardian unless one of the following applies: (a) section 30 [parentage if

other arrangement] applies and the person is a parent under that section; (b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; (c) the parent regularly cares for the child. [876] With respect to s. 39(3)(c), Justice Newbury in A.A.A.M. v. British Columbia (Children and Family Development), 2015 BCCA 220, commented at para. 63 that: [63] I doubt that a visit once every calendar year could be intended to qualify as 'regular' for purposes of s. 39(3)(c), even though it could be said to have taken place at regular intervals. It seems to me that the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child's ongoing needs and a record of 'usually' or 'normally' doing so in fact. Certainly, it connotes something more than simply 'visiting' the child, even at regular intervals. [877] In that case, the Court accepted evidence that Mr. M (the biological father) continued to care for and about O and to work towards securing guardianship rights, even though as a result of steps taken by government officials his actual time with O was limited: [67] In the circumstances, I am driven to the view that, with respect, the trial judge erred in failing to consider the fact that Ministry workers, the Director and the Court controlled how often and how long Mr. M was allowed

to have contact with and to care for O. Having done so, they should not now be heard to say that that contact was not 'regular' or sufficient. [878] The test to be applied in determining whether a person is a guardian pursuant to s. 39(3)(c) has been considered in a number of cases, including F.S. v. C.O., 2015 BCPC 416 at para. 19, Doyle v. Handley, 2018 BCSC 293 at paras. 36-39 and L.P. v. A.E., 2021 BCPC 281. [879] A person who is not a guardian may apply pursuant to s. 51 of the FLA, which requires that the applicant provide evidence respecting the best interests of the child for consideration as part of the application. As noted in Doyle at para. 27, "a person applying to be appointed guardian under s. 51 must satisfy the 'best interests' criteria whereas a parent who is a guardian under s. 39 is not required to satisfy that criteria". [880] Section 52(1) of the FLA requires that notice of an application for guardianship be provided to each parent or guardian of the child affected by the application; however, s. 52(3) permits the court to grant an exemption from a requirement to give such notice. Parental Responsibilities [881] Parental responsibilities may be allocated under a court order to be exercised by one or both of the guardians, with no particular arrangement presumed to be in the best interests of the child: FLA s. 40. [882] Section 41 of the FLA sets out the

list of parental responsibilities that can be exercised by a guardian in accordance with any court order. Analysis [883] I begin this section by referencing my conclusions on credibility. I did not find the respondent to be a credible witness. This has a number of impacts on my analysis of parenting matters. [884] It impacts on the question of what effect I give to the s. 211 report from 2018. I note that Dr. Bell made it very clear, when she attended the trial, that she considered the report to be far too outdated to be of any use. The respondent, however, relies heavily on the comments of Dr. Bell with respect to alienation. [885] It is not clear exactly which of the factual assertions made by the parties in their meetings with Dr. Bell were accepted by her. Dr. Bell comments about the claimant having hoped for a reconciliation while the respondent did not. This appears to be rooted, at least in part, in the respondent's description of the claimant's reaction to the respondent being in a dating relationship with J.S. However, at trial, any such relationship was denied. The report seems to also accept other assertions, including that the claimant constantly texts the respondent, and that the claimant had prevented the respondent from accessing autism funding. The latter was clearly untrue. [886] With respect to the nature and the extent of the texts between the parties, an

unfortunate side effect of the nearly eight years between the start of active litigation steps and the trial before me is that I had nearly a decade's worth of the parties' texts to review. I have described the nature of the texts above. Over the course of that decade, the claimant's texts are almost invariably factual and businesslike. There are few if any attempts at humour and virtually no expressions of anger. The respondent's texts frequently demand instant action or descend quickly into abusive rants. In my view, the texts show the parties being focused on their difficult parenting relationship and are inconsistent with either of them continuing to pursue any sort of romantic relationship during the time period for which those texts have been produced. [887] I reviewed the comments of Dr. Bell with respect to the respondent's concerns of alienation in the factual review above (under the heading "The Section 211 Report", at paras. 366-370). I am concerned based on the evidence of Drs. Bell and Elterman and of Ms. Graham that Dr. Bell may have taken the input she received from Dr. Elterman and Ms. Graham beyond what their actual observations were. In my view, this case differs from the alienation cases that typically come before the court in that, other than for a period of months after the Mother's Day incident, there has been no refusal by L.T. to spend any time with his

mother. Any reluctance on the part of L.T. in the months following the Mother's Day incident are readily understandable without regard to alienation. The issue is not whether, but rather, how much time L.T. will spend with his mother. [888] In this case, the claimant took active steps after the Mother's Day incident to provide L.T. with support aimed at re-establishing a safe relationship with his mother. While I appreciate that it is entirely possible that a parent in the claimant's position could take steps like that while simultaneously undercutting the relationship, it appears to me that the counselling with Ms. Graham was effective in normalizing the relationship. Once steps were taken to repair the effects of the Mother's Day incident, there was no systematic rejection or complete refusal by L.T. of spending time with his mother. While I do not doubt that the respondent wanted L.T. to spend more time with her than he did, that is not in and of itself evidence of a systematic rejection or a complete refusal. [889] Dr. Elterman, in his description of alienation, referenced the importance of the child feeling a need to align with the preferred parent in order to be acceptable to that parent. I have difficulty finding that dynamic in this case. My assessment of the evidence is that it was the respondent who demanded partisanship from L.T., while the claimant provided a safe

and stable environment that was adaptable to L.T.'s needs. In this case, there were a number of logical and rational reasons for L.T. to prefer to spend time with his father, and I am not satisfied on the evidence that there is a proper basis for a finding of alienation with respect to L.T. [890] With respect to the respondent's claims of alienation with respect to M.T., I do not conclude that the claimant is somehow training M.T. to refer to her mother by the name "S_". It is clear that this is a name used for her regularly by multiple different family members, and M.T. may well have heard other family members use the name. It is also clear that M.T. is at a stage where she is discovering language and learning how to communicate with others. She also frequently exhibits echolalia; that is, she repeats words she hears others using. In my view, any use by M.T. of the familiar form of name for her mother is most likely reflective of these factors and is not the result of some sinister act of the claimant. [891] Similarly, I accept the claimant's evidence that he has, in the months leading up to the trial, been letting M.T. hold the phone during her conversations with the respondent. It strikes me as not unusual that a child like M.T. would hang up at irregular intervals. It was not disputed that the calls were often (although not always) reconnected after this had occurred. [892]

In my view, there is no merit to the suggestion that the claimant's parenting time needs to be limited in order to protect M.T. from alienation. [893] My assessment of credibility also impacts on my assessment of some of the concerns as to family violence that have been raised. While I accept Mr. Morgan's evidence that he observed an angry argument between the parties in 2005, in my view that has little if any impact on a determination as to parenting some 19 years later. I do not accept the evidence of either G.T. or J.S. that the respondent relied on in support of allegations of family violence. [894] The other allegation of family violence advanced by the respondent is with respect to the circumstances of M.T. being conceived. There is very little evidence with respect to this matter, other than the respondent's allegation and the claimant's denial. At one point, the claimant was asked whether he had documents to prove his assertion with respect to the availability of hotel rooms in Whistler on December 31, 2010 - his evidence was that he was first informed of the respondent's allegation in the summer of 2017, after the Mother's Day incident, by which time it was not realistic to seek out such documents. [895] With respect to this allegation, the respondent's text to the claimant on August 24, 2019, in which she commented that she was "so sorry I chose you to have kids

with", is somewhat difficult to reconcile with the respondent's allegation. The text suggests that the respondent "chose" the claimant, and references both children. Although it does not necessarily do away with the possibility of involuntariness to the conception, when I consider the text in the context of my overall conclusions as to the credibility of both the claimant and the respondent, I conclude that the respondent has not established this or any of her allegations of family violence. [896] The respondent argued that the claimant's litigation conduct, including the bringing of inappropriate ex parte applications, should be taken into consideration in dealing with parenting issues. [897] The first occasion relied upon by the respondent is the applications brought on May 30, 2017, for a protection order and various interim orders giving the claimant guardianship and parental responsibilities on an interim basis. The circumstances of this application are set out above under the heading "Mother's Day 2017 and the Aftermath", and in particular at paras. 240-244. In my view, the bringing of that application on a without notice basis was not inappropriate. As I note in my discussion of the order, the claimant's lawyers had been newly retained in the days leading up to the application and although the respondent had a lawyer on record from an application made in March 2015,

nothing indicates that he had any involvement in this matter during May 2017. More importantly, there were bail release terms that prevented the respondent from attending any educational facility known to her to be attended by M.T., yet the respondent and her mother had attended M.T.'s preschool on May 29, 2017, causing great emotional turmoil. While MCFD had put a safety plan in place, it was not known how long that safety plan would remain. The orders obtained were interim only and were made subject to the ability of the respondent to apply to set them aside on a reduced notice period. In all the circumstances, I cannot say that the decision to apply on a without notice basis was unreasonable. [898] The second order the respondent said was obtained inappropriately was the June 28, 2018, order to remove the CPL in order to allow the claimant to refinance his home. The circumstances of that application are discussed at paras. 381-389 above. The application materials were served on the respondent by email, which was a mode of service available under the Supreme Court Family Rules, given that an email address had been provided. The email was sent twice, and although one of the two emails led to a "bounce-back" message, there was no reason for the claimant's lawyers to believe that the other email had not gone through. The order that was made permitted the respondent to apply for

a further CPL after the refinancing had gone ahead, thereby preserving her rights. There was nothing improper about the conduct of the claimant's counsel with respect to this application. [899] The third order the respondent said was obtained inappropriately was the August 12, 2019 order from Justice Affleck. The circumstances of that order are set out above under the heading "August 2019". That application was without notice in that the application package was not formally served on the respondent's lawyer. However, multiple emails were sent by the claimant's counsel to the respondent's counsel, including copies of the notice of application and the text of the main supporting affidavit, and there were also several texts sent by the claimant to the respondent as well. Given the nature of the issues raised, the course of action followed by the claimant's counsel in this circumstance was entirely appropriate. [900] Another area of litigation conduct complained of by the respondent related to the selection of supervisors for the respondent's parenting time in 2022 and 2023. The various emails and texts surrounding that question were reviewed above under the heading "Events Since the Respondent's Return". In my view, the correspondence in evidence showed that the claimant through his lawyers carefully considered each of the supervisors proposed by the respondent. Both of the

supervisors proposed in March 2022 were approved by the claimant. When the respondent proposed new supervisors in November and December 2022, the claimant's lawyers reviewed each proposed supervisor in a reasonably timely manner, either approved them or provided a reasonable basis for rejecting them, and at one point suggested alternative supervisors who would be acceptable. [901] The circumstances surrounding the claimant's withdrawal of his consent with respect to Ms. Passek acting as supervisor are unfortunate. Ms. Passek give evidence at trial. She is clearly an empathetic and caring individual, who developed different relationships with the respondent (who engaged in more extensive discussions with her) and the claimant (who was businesslike and to-the-point in his dealings with her). I am satisfied that, notwithstanding these different relationships, Ms. Passek did not allow herself to become a partisan. That said, she should have been more careful to communicate with the claimant about the requests being made of her (to not prepare a report for every visit, and to allow third party visitors to attend). This was particularly so given that the parties and Ms. Passek had signed an agreement in April 2022 that no third parties would attend. In a high-conflict situation like this, it is important that a supervisor not only be independent but also be seen to be independent.

Given how events transpired, I cannot say that it was unreasonable for the claimant to have withdrawn his consent to Ms. Passek acting as supervisor. [902] I will also deal at this point with the respondent's assertion that the May 2023 psychoeducational report shows that M.T. has been regressing. I do not agree that is the case. I accept the evidence of Ms. De Giusti and Ms. Becker that there has been overall progress. [903] I turn now to the factors listed in s. 37 of the FLA. In considering those factors, I keep in mind the comments of Justice Goepel in K.D.P. v. A.R.K., 2011 BCSC 1085: [1] No parents are perfect. All have flaws of one kind or another. If families stay together, except in those rare circumstances in which a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience. [2] If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, a parent's flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of the strengths that a party brings to the challenge of raising a child. [904] In this case, evidence was led as to such matters as the respondent's housekeeping in 2016, or as to the

claimant's decision to have only a telephone appointment with M.T.'s doctor in December 2023. These and many others of the one-off incidents and suggestions of less-than-perfect parenting have minimal bearing on the determination of the best interests of the children. M.T.'s health and emotional well-being [905] In my view, the claimant's ability to support the health and emotional needs of M.T. is best assessed in the light of what he has done since M.T. began living with him at the end of August 2021. Over a period of months, the claimant built up an extensive set of supports and programs that meet all of the recommendations in M.T.'s initial autism assessment. While the respondent was critical of the time taken to put that in place, in my view the evidence is that he moved quickly - having M.T. in a well-supported school program as soon as her quarantine was complete, putting SLT and OT in place by late October and mid-November respectively, and bringing Ms. Rasmussen on board in November 2021. Although the full BI program that Ms. Rasmussen recommended was not in place until April 2022, there was significant evaluation and planning work done leading up to that. [906] It is my view that, when the respondent first moved to Kelowna, she struggled as she tried to raise two children without the support of her mother (whose support she had while in Prince George). She did her

best, despite some health issues and stresses from the position she found herself in. The struggles she had are reflected in her challenges maintaining housing and her challenges in responding to the various service providers. [907] Evidence was tendered with respect to L.T.'s school attendance prior to his move to Vancouver. It is clear that he missed substantial amounts of school, and that this contributed to his struggles keeping up with the curriculum. The respondent insisted that doctors had encouraged her to keep L.T. home for medical reasons, but has not produced any documents to support that. I do not accept that evidence. I have difficulty with the proposition that doctors would recommend the missing of such an extensive amount of school. In my view, L.T.'s missing of school was more likely reflective of the respondent's own troubles getting going in the morning and her own value judgments about the importance of school. The claimant obviously assigned a different priority to schooling, which was one contributor to the conflicts they had. [908] I accept the evidence that there was some initial reluctance on the respondent's part to recognize that M.T. had special needs. In my view, that is not entirely uncommon. The issues that flowed from it, however, were exacerbated by the respondent's refusal to share information with the claimant. [909] The respondent's challenges

were somewhat reduced once she moved to Vancouver. That said, it does not appear that M.T. had any of the recommended OT support after April 2016 until the claimant put those services in place in the fall of 2021. It also appears that there were gaps in M.T.'s SLT prior to Ms. Davies being retained, no behavioural consultant in place until Ms. Burke began that role in late 2017, and intermittent BI services even after Ms. Burke was in place. [910] More importantly, the respondent showed a tremendous lack of judgment in keeping M.T. in Greece for two years. In my view, the evidence indicates that a Greek language school, that had little or no expertise in dealing with autistic children, did what they could for M.T., but it would have been a difficult time for her when few of her classmates and only some of her teachers were able to speak English. It is also my conclusion that M.T. had only those appointments with the psychologist that are documented. Those appointments were limited to the summer of 2020 and the summer of 2021. I do not accept the respondent's claim that there were other appointments, but that she just did not bring the documents with respect to them. In my view, to deprive M.T. for two years of the services available to her and the programs already in place in Canada was clearly not in M.T.'s best interests. [911] Two significant concerns about the respondent's

ability to make provision for M.T.'s health and emotional well-being arise from more recent events. [912] The first arises from the nature of some of the respondent's conversations with M.T. At the hearing before Master Vos, the respondent agreed to conduct orders that would prevent either party discussing with the children any inappropriate adult, court or legal matters or from questioning the children about the other parent or time spent with the other parent, beyond simple conversational questions. Yet the supervision reports and several of the recordings of FaceTime visits evidence the respondent questioning M.T. in depth about her dealings with the claimant, seeking to turn any sort of reference to discipline - even when the claimant is not a part of what M.T. has said - into a conversation about the claimant, and using leading questions in an attempt to have M.T. say something negative about her father. [913] I have reviewed all of the recordings submitted at trial. Given the nature of the questioning, and what is known about M.T., including her echolalia, there is nothing in M.T.'s responses to the questioning that gives rise to concerns of significance about the appropriateness of the claimant's care for M.T. [914] The second major concern arises from the respondent's conduct at the end of each supervised visit. Beginning in 2023, the end of each supervised visit became

a lengthy, drawn-out process, including the respondent stopping M.T. to seek more affection, calling out to her about how much she will miss her, and following her down the street with an iPhone in hand in order to continue these interactions and video-record the transition. That this continued even after Dr. Bell explained at trial how to make transitions less stressful for M.T. shows a significant lack of judgment on the part of the respondent. It would be apparent to any objective observer that the respondent's actions are the primary driver of M.T.'s emotional turmoil at transition time. M.T.'s difficulties with transition are not something new, as set out repeatedly in the factual summary above. The respondent, unfortunately, assumes that any display of emotion by M.T. must be a reflection of her missing her mother. [915] I do not believe the respondent is doing this with the intention of harming M.T. My assessment is that the respondent sees all of her dealings with M.T. and the claimant through filters that are so focused on her own value as a parent and, to a significant degree, her feeling of entitlement as the person who saw M.T. through the first several years of her life, that she cannot see the emotional harm she is causing. M.T.'s views, unless it would be inappropriate to consider them [916] While M.T. is of an age and developmental stage in which it is not

realistic to seek her views per se, it is clear to me from the supervision reports that M.T. is very close to both of her parents. The nature and strength of the relationships between M.T. and significant persons in M.T.'s life [917] It is my view that each of the parties has a loving and nurturing relationship with M.T. Those relationships are different. [918] The claimant's relationship is one focused on exploring and learning about the outside world, and includes a stream of activities. The claimant provides a stable home, as well as ongoing connections with himself, L.T., and M.T.'s aunts. [919] The respondent's relationship is focused on such things as reading, play, and "mommy time" (as M.T. described it during one of her supervised visits). The respondent also maintains connections between M.T. and her grandparents, of whom she is clearly very fond. The history of M.T.'s care [920] The history of M.T.'s care is described in detail above. There have obviously been a number of changes in her care arrangements over the years. Her current arrangement has been in place since the end of August 2021. M.T.'s need for stability, given her age and stage of development [921] In my view, stability is an important factor for M.T. The claimant has lived in two homes over the last 30 years, while the respondent has moved from place to place. M.T. has built strong connections to her

school in Langley and to the various service providers who work with her. While the respondent is currently a sub-tenant of a townhouse in Langley, the length of time that will remain in place was uncertain. Until she obtains secure employment, her housing will be dependent on support from her parents. The ability of each of the parties to exercise their responsibilities [922] In my view, the claimant has shown that he has taken to heart the recommendations of professionals like Dr. Bell and Ms. Gallagher. He seeks out professional advice with respect to M.T.'s needs, he has done what he can to learn about M.T.'s needs and how to support them, and he communicates with the respondent in a way that remains respectful and focused on the children's issues, notwithstanding the reactions he obtains. He seeks out medical and dental treatment and follows the advice of the professionals he deals with. He has accepted and followed direction from the court to share information about L.T. and any decisions made about him. [923] Importantly, the claimant has shown that he is willing to support an ongoing relationship between M.T. and the respondent, although he seeks constraints on the respondent's parenting time that he says are justified by her conduct. [924] The respondent is unwilling and unable to co-parent. She shares information only when it is necessary to get something she needs.

In my view, her decision-making about M.T.'s needs is heavily influenced by her views about her own role in M.T.'s life. Her decision to stay in Greece in 2019, and her insistence on a prolonged and harmful transition process at the end of each supervised visit, all call into question her ability to make decisions that put M.T.'s interests first. In response to questions about the May 20, 2023 supervised visit, she suggested that any change to the prolonged transition process at the end of a visit would be a "big win" for the claimant. Her focus on her own perceived "wins" and "losses" vis-à-vis the claimant undermines her ability to make appropriate decisions for M.T. The evidence clearly establishes that the respondent will exercise any parental responsibilities she is given in a manner that seeks to limit and undercut any relationship between the claimant and M.T. [925] I accept the claimant's submission that the respondent has not truly accepted responsibility for any of her most concerning conduct. It is clear to me, after hearing from the respondent at length both in direct and cross-examination, that the only responsibility she accepts is for choosing to have children with the claimant - everything else that has happened in the years since then is, in her mind, the fault of the claimant. The impact of any family violence on M.T.'s safety, security or well-being [926] I

acknowledge the claimant's submission with respect to the respondent's litigation conduct constituting family violence. There is much merit to this submission. In my view, however, the primary issues on this trial are parenting time and parenting responsibilities, and thus it is important to focus on whether there is physical or emotional harm to the child [see C.L.M., supra, at para. 365]. While I accept that the parties' conflict has caused emotional harm to their children, it is not clear to me that that harm arises from the specific interactions between the claimant and the respondent that arguably constitute family violence, rather than the fact of the conflict itself. [927] In my view, the primary issues with respect to care of M.T. are most appropriately analyzed in the context of other factors, primarily those focusing on M.T.'s health and emotional well-being and the ability of each parent to exercise their responsibilities. The appropriateness of an arrangement that would require the parties to cooperate on issues affecting the child [928] It is clear to me that the parties have a completely dysfunctional relationship and this is not a case where it is appropriate to require the parties to cooperate. Any civil or criminal proceeding relevant to the child's safety, security or well-being [929] The only proceeding identified by the parties was the pending criminal

charges against the respondent with respect to keeping M.T. in Greece from 2019 to 2021. The outcome of those proceedings remains an uncertainty, and it is thus difficult to assign any weight to this factor. Conclusions on Parenting [930] In my view, it is in the best interests of M.T. that she maintains relationships with both of her parents. The difficult question is how to make provision for that in a way that keeps M.T. safe and protected, both physically and from the risk of emotional and psychological harm. That risk of harm, in my view, arises mainly from the animosity between the parties - and particularly that directed by the respondent toward the claimant. It is exacerbated by the respondent's demonstrated refusal to comply with any orders she does not agree with - including the conduct orders that were made by consent. In crafting an order, it is important to keep in mind the unique vulnerabilities of M.T., and the potential for any conduct of the parties to undermine M.T.'s physical, emotional and psychological safety, security and well-being. [931] In my view, the claimant has cared for M.T. regularly since, at the very least, August 2016. He has acted as a guardian on an interim basis since May 2017. The claimant has exercised his duties as a guardian responsibly and with a view to the best interests of M.T. [932] Even if the claimant did not qualify as a guardian

as of right, it is my view that it is clearly in the best interests of M.T. that the claimant be a guardian on a permanent basis. [933] It is my view that it is in M.T.'s best interests that her primary residence continue to be with the claimant. She is in a very good place, with capable and knowledgeable caregivers, a school that provides very well for her needs, and caring and supportive family members around. [934] It is further my view that it is in M.T.'s best interests that the claimant continue to hold all parental responsibilities. [935] I agree that it is appropriate for M.T. to maintain a strong relationship with the respondent. She should continue to be able to spend time with the respondent. However, it is my view that before the requirement of supervision can be lifted, the respondent needs to demonstrate that she can (a) comply with the conduct orders, and (b) facilitate a transition process with respect to visits that is not emotionally traumatic for M.T. [936] In my view, there needs to be a staged lifting of the supervision requirement. The supervised parenting time should continue for a further period of time. After June 30, 2024, it will be open to the respondent to seek a review of this part of the order, with a view to lifting the requirement of supervision. Any such application should be supported by supervision reports and other evidence addressing the

concerns I have identified. [937] In my view, there is a significant risk of emotional harm to M.T. if the concerning conduct of the respondent continues. There also remains a risk that the respondent might attempt to leave the country once again. The final order should include a provision restricting the ability of the respondent to travel with M.T. outside of the Lower Mainland without either consent of the claimant or permission of the court. [938] The claimant remains suspicious that the respondent may have obtained Greek citizenship and a Greek passport for herself and M.T. For the time being, the requirement of supervision will deal appropriately with this risk. Should the requirement of supervision be lifted, the court may consider at that time whether alternative steps should be taken to address this risk. Without limiting the available options, one might be to provide that a bond be posted to secure the respondent's compliance with the ongoing travel restrictions. Child Support [939] The claimant has provided a detailed table setting out his line 150 income and the resulting obligation to pay child support as compared with the amounts he actually paid. The respondent did not provide any specific challenge to the amounts. I accept the claimant's calculation set out therein that he has overpaid child support by $19,228. The claimant attempted to have the interim child

support reduced to reflect his actual income, which attempts were resisted by the respondent. Justice Kent specifically directed that there be an accounting in respect of any overpayment. In my view, it is appropriate in all of the circumstances to allow the claimant to recover that amount. [940] I accept the claimant's submission that no child support was payable during the months during which M.T. was in Greece with her mother, in violation of multiple orders of this court. At that time, the court's orders required that M.T. be primarily resident with the claimant. This submission is supported by the authorities cited by the claimant (Hughes and Street). [941] I accept that the respondent has a duty to support the children pursuant to s. 147 of the FLA. The evidence indicates that the respondent has had little or no income in the time since she returned to Canada and the claimant began caring for M.T. She has also been taking a course of studies during that time which should improve her capacity to generate income in the future. In the circumstances, I would not impute income to the respondent retroactively. [942] It is my view, however, the moving forward the respondent should be able to earn a reasonable income. From January 2024 onward, I would impute to the respondent an annual income of $30,000. That is based on working slightly less than full time at minimum wage. By my

calculation, the base child support payable is $484 per month until L.T. turns 19, after which it will reduce to $279 per month. [943] I would further direct that, by June 1 each year, the respondent shall provide to the claimant the documents required by s. 21 of the Federal Child Support Guidelines, SOR/97-175. To the extent the respondent's income exceeds $30,000, the amount of child support should be adjusted effective July 1. [944] With respect to the respondent's claim for rental assistance, it is my view that to the extent that this forms part of a claim for child support, given that the respondent is a payor rather than a recipient of child support, there is no basis to make such an order. To the extent it is sought as some other financial claim, it is subject to the order of Justice Basran dismissing the respondent's financial claims other than child support. Fine [945] The claimant seeks an order that the respondent pay a fine of $5,000 pursuant to s. 61 of the FLA for her wrongful denial of the claimant's parenting time from August 12, 2019 to August 28, 2021. [946] I am concerned that there are, at present, criminal proceedings outstanding which relate to the same underlying conduct. [947] In my view, the criminal proceedings should take precedence with respect to that conduct. The question of whether a fine should be imposed should be considered after resolution of

the criminal proceedings and with knowledge of the result of those proceedings. [948] In my view, it is appropriate that this part of the relief be adjourned generally. It may be brought back before me after resolution of the criminal proceedings. Issue #2: Setting Aside the Basran Order Legal Context [949] Supreme Court Family Rule 21-6(1) and (3) provide that: Failure of party to attend (1) Without limiting Rule 21-5, if a party fails to attend at a trial or hearing at the time appointed for that trial or hearing, the court may, after receipt of any evidence of service it considers appropriate, do one or more of the following: (a) proceed with the trial or hearing; (b) draw any inference from the failure to attend that the court considers appropriate, including attributing an amount of income to the party; (c) grant some or all of the relief sought. Court may set aside judgment (3) A party may apply to set aside a judgment obtained at trial in that party's absence. [950] To similar effect are Rule 14-7(76) and (77), which provide: Failure of one party to appear at trial (76) If a party is not in attendance when the trial of a family law case is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party. Court may set aside judgment (77) The court may set aside a verdict or judgment obtained if a party does not attend the

trial. [951] As noted in Buchan v. Rome, 2018 BCCA 175 at para. 31, with respect to the equivalent power in Rule 12-5(77) of the Supreme Court Civil Rules: [31] The test applied in the Supreme Court to determine whether this power should be exercised is set out in Miracle Feeds v. D & H Enterprises Ltd. (1979), 10 B.C.L.R. 58 at 61, as re-articulated for the purposes of Rule 39(34) (now Rule 12- 5(77)) in O'Krane v. Braich, 1999 BCCA 296: [10] ... Shortly stated, the four factors require a determination to the court's satisfaction that: 1. the failure to appear was not wilful or deliberate; 2. the application to set aside the judgment was made as soon as reasonably possible; 3. the defence is worthy of investigation; and 4. all requirements are established through affidavit material filed on behalf of the defendants. [952] In Andrews v. Clay, 2018 BCCA 50, Justice Hunter was careful to describe these four points as "factors" rather than tests: [29] I have described these as factors rather than tests, as they are not intended to be either mandatory or exhaustive of the considerations that are relevant, though in most cases they will be the appropriate indicators of whether it is in the interests of justice to set aside the default judgment. [953] In Forgotten Treasures International Inc. v. Lloyd's Underwriters, 2020 BCCA 341 at para. 17, Justice Voith noted that: the various

considerations that are identified in Miracle Feeds are just that: they are factors that a chambers judge should consider and weigh. These factors are not fixed or immutable; rather, they are discretionary. [954] As a result, the failure or inability of a defendant to address a particular factor is not necessarily fatal, and there may be additional factors unique to a particular case which are relevant to the court's discretion: Director of Civil Forfeiture v. Doe, 2010 BCSC 940 at para. 15, cited with approval in Andrews at para. 31. [955] The fourth Miracle Feeds factor requires the evidence underlying the other factors to be established by affidavit. In this proceeding, the application to set aside Justice Basran's order was referred to the trial. In these circumstances, the application is to be considered on the basis of the evidence adduced at trial. [956] As well, given the comments I have cited from Andrews and Forgotten Treasures, it is my view that in considering this application I should be considering whether it is in the interests of justice to set aside the order. That consideration is, in part, an addition to, and, in part, forms the context for an overall evaluation of the other factors. [957] With respect to the phrase "wilful or deliberate" in the first Miracle Feeds factor, it appears that the word "wilful" imports connotations of blameworthy conduct; however,

depending on the circumstance, deliberate conduct may also be blameworthy: Vo v. Vo, 2015 BCSC 467 at paras. 20-21; Forgotten Treasures at paras. 19-20. [958] The phrase "worthy of investigation" in the third Miracle Feeds factor means more than that one is merely entitled to make the allegation. That said, the party need not set out a full range of evidence necessary to establish the defence on a balance of probabilities - nor is the judge considering the application required to engage in a searching, extended or detailed weighing of the evidence: Forgotten Treasures at paras. 26-30. [959] The cases leave open the possibility that other factors may come into play in a given fact situation. The respondent references the judgment of Justice Armstrong in T.K.H. v. M.D.H., 2022 BCSC 755, which was an appeal from an order striking out a party's pleadings for non-compliance with various court orders and rules. Justice Armstrong noted at paras. 41-49 the importance of ensuring that a trial adequately explore and resolve any parenting issues with a view to advancing the best interests of the parties' child. At para. 54, he referenced the Ontario Court of Appeal's decision in Purcaru v. Purcaru, 2010 ONCA 92, which suggests that when a court considers whether pleadings should be struck in a family law matter, "special care must be taken in family law cases where the interests of the

children are at issue", and that pleadings should not be struck where that would leave the court "with insufficient information to determine custody". Positions of the Parties Respondent [960] The respondent argues that the claimant was well-aware that the respondent had arranged to fly back to Canada on September 9, 2019, and that the failure to disclose this to Justice Basran was fundamental to the order he granted. [961] The respondent describes herself as a victim of circumstances. She says the wrongfully obtained without notice order from May 2017 led to an emotional firestorm when a further wrongful without notice order was obtained in August 2019, leading her to make unfortunate decisions based on her emotional reactions. The respondent says that she was at all times acting in what she thought was the best interests of M.T. by remaining in Greece - that she may have been doing the wrong thing, but she was doing it for the right reasons. [962] The respondent submits that she was relying on lawyers to help her through the jungle of litigation, and that she did not get the legal representation she should have had in August and September 2019. She had assumed that Justice Basran would be given her side of the story, and she had also assumed that the trial would be adjourned pending her return. [963] The respondent submits that the orders she seeks for spousal support and for

interests in the claimant's property are fundamental to providing her an economic base to care for M.T., and that any breach by her of court orders and trial procedures should not be visited upon her children. She notes that this is a family law case, in which the best interests of the children should be considered paramount. She submits that any breach by her is more appropriately dealt with by way of a fine or a costs award. [964] The respondent submits that the application to set aside Justice Basran's order was made as soon as reasonably possible, in that prior to filing the application in September 2022, the respondent was occupied with other matters, such as her arrest (which occurred in April 2022). Claimant [965] The claimant says that it is without doubt that the respondent's failure to return to Canada for the trial was wilful and deliberate. The respondent was aware of the trial date. She chose not to board her flight. She has produced no satisfactory evidence that she was unable to return in time for the trial. The respondent has not provided any sort of doctor's note confirming that either the respondent's mother or M.T. was unable to travel on the originally scheduled date. The respondent did not provide written confirmation of her return ticket for September 9, 2019 until September 6, 2019 - after Justice Basran had granted his order. In any event, it was clear

from the respondent's communications with the claimant in mid-August that she had no intention of returning to Canada on September 9 in any event. Those communications themselves make clear the disregard the respondent had for the Canadian courts, and are clear evidence of decisions that were both wilful and deliberate. [966] The claimant notes that Ms. Taylor, in explaining her withdrawal to Justice Basran, was very clear that she was withdrawing for ethical reasons after consultation with the Law Society. The claimant notes that there has been no further explanation of this. The claimant submits that the reasonable inference to draw is that the respondent made it clear to Ms. Taylor that she had no intention of returning to Canada, which was a clear and direct breach of the court orders, and that it was this refusal to comply with court orders that led Ms. Taylor to the conclusion that she must withdraw for ethical reasons. The claimant submits that, to the extent the two email strings that were produced are inconsistent with what Ms. Taylor told the court on September 3, 2019, they are not credible. [967] The claimant submits that there is no reasonable excuse for the delay of more than three years between the time of Justice Basran's order (September 4, 2019) and the application to set aside the order (September 23, 2022). The claimant notes that, in any event, the

respondent has a long history of non-compliance with court orders (both in British Columbia and Greece) and her record is such that she should be afforded no leniency. The cases relied upon by the respondent excused delays of two or three months. The delay of over three years in this case is far greater and, the claimant notes, is even much longer than the usual two-year limitation period to bring a claim in British Columbia. [968] The claimant further submits that there is no claim worthy of investigation. With respect to spousal support, the claimant submits that it is clear the parties cannot be said to have "lived in a marriage-like relationship for a period of at least 2 years", which is required in order to qualify as a spouse under the FRA (the definition of spouses is found in s. 1 of the FRA, and pursuant to s. 89, one must be a spouse in order to apply for spousal support). The claimant submits that the evidence establishes that at the material times, the respondent was living primarily in Prince George, and the respondent's tax returns make clear that she was reporting her status as single and her address as her parents' home in Prince George. [969] The claimant references J.J.G. v. K.M.A., 2009 BCSC 1056 at paras. 31 and 37: [31] The court has recognized the difficulty of examining a relationship after its dissolution in order to determine whether it had the

characteristics of a marriage: Ford v. Werden (1996), 27 B.C.L.R. (3d) 169 (C.A.). [37] In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship. [970] With respect to the proprietary claims, the claimant notes that Part 5 of the FRA is not available to an unmarried party, and that the claims that were dismissed by Justice Basran were in unjust enrichment, the requirements of which are (a) an enrichment of or benefit to the claimant, (b) a corresponding deprivation of the respondent, and (c) the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 para. 32; J.J.G. at paras. 134-144. The claimant submits that there is no evidence of any prospect of the respondent succeeding on such a claim. Analysis [971] I begin with considering the first Miracle Feeds factor - whether the respondent's failure to appear at the trial on September 3, 2019 was wilful or deliberate. The

events leading up to the trial are detailed in the course of my chronological review under the heading "August 2019". [972] The respondent knew there was a trial starting September 3, 2019. She knew there were specific things scheduled in the weeks leading up to the trial. She had been required by Justice Kent to attend the trial management conference where the things that needed to be done were discussed and scheduled. She knew that those things had been scheduled around her travel planning, and that one of them was her examination for discovery. [973] I am unable to accept the respondent's assertion that she believed the trial would be adjourned based on her decision not to return. She knew that the trial date was peremptory upon her. This was not the first time the trial date had been peremptory on her. It is clear that Justice Kent was concerned that the respondent was not doing what she needed to do to be ready for the trial. Justice Basran, at paras. 21 and 23 of his Reasons for Judgment, notes not only the respondent's failure to appear, but also the fact that she: [21] has not complied with clear orders of this Court with respect to document disclosure and discovery deadlines related to the counterclaim. She has taken perilously little interest in these necessary pre-trial procedures, and as a result she has not taken the necessary steps to advance her

counterclaim. [23] In my view, [the respondent] has already been given a second chance because Justice Kent set clear deadlines for her to meet in respect of her counterclaim. She failed to meet those deadlines. Given her apparent lack of interest in participating in this trial and more specifically in advancing her counterclaim, it is dismissed [974] I have reviewed in the factual chronology above the various steps taken by the parties to prepare for the various trial dates that were set in 2018 and 2019. Having now heard the evidence of both parties with respect to that history, it is my view that Justice Basran's observations were and remain apt. [975] The different explanations given at different times as to why the respondent's mother could not travel are of concern. There has been no production of any note or other medical record from any doctor who saw either the respondent's mother or M.T. in the days leading up to the rescheduling of the flights on or about August 8, 2019. The respondent knew from the time she decided to return to Canada that she would ultimately have to explain the basis on which she claimed to have been unable to return. Her suggestion that she left the medical records in Greece is simply unbelievable. I am unable to conclude on the record before me that the respondent's mother was unable to return to Canada in August 2019. [976] Even if the

respondent's mother had a problem travelling, it is my view that given the nature of the court orders that limited the respondent's ability to travel, given the impending trial and the pre-trial steps that remained outstanding, and given the fact that the respondent had extensive family in Greece that they were visiting, a health issue on the part of the respondent's mother would not provide an acceptable excuse in any event for the respondent's failure to return. As well, it is clear from the Expedia printouts that there were flights available during the course of August 2019. The respondent's answer that M.T. was not able to travel on the two dates for which the claimant had printed off Expedia search results is not supported by the evidence as to M.T. - the thrust of the evidence seemed to be that to the extent M.T. had an earache, it was earlier on the trip. [977] All of that evidence must be considered in light of the respondent's many texts to the claimant in August 2019. Those texts demonstrate a clear disregard for this court and for its orders generally. I refer in particular to the texts of August 17, 2019, which I have quoted at length above. It is also of great concern that the respondent attempted to make use of her failure to return to Canada, in breach of the various court orders, as leverage in order to obtain favourable financial terms from the claimant. [978]

In my view, there is simply no way to characterize the respondent's decision not to attend the trial in September 2019 as anything but wilful and deliberate. [979] The second Miracle Feeds factor is whether the application to set aside the judgment was made as soon as reasonably possible. It clearly was not. Those events are reviewed above under the heading "Events Since the Respondent's Return". It is noteworthy that the respondent had family law counsel in place and on the record in this matter from September 15, 2021, onward. Although she began making court applications in November 2021, the applications she made were with respect to the interim orders as to parenting. [980] Even if one ignores the two years that the respondent was in Greece, it is clear that the delay of nearly eleven months from her return to Canada at the end of August 2021 to the time the application was made in September 2022 is excessive and unexplained. Her assertion that she was busy dealing with the criminal proceedings makes no sense - it was not until April 2022 that she was charged with offences related to her keeping M.T. in Greece. That was seven-and-a-half months after her return to Canada, and six months after she retained family law counsel. In my view, even that six- or seven-month delay would have militated against an order to set aside Justice Basran's order. [981] The third Miracle Feeds

factor is whether there is a defence worthy of investigation. The facts underlying the respondent's claims for spousal support and for an interest in the claimant's property are set out above under the heading "Parties' Background and Initial Relationship". In my view, those claims could fairly be described as weak. [982] Given the subjective nature of the test for "marriage-like relationship" (as summarized in J.J.G.), I would not describe the claim for spousal support as hopeless. However, the fact that both parties filed their income tax returns on the basis of single status would militate against a finding that the parties were living in a marriage-like relationship. The fact that both engagements were terminated after a short time is also problematic to the claim. The respondent's own evidence suggests that she spent significant parts of 2005 in Prince George. The fact that the claimant was making regular deposits to the respondent's bank account from January 2006 onward is consistent with his assertion that he was paying child support - which itself indicates that the parties were not living together. While it is clear that the airfare receipts in evidence are not a complete set, what is in evidence seems to be more consistent with the parties travelling separately over the course of 2006 and the first half of 2007 to visit each other for periods of time. [983] With

respect to the proprietary claim, the evidence going to the issues of enrichment and deprivation is sparse at best. This is particularly so given that the respondent appears to have spent significant amounts of time in Prince George. Her evidence of helping the claimant with input on restaurant menu items was not particularly convincing. [984] The respondent argues that, in considering the interests of justice, this court should take into account the fact that the respondent's financial claims are important to provide her with a financial base to care for M.T. Given the conclusions I have come to with respect to parenting time, this is of limited importance in the circumstances of this case. [985] In my view, having reviewed the Miracle Feeds factors and the other factors advanced in the particular circumstances of this case, I conclude that it would not be in the interests of justice to set aside Justice Basran's order. In my view, my determinations with respect to the first two Miracle Feeds factors lead to the inevitable conclusion that, in the circumstances of this case, it would be inappropriate to set aside the order. Costs [986] The claimant sought liberty to provide submissions on costs once the matters at issue in the trial have been determined on the merits. I accept that as an appropriate approach. Conclusion [987] I would order that: · The claimant and the

respondent are guardians of both L.T. and M.T.; · M.T. shall live primarily with the claimant; · L.T. shall, until he reaches the age of majority, live with either the claimant or the respondent as he chooses; · All parenting responsibilities for M.T., as outlined in s. 41 of the FLA, be exercised exclusively by the claimant (except as set out below); · The respondent may exercise the following parental responsibilities: i. Requesting and receiving from third parties health, educational and other information respecting the children; · The claimant shall advise the respondent of any significant decision he makes while exercising these parental responsibilities and the respondent may apply for directions pursuant to s. 49 of the FLA should she believe a decision is not in the best interests of the children; · The respondent shall have parenting time with M.T.: i. On one day each weekend, in-person for a period of up to six hours; and ii. By video calls, on two evenings per week for 20 minutes each call, plus such other and reasonable calls as may be agreed upon for special occasions; · Any in-person parenting time of M.T. with the respondent shall be supervised by a professional third-party supervisor, with such supervisor to be acceptable to both parties, with the costs of supervision to be paid by the respondent, and the costs of reports to be paid by the claimant; · The

claimant may travel with the children without requiring the consent of the respondent, but will provide the respondent with notice of his travel; · The respondent shall not travel with M.T. outside of the Lower Mainland of British Columbia without either the consent of the claimant or leave of the court; · The conduct orders granted by Master Vos shall be made permanent; · The respondent shall not attend at the claimant's residence in Langley at any time, and shall not attend at M.T.'s school during times when M.T. is or is likely to be there; [988] The respondent is at liberty to apply after June 30, 2024, to seek a review of the requirement of supervision, as set out at paras. 935-936 above. [989] The claimant's application for a fine in respect of the denial of parenting time from 2019 to 2021 is adjourned generally. If the claimant wishes to pursue this, it may be brought on before me in chambers after resolution of the outstanding criminal proceedings. [990] The respondent shall pay to the claimant the sum of $19,200 in respect of overpayment of child support. [991] The respondent shall pay to the claimant child support based upon an imputed income of $30,000 per annum. The respondent shall disclose to the claimant each year, by June 1, her tax return and notice of assessment from the previous year. To the extent the respondent's income exceeds $30,000, child support shall

be adjusted effective as of July 1. [992] The respondent's application to set aside the order of Justice Basran is dismissed. [993] If the claimant seeks an order for costs, he should file a submission with respect to costs within 45 days of the release of these reasons for judgment. The respondent's submissions in response should be received within 30 day thereafter. The claimant may submit a brief reply submission within seven days of the respondent's submission. I will determine after reviewing the submissions whether a hearing is necessary. [994] If I have failed to deal with any matter that was properly before me, or if there are any mathematical errors in my calculation, those can be drawn to my attention by way of submissions that should be made in accordance with the same timeline as for submissions on costs. "Veenstra J."