M.B.K. v. R.R.R.

2025 BCSC 1624 M.B.K. v. R.R.R.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.B.K. v. R.R.R., 2025 BCSC 1624 Date: 20250801 Docket: E140276 Registry: Kelowna Between: M.B.K. Claimant And R.R.R. Respondent Before: The Honourable Justice B. Hardwick Oral Reasons for Judgment Counsel for the Claimant: M. Chiu Appearing on their own behalf: R. R. Place and Date of Trial/Hearing: Kelowna, B.C. August 1, 2025 Place and Date of Judgment: Kelowna, B.C. August 1, 2025 [1] THE COURT: These are my oral reasons for judgment in respect of cross-parenting applications in a high-conflict family law file. [2] The parties have a single child, T, who just recently turned four years of age. At present, the claimant resides in Kelowna. He is 28 years of age. He lives with his parents. He is studying to be a chartered professional accountant and works at his father's accounting firm. At present, the respondent resides in Delta. She is 25 years of age. She lives with her parents and one of her siblings. She is unemployed and in receipt of social assistance benefits. Of some importance given the circumstances, the respondent does not drive. [3] The Child is currently primarily resident with the respondent in Delta. The Child's residency in Delta is a major point of contention between the parties. The claimant's position is that the respondent took the Child with his permission to visit her family with the intention of

staying there temporarily. There are text messages in the evidence somewhat consistent with this. The respondent disputes this and describes leaving Kelowna and her relationship with the claimant due to serious family violence. This is quite obviously a triable issue, and I reach no conclusion either way for the purposes of these cross applications. The practical reality, though, is that the Child is primarily resident in Delta. [4] This matter was before me on January 17, 2025, based upon an application by the claimant father for unsupervised parenting time. I gave oral reasons for judgment on that same date wherein I made orders that effectively put into place a 10 days on, 14 days off parenting regime in which the Claimant would generally have unsupervised parenting time with the Child for 10 days in Kelowna, and the Child would be with the respondent for 14 days in Delta, with the claimant being responsible for all transportation of the Child. I made that order because, while I was satisfied that supervised parenting time was no longer appropriate, I concluded that the parenting plan proposed by the claimant was too drastic of a transition for a child as young as T, who at that time had not even seen his father since November 9, 2024. Neither party has ordered a copy of my January 17, 2025 oral reasons for judgment to date, and so I have done so today on my own initiative

as they may be instructive if this matter eventually comes on for trial. [5] In that regard, when I made my January 17, 2025 order, a trial in this matter was scheduled for May of 2025. That trial was adjourned at the trial management conference due to, amongst other things, the amount of time estimated being inadequate. The matter has since been reset for trial in September of 2026. This coincides with the Child's scheduled entry into kindergarten. [6] In the claimant's notice of application filed May 15, 2025, he seeks an interim order that, commencing September 1, 2025, the parties share parenting time of the Child on a 14 day on, 14 day off schedule, with the exchanges occurring on Saturdays at 1:00 PM, and otherwise in accordance with the terms of my January 17, 2025 order (which terms are crafted quite precisely to account for the fact that the claimant is on release conditions in relation to a criminal proceeding wherein the respondent is the complainant that I will describe below). Based upon this shared parenting regime, the claimant proposes that both parties be permitted to register the Child in a preschool of their choosing in Kelowna and in Delta (or surrounding community). [7] In the respondent's application filed June 12, 2025, she seeks an order on an interim without prejudice basis, that the Child be exclusively resident in Delta with her and the claimant have,

commencing September 1, 2025, virtual parenting time from 8:00 PM to 8:15 PM on Mondays and Wednesdays, and in-person parenting time from Fridays at 3:00 PM to Sundays at 1:00 PM, to be exercised in the Lower Mainland. Alternatively, the respondent proposes that she have parenting time from September 1, 2025, at 1:00 PM to September 19, 2025, at 1:00 PM, the claimant to have parenting time from September 19, 2025, at 1:00 PM to September 26, 2025, at 1:00 PM, and commencing September 26, 2025, the parties will have alternating parenting time on a two weeks on, one week off schedule with the exchange to occur on Fridays at 1:00 PM, with the claimant's one week of parenting time to be exercised in the Lower Mainland. Under this proposal, each parent would also have virtual parenting time on Mondays and Wednesdays from 8:00 PM to 8:30 PM when the Child is in the care of the other parent. [8] Obviously, the determination of what parenting schedule should be put into place pending further court order or agreement of the parties must be made solely in the best interests of the child. According to s. 37 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] the factors to be considered by the court are as follows: (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. [9] Further, s. 37(3) of the FLA provides that an 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." [10] In support of his proposed schedule, the claimant relies

heavily on the certain reports prepared by a professional supervisor who has been hired to facilitate the transitions of the Child between the parents in a fashion that complies with the claimant's release conditions (the "Parenting Exchange Reports"). To be clear, the claimant's actual parenting time is no longer supervised, pursuant to my January 17, 2025 order, but a professional supervisor picks up the Child from the respondent's residence and walks with him an appropriate distance from that residence where the claimant and a family member are waiting at their vehicle. By my count, I have 14 Parenting Exchange Reports from between January 24, 2025 and July 7, 2025. The last report coincides with the filing of the claimant's most recent affidavit. [11] The claimant says the Parenting Exchange Reports support his position that he has a strong bond with the Child, that the Child is very happy to see him when he receives him at each transition and is happy and well-adjusted when he is returned to the supervisor at the end of his parenting time. The claimant further submits that the Parenting Exchange Reports indicate no concerns from the supervisor about his conduct whatsoever, and indeed, in one instance, specifically confirm he acted appropriately about informing the supervisor about a bruise the Child received during his parenting time, how it happened, and so forth. [12]

The respondent also relies on a fairly recent letter from the Ministry of Children and Family Development dated May 30, 2025, wherein the social worker, Ms. Tough, confirmed that she completed her assessment as required by the Child, Family and Community Services Act regarding the concerns that the Child may be in need of protection, and concluded that based upon the results of that assessment, the Child does not require ongoing protective services. [13] In support of her proposed schedule, the respondent relies heavily on the conduct that she alleges occurred prior to the parties' separation, which includes a broad range of family violence including physical abuse, emotional abuse, sexual abuse, financial abuse and coercive control. [14] In respect of physical abuse, the respondent primarily alleges this occurred to her personally, sometimes in the presence of the Child due to their cramped living arrangements, and also occasionally to the Child directly. She provides details of same in her affidavits. [15] In respect of the sexual abuse, the respondent made a report to the police after these proceedings were commenced, which resulted in the claimant being charged with one count of sexual assault, contrary to s. 271 of the Criminal Code. The Information, sworn on November 4, 2024, alleges that the sexual assault took place at or near Delta between March 1, 2024 and March 31,

2024. The parties disagree as to whether or not this date range is before or after separation. The claimant has pled not guilty and strongly disputes the allegation. There is no trial date set in the criminal proceeding, being conducted in the Provincial Court, but I am advised by counsel for the claimant that there is a further pre-trial conference scheduled for the end of this month. Based upon certain evidence included in the record before me in these proceedings, I strongly anticipate there will be some pre-trial motions concerning the admissibility of certain records under s. 276 of the Criminal Code, and possibly other pre-trial motions. This may, by necessity, delay the hearing of the trial proper. [16] The respondent also asserts that the Child is not coping particularly well with the parenting regime I put in place with my January 17, 2025 order, and specifically notes the Child expresses reluctance to go with the claimant and is quite withdrawn when initially returning home from his parenting time with the claimant. The respondent is also concerned that the claimant does not feed the Child sufficiently, and that the Child loses weight during the claimant's parenting time. The respondent has gone to the extent of weighing the Child before and after the claimant's parenting time, at least as of late. [17] Finally, the respondent asserts that the claimant has not

demonstrated that there is a spot for the Child to attend preschool starting in Kelowna in September of 2025, whereas she has a spot secured for the Child at a particular parent participation preschool located an approximately 15 minutes walk from her residence. The respondent does concede that she unilaterally enrolled the Child in that preschool without the claimant's consent. [18] I now turn to my consideration of the s. 37 factors in light of the evidence before me on this interim application, which, as might be obvious from the above summary, is highly conflicting as to what occurred prior to separation. However, it is fortunately far less so post-separation given that the court has the benefit of the reports prepared by the professional supervisor from when the respondent had supervised parenting time prior to my January 17, 2025 order, which reports I relied on significantly in making said order, and the Parenting Exchange Reports for the period commencing January 24, 2025 (collectively the "Reports"). [19] As is not unusual in a high-conflict parenting situation, both parties have put forward some concerns about the parenting of the Child at the other's home at present. As it relates to post-separation conduct, I do not consider either party's complaints to be of significant concern to the court. Based upon the Reports, the Child appears to be generally healthy,

appropriately attached to both parents and generally well-adjusted in both homes. [20] The Child just turned four years of age. It is inappropriate to consider his views. I do consider it somewhat concerning that the respondent deposes the Child is reluctant to go for his parenting time with the claimant. This is not borne out in the Parenting Exchange Reports. Indeed, on the one occasion when it was raised with the professional supervisor on March 7, 2025, the supervisor, Ms. Swanson, reported as follows: Supervisor arrived at mom's house at 1 p.m. Grandma opened the door and told the supervisor to give them a minute as [T] didn't want to go. [T] appeared for a moment from the right side. Grandma pointed at the supervisor and asked [T], "This lady?" [T] said, "No," and ran back to the right side where he came from, out of the supervisor's view. For the short time that the supervisor saw [T] he looked calm, and he smiled when he saw the supervisor. No one asked [T] in the presence of supervisor if he was willing to go see his dad or not. Grandma closed the door, leaving supervisor outside. Supervisor immediately walked back to her car to get on her phone in order to inform dad that there was a delay. After getting her phone, supervisor called dad and briefly informed him that grandma said that [T] did not want to go. Then supervisor walked right back towards mom's house to

receive [T]. When supervisor arrived, both Grandma and Mom had come outside of the house with [T]. They were already in the cul-de-sac, past their property line, carrying a lot of things: an inflated balloon, a big plastic bowl with a pile of uninflated balloons, a balloon pump, [T]'s jacket, and a regular backpack. All of the above items were being transferred to the supervisor. Grandma asked supervisor to make sure to include in the report that [T] did not want to go for the visit. Supervisor assured grandma that everything would be included. Supervisor looked at [T], who had his usual excited smile when going to see his dad. Supervisor asked [T] if he wanted to go see daddy. [T] smiled and nodded, 'Yes,' as he spontaneously walked forward to go with the supervisor. Supervisor pointed out to grandma that [T] now wanted to go see dad. Grandma asked supervisor to ask dad to let her know when they arrived safely. Grandma also asked the supervisor to tell dad not to give [T] haircuts because mom wanted to do that herself. Mom did not say anything during the exchange. She mostly looked down. Supervisor managed to carry some of the things under her arm in order to free one hand to hold [T]'s hand during the walk on the road towards dad's car. Turning around the corner from mom's street, [T] was able to see dad at a distance waving at him. [T] got very excited and kept saying,

"Daddy. There." After seeing dad, [T] sped up his walk, and in a hurry, he kept tripping in his own shoes. Several times supervisor prevented [T] from falling as his body was going faster than his shoes allowed him to do. It seemed that the shoes were a bit big and were also rubbing against the asphalt of the road, tripping him repeatedly. Dad and his brother were waiting outside their car as they welcomed [T]. [T] immediately went to dad, and supervisor passed on all the things to dad and his brother. Supervisor also mentioned to dad the two requests from grandma about the haircut and about letting her know once they arrived safely. Dad expressed he was surprised to see the big plastic bowl with balloons and said it was weird. Dad asked what happened this time and pointed out that [T] has never resisted visits. Supervisor gave dad a brief account of what happened and mentioned that the report would have all the details. 1:12 p.m., supervisor said, "Bye," and all returned to the car. [21] At the return visit on March 17, 2025, the supervisor said as follows: Supervisor arrived at 12:59 and walked to dad's car. Dad, his brother, and [T] came out of dad's car. [T] was smiling and dad hugged and kissed him. Dad moved [T]'s hair out of the way to show supervisor a recent bruise on [T]'s forehead above the right eye. Dad said that [T] had tripped walking on the sidewalk one day

earlier. Dad said [T] did not put out his arms when he tripped and hit his forehead. Supervisor received [T] and his backpack. He was wearing a warm hoodie vest and had the hood on his head since it was windy. [T] continued smiling and willingly took the supervisor's hand and walked with the supervisor to mom's house. On the way, supervisor asked if he was happy to see Mom, and [T] said, "Yes." Supervisor rang the bell and grandma came to the door. Supervisor moved [T]'s hair out of the way and showed grandma his bruise on his forehead. Supervisor informed grandma that dad said [T] tripped and fell on the sidewalk one day earlier. Grandma looked at [T] and said, "Little boy." Supervisor said bye to grandma and [T], and was about to leave when grandma pointed out to supervisor still carried [T]'s backpack on her shoulder. Supervisor apologized and thanked grandma for noticing on time so supervisor did not need to come back and return [T]'s backpack. [22] The Child, based on the evidence, has strong relationships not just with his parents but also with his extended family. Both maternal and paternal grandparents play a significant role in the Child's life by virtue of their respective living situations. I also accept the Child has a strong bond with his maternal uncle, who resides in the same home as his mother. He is a fortunate little boy in this regard. In saying this, the

respondent's parenting plan appears to fail to account for the attachment the Child has to his paternal relatives. If the claimant can only exercise parenting time in the Lower Mainland, those relationships will be significantly impaired. In contrast, the claimant's parenting plan sees the Child spending some additional time in Kelowna than under my January 17, 2025 order, but not to the extent it will impair his relationship with his maternal relatives in any meaningful way. [23] In terms of the history of the Child's care, I accept that the respondent was the primary caregiver prior to separation. She was a stay-at-home parent, and the claimant was working and studying for his professional designation. When the respondent moved to Delta with the Child, the claimant's role was significantly reduced, first through supervised parenting time, and then for a period of time after the criminal charge was laid, the claimant had no parenting time at all. Now the Child is four and has been spending somewhere approximating 40 percent of the time with the claimant in Kelowna for a period of just over six months. [24] The Child is of an age where stability is important. If the parties resided in the same community or even adjacent communities, I would not have made my January 17, 2025 order on the terms I did. I would have, instead, put in place some parenting schedule that did not

involve such extended periods of time away from either parent. But the reality is that the parties live in separate communities, which requires the court to factor into the analysis both the realities of travel time and travel toll. Fortunately, however, the distance between the parties is not an insurmountable hurdle; it is a manageable one that simply has to be accounted for in my best interests' analysis. [25] I have already made an order addressing parenting responsibilities and allocated them equally, with neither party having final decision-making authority pending trial. Nothing has changed in this regard since I made that order. [26] Family violence is a very serious issue in this file. The court is extremely mindful of the significance of family violence in family law proceedings and the various forms it can take. The court further understands the importance of considering it, where appropriate, in the context of s.

37. I considered this issue and thoroughly reviewed the affidavit evidence of the respondent in this regard at the time of making my January 17, 2025 order. Notwithstanding the respondent's evidence, I concluded, in the circumstances, that it was appropriate that the claimant have significant unsupervised parenting time. Nothing in the evidentiary record has changed in that regard. Specifically, there was no new evidence of family violence and no suggestion at all that the claimant has not strictly adhered to his release conditions made in relation to the criminal proceeding. In this regard, I confirm I have considered the criminal proceeding in my analysis, but conclude at this juncture, it is not relevant to the child's safety, security or well-being. The sole count on the Information pertains solely to the respondent as the complainant. [27] The claimant is further entitled to his constitutionally protected right to the presumption of innocence while the criminal proceeding is ongoing, and very importantly, as I just touched on above, the claimant is adhering to his judicial interim release terms. [28] Although it does not fit neatly into any of the enumerated factors, I have considered the issue of preschool enrolment in my s. 37 analysis. Attending preschool brings with it all sorts of benefits for a young child, including important socialization skills. Socialization

skills that can be particularly hard to obtain for an only child. However, preschool is elective, it is not mandatory, and it is entirely possible for a child to attend two different preschools. I agree that option is not necessarily preferable if there is a possibility of the parents agreeing upon a mutually acceptable preschool, but that simply is not an option here. In these circumstances, the benefits of preschool cannot override the importance of sustaining the Child's relationship with his father and his paternal relatives. I am also satisfied that, notwithstanding that it is August 1, the claimant will be able to secure, in due course, a suitable preschool spot for the Child in Kelowna given the number of options that are available within the community. [29] The other factor I have considered which does not fit into any of the enumerated factors is financial realities. The claimant does not, on the evidence before me, have the financial means to be exercising his parenting time exclusively in the Lower Mainland. I pressed the respondent on this point during the course of submissions and she was not able to offer up any solution as to how this practical reality could be managed. [30] In the result, and relying heavily on the Reports, which are the most reliable and independent evidence before me, I am satisfied that the parenting plan proposed by the claimant should be

implemented with the exception that I will hear from counsel and the respondent at the conclusion of these reasons as to the date of implementation as September 1, 2025, is not a Saturday. [31] Before addressing that housekeeping matter, in increasing the claimant's parenting time slightly beyond my January 19, 2025 order, I have considered that this does slightly reduce the amount of time spent commuting for the Child, but more significantly allows for the Child to attend two consecutive weeks of preschool in each of the separate communities. That stability is important, and given that the Child has managed well being away from the respondent for 10 days at a time since my January 17, 2025 order, I do not consider the increase to 14 days to be contrary to his best interests. [32] Costs are always awardable at the discretion of the chambers judge under the Supreme Court Family Rules. These are assessed generally based upon substantial success. The claimant was substantially successful and thus is entitled to his costs of these applications, but simply as costs in the cause. [33] To summarize, subject to the determination of the commencement date, the relief sought by the claimant in the claimant's notice of application as identified above is granted with costs in accordance with these reasons for judgment, and the relief sought in the respondent's notice of application is dismissed. [34] Upon hearing from counsel and the parties, I order that parenting schedule set out in the claimant's notice of application, instead of commencing September 1, 2025, will commence on August 30, 2025, with that being the respondent's parenting time, and thereafter it will be the two weeks on and two weeks off with the exchanges on Saturdays at 1:00 PM. "Hardwick J."