M.P. v. P.P.

2023 BCSC 1530 M.P. v. P.P.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.P. v. P.P., 2023 BCSC 1530 Date: 20230831 Docket: E64676 Registry: New Westminster Between: M.P. also known as M.H.-E. Claimant And P.P. Respondent Before: The Honourable Justice Norell Reasons for Judgment Counsel for the Claimant: R. Roxborough Counsel for the Respondent: J. Brown Place and Dates of Hearing: New Westminster, B.C. January 12, March 10, and April 28, 2023 Place and Date of Judgment: New Westminster, B.C. August 31, 2023 [1] These are reasons on two applications, one brought by each party, concerning parenting arrangements for their two children, now just turning two and three and a half years old. In between the hearing dates for these applications, I heard other applications of both parties concerning parenting arrangements. The reasons arising out of those applications are indexed at 2023 BCSC 694 ("Previous Reasons"). Justice Gomery had previously given reasons indexed at 2022 BCSC 1511. The arguments and orders being pursued on this application have winnowed over time. [2] The issues remaining are: a) Parenting Time: The respondent seeks an order that the children reside equally with each party on a 2-2-3 (alternating weekend) schedule. The claimant does not oppose a gradual increase to one or two overnights per week to reduce the current number of exchanges, but her proposal results in little further

parenting time for the respondent; b) Parental Responsibilities: The respondent seeks an order that the parties share all of the s. 41 parental responsibilities. The claimant does not oppose this but seeks final decision-making authority. This order was not sought in her notice of application but the respondent consents to having that issue heard; c) Parenting Exchanges: The respondent seeks an order that the parties may attend the exchange of the children without the attendance of a third party, and that the parties will not speak to each other at exchanges except brief cordial greetings, with their body language neutral and benign. The claimant opposes this as she alleges a history of family violence; d) Disclosure of Information: The respondent seeks an order that the claimant forthwith disclose to the respondent where she is residing and the names of all tenants on the lease. The claimant opposes this for the same reason; and e) Fines: Both the respondent and the claimant seek fines of up to $5,000 against each other for withholding the children on the other's parenting time. Both deny any wrongful withholding. [3] The record on this application, like the previous application, is voluminous. In my Previous Reasons, I reviewed the procedural history up to the time of Justice Gomery's order, and the events up to the time of the urgent applications. Other than the specific

evidence that I will address below, I rely upon the summary of the evidence in my Previous Reasons and the reasons of Justice Gomery, because the evidence remains largely the same. Legislative Framework [4] When making a parenting order or a variation of a parenting order, the court must consider the best interests of the child only: DA, s. 16(1). The court must consider all factors related to the circumstances of the child, including the factors in s. 16(3). In considering those factors, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being: s. 16(2). The court must not take into consideration the past conduct of any person unless the conduct is relevant to the parenting order: s. 16(5). In allocating parenting time, the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: s. 16(6). [5] The factors in s. 16(3) are: (a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each spouse's willingness to support the development and maintenance of the child's relationship

with the other spouse; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [6] If family violence is involved, the Court must consider the factors in s. 16(4): (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour

in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor. Parenting Time [7] On August 26, 2022, Justice Gomery ordered ("Gomery Order"): 5. On an interim basis, upon the Claimant's return to British Columbia, the Respondent will have parenting time as follows: a. For the first three weeks, the Respondent will have a minimum of 12 hours of parenting time per week with three (3) two-hour blocks between Monday and Friday inclusive and one (1) six-hour block on Saturday or Sunday; b. After the first three weeks, the Respondent's parenting time will be extended and the Respondent will have 18 hours of parenting time per week in six-hour blocks, with two blocks between Monday and Friday inclusive and one block on Saturday or Sunday.

6. The parties have liberty to apply to review the interim parenting schedule after December 1, 2022. [8] On November 4, 2022, Master Krentz ordered ("Krentz Order"): BY CONSENT, PURSUANT TO THE Divorce Act and Family Law Act, the Respondent shall have the following parenting time, on an interim without prejudice basis pursuant to the Order of Justice Gomery made August 27, 2022: a. November 5, 2022 from 10:00 a.m. to 4:00 pm; b. Commencing on November 7, 2022: i. Tuesday and Thursday from 9 a.m. to 12:00 p.m. ii Saturday from 9 a.m. to 3:00 pm c. Commencing on November 14, 2022: i. Tuesday and Thursday from 9:00 to 1:00 pm ii. Saturday from 9 am to 3:00 pm d. Commencing on November 21, 2022: i. Every Tuesday, Thursday and Saturday from 9:00 am to 3:00 pm, until further order or agreement between the parties and subject to the review contemplated by the Order of Justice Gomery made August 26 2022. [9] As there is a review provision in the Gomery Order, and the Krentz Order states it is subject to that review provision, there is no need for the respondent to show a material change in circumstances as a threshold requirement before a variation is made: Kamani v. Kamani, 2017 BCSC 2259 at para. 9. [10] I will address each of the factors in ss. 16(3) and 16(4). I have grouped some factors together due to their similarity. Children's Need for Stability [11] The children are still

quite young, and require stability. The parties separated in March 2022, when the children were very young, the youngest at the time being only six months old. When this application first began, the claimant was breast-feeding the youngest, which made longer parenting time with the respondent difficult. However, that was since ended. The children have lived most of their time since separation with the claimant. They have had much instability in their lives because of the high conflict between the parents, with several moves while in the claimant's care: first to a women's shelter upon separation; then to Nevada upon the claimant's without notice relocation application which was granted in May 2022; then a return to the lower mainland in November 2022 after the Gomery Order; and since then at least three more moves to two rental locations and a women's shelter. The last move to a women's shelter was a result of what the claimant believes was the respondent breaching a probation order. The respondent denies this. The respondent occupies the former family home, and when he has parenting time with the children, it is there. Children's Relationship with Parents and Others [12] The children have a good relationship with each parent. The parties love their children very much. The claimant does not have extended family in the lower mainland as she is from the U.S. The respondent's

parents live nearby, but the claimant alleges that they have not had a significant relationship with the children. The two most important people in the children's lives are their parents. Ability and Willingness of Each Parent to Care for the Children [13] On the evidence, each parent is willing and capable of caring for and meeting the needs of the children. The claimant initially argued that the respondent had little experience caring for children. However, that evidence was denied by the respondent, and the argument has lost its force over time, as the respondent has been exercising regular parenting time. The claimant also alleges that the respondent is involved with dangerous criminals in the unauthorized manufacture and sale of marihuana. As Justice Gomery and I have already noted, that contested issue cannot be determined on interim applications. There is no evidence that while the children are in the respondent's care, they have been exposed to this, if it exists. Willingness of Each Parent to Communicate and Cooperate [14] Neither party trusts each other. On the conflicting evidence I cannot determine who, if either, is more willing to foster the other's relationship with the children. The parties have generally been able to follow the parenting orders except for the instances that are the subject of the applications for fines. Encouragingly, as of the parties last

attendance, they had agreed to the respondent having some limited overnight time (one and two nights over two weekends), but even that was subject to some dispute, the nature of which was not provided. History of Children's Care [15] The claimant was a stay at home parent during the relationship. The respondent runs his own businesses. There is conflicting evidence of how much time the respondent was working and how much flexibility he has in his hours, with the claimant stating he had extended hours away from their home, and the respondent stating he has a flexible work schedule. The claimant stated that until the second child was born, the respondent took little care of the oldest. She admitted of the respondent further involvement after that, but said it was not significant. The respondent denies this, and states that he was an active and involved parent, and stated that the claimant was at times a disinterested mother and they had to hire a nanny even though she was not working outside the home. Since separation, the claimant worked following her return to Nevada. Upon her return to BC, she continued to work remotely until January 2023, and was unemployed after that. Her present employment is not known. The respondent continues to work in his businesses and has had parenting time with the children during the day three days per week since November 2022. Children's Views [16]

The children are too young to consider their views. Children's Cultural, Linguistic, Religious and Spiritual Upbringing [17] The respondent is teaching the children the Czech language when they are in his care. Otherwise, the children are still very young and, on the evidence, this is not a significant factor. Plans for the Children's Care [18] The respondent states that his work schedule is flexible and that if he had to work, his mother can care for the children. The claimant's current employment situation is unknown. Family Violence and Criminal Matters [19] This has been the continuing basis of much of the dispute between the parties. The claimant alleges coercive and controlling behaviour during the relationship, along with physical violence. She also alleges that the respondent has dangerous criminal associations. The respondent denies these completely, and alleges it was the claimant who was violent. There was an argument between the parties and subsequent altercation between the respondent and the police in March 2022, at which point the parties separated. The respondent was charged criminally. He subsequently pled guilty to obstructing a police officer, and other charges were stayed. He is currently on probation. There has been no incident of family violence toward the claimant since then, but the claimant alleges breaches of the bail, probation and protection orders.

This combined with the alleged history of family violence and criminal associations, cause her to fear for her safety. This has been part of the basis of previous orders, and her current position regarding exchanges and disclosure of her address. [20] In May 2022, the respondent was charged with breach of the probation order arising out of a text and phone call he is alleged to have made to the claimant. The claimant also alleges that the respondent approached her at an exchange in January 2023. This resulted in the claimant yelling at the respondent to stay away from her, in front of the children. No charges arose out of that incident. The parties have very different versions of what took place, that cannot be reconciled on the affidavit evidence. The respondent states he was attempting to pass the youngest child to her as the child was wailing. The next incident was on February 28, 2023 when the claimant alleges that the respondent followed her third-party exchange facilitator to her home. [21] There has been no family violence directed toward the children. The children were present when the family violence occurred at separation, but each party blames the other for that. Witnessing family violence can affect children emotionally and psychologically, but they were six and 18 months at the time, so likely do not remember it. There have been difficult exchanges in front of the

children in November 2022 and January 2023, but the circumstances are contested. If the incident on February 28, 2023 occurred, which is a contested matter in the criminal court, it has affected the children because it caused the claimant to move to a women's shelter, and subsequently a new rental home. Whether that move was justified cannot be determined on the conflicting information and will have to await trial. I conclude that the relationship between the parties remains difficult, and that it is best for the children's emotional and psychological health that the opportunity for the parties to interact in front of the children be minimized. Conclusion [22] Both parties are loving capable parents and it is in the children's best interests that both relationships be fostered. In this case, this means that the respondent's parenting time should be increased. However, given the history of the children's care which has been primarily with the claimant, their young age, and the upheaval they have already endured, I find that any change will have to be gradual, and that on an interim basis the majority of parenting time will be with the claimant. The children are now older although still very young, the youngest is no longer breast feeding, and they can have overnights with the respondent. The parenting time should also be structured to minimize the number of exchanges as it negatively impacts stability for children. [23] I therefore order as follows: 1. Until further order of this court or agreement of the parties, the respondent will have parenting time with the children on: i) Tuesdays from 9:00 a.m. to 6:00 pm; and ii) Fridays from 4:00 p.m. to Sundays at 10:00 a.m.

2. After eight weeks on the above schedule, the respondent will have parenting time with the children on: i) Tuesdays from 9:00 a.m. to Wednesday at 9:00 a.m.; and i) Fridays from 4:00 p.m. to Sundays at 10:00 a.m. Parental Responsibilities [24] The respondent seeks an order pursuant to s. 40(2) of the FLA that on an interim basis, the parties share all of the s. 41 parental responsibilities on the following terms: a) In the event of the death of a guardian, the surviving guardian will be the only guardian of the children; b) Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the children; c) Each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the children, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; d) The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; and e) In the event the guardians cannot reach agreement on a significant decision despite their best efforts, either party may apply for directions to the court. [25] The claimant is not opposed to these orders except with respect to (d). She wishes to have final decision making. [26] The Krentz

Order contains an order that the parties communicate only in writing, and only with respect to the children. No party seeks to have that order varied. [27] There is limited evidence to support the final decision making requested by the claimant. On the basis of the evidence filed on this application, I do not agree that it is in the children's best interests for the claimant to have the final decision-making authority. There has not been an impasse on a decision regarding the children's care. There has been no indication that the respondent is making decisions that are not in the children's best interest such that it would indicate that the claimant should have the final say. The children will benefit from having input on significant decisions from both parents who love them. [28] I have considered that the relationship between the parties is volatile, and the claimant states that she fears the respondent, but any communications will be in writing pursuant to the Krentz Order, and only about the children. Given the difficult relationship between the parties, I am also concerned that final decision-making authority might increase the conflict, which is not in the children's best interests. [29] I make the orders on the above terms as requested by the respondent. The claimant's application to have final decision-making authority is dismissed. Parenting Exchanges [30] The

respondent seeks an order that the parties be able to attend exchanges in person without the need to have a third person present. [31] The Krentz Order includes the following: 7. BY CONSENT, all exchanges of the Children to be facilitated by a third party, unless otherwise agreed between the parties, and to be done at the Police Station with the address of [ ] or such other location agreed between the parties. The respondent may not use his father [ ] to facilitate the exchange of the Children. [32] In the previous applications before me, the claimant had sought a variation of the Krentz Order so that all exchanges be supervised by a professional independent third party (as opposed to any third-party exchange facilitator) and that the respondent be required to attend all exchanges and stay there for 10 minutes after, with the independent third party, to ensure that he did not follow the claimant or her third-party exchange facilitator to her home. This arose out of the claimant's allegation (and the subsequent criminal charges) that the respondent had followed her third-party exchange facilitator to her home following the exchange of the children on February 28, 2023. [33] At paras. 34 to 49 of the Previous Reasons, I reviewed the evidence and arguments of the parties on this issue. The same arguments were advanced on this application. Although the orders sought are different,

in my view, this issue is largely determined by the reasoning behind my previous order. I did not vary the Krentz Order, but made an additional order that the respondent not follow the claimant or her third party facilitator, directly or indirectly through another person, from any exchange, and that if he attends an exchange in person, he remain for 10 minutes. Implicit is that I found that supervised exchanges were to continue. [34] Nothing has changed since then. There has been no material change in circumstances or significant new information to meet the threshold required for varying an interim order: FLA, s. 216; DA, s. 17(5). [35] While I am hopeful that the relationship between the parties will eventually settle and that the parties will be able to demonstrate good, cooperative behaviour in front of the children, for the children's best interests, I am not persuaded that they have yet reached that level. It is impossible on the conflicting affidavit evidence to determine who has acted appropriately or not at exchanges, but what is undisputed is that the few personal exchanges that have taken place did not end well and there was disruption to the children's care and parenting time. It is not in the children's best interest to risk these results. As stated at para. 49 of the Previous Reasons: It is not in the best interests of the children that there be high conflict

scenes at exchanges, that they should have their stability and homes disrupted with a move, or that they not have parenting time with their father. [36] I dismiss the respondent's application to vary para. 7 of the Krentz Order. Disclosure of Address [37] The respondent seeks an order that the claimant disclose her address and the names of all tenants on the lease. The respondent states he should know where his children are residing. The claimant opposes this, making the same arguments she made in the previous applications regarding the fear she has of the respondent. [38] On June 28, 2022, Master Nielsen ordered: 3. BY CONSENT, the Respondent shall not ask the Children about where they reside with the Claimant or any questions that are reasonably expected to elicit information about where the Children resides with the Claimant. [39] In Justice Gomery's reasons he stated: [39] I will assume that Ms. P's fear that Mr. P may harm her has at least some justification. Ms. P is protected by a no-contact order and by release conditions that will remain in place while the criminal charges against Mr. P are outstanding. Ms. P's concern is that court orders will not suffice to deter him from violent acts against her. [40] In my view, any risk to Ms. P is exceptionally small. It is clear from the history of this proceeding to date that Mr. P is strongly motivated to maintain a

relationship with his children. Since the litigation began, he has pursued his claims to parent the children appropriately and persistently. It is highly unlikely that he would do anything that would jeopardize his objective. It would be irrational conduct on his part. [41] Even if Mr. P were motivated to seek out Ms. P with a view to harming her, Ms. P's concern that he might obtain her address from A.P. is far-fetched. A.P. is a two year old child in diapers. It is unrealistic to think that he knows Ms. P's address. If Ms. P is careful not to discuss it in his presence, it will likely be years before he learns it. [74] For the reasons I have already given, while I accept that Ms. P is sincere, I do not believe that her fear of being killed if she resides in the Lower Mainland is reasonably founded. [40] Although Justice Gomery found the risk of harm was small, he nonetheless did not expect that the respondent would be able to know the claimant's address. [41] Subsequently, the Krentz Order included the order regarding third parties attending exchanges. [42] The claimant argues that Justice Gomery's prediction of the respondent's good behaviour did not become true, and that since then the respondent has displayed an escalating pattern of breaching court orders. This was canvassed in the previous applications and in the Previous Decision. [43] Although the order sought now is

different from those at the previous applications, in my view, this issue is largely determined by the reasoning behind the Previous Decision. The basis of the claimant previously seeking the order that exchanges be professionally supervised and that the respondent attend at exchanges and remain there for 10 minutes, was her fear of family violence from or through the respondent. Again, at paras. 34 to 49 of the Previous Decision, I reviewed the evidence and parties' arguments that touch on whether the claimant's address should be known to the respondent. I concluded at para. 47: [47] I echo the comments of Justice Gomery in his August 26, 2022 reasons, that on the record before me, and in the context of an interim application, I am not in a position to make definitive findings of fact that involve such hotly contested issues when there is only affidavit evidence. That is a matter for trial. However, I do conclude, as did Justice Gomery, that the claimant has some basis to be fearful and to want to have her address remain unknown to the respondent. I also find that the claimant has a reasonable basis for believing that the respondent did follow the facilitator to her home on February 28, 2023. I note previous orders were made in a way that the claimant's address was not disclosed to the respondent. I am not prepared on the record before me to find that the respondent has

otherwise embarked on a sinister course of conduct to test the limits of court orders to gain some advantage over the claimant on the other occasions as alleged by the claimant. [44] There is no evidence that anything has changed since then. To the extent that a variation of previous orders would be required, I find that there has been no material change in circumstances and no new significant information that was not known previously. [45] I appreciate that parents generally should know where their children are residing with the other parent. Again, I am hopeful the parties will be able to reach a level of trust and cooperation so that this can take place. However, the last time the respondent became aware of the claimant's address, she was fearful enough that she decided that she had to move. This was disruptive to the children and not in their best interests. [46] I dismiss the respondent's application for an order that the claimant disclose her address and the names of other tenants, if any, on her lease. Fines [47] Both parties seek fines against each other for alleged wrongful withholding of the children for events prior to January 1, 2023. [48] The Previous Decision also concerned an allegation of wrongful withholding of the children, but it was limited to March 4 to 28, 2023. However, the events of withholding prior to January 1, 2023, were still reviewed and argued in

support of other orders then being sought. At that time, the claimant then argued that these events displayed escalation of behaviour, testing of limits, and disregard of court orders. Some of this history is therefore reviewed in more detail in the Previous Decision. [49] The relevant portions of ss. 61 and 62 of the FLA, provide: 61(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (g) require the guardian to pay (i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000. 62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (f) other circumstances the court considers to be sufficient justification for the denial. (2) If, on an application under section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory

parenting time or contact with the child. [50] To give context to s. 62(1)(f), subparagraphs (a) to (e) which are not replicated above, are generally circumstances in which there are concerns for the safety of the child, the sickness of the child, or a repeated failure of the parent to exercise parenting time, which all impact the best interests of the child. [51] The onus is on an applicant to establish there has been a denial of parenting time, and once that is established, the onus shifts to the other parent to show that a denial was not wrongful. Section 62(1) permits reasonable denials, with the best interests of the children being the only consideration: A.N. v. A.M.N., 2021 BCSC 2228 at para. 17. [52] I will address each instance of alleged wrongful withholding of parenting time identified by the parties. July 7, 2022 [53] The respondent alleges the claimant wrongfully withheld the children on this date. On June 28, 2022 a consent order was made by Master Nielsen. It included the following terms: 1. BY CONSENT, pursuant to the Divorce Act, the Respondent shall have the following parenting time with the Children : a. The Respondent shall have 12 hours of parenting time, to be at least two six-hour periods between July 7 and 9, 2022. d. The Respondent will pay for the following costs : i. (i) Reasonable airfare for the Claimant and the Children to fly to and from British

Columbia; (ii) reasonable accommodations for two nights for the Claimant, and (iii) the Claimant's reasonable transportation costs in British Columbia up to a combined total of $2,000 Canadian Dollars; e. The Respondent will provide payment within 24 hours of the claimant providing an invoice(s), through counsel, confirming the expense(s). [54] On July 8, 2022, the respondent had parenting time with the children for eight hours, and not any other parenting time from July 7 to 9, 2022. [55] The circumstances of the respondent not having parenting time are that the claimant's flight was delayed. When it finally arrived, her credit card was declined and she could not get a rental car. The respondent states that he received an offer from the claimant through counsel that he pay for an Uber to the exchange location. According to him, he agreed. The claimant states that she understood that the respondent agreed to wait until she could sort out her credit card, and that took until 5:00 p.m. at which point it was too late for parenting time. The respondent denies this and states that the next offer he received through counsel was that the claimant now wanted him to pay for all Uber costs throughout the three days, even if all costs exceeded $2,000. He disagreed. Parenting time did not take place on July 9, 2022 because the claimant had an early flight. [56] In my view, there was no

wrongful withholding. While the conflicting evidence cannot be resolved on affidavits, the situation reflects the parties' poor relationship, and perhaps a miscommunication, rather than wrongful withholding. October 1, 2022 to November 3, 2022 [57] The respondent alleges that the claimant wrongfully withheld the children between these dates. On August 26, 2022, Justice Gomery ordered: (1) return of the children to the Lower Mainland by October 1, 2022 unless extended; (2) the respondent have the interim parenting time ordered once the children return; and (3) the parties may further apply if they could not agree on the amount the respondent would pay to the claimant for her expenses to move to BC. Specifically, Justice Gomery stated: [139] The parties expect to make an agreement providing for a payment to Ms. P to address the expenses she will incur in returning to British Columbia with the children and establishing a household here. If the parties are unable to agree, there will be liberty to apply for an order that such a payment be made as a term of this order. [58] The claimant did not return to the Lower Mainland on October 1, 2022. Instead, as set out in my Previous Decision: [21] On September 22, 2022, the respondent filed a notice of appeal with respect to the imputation of income and quantum of support of the Gomery Order. [22] Subsequently the parties were not able to

agree on an amount to be paid by the respondent to enable the claimant to return to BC. The claimant filed a request to appear before Justice Gomery to apply to stay her return to BC pending the outcome of the respondent's appeal, and the respondent filed a request to appear before Justice Gomery to apply to enforce the immediate return of the children to BC. [23] On October 19, 2022, the respondent abandoned his appeal. [24] On October 26, 2022, a hearing occurred before Justice Gomery. On October 26, 2022, the parties came to a without prejudice agreement that the respondent would make a payment of $10,000 to the claimant on the condition that she return to the Lower Mainland by November 3, 2022. The respondent represented that he intended to abide by the support orders in place. [59] On November 3, 2022, the claimant returned the children to the Lower Mainland. The claimant argues that she was justified in not returning the children on October 1, 2022, because Justice Gomery's decision made clear that a condition of her returning to the Lower Mainland was that she has adequate support. She refers to the following paragraphs in Justice Gomery's reasons: [57] This is a case in which, as Karakatsanis J. explained in Barendregt, the children's welfare and Ms. P's welfare are intertwined. The children's needs will only be well satisfied in British Columbia if Ms. P is able to

restore herself to a stable, comfortable, living arrangement. Otherwise, both mother and children would be better off living in Nevada. [67] Ms. P will be in a position to make clear and practical plans for the children's care in British Columbia, as she has in Nevada, if she has funds to establish herself and an income sufficient to meet her reasonable expenses here. [90] I will come to address the determination of child support and spousal support payable by Mr. P to Ms. P later in these reasons. At this stage, however, it is important that I state my conclusion that support is payable in amounts sufficient to enable Ms. P to live with the children in the Lower Mainland in reasonable comfort and security. As will be obvious from my reasoning to this point, this is a crucial consideration. [60] The respondent argues that the claimant's proper course was not to disobey the order to return to the Lower Mainland, but for the claimant to seek a stay of the order. [61] In my view, there was no wrongful withholding. While the claimant did not file a stay application, both parties made a request to appear before Justice Gomery to address these issues after the respondent indicated that he was going to apply for a stay and appeal the support orders. Justice Gomery made clear that for the claimant and children to leave Nevada and return to BC, (where it was then thought that the

claimant would not have a job and with two very young children) they required support. Further, the parties could not agree on the amount that would be paid by the respondent to the claimant to enable her to return to BC. Once this was sorted, the claimant returned to BC. It was not in the best interests of the children to return to BC if the claimant and the children were going to be without funds to live. The youngest child was then 18 months old. December 10, 2022 [62] The claimant alleges that the respondent wrongfully withheld the children on this date. She states that she told the respondent that this was in breach of the Krentz Order and insufficient breastmilk had been provided for the youngest child. The respondent states that the withholding was a misunderstanding on his part. His counsel had made an offer on December 4 and followed up again after, and he thought the claimant had agreed to this. [63] I find this was wrongful withholding. I have read the communications between the parties on December 10, 2022. The claimant was clear that this was in breach of the Krentz Order and that her counsel had not responded to the offer. I accept that the respondent may have initially been under the impression that the claimant had agreed to an overnight, however, he could not have continued to believe that after the exchange with the claimant. December 20 and 22, 2022 [64] The

respondent alleges that the claimant wrongfully withheld the children on these dates. On November 4, 2022, Master Krentz ordered that all exchanges of the children be facilitated by a third party, unless otherwise agreed between the parties. The claimant states that on November 5, 2022, the respondent suggested that they try an exchange without a third party. The parties had a protocol where they parked nose to nose and placed the children into the vehicles without comment. They were able to do so without incident. As this appeared to proceed well, the parties continued this arrangement. However, the claimant alleges that the respondent then started testing the order and talking to her inappropriately and was late multiple times. The claimant alleges that on November 17, 2022, the respondent blocked the claimant while she was trying to place one of the children in the car. Following these events, the claimant was no longer comfortable continuing this arrangement, and began requiring the exchanges to take place with a facilitator as provided in the Krentz Order. When the respondent did not pay child or spousal support as ordered, she was without funds, and the respondent refused to pay for any facilitator. She offered to fund half the exchanges. [65] I find there was no wrongful withholding. There was no agreement or order with respect to who would pay for the third-party

facilitators. Given that there was an order for a third-party exchange, in my view, the claimant made a reasonable offer to fund half of the exchanges. The respondent did not agree and so he went without parenting time. The respondent could have simply paid for a facilitator to attend and he would have had parenting time. Again, this dispute reflects the parties' poor relationship rather than wrongful withholding. December 24, 2022 [66] The respondent alleges that the claimant withheld the children on December 24, 2022. The claimant states that there was a terrible winter storm with the public being advised to stay off the roads. She was concerned for the safety of the children. The respondent states that the weather was warming, he was able to drive on the streets, and he had a facilitator available to pick up the children. [67] I find there was no wrongful withholding. The claimant's position was reasonable in the children's best interests. She said she could not get out of her driveway. There were public warnings to stay off the roads. It was an ideal situation for the claimant to offer meaningful compensatory parenting time, particularly as this was December 24, 2022, and the respondent was missing holiday celebrations with the children, and the claimant did offer this. I appreciate that the respondent would have seen this as a poor substitute after Christmas had passed,

but it was an unfortunate situation, not a wrongful withholding. December 31, 2022 [68] The claimant alleges that the respondent withheld the children on this date. The respondent states he did this after the claimant wrongfully withheld his parenting time on December 20, 22 and 24, 2022, causing him to miss Christmas with the children. He also states that he proposed an overnight to make up for the missed time on December 20, 22 and 24, 2022. The claimant disagreed but then sent a "mixed message" referring to pick up the next day. [69] The claimant refers to the affidavit sworn by the respondent on December 29, 2022, where he states that the retention of the children on December 10, 2022 was a misunderstanding and that he would not do so again. She argues the respondent only states what he needs to, and is not sincere. I have considered this, however, the respondent's frustration of not being able to have what would undoubtedly been a much-anticipated Christmas celebration with the children, is understandable. That took place in the interim. [70] I find that while this was wrongful withholding, but the circumstances are mitigating. The respondent should not have withheld the children without agreement, but his disappointment is understandable. By saying this, I am not condoning unilateral self-help remedies without the agreement of the other parent, and which are contrary to

the existing orders. Rather, I am suggesting that the parties should be able to work cooperatively when unforeseen events such as the unavailability of a third-party facilitators, or the storm on December 24, 2022, make a parenting time exchange difficult, particularly when it is an important time of year for the respondent. An overnight on December 31, 2022, another holiday, might have been a reasonable solution. February 14, 2023 [71] The claimant alleges that the respondent withheld the children on this date. She states that the respondent insisted that she personally attend the exchange. He did not communicate with the claimant for a period of 90 minutes or respond to her inquiries about facilitating the exchange. After the claimant confirmed that she was present at the exchange location, the respondent indicated that it was "boys' night" and he withheld the children overnight contrary to the Krentz Order. The respondent states that he had reasons to believe the claimant was not in the Lower Mainland and other unknown people were looking after the children. [72] I find this was wrongful withholding. It is not appropriate for the respondent to insist that the claimant personally attend an exchange, because it is contrary to the Krentz Order, however, it is appropriate for him to ask, if he had a reasonable basis for doing so, whether the claimant was actually in the Lower

Mainland and not elsewhere and leaving the care of the children to others. That would be a reasonable question to ask in the best interest of the children. Once the claimant confirmed this, the failure to return the children was wrongful. Other allegations [73] There were two other allegations raised in the notice of applications, which I have treated as abandoned as they were not pursued at this hearing. The respondent's notice of application contains an allegation that the claimant has not facilitated video calls since November 18, 2022 as provided in the Krentz Order. The claimant's notice of application contains an allegation that the respondent consistently returns the children late. The Court reminded the respondent in the Previous Decision that court orders must be obeyed and the children returned on time. Summary [74] I have found three instances, December 10 and 31, 2022, and February 14, 2023, where the respondent's withholding of parenting time was wrongful. However, I am not persuaded that a fine is an appropriate remedy. The purpose of orders under s. 62 is not to punish, but to remedy or ensure compliance, and the parties have been working through a very difficult separation. [75] In my view, the far more effective remedy in this case, as a matter of first resort, is compensatory parenting time, as that is what the parties value most. However, that was not sought on these applications. I trust that both parties understand that if parenting time orders are wrongfully not obeyed in the future, that this may be the result. Fines at this point will do nothing but fan the flames of conflict and distrust between the parties. I dismiss the applications for fines. "Norell J."