S.D.H. v. T.H.

2016 BCSC 380 S.D.H. v. T.H. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.D.H. v. T.H., 2016 BCSC 380 Date: 20160303 Docket: E091663 Registry: Vancouver Between: S.D.H. Claimant And T.H. Respondent Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Claimant: S.G. Label Counsel for the Respondent: S.N. Mansfield Place and Date of Trial/Hearing: Vancouver, B.C. September 8 - 11, November 30 and December 1 and 2, 2015 Place and Date of Judgment: Vancouver, B.C. March 3, 2016 Table of Contents Background. 3 The Terms of the Final Order. 7 The Affidavits Supporting the Final Order. 8 The Agreed Findings from the Second Report. 9 The Application to Vary the Final Order. 13 Credibility of the Korpach Reports and the Children's Therapists. 14 1. Dr. Korpach. 14 The Alleged Promises of the Children's Therapists. 16 Secret Recordings with the Children's Therapists. 18 The Father's Position on the Application. 20 The Father's Evidence. 20 Dr. Krywaniuk's S. 211 Report 21 Father's Supporting Affidavits. 23 Transcript of Recordings with Ms. Gonzales. 27 The Mother's Response to the Application. 27 The Requisite Legal Test on a Variation. 29 Material Change in Circumstances. 31 Admissibility of Reports of Dr. Ley and Mr. Barker 31 Dr. Ley's Report 35 Mr. Barker's Reports. 38 Discussion of the Reports of Dr. Ley and Mr. Barker. 39 The Respective Proposed Parenting Plans of the Parties. 40 Parenting Time. 40 Claimant's Position on Parenting Time. 40 Mother's Position on Parenting Time. 42 Discussion and Decision Regarding Parenting Time. 43 Reasons for Finding of Material Change in Circumstances. 46 Parental Responsibilities. 49 M.H. 50 N.H. 51 Discussion and Decision of Parenting Responsibilities. 51 Conditions of Parenting Time. 53 Variation of Order. 53 [1] This is an application brought by the claimant (the "Father"), to vary the consent order made by Madam Justice Holmes on May 31, 2012 (which I will refer to as the "Final Order") relating to parenting time and guardianship. [2] The application concerns the parties' two children, M.H., born in 2002, now aged 13, and N.H., born in 2004, now aged 11 (the "Children"). The parties also have a son, B.H., who will be 19 and is not part of this application but who has been referred to by the parties and various therapists in the material before this Court. [3] I have described the parties and children by initials as the court's publications are publically available and these reasons contain sensitive information the children, if not now, then in later years may not wish the public to have access to. [4] The relationship between the parties can be conservatively described as a "high conflict" one notwithstanding the intervention of numerous professionals to try to assist them in their relationship with one another and with regard to their parenting responsibilities. They have been before this Court on a number of previous occasions. Background [5] The parties married in 1996 and separated in the spring of 2009. The Father was born in February 1962 and the respondent (the "Mother") in January 1969. [6] Following separation the parties remained living in the matrimonial home and shared parenting until December 2009 after which parenting arrangements changed. Initially the parties shared parenting time. From May 2010 to October 2011, M.H. and N.H. spent weekdays with the Mother and weekends with the Father with B.H. residing full-time with the Father. From October 2011 to the Final Order, M.H. and N.H. resided with the Mother during the week but spent three of four weekends with the Father. [7] I will commence with a review the previous court orders with particular focus on those which relate to the Children. The terms of the orders and reports resulting from them demonstrate the devastating impact a high conflict parental relationship can have on the parties' young children. [8] Dr. Korpach was appointed by consent on December 8, 2009 to prepare a report ("First Report") under s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. [9] On January 26, 2010, Mr. Justice Voith granted a consent order whereby the parties consented to interim joint custody and guardianship and shared parenting on a week-on/week-off rotating schedule. The order provided that each party had the obligation to advise the other of any significant matter affecting the children, to discuss and attempt to reach agreement and, failing such agreement, to engage in mediation with the parenting coordinator on the issue. The parties consented to the appointment of Ms. Jones as parenting coordinator who was to make the decision should the mediation fail to produce an agreement, subject to a review under s. 32 of the FRA. I reproduce several of the terms of the Voith consent order which set out the responsibilities of the parenting coordinator as they relate to ongoing issues between the parties. The parenting coordinator was: a) To help the parties resolve parenting issues in a way that is intended to minimize parental conflict and in a child-focussed manner; e) To help facilitate the Children's relationship with each of the parties; f) To help the parties communicate more effectively with each other and the Children; g) To help with the exchange of information about the Children (for example, their health, welfare, education or religion) and their routines; j) To make decisions that resolve conflicts about the Children's participation in extra-curricular activities and programs; [10] Ms. Jones' appointment was for a six-month period. Her appointment was terminated by the Mother's counsel on May 31, 2011 because it was the Mother's view Ms. Jones was becoming too closely aligned with the Father's interests. [11] Dr. Korpach's First Report is dated March 19, 2010 and contains the following recommendations relating to the Children: (a) The children reside with the mother during school weeks and one weekend of four and with the father three of four weekends from after school on Friday at 5 pm until Sunday at 4 pm and on a mid-week evening following the "non-access weekend"; (b) The father would have additional access to be determined by the mother based on the academic and behavioural needs of the children and the father's willingness to follow recommendations from professionals and support the mother's parenting; (c) The mother would have primary care and responsibility for the children's medical, dental, academic and other major needs with input from the father; (d) The children's best interest would be best served by an arrangement that allowed their needs to be met expediently and not delayed by excessive parental deliberation and delay; (e) Ms. Jones would continue to act as parenting coordinator; (f) [N.H.] and [M.H.] should be seen for individual play therapy by a therapist recommended by Ms. Jones; (g) [N.H.] and [M.H.]'s therapy should focus on emotional/psychological issues associated with parental conflict and divided loyalties. [N.H.] should receive assistance with issues related to trauma, anger and his tendency to dissociate; (h) [M.H.] should be referred privately for an assessment of Asperger's Disorder by a qualified psychologist. A medication consultant for his ADHD is recommended. [M.H.] should be allowed to settle into the recommended parenting schedule and therapy but if his attention and impulsivity issues persist, the parents should consult with a paediatrician before the next school year; (i) If [N.H.]'s difficulties persist despite therapy into grade 1, a further assessment should be done by Ms. Van Vuuren (children's therapist) and follow up on her recommendations; (j) Ms. Jones should work with Ms. Van Vuuren and school personnel to coordinate [M.H.] and eventually [N.H.]'s academic remediation and occupational therapy needs. Recommended treatment and services should occur on a consistent basis; and (k) Ms. Jones should refer the father to an appropriate parenting class to help him learn the principles and importance of consistency, structure and timely consequences. [12] On July 28, 2011, Dr. Blancato, a psychologist, was appointed by consent as the counsellor/therapist for the Children. Dr. Blancato and her colleague, Dr. Charalambidis (who I will refer to as the "Children's Therapists") saw M.H. and N.H. from August 2011 until June 2013 when they resigned. I will have more to say about the circumstances of their resignation later in these reasons. [13] On October 12, 2011, Mr. Justice Bowden by consent varied Voith J.'s order. Dr. Elterman was appointed to act as parenting coordinator with the limited duties of making rulings or decisions related only to the children's schooling and medical matters. The term of the parenting coordinator was set to terminate on the date of the trial which was then set for June 4, 2012. Dr. Elterman ceased his involvement following the Final Order made May 31, 2012. [14] Mr. Justice Bowden granted a second consent order of the same date restraining the Father from "conducting, either directly or indirectly, any surveillance of [the Mother]". [15] In advance of the June 2012 trial, Dr. Korpach prepared a follow-up report ("Second Report") dated April 29, 2012. [16] Dr. Korpach concluded the children continued to manifest what she described as "exceptional and/or extreme needs in academic, behavioural, social, and psychological areas of functioning"; that their deficits were becoming entrenched; that they were being harmed by the current parenting plan and by behaviors of the Father; that the relationship between the parties should be considered a "high conflict" one and handled by professionals to protect the children from further harm; and that much of the conflict around meeting the children's needs was exacerbated by the Father. [17] Dr. Korpach based some of her opinions and recommendations on discussions with the Children's Therapists. [18] The June 2012 trial did not proceed. The parties settled the outstanding issues relating to parenting time and guardianship in the Final Order based on a number of the recommendations made by Dr. Korpach. [19] The manner in which the parties reached their settlement is of significance given the Father's position on this application. The Terms of the Final Order [20] The Final Order provided that the Mother was to have primary care and residence of M.H. and N.H. During the school year, the Father was granted access to N.H. and M.H. on alternating weekends from Fridays at 5:00 p.m. until Sunday at 4:00 p.m. The Father was granted a structured visit during activities such as Cubs during the week following a non-access weekend depending on the children's activities, such additional access to be determined by the Mother. [21] In addition, subject to assessment by the Children's Therapists, the Final Order provided school and other holidays were to be shared equally by the parties. The Children's Therapists were to assess whether the Father was able to supervise M.H. and N.H. at all times; whether he remained supportive of the children's therapy; whether he was supportive of M.H. and N.H.'s relationship with their Mother; and whether he was supportive of the children's needs for structure, consistency and boundaries. [22] The Final Order required the Mother to consider the recommendations of the Children's Therapists before implementing the sharing of holidays and provided that N.H. and M.H. were to be with their Mother for the last two weeks of summer holidays prior to school commencing and for the last week of Christmas holidays and Spring Break. [23] In addition, the Final Order provided that the parties were to have joint guardianship, but they were required to discuss certain issues with one another. The Final Order provided that the party who had day-to-day care of M.H. and N.H. had an obligation to advise and discuss (via email) with the other party any matters of a significant nature, particularly "concerning the health (except emergency decisions), education, religious instructions and general welfare" of either child. The Order provided that in the event the Father and the Mother were unable to agree, the Mother had "sole decision making authority for their medical, dental, academic, activities and all other major needs". Each parent had the right to have a decision made by the other reviewed under s. 32 of the FRA. [24] The Final Order provided that "subject to the Mother's primary and ultimate decision-making" as set out above, M.H. and N.H. "shall continue to be seen" by the Children's Therapists "for individual play therapy focused on emotional/psychological issues" and the therapists "shall continue to guide the parents as to the children's needs and the parents shall meet with these professionals at the professional's direction". [25] The Final Order further provided: 16. The Father shall continue with personal therapy and shall provide his therapist(s) with a copy of this Order and the April 29, 2012 S. 15 Update Report prepared by Dr. Korpach. 18. Each parent shall work with and at the direction of the Children's Therapists to develop ways of adjusting their behaviour and practices to enhance the children's well-being. 19. The Father shall not expose [M.H.] and [N.H.] to counselors or therapists other than the Children's Therapists. [26] Significantly the Final Order provided: 27. This Order is a Final Order and is subject to variation only in accordance with s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) having reference to all of the evidence, including the S. 15 Custody and Access Reports and the Affidavits of the Claimant and Respondent sworn on May 30, 2012. 28. In the event that either party makes an application to vary this Order, either party shall have the right to apply for an updated S. 15 Report, to be prepared by Dr. Korpach or such other professional as may be deemed appropriate and necessary. The Affidavits Supporting the Final Order [27] Each party filed an affidavit confirming they had read both Dr. Korpach's March 19, 2010 and April 29, 2012 reports and each adopted "all the facts set out in the reports as if they formed an agreed statement of facts pursuant to the Supreme Court Family Rules". The affidavit continued: 5. Further, I hereby adopt, by consent, the findings and opinions of Dr. M. Korpach included in her reports including, without limitation, the findings and extracts from the Section 15 Update Report which is attached hereto and marked as Exhibit "A" to this my Affidavit. 6. Further, I adopt, by consent, the recommendations made by Dr. M. Korpach in her Section 15 Update Report, and I am aware that those recommendations form the basis of the Final Order to be entered in this matter concerning the children of our relationship namely 7. I am aware that the [other party] is swearing a "mirror" Affidavit to this Affidavit and that our respective Affidavits will be a part of the evidence in these proceedings in support of the Final Order referred to in paragraph 6 above. The Agreed Findings from the Second Report [28] Dr. Korpach made some 70 findings (the "Findings") in her Second Report. The Findings incorporated by the parties into the Final Order relating to the Father and the Mother and M.H. and N.H. were: [THE FATHER] NO. FINDING PAGE 1. [The Father] has recently renovated the home to include a homework room, a quiet room, a music room, games room and other rooms, apparently with the children in mind. The home is filled with highly stimulating entertainment, including musical instruments, media and technology. 62 2. [The Father] continues to provide the children with extraordinary opportunities for technical adventure, discovery and enrichment. To his credit, he appears to take a teaching approach to many of these activities, and the children appear to benefit from his learning. 62 3. On the other hand, his judgment with some activities and ability to supervise the children adequately is, at times, concerning. 62 4. Also, as pointed out by the therapist, the activities provided are so stimulating and extraordinary, that in comparison, mundane tasks such as schooling, hanging out with friends, sports, and normal social interaction hold little interest for the children. 62 5. It is my opinion that [the Father] has, particularly recently, made efforts to implement better boundaries, greater structure and daily routine. He has recently implemented longstanding recommendations such as: · not sleeping with the children · insisting that B.H. visit with his mother, and structuring homework time. 62 6. He has apparently worked with Ms. Jones in managing conflict with B.H. more appropriately. He reports being more physically available to the children by virtue of working less, and more emotionally available as a result of his therapy with Mr. Barker. All of these changes will undoubtedly be helpful to the children, and [the Father] is encouraged to continue his work in these areas, particularly with consultation with the children's therapists. 7. Despite these changes, it remains my observation and opinion that he maintains substantial deficits in his: · Approach to the children; · Understanding of interpersonal dynamics; · The effect of his statements and behaviour on the children; · Judgment regarding the children's needs; · Ability to separate his own needs from those of the children; · Boundaries; · Ability to cooperate for the benefit of co-parenting (despite his statements to the contrary); and · Ability to accurately perceive and respond to professional recommendations. 63 8. He can be evasive with information, passive aggressive, and deflects following recommendations unless they are consistent with his own views. 63 9. It is my opinion that he continues to struggle to meet the multiple demands of the children and to facilitate the children's relationship and interest in spending time with their mother. 63 10. While he reports working with Mr. Barker on a number of parenting issues, I am concerned that he fails to acknowledge and address serious dynamics of concern such as: · His tendency toward enmeshment with the children; · Struggles with boundaries; and · And unhealthy interpersonal dynamics with the children; All of which contribute to the children's psychological behavioural and social difficulties. 63 [THE MOTHER] 11. [The Mother] appears to continue to provide: · Structure; · Routine; · Consistency and predictability for the children; And they appear to be at their best under these circumstances 63 12. She appears to have a very good capacity to promote the children's relationship with their father, despite her concerns. 63 13. [The Mother] is skilled at managing multiple needs, and appears to have the greater capacity to accurately perceive, consider and respond to professionals' recommendations. 63 14. Concerns in the first report regarding her past use of physical discipline and boundary issues appear to have been resolved. 63 15. She appears to have a stable circle of support, and works [well] with professionals, an essential skill in managing these children's multiple and exceptional needs. 63 16. She appears to be more responsive to professional direction. 63 [M.H.] 43. During the spring, 2011, there were two brief trials of medication. However these trials were ineffective due to a number of factors, including inadequate medication dosage, [the Father's] lack of support, and parental conflict and differences between homes in structure and parenting approach. 67 44. It is reported that, while [the Father] verbalized agreement,[regarding M.H's ADHD medication] the meeting ended inconclusively, as [the Father] wished to try strenuous physical activity as an alternative treatment, and professionals did not believe the trial could be successful unless [the Father] "bought into" the medication. 67 45. [M.H.] remains off medication at the time of the report. It is reported that he has continued to struggle with his attention and hyperactivity at [his school], to the point that his academic program is substantially affected. 67 46. It appears the medication recommendation spans at least 18 months, has been thoroughly assessed and considered, but has not been implemented properly due to problems in the coparent decision making process. In the interim, [M.H.'s] ability to function in school and socially has been negatively impacted. 67 47. [M.H.'s] ADHD symptoms predated the separation, and alternative "treatments" have been attempted and have been unsuccessful or are assessed as likely being only minimally successful. 67 48. It is my opinion that [the Father] has had ample time to implement alternative treatment strategies, to seek second opinions, and to implement greater structure in his home. 67 49. [The Father] has demonstrated similar delays in implementing other professional recommendations, such as those made with co-sleeping, supervision of [M.H.] and [B.H.], not responding to [M.H.'s] excessive telephone contact, and therapists' concerns of hyperstimulation in his home. 67 50. It is not in [M.H.'s] best psychological interest for treatment of his exceptional needs to be further thwarted or undermined by [the Father]. 67 [N.H.] 51. As of the end of his grade one year, in June, 2011, he was noted to develop good work habits, increase his focus, and to appear more organized. It is my understanding that as of his grade 2 year, he was no longer on an IEP. 68 52. During the current year, there were no incidents of note brought to the principal's attention under after the October, 2011 change in schedule. Particularly after Christmas, [N.H.] was aggressive in school. It is my understanding the children were with [the Father] the week preceding the re-commencement of school. 68 53. Striking is the difference in his presentation between homes: 68 54. · in his mother's home, he appeared relaxed, engaged, and healthier. He made frequent eye contact with others, was appropriate in his interactions, and was apparently clear on rules regarding video games, as he not once asked his mother to play these. · At his father's home, he was regressive, sullen, and hostile, until approached by [the father's then partner]. 68 55. I do note that [N.H.] did not react to his father's limits on video games, for example, in a way that indicates [the Father] is capable of the consistency which [N.H.] requires. 68 56. [The Mother] has a substantially greater capacity to promote the structure, routine, predictability, and interpersonal engagement that [N.H.] requires. 68/69 57. It is also my opinion that [the Father's] home promotes negative personality characteristics, including entitlement and hostility, also seen in [B.H.], which will continue to cause substantial difficulties for [N.H.] in the academic, social, and psychological realms. 68/69 The Application to Vary the Final Order [29] This application was brought March 7, 2014 and was accompanied initially by some 19 supporting affidavits. The Father initially sought a review (but now agrees he seeks a variance) of the Final Order on a number of grounds. On the hearing of the application (which lasted over seven days) the court had 59 affidavits introduced by both parties, a number of which were lengthy. [30] The Father says he entered into the Final Order "on the advice of the [Children's Therapists] that [the] limited parenting time [set out in the order] would last six months or less, and then increase". He says they told him that by the summer of 2013 there would be a "50/50" parenting arrangement and they would gradually increase his parenting time before then; that he has "taken many steps to better his parenting abilities since the order was made"; that he has "worked with and cooperated with the [Children's Therapists] throughout". The Father says the Children's Therapists mischaracterized the children's "emotional deterioration" with M.H. and N.H.'s "unfulfilled wishes" to spend more time with him. The Father also says the Mother and her new partner, Mr. Oliver, her former family law lawyer and partner of the Mother's present lawyer, undermines his role as a parent and his image with the children. Credibility of the Korpach Reports and the Children's Therapists [31] The Father takes the position that the First and Second Reports of Dr. Korpach (the "Korpach Reports") are biased against him because of the bias of the Children's Therapists and of Dr. Korpach. I will first turn to consider these assertions. 1. Dr. Korpach [32] The latter allegation arises from Mr. Oliver's withdrawal as the Mother's counsel in or about February 2011 after becoming involved in a romantic relationship with her and the conduct of Mr. Mansfield, a partner in the same law firm and the Mother's current counsel who took over responsibility for her file. [33] The Father deposed that on February 17, 2011, he was invited by a mutual friend of himself and Mr. Mansfield to attend a restaurant in West Vancouver to discuss settlement of the outstanding issues in the case. He attended and says he was told by Mr. Mansfield he was there "to clean up the mess"; that he and Mr. Oliver had been involved in files with Dr. Korpach previously; that she had been "strategically picked" to do the s. 15 report as they both "felt that my family's wealth would work against me"; and that the two of them were "almost certain of the outcome" of the s. 15 report once Dr. Korpach was retained. The Father deposed that at one point in the discussion, "Mr. Mansfield turned to [him] and said that if he were [the claimant], he would not agree to Dr. Korpach having anything further to do with the case 'under any circumstances'". The Father deposed Mr. Mansfield told him that the s. 15 report had "fried" him but that Mr. Mansfield did not believe the negative statements made about the Father. The Father deposed that at one point in the meeting, Mr. Mansfield told him that from pictures he had seen he could tell he was a "good dad" and later said he believed the Father "should have the children 50-50". [34] The Father also deposed that after the hearing where the property matters were settled between the parties in a consent order, Mr. Mansfield invited him and a friend "to meet him for drinks to celebrate". The Father deposed the three met, had lunch and drinks and talked about the case. The Father deposed Mr. Mansfield said that with "money matters out of the way, everything would be easy to resolve, and that the children should be settled 50/50". The Father deposed Mr. Mansfield told him that "it would take no time and require just one further court appearance to put an agreement into place." The Father deposed Mr. Mansfield told him that Dr. Korpach was a "pain in the ass", that the s. 15 report "had been unfair to [him]" but that it was "not really important" and "parenting matters would settle fairly without the need of any reports". The Father deposed Mr. Mansfield praised his parenting and again said that with the property matters settled he and the respondent could "put it all behind us and move forward with our lives". [35] The Father deposed he showed Mr. Mansfield text messages he had received from Ms. Gonzales, the Mother's nanny, concerning the children. Before doing so he said he wanted to ensure Mr. Mansfield would not discuss them with the Mother and Mr. Mansfield promised him he would not. He deposed that during the meeting Mr. Mansfield "kept texting on his phone" and that "suddenly" Mr. Oliver and the Mother showed up at the restaurant and that Mr. Mansfield "got up quickly and left". He deposed the following day he received a call from the nanny who was upset as the Mother had confronted her about the conversations and text messages he had discussed the day before with Mr. Mansfield. [36] The Father brought an application to remove Mr. Mansfield as counsel for the Mother based on his having the above-described meetings with the Father. The application was heard by Mr. Justice Gordon Weatherill on May 20, 2014. Mr. Justice Weatherill dismissed the application but on the condition that Mr. Mansfield would not take issue with the Father's version of what was said and by whom at either of the two meetings; that he not cross-examine the Father on his affidavits sworn prior to September 7, 2011; and that if the Mother wanted to cross-examine the Father on such affidavits such cross-examination was to be done by counsel other that Mr. Mansfield. Mr. Justice Weatherill's order has been strictly complied with during the course of this hearing. [37] I find that, despite the Father's objections about Dr. Korpach's two reports, he had legal representation when he consented to Dr. Korpach preparing the two reports and, more importantly, had legal representation when he consented to the Final Order and signed the affidavit acknowledging the truth of the Findings attached to the Order. I accept those Findings as an accurate reflection of the facts at the date of the Final Order. It is noteworthy that in his 20th affidavit filed on this application the Father deposed that: For various reasons, including wanting to avoid a bitter 6 week trial and based on representations made to me and Mr. Kahn by the children's therapists that my time with the children would be substantially increased within about 6 months, I entered into the Final Order. [38] The "various reasons" in addition to the "representations" alleged to have been made by the Children's Therapists (which I will deal with below) were never satisfactorily explained by the Father. I am left with the impression the Father wished to avoid the trial because he did not wish to face the issues at trial which were then extant between the parties. The Alleged Promises of the Children's Therapists [39] One of the primary positions taken by the Father in seeking to establish a material change in circumstances is that he agreed to the terms of parenting time and guardianship contained in the Final Order "on the advice of" the Children's Therapists that the limited parenting time would last six months or less and then increase. He says they told him "from December 2012 onward that by the summer of 2013 there would be a 50/50 parenting arrangement that would carry on into the Fall" and "they would gradually increase his time with the Children leading up to a 50/50 parenting arrangement by the summer, but nothing happened". The Father says at the same time the Children's Therapists were aware of the steps he was taking to "become a better parent and they applauded all the steps I took". [40] The Father says that the day following the release of the Second Report he and his then lawyer, Mr. Kahn, Q.C., met with the Children's Therapists who advised him the therapists both had "strong input" into the report. In addition, they were of the view the three children were suffering from the parental conflict and that the parenting arrangements would be "short term" - Dr. Blancato said "we meant 6 months" and Dr. Charalambidis said "or even less" - and that his parenting time "would then increase significantly". The Father says he was advised to focus on B.H., who was then aged 15 and residing with him. [41] Mr. Kahn filed an affidavit in support of the Father's application. He deposed he met with the Father and the Children's Therapists on April 30, 2012, the day after the Second Report was issued and again on June 12, 2012 shortly after the Final Order was entered. He deposed the purpose of the second meeting was "to review the parenting arrangements in the order". Mr. Kahn's affidavit described his understanding of the discussion: 5. Both times [Dr. Blancato] and [Dr. Charalambidis] explained that they thought it was best for the Claimant to focus on parenting [B.H.] while [M.H.] and [N.H.] would spend the majority of their time with their mother, as recommended in the update report. [Dr. Blancato] and [Dr. Charalambidis] both said it would be for a fairly short time in the lives of the children and that it would allow the children time to enjoy their summer, settle back to school in the Fall, and then parenting arrangements would be reviewed early in the new year, about 6 months from then. 6. [Dr. Blancato] and [Dr. Charalambidis] both emphasized that with the children continuing in counselling with them and with the Claimant continuing in counselling with Dr. Robert Ley, the parenting review would not be a mere tweaking of the parenting arrangements, but rather would provide the Claimant with substantially increased parenting time of [M.H.] and [N.H.] [42] Mr. Kahn was involved in the settlement meetings which followed the Second Report and which ultimately led to the consent Final Order. Secret Recordings with the Children's Therapists [43] While the majority of the Father's evidence is analysed below, it is important in the context of the issues with the Children's Therapists to address at this point the following evidence introduced by the Father. [44] The Father started secretly audio recording the sessions he had with the Children's Therapists because he "became concerned about things they said, inconsistencies in what they told [him] and the disconnect between what they said and what happened". The recording of his sessions appears to have commenced about December 5, 2012 and continued to June 2013. The Father has annexed the transcripts of the recordings to his affidavits filed in these proceedings. [45] I do not intend to give any weight to the recorded conversations between the Father and the Children's Therapists for several reasons. First, they were recorded secretly without the consent of the Children's Therapists who the Father knew would object to such a procedure. Second, the meetings between the therapists and client are founded in confidentiality where the participants are encouraged to speak freely with a view to resolving issues. Third, I have no way of knowing what was discussed in such meetings on other occasions. Lastly, the therapists were not cross-examined on the recordings. [46] Mr. Kahn's recollection of what was said in the meetings he and the Father had with the Children's Therapists is much more tempered than that of the Father. Mr. Kahn does not refer to a promise to increase the Father's parenting time to 50-50. Rather, his reference is to "substantially increased parenting time". [47] What is clear is that the Children's Therapists were advising the Father in February 2013 they were not seeing changes in his behaviour which would warrant increased parenting time. In a letter to him on February 8, 2013 they advised him, after pointing out a number of "concerning issues" regarding the children, that "[a]t this time we do not feel that the children or you are ready for changes in the access". [48] At a June 12, 2013 meeting with the Children's Therapists, the Father says he was told that if he wanted the parenting time schedule changed "drastically" and "right away", he would need to "go back to court". [49] The Children's Therapists resigned in July 2013 after the Father, notwithstanding the objection of the Children's Therapists, on the recommendation of his current counsel, attended a Supreme Court trial to observe Dr. Charalambidis being cross-examined by Ms. Label who he was then considering retaining. He was asked to leave the courtroom by the presiding judge. In my view, this was a planned subversion of the Children's Therapists' role by the Father. He could hardly have been surprised when the Children's Therapists immediately thereafter terminated their role. [50] Ms. Label made reference in argument, in an attempt to discredit the Children's Therapists, to the decision of Mr. Justice Masuhara in the case above referred to in which he described the evidence of Dr. Charalambidis as "overall weak" and that she and Dr. Blancato had been "overtaken by the dynamics" "of the high conflict nature of the case (B.T.R. v. U.A., 2014 BCSC 1012 at paras. 81-82). Mr. Justice Masuhara's comments were undoubtedly proper conclusions he drew from the evidence before him. However, there is no proper evidentiary basis on the facts in this case to draw any inference that the Children's Therapists were using other than their best efforts in a very difficult case to properly counsel both parties and the Children. [51] I find that there was no representation or misrepresentation made by the Children's Therapists which would have lead a reasonable person in the Father's position to conclude he would have shared parenting on a 50/50 basis within the time frame he says he expected. I reach this conclusion for several reasons. The first is that the agreed Findings are significantly critical of the Father's parenting skills and made it clear he had some distance to go in improving his approach to parenting skills and his confrontational attitude toward the Mother. It would be irrational to conclude one would enter into the Final Order which could only be changed by an application to vary and sign the affidavits the parties signed which accompanied that Order while at the same time expecting the terms of the Order regarding parenting would be significantly changed within months of the signing of the Order. Mr. Kahn would have appreciated and advised the Father at the time the Final Order was being negotiated and agreed to that a change could only occur in the event of a material change in circumstances. [52] Further, based on the terms of the Final Order, shared parenting could only occur with the concurrence of the Mother. Given the then (and current) relationship between the parties and the then relationship between the Father and the Children's Therapists, a consent agreement to shared parenting was most unlikely. The Father's Position on the Application [53] The Father's position is that the limited parenting time set out in the Final Order is not now warranted and that it is no longer in the best interests of the children. He seeks a shared parenting regime. The Father also submits the Mother regularly makes decisions about the children without consulting with him and that her final decision-making authority is counterproductive to the children's best interests. He seeks shared parenting responsibilities. [54] Notwithstanding this hearing did not commence until some eighteen months following the application (primarily because of the term in the Final Order requiring a further s. 211 report be done prior to an application to vary), no cross-examinations on any of the affidavits were conducted. Hence the court has had the difficult task of trying to resolve conflicts in the evidence (particularly between the Father and the Mother) based only on their respective affidavits. The Father's Evidence [55] I turn now to the extensive evidence filed by the Father on this application. The admissibility of a several reports filed by the Father was challenged by the Mother. Those reports will be discussed later after a discussion of their admissibility. I will first turn to the s. 211 Report prepared by Dr. Krywaniuk. Dr. Krywaniuk's S. 211 Report [56] Prior to this matter coming on for hearing the Mother sought an updated s. 211 report. Mr. Justice Silverman ordered an updated report but ordered the report be prepared by someone other than Dr. Korpach. The parties agreed Dr. Krywaniuk, a registered psychologist, would prepare an updated report. Dr. Krywaniuk prepared a report (the "Krywaniuk Report") dated August 23, 2015. Dr. Krywaniuk was cross-examined on his report at the hearing of the application. [57] In his report, Dr. Krywaniuk reviewed the court proceedings and orders which had been issued, the Korpach Reports, and the Views of the Child Report of Dr. Blancato dated August 26, 2011. He interviewed and conducted psychological testing of both the Father and the Mother as well as interviews with the parties' three children and Mr. Oliver. He reviewed numerous affidavits from third parties (some 22 on behalf of both parties sworn between November 27, 2009 and December 11, 2014) and those filed by the Father (some 20 sworn between November 27, 2009 and January 27, 2015) and the Mother (some 15 sworn between December 9, 2009 and November 13, 2014). [58] In addition he conducted a number of "collateral interviews" with persons who know either the Father or the Mother or both with a view to obtaining their perspectives. Dr. Krywaniuk also interviewed several physicians, teachers and therapists who had been involved with the Father or with the Children. Dr. Krywaniuk was criticised in cross-examination for not contacting several persons referred to him by the Mother. [59] Dr. Krywaniuk described his views of the family history and family dynamics in these terms: The history of this family is such that there have been numerous events and crises that have created a deeply embedded level of distrust, anger, resentment, negativity and pessimism that likely represents a significant barrier to overcome in arriving at what might be considered to be a more beneficial and usual parenting arrangement. To use a popular phrase, the question might be "How do we get there from here?". Given the long-standing history of conflict, the complexity of the situation, the involvement of the children, the continuing litigation, the personalities of all parties, the level of distrust, the involvement of numerous professionals and the possibly unvoiced issues of anger, resentment and vengefulness, it is difficult to foresee that this situation, will be resolved within the next little while. At this point, the children have spent a good portion of their lives within an arena of conflict, subterfuge, distrust, manipulation, emotional pressure and litigation. It undoubtedly has had a significant and likely deleterious effect on their emotional adjustment and perception of what family life should be, even when separation and divorce are taken into account. In my view, the present matter is active at all three levels [between the parents, between each parent and the children, and the interaction of the parents' relationship with the relationship between the parent and child] in a very significant fashion. Quite clearly, [the Mother] and [the Father] have a high conflict relationship and one in which there is very little cooperation, accurate communication, trust and flexibility. In their own way, each parent expresses distrust about the other parent's attitudes, awareness, intentions and parenting ability, both parents have accused the other parent of having inappropriate or destructive parent-child relationships. [Emphasis added.] [60] In the "Recommendations", Dr. Krywaniuk recommended that a graduated move to shared parenting "over the year [sic] or so" as proposed by the Mother was "probably the best approach at the present time" (the Mother's parenting plan introduced at trial was for a considerably longer period of time than a "year or so") but as an "adjunct" he recommended the Mother not retain final decision-making authority over guardianship issues. [61] While Dr. Krywaniuk's recommendation was that the parties should share guardianship, he thought "they may have to do so at a kind of 'arm's length' relationship" involving a formal third party process to resolve other than reasonable day-to-day decisions which could be made by the parent whom the children were then with. The process he contemplated would involve the third party arbitrating decisions through a formal process. Such an individual "could be given reasonable authority to seek or recommend intervention from other parties on or around parenting issues". Dr. Krywaniuk wrote, "[t]he principle is to allow them to have consultation but to do so in a way that minimizes conflict". Father's Supporting Affidavits [62] The Father's application was supported by a number of affidavits from persons who know him and with whom he has had contact when the Children have been in his care. I will provide a short review of the affidavits filed: · The principal of the school at which M.H. attended described M.H. as a likeable, interested, gregarious and curious child and described his participation in the Destination Imagination program (the "DI program") with the Father (which I will discuss separately in these reasons). · An acquaintance of the Father, through his participation in Scouts Canada since the Father enrolled M.H. in Beavers in 2009, asked the Father to be a leader in Cubs in 2010. N.H. joined Cubs in the fall of 2011. It was his opinion N.H. was fully engaged in the program while M.H. was most engaged in the program when he was working on an individual basis with his Father. He described the Father as a good listener and that other children in the program liked him and listened to him. It was his opinion that the Father related well to M.H. and N.H. and that he was "supportive and engaging with them". It was his view M.H. wanted and needed more time with his Father. · A teacher at the school M.H. attended taught M.H. described him as "extremely bright". She said M.H. frequently came to her office "just to talk" and that he had asked her "to help him not change schools". A parent of a classmate and playmate of M.H., who knows the Father socially and as a result of her child's participation in the DI program, also attended the DI final competition in Tennessee in 2013. She described the Father as one who encouraged and facilitated playdates and family get-togethers. She also described the Father as thoughtful, not overbearing, respectful, patient and encouraging of M.H.'s inquisitive mind and independence. She described M.H. as loving the stimulating experience of the DI competition and as appearing to have a comfortable and connected relationship with his Father. · The cook/housekeeper of 30 years for the Father's parents described there were many times when the children appeared sad when they had to return to their Mother's. She said that while the children are with their Father they interact with him, playing games, having interesting discussions or doing something on the computer. She said M.H. has come by his Father's parents' house on his bike several times looking for his Father and is of the view both children need more time with the Father. She said M.H. appears to be especially attached to the Father. · A bus driver and property manager for the Father deposed he had come to know M.H. and N.H. "well over the years". He is of the view over the last several years the Father has become more conscious of the children's emotional needs. When he is with them they have "his total focus". He deposed the Father sets time limits for the children when they are on home computers and they comply with those limits. He said the Father scheduled certain aspects of his house renovations to occur when the children were there so they could participate. He said the Father encourages each of M.H. and N.H.'s interests and that each look up to him and are talkative with him "asking a million questions". He described the Father as "very patient and loving with them" and that the Father is a "good dad who is devoted to the children." · A high school teacher, who became acquainted with the Father when her daughter and M.H. were in elementary school together, said that from what she has seen the Father has a nurturing relationship with all three children. She and her partner have since become friends with the Father and have spent "many afternoons and evenings in the [Father's] home". She described the Father as being "extremely hands on with his children", as having "a unique ability to understand and relate" to M.H. and as being a "calm, thoughtful and approachable person" who is "extremely intelligent and has eclectic knowledge, friends and interests". She described M.H. as "very bright and very inquisitive, especially about how things work technologically". She said M.H. and the Father share similar interests and have similar outlooks. · A friend of the Father, having met him through the DI program at M.H.'s school, deposed his son is a good friend of M.H. He described "how close and loving a relationship the [Father] and [M.H.] have" at the DI competition in Tennessee; that M.H. interacted with other parents and his peers in a polite and sincere way; that the Father worked well with M.H. to set up a computer network and to fix up a car that was part of the project and had been damaged; and that the Father had "exhibited great patience and respect for [M.H.]". He was of the view the Father and M.H. had a "bonding experience" and that M.H.'s participation in the DI program was "a wonderful outlet for [M.H.'s] interests, talents and creativity." He said M.H. looked "really sad" when he asked him if he was participating in the 2014 DI program and that he responded that the Mother would not let him participate. · A friend of the Father's since university deposed he has had dinner with the Father and his children almost every weekend the children are with the Father. He described the atmosphere as being "warm" and "happy" with "engaging conversation with the children". He described M.H. as "amazingly bright" and interested in computers and N.H. as being interested in skateboarding and painting. He described the Father as setting clear boundaries at home with reference to bedtimes and other activities and as bringing out the best in other people and his children. · An acquaintance of the Father through the DI program, who shared the same room as the Father and M.H. at the DI competition in Tennessee, described the Father as getting along well with all the team parents and as helping to "bring out the best efforts of the children and spurred them to greater levels of creativity, self-confidence and a sense of accomplishment." He said he helped keep M.H. "on an even keel" in an environment filled with sensory stimulation with his "calm disposition, patience and empathetic manner". He said M.H. was "very bright" and he enjoyed and thrived in the environment. He said that since the DI program, M.H. and his Father seem to have a close and loving relationship and that the Father "actively fosters his children's happiness and well-being". · A Registered Clinical Counsellor who met the Father when she taught an eight-week Systematic Training for Effective Parenting ("STEP") program -- covering such topics as communication, positive discipline, problem solving, encouragement -- said the Father "stood out" in the class as "one of the most engaged participants" and that he "often stayed late to ask questions." It was her view that he appeared "to want, and be willing to learn" and that he gained a greater insight into parenting issues. · A friend of the Father since before N.H. was born described camping on Hornby Island where he has seen the Father and children where a large group of families camp together at the same time every year. He described the Father as a "model dad" who is "warm, attentive, supportive and involved with the children", offering them a wide variety of things to do. He said the claimant is "attuned to [M.H.'s] ADHD and we have worked together to come up with activities that will benefit [M.H.] in particular". He deposed he has been in the Father's home many times since 2012 and described the Father as children-oriented, who encourages the children to engage in interesting projects and that often other families and children visit M.H. and N.H. when they are there. · A musician and composer who taught B.H. piano said he and his wife have been to the Father's home many times for meals and has observed a close bond between the Father and N.H. and M.H. He says the Father "stands out for me as a parent who encourages but does not push his children" and that he has been "struck by how the [Father] uses logic and reason when communicating with his children, and always in a loving, patient and caring manner". He describes the Father as being a thoughtful and well-organized parent who "puts his children's development and well-being at the forefront." · A music teacher who came to know the Father and his children in 2010 as a result of summer camping on Hornby Island described the Father as "a really good", engaged, respectful, level-headed and supportive dad. He deposed the children are affectionate and appear to enjoy being with the Father and that they spend a lot of time talking to him and doing things with him. · A commercial photographer who has been a friend of the Father's for the last several years stated that he and his family have been at the Father's home and the Father and children at his home for social events. He described the Father as having a balanced approach with his children; that he encouraged independent behaviour "while not giving them the run of the place". In his view the children relate to the Father "in a normal and healthy manner". [63] I will not review the other affidavits filed on the Father's behalf. Most attest to his good character and support the observations referred to above that he is a good and attentive parent and has a good relationship with M.H. and N.H. Transcript of Recordings with Ms. Gonzales [64] The Father also relied on a secretly recorded transcript he took of conversations he had with Ms. Gonzales, the Mother's family's former live-in nanny for the Children. I do not place any weight on the recorded transcripts of Ms. Gonzales given the affidavit filed by Ms. Gonzales which I will discuss below. The Mother's Response to the Application [65] The Mother says that to succeed on this variation application the Father must establish a material change in circumstances since the date of the Final Order. The Mother submits the Father has not met this burden and in fact there has been no change in his behaviour which led to the Findings underlying the Final Order. She further says that, in any event, the orders sought by the Father are not in the best interests of the children. [66] The Mother's position is that she, through her counsel, was careful to negotiate the Findings from the Korpach Reports into the Final Order as the factual basis upon which the Final Order was made on the eve of a six-week contested trial. The trial would have dealt with "complex psychological issues" and other factors concerning the Father's lack of parenting skills. The Mother says this application is an attempt by the Father to circumvent the trial process and to disavow himself from Findings to which he agreed and from the terms of the Final Order. [67] The Mother says the Father seeks to subvert the evidence which does not support him, as demonstrated by his now seeking to discredit both Dr. Korpach and the Children's Therapists (and hence the Findings contained in the Final Order). The Mother refers to the covert recordings taken of meetings between the children, the claimant and the Children's Therapists; of his efforts to co-opt Ms. Gonzales, her nanny, to support his position on this application; and of his approach to dealing with M.H.'s ADHD medication while in Tennessee on the DI Program and other similar examples. [68] Ms. Gonzales, the former live-in nanny for the children, filed two affidavits: the first sworn February 2, 2010 related to matters preceding the Final Order and the second sworn March 14, 2014. I will refer only to the second affidavit. Ms. Gonzales deposed she had come to the conclusion that during her recent contact with the Father she felt he was repeating the "manipulative behaviour" she had observed and described in her 2010 affidavit. She said the Father began contacting her after a typhoon in the Philippines with offers to help her family who resided there and that soon thereafter "he began pressing me to 'help him' by procuring Affidavit material". She said she became "alarmed" he simply wanted "to use me for his own purposes". Ms. Gonzales denied a number of the allegations made in the Father's affidavit. She deposed the Father continues to try to contact her but that she does not intend to respond. The Requisite Legal Test on a Variation [69] As the parties agree this is an application to vary the Final Order the test which the applicant must meet is that set out in s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.). [70] Section 17 of the Divorce Act, reads: Order for variation, rescission or suspension 17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (b) a custody order or any provision thereof on application by either or both former spouses or by any other person. Factors for custody order (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. Conduct (6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. Minimum contact (9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. [Emphasis added.] [71] The applicant also relies on ss. 37, 59 and 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]: 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 his or her 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 his or her 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. [72] The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 12, 134 D.L.R. (4th) 321, set out the test to establish a material change in circumstances: What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5. [73] The Court summarized the matters to be considered by a judge at para. 50: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? Material Change in Circumstances Admissibility of Reports of Dr. Ley and Mr. Barker [74] The Mother objected to the introduction of the reports of Dr. Ley, a clinical and forensic psychologist, dated April 17, 2014 and a report of Mr. Barker, a registered clinical counsellor, dated March 31, 2014 both of whom had counselled the Father subsequent to the Final Order. [75] The Mother's position is that the Father has not complied with Rule 13-6(3) of the Supreme Court Family Rules [Family Rules]. In particular, the Mother says the reports were not served 'under this rule' and that the reports offend s. 211(2)(b) of the FLA which provides that, without consent, the author "must not have had any previous connections with the parties". The Mother also submits Mr. Barker's resume was not provided to her; that Mr. Barker did not set out the instructions given to him; that neither report sets out the nature of the opinion(s) being sought; that there is no list of either author's factual assumptions; and that Dr. Ley did not list all the documents upon which he relied in preparing his report. [76] Rule 13-7(6) of the Family Rules mirrors Rule 11-7 of the Supreme Court Civil Rules and Rule 40A of the former Rules of Court. [77] The Mother's counsel relies on Mr. Justice Burnyeat's comments in Dhaliwal v. Bassi, 2007 BCSC 548 at para. 4: [4] The purposes of Rule 40A are clear: (a) neither side should be taken by surprise by expert evidence (Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side should be ambushed or surprised at trial; (b) to ensure fairness to the parties and to promote the orderly progression of the trial (C.A. v. Critchley (1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The burden on Mr. Bassi to show that I should exercise my discretion to allow the report to be introduced has been described as a: " relatively heavy burden .": McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232 (B.C.S.C.), at para. 26. The question which arises is whether there is " substantial and irremediable prejudice ." so as to justify the exclusion of the report on the basis that the statement does not comply with Rule 40A(5)(c) of the Rules of Court: C.A. v. Critchley, supra, at para. 12. See also Jones v. Ma, 2010 BCSC 867. [78] Rule 13-6(3) of the Family Rules reads: Service of report (3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 13-5, must be served on every party, along with written notice that the report is being served under this rule, (a) by the party who intends, with leave of the court under Rule 13-4 (7) or otherwise, to introduce the expert's report at trial, or (b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial. [79] Section 211(2)(b) of the FLA reads: (2) A person appointed under subsection (1) (b) unless each party consents, must not have had any previous connection with the parties. [80] The Father's counsel relies on Dosanjh v. Liang, 2015 BCCA 18 [Dosanjh], a recent decision of the Court of Appeal, and on Kuhberg v. Hall, 2015 BCSC 2230 [Kuhberg], in which the court noted that "a more flexible approach to the rules of evidence" was often applied in family law cases to the admissibility of evidence. [81] In Dosanjh, the Court of Appeal considered the admissibility of assessments prepared by the BC Assessment Authority as evidence of the value of matrimonial property and in Kuhberg this Court considered appraisals which were not prepared in the form of an expert report for the purpose of determining "some useful evidence" of the value of properties at issue between the parties. [82] In Dosanjh, Mr. Justice Groberman stated at para. 63: [63] It is not necessary, in this case, to make any pronouncement as to the scope for admission of property assessments as evidence of property value in family law cases, and I will refrain from doing so. In my view, however, there is, absent agreement, no scope for using assessments in place of expert opinion evidence in cases such as the present one. [83] At paras. 65 - 67 he continued: [65] Rules 11-6 sets out special requirements for expert opinion evidence. It is designed to ensure that adequate notice is given of the intention to adduce expert evidence, and to ensure that expert reports are presented in a particular form. Rule 11-7 allows the court to dispense with the requirements of Rule 11-6 in certain limited circumstances (see Perry v. Vargas, 2012 BCSC 1537 and XY, LLC v. Zhu, 2013 BCCA 352). [66] In those limited circumstances, Rule 11-7 allows a judge to admit opinion evidence at trial where the evidence, though otherwise admissible, fails to meet the requirements of Rule 11-6. Nothing in Rule 11-7 purports to allow a judge to admit into evidence an expert opinion that does not meet the requirements of R. v. Mohan, [1994] 2 S.C.R. 9. [67] The basic difficulty with the property assessment as evidence of property value is that the court had no basis on which to evaluate its cogency. The court was not able to determine how the assessor went about making the assessment, and had no basis for determining what weight to give it. This was a particular problem in this case, as the court had no basis for determining the effect of the recent use of the property to grow marijuana on the property value. [84] I do not accept the position taken by counsel for the Mother. When the application and supporting material was served on him on March 7, 2014, the Father's counsel wrote in the last paragraph of her letter: We will also be relying of the Report of Dr. Robert Ley, Reg. Psych. which we expect to deliver to you next week. [85] On April 7, 2014, the Father's counsel sent a copy of Mr. Barker's report to the Mother's counsel with a letter advising him "we intend to rely [on the report] at the hearing". On April 28, she sent a similar letter concerning Dr. Ley's report. The application lists Dr. Ley's report in "Material to be relied on" but that it is "yet to be delivered". [86] While the Father's counsel did not specifically state that the reports were being served pursuant to R. 13 of the Family Rules and the contents of the reports may have been deficient in some respects with the requirements of Rule 13-6, it is clear the Mother's counsel was put on notice at an early stage that the Father intended to rely on both reports at the hearing of the application. It was open to the Mother's counsel at any time prior to the hearing to object to these deficiencies or to cross-examine the experts on their reports. He chose not to do so or to raise any issue concerning the reports until the Father's counsel sought to refer to them at the hearing. [87] I am not inclined to admit the reports on the grounds there is more flexibility in permitting expert evidence in family matters than in civil matters. Both Dosanjh and Kuhberg were decided on very different facts than those present in this case. Rather, I find the introduction of both reports admissible under the exception contained in R. 13-7(6) of the Family Rules. Given the early production of the reports and the statement by the Father's counsel that she intended to rely on the reports and the reference to at least Dr. Ley's report in the material to be relied on in the application, the Mother cannot assert she has been prejudiced by an ability to prepare for cross-examination the author of the report. If there was information missing from the report(s), the Mother's counsel had ample opportunity to make a demand for such information well in advance of the hearing (see Family Rules R. 13-6(8)). [88] Accordingly, I admit both Dr. Ley's and Mr. Barker's reports into evidence on this application. Dr. Ley's Report [89] The Father was referred to Dr. Ley by Mr. Kahn after the Final Order for psychological counselling and therapy "oriented toward improving [the Father's] parenting skills and improving his coping abilities with his family situation". [90] Dr. Ley's report is dated April 17, 2014 and reviews his "impressions, findings and opinions", which he was asked to provide concerning the Father's "parenting skills specifically and more generally in regard to his personality and psychological adjustment". The Ley report was based on Dr. Ley's counselling sessions with the Father and other information provided to him by the Father's counsel. [91] The Father attended Dr. Ley twice a month for treatment between July 31, 2012 and the date of the report, April 17, 2014. [92] In preparing his report, Dr. Ley reviewed most of the material predating the Final Order including the Korpach Reports, the transcripts of the secret audio recordings made by the claimant in his meetings with the Children's Therapists, the Father's application, a number of affidavits filed by the Father, the Mother's responding affidavit to the application (her 15th Affidavit), Mr. Barker's reports and various counselling reports provided by the parent coordinator, Ms. Jones. [93] Dr. Ley's opinion was that for the period he saw the Father during 2012 and 2013 that the Father "was very serious and committed to improving his parenting abilities"; that the Father frequently discussed parenting challenges and problems solutions with him; that the Father had taken a number of "quite intensive" parenting programs; and that he "was very enthusiastic about these parenting courses and stated that he had learned lots from them that he could apply to his parenting of his children". Dr. Ley also noted that in addition the Father reported to him that he had read many books related to parenting, particularly parenting post-separation. Dr. Ley noted that the Father read the books on parenting Dr. Ley suggested he read. He noted the Father hired Ms. Jones, a family counsellor, to work with him and the children in his home. [94] Dr. Ley wrote: In short, there seems to be no doubt that [the Father] has made the shift from a disproportionate interest in his professional life when Dr. Korpach originally assessed him in 2009, to a greatly increased investment in his parenting life as Dr. Korpach remarked in her updated report. It appears to me that that trend has continued, as [the Father] considers his time with the children to be so brief, that he wants to use all of it with them, and to not be working or preoccupied with his professional activities." It appears to me that [the Father] does a good job of containing his emotions, whether sad or angry ones, and I believe that he has made good progress in this regard in the almost two years that have elapsed since Dr. Korpach's follow up-assessment. There are other examples of [the Father's] successful compartmentalization of his negative emotions such that they do not overwhelm him or directly affect his children. For example he recognized that there is a small angry part of him that pertains to his former spouse. [95] Dr. Ley was also of the view the Father had improved his "skills and success in boundary and limit setting" which had been the subject of criticism by Dr. Korpach and the Children's Therapists. [96] Dr. Ley said he encouraged the Father "to continue working collaboratively and constructively with [the Children's Therapists]" and that from his perspective the claimant did so in "his pursuit of enhancing his parenting" but ultimately became "progressively more frustrated and discouraged by the failure of [the Children's Therapists] to increase his parenting time with his children." Dr. Ley noted that "the [Father] perceived that the children were becoming progressively more desperate about spending increased residential time with their father, as the boys' therapy continue". He noted that that the Father became "outraged and very angry" about the Mothers decision to show B.H. portions of the affidavits filed in this matter which resulted in B.H. essentially severing his relationship with the Father with whom B.H. was then living and moving to live with the Mother. [97] Dr. Ley wrote: Although [the Father] states that he has consistently supported the children's relationship with their mother and not derogated her to any of their children in the last couple of years, nonetheless [the Father] suggests that [M.H.] and [N.H.] have become increasingly hostile to their mother. [98] Dr. Ley noted the Father advised him the Mother did not consult with him when making decisions but rather that important decisions regarding the children were "imposed" on him and the children; that it was "her way or the highway"; and that she was a "powerful force" who liked to "throw her weight around" and who "negatively influence[d] teachers/administrators or parents at the children's schools against him, or even negatively bias[ed] the children's therapists" against him. The Father was of the view the Mother "does not shield the children from her negative view and disparaging comments about their father" and "routinely expose[s] [the children] to their mother's dislike and disrespect" of him. [99] From Dr. Ley's view there was nothing "unhealthy, inappropriate, pathological or harmful regarding [the Father's] participation with [M.H.] in the DI program." Dr. Ley formed this opinion on the basis of what he was told by the claimant and those who filed supporting affidavits in this action. [100] Dr. Ley commented: Although [the Father] had many reasons for not going to a trial in 2012, one of the primary factors was that [the Father] believed that he would receive increased parenting time with his younger sons, if he made a concerted effort towards improving his parenting skills, and remediating the shortcomings that Dr. Korpach identified. [Emphasis added.] [101] Importantly for the purposes of my decision, Dr. Ley identified the prescription of stimulant medication for M.H.'s ADHD as a "challenging issue" for the claimant. Dr. Ley wrote: In regard to the prescription of stimulant medication for [M.H.], like many parents, [the Father] is concerned about the long-term health effects of stimulant medication for young children, such as [M.H.]. Furthermore, although [the Father] recognizes and accepts [the Mother's] preference for [M.H.] to be medicated while at school, in contrast, [the Father] believes that [M.H.'s] ADHD symptoms can be managed effectively in non-pharmacological ways, through a combination of good supervision and direction, as well as a careful structuring of [M.H.'s] activities and the situations he encounters. [102] In Dr. Ley's opinion, the Father "has made a concerted effort to educate himself about ADHD, and he has learned the best cognitive and behavioural methods for mitigating the most prominent ADHD symptoms" and: As a result of [the Father's] understanding of this disorder, as well as his grasp of non-pharmaceutical strategies for symptoms management, [the Father] does not have [M.H.] take stimulant medication on the weekends that [M.H.] resides with his father. Such so-called 'drug holidays' are quite common for children with ADHD, as parents oftentimes choose to discontinue the child's medication on weekends, as well as during vacations and school holidays. Likewise, [M.H.] did not take medication for ADHD during the week that he was at the DI competition with his father, in Nashville. [Emphasis added.] [103] Dr. Ley concluded that based on his sessions with the Father as well as the affidavit material there was "little doubt" that the Father's parenting "is vastly improved from the time of Dr. Korpach's assessments of him." He concluded that based on the material he had reviewed there was a diminished likelihood that the Father was "currently enmeshed with his children." [104] Dr. Ley did acknowledge that there "may well have been" factors suggestive of enmeshment "during the latter years of the marriage and immediately post-separation" which included psychologically aligned [B.H.] with the Father against the Mother and "overindulgence and excessive gratification of the children's preferences for activities, toys or other luxurious items or options" and developing greater intensity to the parent-child relationship. [105] Dr. Ley concluded his report with these comments: About two years have passed since [Dr. Korpach's last interview] now, and given that I was neither treating nor assessing [the Father] in early 2012, I cannot comment about the validity of Dr. Korpach's characterizations, other than to note their variance with my own present ones. It may be that [the Father] has become a much more mature person and skillful parent over the last two years. Certainly, oftentimes parents, even the best ones, are at their least skillful in the aftermath of a marital separation. Mr. Barker's Reports [106] Mr. Barker commenced seeing the Father for counselling in September 2011. He prepared a first report dated March 4, 2012 and a second report dated March 31, 2014 at the request of the Father's counsel summarizing his involvement with the Father and evaluating the Father's psychological and emotional state in regard to his ability to parent his children. In the summary of his report he noted: [The Father] has been receiving counselling on a consistent basis since my last report He has always been respectful and engaged in the counselling. He actively seeks feedback and will present his parenting challenges. He has been motivated in the work and I have been impressed with his candour and ability to self reflect and to commit himself to the interests of the children and to his parenting. [The Father] is interested in parenting theory and practice. He continues to work hard at examining himself and his own parenting of origin issues for ways to improve his insight and understanding of his parenting practice. I see [the Father] as a caring and loving parent. He understands that aligning the children against their mother would not be in the children's interest and would be psychologically damaging to them In the two years since I wrote my last report I have found that [the Father] has grown emotionally and gained further insight in his parenting. He has not been hesitant to phone if he has parenting concerns for advice and reflection and/or direction. He has clearly benefited from both our therapy and the courses he has taken and I believe has developed a more objective and consistent parenting style. Discussion of the Reports of Dr. Ley and Mr. Barker [107] While I have found the reports of Dr. Ley and Mr. Barker to be admissible, I am unable to attribute much weight to them as neither report took into account the views of the Mother or those of Dr. Krywaniuk (both reports were written before Dr. Krywaniuk's report). Dr. Ley reviewed only the Mother's response to the application and her March 14, 2014 affidavit. She filed a number of other affidavits relevant to parenting issues between the Father and the Mother relating to B.H., M.H. and N.H. Mr. Barker only reviewed Dr. Korpach's Second Report. He has not reviewed any of the material before me on this application. [108] As a consequence, Dr. Ley and Mr. Barker heard only one side of the story. In my view, it is telling that the Father did not provide these professionals with the full extent of the Mother's response's to this application, particularly concerning M.H.'s ADHD, the Father's decision not to administer M.H.'s medication while at the DI conference in Tennessee and the consequences of the Mother's decisions made concerning the Children's education. The Mother had made express arrangements with M.H.'s school such medication would be administered, relied on the school (and the Father) that such would occur and later learned it had not. It also does not appear the Father shared the numerous Skype messages passing between M.H. and the Father as revealed in the Mother's affidavit of November 13, 2014. Dr. Ley did not consider the reasons behind the Mother ultimately removing her home phone because of ongoing and persistent calls between the Father and M.H. also set out in the same affidavit. Further, it is apparent Dr. Ley was not aware of the nature of the ongoing communications between the parties pertaining to various other parenting issues. [109] Rather, both Dr. Ley and Mr. Barker have offered opinions which are, in large part, based on what the Father has told them. In this respect, the reports are not balanced and in my view do not provide an accurate representation of the Father's relationship with the Mother or necessarily with the Children or of the reasons for the deterioration of his relationship with B.H. [110] The two reports are, however, useful in describing the steps the Father has taken since the Final Order to try to enhance his parenting skills and to address the Findings annexed to that Order. In my view, these two reports, together with several of the affidavits filed by the Father which speak to his relationship with M.H. and N.H., are of assistance, along with other factors which I will discuss, in demonstrating there has been a material change in circumstances in this case since the Final Order which warrants a change in the parenting regime currently in place. I will discuss my reasons for so concluding below. The Respective Proposed Parenting Plans of the Parties Parenting Time Claimant's Position on Parenting Time [111] The Father seeks equal parenting time on the following basis: · equal parenting time to commence immediately with the Father having both N.H. and M.H. every other week from Thursday after school to Monday morning and on the off week from Thursday after school to Friday morning; · alternating weeks during the summer months with arrangements made for the children to spend a two-week consecutive period with each parent during that time; · changes to the current plan concerning when and where exchanges are to occur; as the parties move to a 50-50 schedule, the exchange day will be Monday so each party will have the children from Monday to Monday with drop off at school Monday morning; · on statutory holidays and professional days that fall during scheduled parenting time such days will be included in the time with the parent the children are then living with; · that the school Christmas and Spring breaks be shared with Christmas Eve and Christmas day shared between the parties on alternate years and that the parents alternate having the children on their alternate birthdays; · parenting time with the children on their birthdays in 2016 as the Mother had them on their birthdays in 2015. The children would alternate Halloween with each parent. The non-resident parent would have the children on Monday evening so both parents could have Thanksgiving dinner with the children; · the children would be with the Mother from 10:00 a.m. to 8:30 p.m. each Mother's Day and with the Father for the same hours on Father's Day; · both parents would be entitled to reasonable access to the children on other special occasions, upon reasonable notice being given to the other parent seven days in advance for special occasions such as weddings, funerals, parties, grandparents' special occasions, out of town visitors, etc.; · a right of first refusal to take care of the children in the event the residential parent will be away overnight; · each parent would be entitled to reasonable telephone, text, email or Skype communication with the children during the other parent's parenting time, with reasonable defined so as to mean not more than 30 minutes in a given day; · in consultation with the children and each parent, the children would be enrolled in up to two extra-curricular programs during the school year and either parent could attend a game, practice or special event connected to the activity regardless of which parent has parenting time; and · the appointment of Dr. Elterman as a parenting coordinator with the power to mediate and arbitrate disagreements between the parties over parenting issues with each parent having the power to appeal decisions under the Arbitration Act, R.S.B.C. 1996, c. 55. Mother's Position on Parenting Time [112] The Mother's proposed parenting plan would be: · the Mother would have the primary care and residence of the children commencing with this order; · the Father would have parenting time with the children on the first, second and fourth weekend of each four-week rotation from school dismissal on Friday (or in the event of a school professional development day, school closure, school vacation or statutory holiday on the Friday, then from school dismissal on Thursday) until 8:30 p.m. on Sunday (unless such professional development day school closure, school vacation or statutory holiday occur on the Monday, then Monday at 8:30 p.m.) and on the other alternate week one midweek day (the day to be arranged, agreed to and confirmed in writing by email or Our Family Wizard ("OFW") after taking into account the children's extracurricular activities and routine) with return to her residence by 8:30 p.m.; · the schedule remain as above except that commencing in September 2016 the Father's midweek parenting time would be overnight with the Father returning the children to school the following morning; · the sharing of spring breaks, summer and winter holidays and for the sharing of time (or in some cases alternating years) for birthdays, Halloween, Mother's Day and Father's Day; · additional detailed provisions relating to the children's schooling, extracurricular activities, a prohibition on either party involving any caregiver or educational personnel in the parties' family law proceedings and detailed communication protocols between the parties and the children; and · the parenting plan not be reviewable before August 2017 following N.H.'s completion of grade 7. Discussion and Decision Regarding Parenting Time [113] Since the Final Order, I find the Father has taken steps to improve his parenting skills. I also find he was impatient to increase his parenting time and developed an overly optimistic view the Children's Therapists would recommend he have increased parenting time. I accept the Children's Therapists likely had difficulty managing the Father's persistent demands for increased parenting time and encouraged him to continue in his efforts to improve his parenting time and did make statements to him such continued efforts would result in increased parenting time. [114] Based on the totality of the record before me, I am satisfied the Father read more into how much increased parenting time he would have and when that would occur as well as the authority of the Children's Therapists in making that happen. Based on the Findings contained in the Final Order and subsequent events, it is clear the Father had significant hurdles to clear in improving his parenting skills (one of the most significant being to recognize and support the Mother in her parenting role). [115] The relationship between the Father and the Children's Therapists was quickly and completely undermined by the Father's impatience with them moving forward to increase his parenting time, his ultimate mistrust of them, and his ill-advised decision to ignore their advice not to attend the trial before Mr. Justice Masuhara to observe Ms. Label (who he was considering whether to retain) cross-examine one of the therapists. Further, the Father's secret audio recordings of interviews between himself and the Children's Therapists, the disclosure of those recordings in these proceedings (some recorded sessions had one of the children present) and what appears to me to be his enticement and involvement of the live-in nanny in these proceedings demonstrates his single-mindedness to go to any extent to achieve his own purposes and to undermine the Mother's credibility as a responsible parent. Under her authority to make decisions regarding, particularly the health and education of the children, I am satisfied, based on the record before me, the Mother has made decisions which have been in the best interests of the children. [116] I am concerned that the Father remains willing to engage in conduct that neither respects court orders nor respects the role of the Mother in decision-making in favour of advancing his own cause. The ADHD medication issue is but one issue. Given the Mother's clear communications with the school in 2013 about M.H. taking his medication when travelling to Tennessee for the DI competition, the Father knew he was acting contrary to the Mother's wishes when he did not administer M.H.'s medication to him. The evidence satisfies me both he and the school hid that fact from the Mother until May, 2014 when the Father forwarded the Mother a letter by email that he had obtained from Dr. Robertson after he had an appointment with the doctor to discuss whether M.H. could be excused from taking his medication while the two were in Tennessee at the 2014 DI competition. The school teacher (who attended the competition) with whom the Mother communicated in 2013 must have known the Father was not administering the medication while he and M.H. were away and was a party to hiding this fact from the Mother. As the Mother had entrusted her with the medication she must have been prevailed on by the Father to act against the Mother's wishes. The Father was acting contrary to the terms of the Final Order when he sought and obtained the opinion from the physician M.H. could be excused from taking his medication. I have earlier highlighted the extract from Dr. Ley's report which, in my view, seeks to lend credibility to and justify the Father's belief in the non-administration of the medication while M.H. was away. As stated, in my view these comments and the Father's conduct is contrary to terms of the Final Order and the parenting responsibilities assigned specifically to the Mother. [117] My other concerns which arise from the Father's conduct since the Final Order include backtracking on the Findings contained in the Final Order, the subverting of the role of the Children's Therapists by attending court contrary to the advice of the therapists and attempting to co-opt the parties' nanny into signing an affidavit when she was clearly reluctant to do so. One must wonder what pressure some of those who swore affidavits in support on this motion also felt when they did so. The sheer volume of the affidavit material filed by the Father (some 25 affidavits from third parties) suggests he approached a broad number of persons to solicit their support for this application. The commonality of language used in many of the affidavits cannot be coincidental. In addition, the Father seems to have little concern about secretly recording conversations he has with others including his interaction with the Children's Therapists and Ms. Gonzales. These factors cause me concern and lead me to take a measured approach to this application. [118] On May 30, 2014, Mr. Justice Silverman ordered Dr. Reay be appointed as the children's therapist. The Father refused to sign the order and refused to pay his one-half share of the costs of therapy which resulted in an order (by consent) he make such payment. In essence, the Father disobeyed the Silverman order because he disagreed with the appointment of another child therapist. [119] I am also concerned with allegations made in the Mother's affidavits that the Father has tried to undermine her decision-making authority concerning the children's education. Her decisions to change the children's designated schools must be based on the recommendations of professionals. The Father asserted the Mother changed M.H.'s school without consultation. The Mother says she told the Father of her intentions well in advance. The Mother investigated whether M.H. should be moved from his present school after he had been at the school for three years (she had been advised most students attended for two years). She went about investigating other options and spoke to and had meetings with personnel at another school to find out about learning disability and gifted programs that the school offered. The Mother asserts the Father "falsely" advised the school M.H. was attending and Ms. Wilson, M.H.'s tutor, that the Mother had made the decision to move M.H. which "induced" them to become involved in these proceedings. As this hearing was based on affidavits, I am unable to make a finding of fact based on the material before me as to which version of events is correct. The more likely conclusion is that the Mother was, as she has deposed, merely investigating the options open for M.H. While the Father's actions may have been based on a misunderstanding of what the Mother was doing because of the poor communication between the parties, they are another factor pointing me in the direction of caution in ordering increased parenting time as sought by the Father at the present time. Reasons for Finding of Material Change in Circumstances [120] Notwithstanding the above, in my view, there are a number of factors leading me to conclude that there has been a material change in circumstances since the Final Order as outlined in Gordon. [121] Some three years have transpired since the Final Order. The Children are older and each child appears to have developed a solid (but different) and beneficial relationship with the Father. The mental health of each child appears to be more stabilized. Each child has expressed an interest in having more parenting time with the Father. That interest, as expressed through the report of Dr. Krywaniuk, is not as desperate as the Father would make out but is a natural desire of any child to have a good solid relationship with their Father. The Father has essentially had equal parenting time during the Christmas and Spring breaks and the summers which the Children enjoy and which appear to have gone well by the account of those who have been present. [122] M.H. shares a deep interest with his Father in scientific knowledge (technology, mechanics, electronics, robotics and computer programming). N.H. is more actively involved in sporting activities but is supported in these activities by the Father. [123] The Father has made a significant effort to improve his parenting skills by attending the therapist the children are attending, by engaging Dr. Ley and Mr. Barker to assist him in improving his parenting skills, by attending two courses by Dr. Gordon Neufeld, a well-known parenting specialist, by reading books suggested to him by these experts and by significantly involving himself in his children's activities. His proactive parenting has been attested to by a number of persons who have filed affidavits on this application. [124] B.H. has moved from his Father's residence and now resides with his Mother. His relationship with his Father remains strained. I sense the Father is working hard to try to ensure he develops a better relationship with M.H. and N.H. than he currently has with B.H. [125] The Children are more settled at school and doing well, judging by their most recent report cards. As stated, this is a tribute to the decisions the Mother has made concerning choices about their education and M.H.'s health issues. [126] Dr. Krywaniuk was of the opinion: [T]hese parents desperately need to put to rest their negative relationship issues so that they can discharge their parental roles and responsibilities in a more effective fashion. They need to focus less on their own personal issues and shift their attention to their role as parents in a coordinated and complementary fashion. [Emphasis added.] [127] Dr. Krywaniuk recommended the parties be "enjoined to follow reasonable parenting principles and avoid negative parenting behaviours". He recommended, and I include in my Order, the following provisions: The parties will: · Maintain a positive image of the other parent [and that parent's partner (if any)]; · Support the limits and decisions set by the other parent; · Be considerate of the other parent's time and expectations; · Encourage respect for the authority of the other parent; · Support common and positive behavioral standards; and · Discuss issues before making assumptions based solely on the children's comments. The parties will not: · Speak negatively about each other [or each other's partners]; · Encourage the children to keep secrets from the other parent; · Encourage disloyalty or negative behaviour when with the other parent; · Involve the children in any dispute between the parents; or · Undermine the authority of the other parent. [128] Dr. Krywaniuk recommended that to further discourage inappropriate parenting, the court may wish to consider empowering the parenting coordinator (or the court) to impose sanctions which would include the temporary suspension of parenting time or a reduction in the parenting schedule (for persistent inappropriate parenting). I would follow this recommendation if I considered such power to be within the scope of those given to parenting coordinators under the FLA. [129] The parties will appoint a parenting coordinator. If the parties are unable to agree on the parenting coordinator within 30 days of these reasons being issued, on application, the court will appoint such parenting coordinator. The parenting coordinator so appointed will have all the powers set out in s. 17 and 18 of the FLA. [130] This Court has ongoing concerns about the Father's behaviour as outlined above and his "win at all costs approach". I am of the view a gradual, monitored increase in parenting time is warranted as being in the best interests of M.H. and N.H. I have outlined the terms of such increased parenting time at the conclusion of this decision. Parental Responsibilities [131] The Final Order provided that the Mother have primary care and responsibility for the children's medical, dental, academic and other major needs with input from the Father. [132] The Findings attached to the Final Order provided that the children's best interests would be served by an arrangement that allows their needs to be met expediently and not delayed by excessive parental deliberation and delay. I agree. [133] Section 40 of the FLA provides that the court may allocate the parenting responsibilities set out in s. 41 to one or more of the children's guardians (in this case, the Father and Mother). [134] Section 40(4) of the FLA provides that in doing so "no particular arrangement is presumed to be in the best interest of the child" and, particularly, that it must not be presumed that parenting responsibilities should be allocated equally among guardians or that decisions among guardians should be made separately or together. Again, the best interests of the children are the overriding consideration of the court in allocating parenting responsibilities. [135] The Father seeks full parenting responsibilities as set out in s. 41 of the FLA: 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (b) making decisions respecting where the child will reside; (c) making decisions respecting with whom the child will live and associate; (d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (h) giving, refusing or withdrawing consent for the child, if consent is required; (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (k) subject to any applicable provincial legislation, (i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (l) exercising any other responsibilities reasonably necessary to nurture the child's development. [136] It is necessary to consider the interests of each child. As stated, they each have expressed an interest in increasing the parenting time they have with their Father. M.H. [137] M.H. is 13 years old and is in his first year (grade 8) at a high school in West Vancouver. The school had a psychological-educational assessment report prepared in June 2015 by Dr. Smith, a registered psychologist. The report was prepared to assist the high school in assessing M.H.'s educational needs when he commenced school. The report noted M.H. had a long-standing ADHD condition of moderate severity which was currently well-managed by medications and M.H.'s increasing maturity in managing inattention. The report noted: Of greater concern is [M.H.'s] social-emotional approach to learning. He is a highly anxious and defensive learner. [M.H.] eagerly learns about his areas of interest, but, like many gifted students, he is highly self-directed, and it can be very challenging to get him to work on his areas of weakness, or on other areas that do not interest him. This contributes to the asynchronous development patterns also seen among gifted students. [M.H.] has developed a self-perception that he is very smart. In some ways, this is true. But [M.H.] also has areas of relative weakness. It is emotionally difficult for him to accept this. When he is confronted with challenges, he takes it very personally and it is extremely frustrating and upsetting to him It is suggested that this [a more realistic sense of self is] something that both parents work towards with [M.H]. [Emphasis added.] [138] In his last school report card M.H. is noted to be doing well. M.H. finished grade 7 meeting or exceeding expectations in all his subjects and "excellent" ranking for his work habits, attitude and behavior. His teacher noted, "Grade seven has been a fantastic year for [M.H]. He usually arrives for school, laptop under his arm eager to share his latest creation from his science workshop." He was noted to sometimes "push the limits of classroom rules" but otherwise the comments were complementary. N.H. N.H. finished grade 5 in June 2015. He is also doing well in school, His report card reads "[N.H.] had demonstrated a good attitude toward learning and has improved his work habits this term". The report goes on to note "[N.H.] had learned good social responsibility skills, and has learned to make good choices for collaborative learning and social interaction with peers". Discussion and Decision of Parenting Responsibilities [139] I do not accept Dr. Krywaniuk's recommendation that the Father and the Mother should share parenting responsibilities and that there should be a system of dispute resolution built into the order. I reach this conclusion for several reasons. [140] Under the regime set up in the Final Order, the Mother was granted final decision-making authority over decisions concerning the children's health, education and other major decisions. Had decision-making authority been shared between the Father and the Mother there is, in my view, little doubt the parties would have not been able to agree on either health or educational issues and (given their communications) very little else. [141] The Father has held and, according to Mr. Barker's report, still holds strong views about the treatment of M.H.'s ADHD with medication that differ from those of his Mother and that have been a cause of significant discord between the parties and with the school M.H. attended. [142] Under the Mother's decision-making, the children have done well at school and generally in how they have progressed in their development. [143] In my view, it is important decisions relating particularly to both children's education and health be made in the most reasonably prompt and non-confrontational manner possible. The evidence establishes such would not have been the case had the parties had joint decision-making authority. [144] The conflict between the parties seems to govern their relationship. Their communications are short, crisp and often sarcastic. The parties still have ongoing substantive issues before the court which are not yet resolved. Having reviewed the voluminous material filed on this application, I have no confidence the parties' relationship will improve any time in the immediate future. [145] The creation of the system recommended by Dr. Krywaniuk would, in my respectful view, simply create a mechanism which would allow the Father to further debate issues which is not appropriate at this time in the development of the children. There can be little doubt that the children have been affected by the hostility between their parents. This is reflected in the Korpach Reports, in the Krywaniuk report and in the report of Dr. Smith. [146] The Mother shall retain decision making authority over the Children's medical, dental, academic activities and all other major needs will remain unchanged as will the requirement that such decisions be first discussed in a collaborative manner prior to the decision being made. Conditions of Parenting Time [147] Each of the Father and the Mother shall adhere to each of the following stipulations: The parties will: · Maintain a positive image of the other parent and that parent's partner (if any); · Support the limits and decisions set by the other parent; · Be considerate of the other parent's time and expectations; · Encourage respect for the authority of the other parent; · Support common and positive behavioral standards; and · Discuss issues before making assumptions based solely on the children's comments. The parties will not: · Speak negatively about each other or each other's partners; · Encourage the children to keep secrets from the other parent; · Encourage disloyalty or negative behavior when with the other parent; · Involve the children in any dispute between the parents; or · Undermine the authority of the other parent. Variation of Order [148] Given the terms of the Final Order, including the Findings, the severe trauma suffered by the Children because of the family conflict between the parties, the Father's continued resistance to and lack of respect and support for health and educational decisions made by the Mother, the Father's general lack of respect for the Mother, and the continued unresolved conflict between the parties pertaining to the resolution of ongoing family law issues, I am of the view that while the Father's parenting time should be increased, such increase should be phased in and monitored carefully over a period of several years. [149] Accordingly, the Final Order will, in addition to the above, be varied as follows: 1. By deleting any reference to [B.H.]. 2. By changing paragraph 1A to read: This Order shall be implemented within three (3) weeks of the issuance of this decision. 3. For clarity, primary care and residence of the children will remain with the Mother (paragraph 2). 4. By changing paragraph 3 covering the Father's Access to provide that: 3. The Father will have parenting time with [M.H.] and [N.H.] as follows: a. On one of his alternate weekends (the weekend to be agreed to by the parties and fixed) from after school on Friday until 8:00 p.m. the following Monday evening. The alternating of weekends shall commence on the implementation of this Order. b. Commencing September 1, 2016, the Father's parenting time in the extended weekend referred to in the above paragraph will be extended for the entire week such that his parenting time will be for that full week with return to the Mother by Sunday at 8:00 pm; and c. Commencing September 1, 2017, the Father will have time extended on his other alternating weekend from after school on Friday to Monday at 8:00 p.m.; d. Commencing September 1, 2018 the Father and the Mother will share parenting time. 5. The phrase "Subject to the provisions of paragraph 5 of this Order," will be deleted from paragraph 4. 6. Paragraph 5 will be amended to read: 5. The Father shall be responsible for picking up the Children from school at the commencement of his parenting time and dropping the Children off at the Mother's residence at the conclusion of his parenting time, or at school on the mornings the Children are in his care (whichever the case may be), in accordance with times set out in the regular parenting schedule. 7. Paragraph 6-9 will be deleted. 8. Paragraph 10 change "discuss" in (d) and (e) to "consult with"; add "organized extracurricular activities" in (d) after "religious instructions". 9. Paragraph 10 will be amended as follows: i. Each of the parties will have the right to receive and respond to any notice that a parent or guardian is entitled or required by law to receive; and j. Both parties shall, during their parenting time, be entitled to arrange child care, or otherwise place the Children in the care of a third party of his or her own choosing without the consent of the other party and there shall be no right of first refusal in favour of either party. 10. Paragraph 11A will be added to provide for the appointment of a parenting coordinator. If the parties are unable to agree on the parenting coordinator within 30 days of these reasons being issued, on application, the court will appoint such parenting coordinator. The parenting coordinator so appointed will have all the powers set out in s. 17 and 18 of the FLA. Specifically, the parenting coordinator shall have the authority to make determinations whether either party is adhering to the factors set out in Para. 147 of this decision. 11. In Paragraph 12, the children's therapist will be changed to "Ms. Terri Rypkema" in place of "Dr. Marcelle Blancato and Dr. Stella Charalambidis" and every reference to "Children's Therapists" will be changed to "Children's Therapist". 12. Prior to any application to vary this order each of the Children's Therapist and the Parenting Coordinator will produce a report which will set out their respective opinions on how each party has implemented the terms of this order and any recommendation(s) each may make to the Court concerning the best interests of the Children. 13. The Father shall continue to attend counselling with Dr. Ley and Mr. Barker and will provide each with a copy of these reasons for judgement. 14. Paragraph 12A will be added: 12A. a. The Mother shall be responsible for making all medical, dental, counselling, therapy, and all other health-related appointments and decisions; b. The Father shall not schedule or take the Children to any medical, dental, counselling, therapeutic, or to any other health-related appointments unless he has obtained the prior express written consent of the Mother via OFW. Notwithstanding the foregoing, the Father may take the Children to any appointment which occurs during his parenting time or in the event of any medical or dental emergency, as set out in paragraph 12A(e) herein; c. Each party shall have the right to communicate with all professionals involved with the Children's care directly, and each party shall have the right to request and obtain information respecting the Children from all medical and dental professionals, educators, tutors, therapists, counselors, and social welfare professionals, without the further consent of the other party; d. Each party will share all significant medical information with the other via OFW in a timely manner after receipt from a medical caregiver; e. In the event of a medical emergency, the party having physical care of any Child or Children will be entitled to make decisions which are necessary to alleviate the emergency, and must notify the other party as soon as practicable as to the nature of the emergency so he or she can attend as well; and f. The Mother shall maintain copies of the Children's birth certificates, medical records, and MSP cards and provide same to the Father as required. 15. Paragraph 14 will be amended and paragraph 14A will be added: 14. The following will apply to the schooling of both [M.H.] and [N.H.]: a. The Mother shall have the primary responsibility for school and activity registration; b. Both parties shall be entitled to attend separately school conference or any other school related activities where the parents' presence is requested or permitted; c. Each of the parties shall be entitled to attend all school concerts, plays, and other school-based activities and events; d. Neither party shall restrict the Children from greeting the other party during school concerts, plays, and other school based activities and events. The parties shall be polite and respectful to one another in the presence of the Children, school personnel, and other parents at all times; and e. The party who is providing residential care for the Children will be responsible for attending at the Children's school should either child become ill. The school will be provided with the parenting schedule and contact information for each party for such purposes. 14A. [M.H.]'s Schooling a. [M.H.] shall continue to attend his current school. b. Both parties shall be responsible for ensuring [M.H.] completes his homework while in his or her residential care. c. Both parties shall be entitled to be informed of, and attend separately, any and all school based meetings or any other therapeutic related activities for [M.H.] where the party's presence is requested or permitted. d. Both parties shall maintain a strictly professional relationship with all members of the school based team, teachers and other school and educational personnel, tutors, and counsellors. e. Each party will cooperate with all professionals to learn strategies to assist [M.H.] with any special learning requirements. [N.H.]'s Schooling f. [N.H.] shall continue to attend his current school. g. Each party shall be responsible for ensuring [N.H.] completes his homework while in his or her residential care. 16. Paragraph 15 will be amended by adding d. The Father will abide by the Mother's decisions relating to [M.H.]'s medication, (including when and where he is to take such medication), and her decisions concerning the children's schooling. Before making decisions concerning M. H.'s medication the Mother will consult with M.H's attending physician. 17. Paragraph 16 will delete reference to Dr. Korpach's Update Report. 18. Paragraph 17 will be deleted. 19. Paragraphs 20A and 20B will be added as follows: 20A. a. Each of the parties must provide to the other, and keep current, their home address; b. Neither party shall involve the Children in, or expose the Children to, discussions related to matters arising from the parties' matrimonial litigation; c. Each party shall be respectful towards the other in front of the Children and in their communications with one another; d. Each party will respect and support the role of the other party as a parent and will not say or do anything to undermine the parenting time allotted to each parent under this order; e. Each party will immediately remove the Children from the presence of any third party who is speaking or acting disrespectfully about or towards the other parent or his or her extended family or spouse; f. Neither party shall use the Children as conduits for carrying messages to the other party; and g. Neither party shall directly or indirectly encourage the Children to mislead, lie to, or keep secrets from the other party. 20B. Telephone Contact a. Except in the case of an emergency or other matter of an urgent nature, neither party will contact the other by phone; b. Each of the parties shall be entitled to have telephone contact with the Children, while they are in the care of the other party, once per day between the hours of 4:00 and 8:00 p.m. on school days, and between the hours of 9:00 a.m. and 9:00 p.m. on weekends. The telephone calls shall not exceed 15 minutes in duration; c. Neither party shall put the Children on speaker phone while the Children are speaking with the other party or otherwise monitor, record, or listen in on the Children's calls with the other party; and d. In the event that either of the parties is vacationing with the Children or out-of-town for durations of seven (7) days or more, telephone contact with the Children shall be limited to two (2) telephone calls for each week the Children are away, scheduled at a mutually convenient time in advance by OFW. Each of the parties shall ensure the Children initiate such calls to the other party while on holiday. Text Messaging, Skype or Face Time e. Neither party shall communicate with the other by text message unless: i) there is an emergency involving the Children; or ii) that party is going to be late picking up or dropping off the Children; f. All text messages shall be polite and worded respectfully; g. When the Children are in the care of the other party, neither party shall communicate with the Children via text message or by means of any electronic, audio, or visual contact media, such as Skype or FaceTime; and h. Except in the case of an emergency, neither party shall text message the other nor respond to any text message, electronic, audio, or visual contact media which originates from the Children while they are in the care of the other party. Email Communication i. While the Children are in the care of the Mother, the Father shall limit his daily email communication to each child to no more than four emails unless there are exceptional circumstances. In such circumstances he shall notify the Mother in advance; j. The parties shall communicate with one another only by OFW and for the purposes of limited communication related to matters respecting the Children's health, education, general welfare, emergencies involving the Children, extracurricular activities, or scheduling changes; k. The parties shall use OFW for scheduling change requests, trading time, posting the educational, medical, dental, extracurricular and other activities, appointments and events forthwith upon their becoming known to them in relation to the Children. The OFW communications are to be phrased respectfully, and will not contain any derogatory or inappropriate statements or material. All other communication, direct and indirect, is prohibited; and l. Each party will request their spouse, friends, business associates, or family members, not to communicate with the other party by email, telephone, or text messaging, unless otherwise agreed to in writing by email. Neither party will provide the other's personal email, telephone, cell number, private address, or other contact information to any third party unless otherwise agreed to in writing in advance. Facebook and Social Media m. Neither party shall use Facebook, LinkedIn, or any other social media site to communicate to or about the other parent, or otherwise publish offensive and pejorative or disparaging remarks about the other party in any public forum, or encourage, condone, or permit any other person to communicate to or about the other party via any social media site, or otherwise publish offensive, pejorative, or disparaging remarks about the other party in any public forum. 20. Paragraph 26 will be deleted following commencement of equal parenting time in September 2018. 21. The following paragraphs will be added after paragraph 26: M. FLEXIBILITY AND SCHEDULING CHANGES 27. Except in the case of an emergency, should either party wish to alter the schedule or trade time as a result of work commitments, out-of-town business trips, or events, then any proposed changes shall be agreed upon in writing via OFW provided that the requesting parent has given not less than 1 week advance notice to the parent receiving the request. 28. Make-up time will be provided to the party who agrees to rearrange the schedule as the party requests. 29. In the event that a party is unable to accommodate a request for a scheduling change or is otherwise unavailable, it shall be the responsibility of the requesting party to make appropriate child care arrangements. 30. If the Children have a special event planned with either party for a particular weekend (such as a wedding or family reunion), the Parties shall give two (2) weeks' notice of their wish or swap. The Parties shall accommodate such changes when practicable, but neither party shall use this provision as a basis for interfering with the other's scheduled parenting time. N. RESPECT FOR PRIVACY AND PARENTING TIME 31. Both Parties will respect the other's privacy and autonomy over his or her own residence and work place. 32. Neither party will interfere with the other's parenting time whatsoever, either directly or indirectly, or attend at the other party's private residence or work place under any circumstances, or during special events, private family vacations, planned recreational activities with the Children (including Spring Break and summer camp activities and programs), extracurricular activities, or at the Children's school during their recess and lunch breaks during the other party's scheduled parenting time with the Children. 33. Neither party will schedule appointments during the other party's parenting time or act in any manner that interferes with the other's parenting time. 34. Each party shall be enjoined from annoying, harassing or communicating with the other party, except in accordance with the communication protocols set out herein. 35. Neither party shall communicate, directly or indirectly with either of the Children except in accordance with the communication protocols set out herein and shall not, under any circumstances, arrange or attempt to arrange any meeting between themselves and the Children during the other parent's parenting time, without the express, prior written consent of the other party. M. EXTRACURRICULAR ACTIVITIES Organized and Recurring Extracurricular / After School Activities 36. The Parties agree that they shall encourage and support the Children's enrolment in extracurricular activities. 37. More particularly, each party shall take all steps necessary to support and facilitate each Child's participation in up to two (2) organized and recurring extracurricular programs each week during the school year including any combination of school-based or out of school academic, arts, science, or sports-related activities (the "Extracurricular Activities"). 38. After consultation with the Father and with each Child, the Mother shall be responsible for determining and registering the Children in their Extracurricular Activities. 39. The Mother shall post on OFW the full particulars of the Children's Extracurricular Activities in any given semester, including when and where they occur, and the costs associated with same. 40. Both Parties and each of their respective spouses shall be entitled to attend sports-related games, music recitals, school concerts, and other child-related events (the "Events") irrespective of whether such Events occur during the other's parenting time. 41. Neither party shall restrict the Children from greeting the other party during such Events, and shall, at all times, be polite and respectful to one another in the presence of the Children, their coaches, instructors, teachers and other school personnel, as well as the parents of other children. Ad Hoc Recreational Activities 42. Each party will have the discretion to enroll the children in ad hoc activities during that party's parenting time without the further consent of the other party. 43. Each party will be responsible for the expenses associated with any ad hoc activity for which the party has enrolled the Children during his or her parenting time. 44. Neither party shall use the Children's activities as a means of interfering with the other's parenting time, and shall not, under any circumstances, attend uninvited or unannounced at such ad hoc activities without the express written consent of the other party, such written consent to be provided via OFW in advance. 45. Each party will be responsible for arranging transportation of and shall ensure the attendance of the Children at their organized and recurring extracurricular activities (including team sports, games, music lessons and recitals, or other special events) during his or her parenting time. N. PASSPORTS 46. The Mother shall keep the Children's passports in her possession, with access to them by the Father as required. 47. The Father shall return the Children's passports to the Mother within 48 hours of his return from travel with the Children. 48. Neither party shall withhold or threaten to withhold the Children's passports from the other party at any time. 49. Each party shall take all reasonable precautions to safeguard the Children's passports while they are in his or her possession and shall forthwith report to the other party if a passport is lost, stolen or destroyed. 50. Should either party lose a Child's passport while it is in his or her possession, then that party shall be responsible for the costs arising from such loss, including the cost of replacing the Child's passport. 51. The Mother shall apply for, obtain, or renew the Children's passports. The Father shall forthwith sign any passport applications, failing which the Deputy District Registrar will sign on his behalf. O. INTERNATIONAL AND DOMESTIC TRAVEL 52. Both Parties will be free to travel from British Columbia to Washington State during his or her parenting time with the Children for shopping, recreational, and/or day or weekend trips without the further consent of the other party. 53. Should either party wish to take the Children to Washington State for three (3) days or less, they shall advise the other party five (5) days in advance by OFW and the party shall provide the traveling party with the required travel consent and passport 48 hours in advance of the planned excursion. 54. Should either party wish to travel with the Children outside of the Province of British Columbia for trips of four (4) days or more duration, the travelling party must deliver to the other party, via OFW and at least 14 days in advance of the intended travel, a "request for travel" which shall include: a. the date of departure and date of return; b. if travel is by air, all flight numbers, carrier names, departure and destination airports and scheduled flight dates and times; and c. a general travel itinerary including contact information for any hotels or accommodation which has been pre-booked. 55. After receipt of an appropriate request to travel, and at least seven days before the intended travel, the other party shall deliver to the travelling party a letter signifying parental consent to travel, the same to be unreasonably withheld. P. ALLOWANCES 56. Each party shall be obligated to communicate the parameters or rules associated with an allowance for the Children in each of the Parties' respective homes. The Parties shall endeavour to formulate a payment structure which is reasonable after taking into account the parenting schedule and age and level of development of each of the Children. [150] Subject to clarification, this order will be subject to change only by way of an application to vary the terms hereof. I will remain seized of all matters relating to parenting time and parenting responsibilities. [151] If the parties are unable to agree on the issue of costs, they have liberty to make written submissions to me within 30 days of these reasons being issued. "Greyell J."