V.K.W.W. v. K.A.M.G.

2023 BCSC 572 V.K.W.W. v. K.A.M.G.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: V.K.W.W. v. K.A.M.G., 2023 BCSC 572 Date: 20230308 Docket: E55446 Registry: New Westminster Between: V.K.W.W. Claimant And K.A.M.G. Respondent Before: The Honourable Justice Kirchner Oral Reasons for Judgment In Chambers Counsel for the Claimant: A.S.K. Wormeli Counsel for Respondent: M.A. Verdun-Jones Place and Date of Hearing: Vancouver, B.C. March 1, 2023 Place and Date of Judgment: Vancouver, B.C. March 8, 2023 [1] THE COURT: Mr. W. applies for an order for the graduated restoration of his parenting time back to a shared parenting arrangement as generally contemplated by a final consent order that was made in this family law proceeding on March 29, 2019 (the "Final Order"). [2] Mr. W.'s parenting time was disrupted in October 2020 when allegations were made that he had sexually abused the party's children. He argues it has long been confirmed that these allegations are untrue and while there was some concern in 2022 about how best to reintroduce his parenting time, those concerns have now been addressed, thus clearing the way for the resumption of his shared parenting time. [3] Ms. G. opposes the application. She argues that in light of the allegations of sexual abuse and the behaviour of the children who resisted parenting time with Mr. W. in the past, there is still a concern for the children's safety and well being. [4]

She agrees that Mr. W. should continue to have supervised parenting time and concedes that this can be increased to twice a week for six hours each time but any change beyond this, including moving back to unsupervised parenting time, she says, should only be on the recommendation of a counsellor. She also argues that Mr. W.'s parenting time should be conditional on the children receiving counselling and that the parties should attend co-parenting counselling. The primary concern, she says, is the safety of the children. Background [5] This matter has a significant litigation history over the past two years. Justice Blok was seized of the proceedings from March 2021 through April 2022. This application essentially picks up where Justice Blok left off. His reasons for judgment of March 31, 2021 set out the relevant facts up to that date and I will try to summarize them briefly. [6] The parties' relationship began in 2012 and ended in 2018. The older daughter, M., was born in June 2014 and the younger, H., in June 2016. They are now 8 and 6. [7] Starting sometime in 2020, after the final consent order was made, conflict between the parties escalated, particularly at pick-up and drop‑off times. [8] Justice Blok found that during these exchanges the children exhibited behaviours suggesting they were markedly psychologically affected by the parents' conflict. This included "extreme

reluctance in transferring to the father." [9] In October 2020, allegations that Mr. W. had sexually touched H. emerged. There was also a suggestion of an incident of sexual abuse involving M., although M. later denied that. [10] Ms. G. reported the matter to the police and to the Ministry of Children and Family Development("MCFD"). I will not review the allegations in any detail. They were outlined and considered in Justice Blok's reasons. When the allegations first emerged, Mr. W. voluntarily ceased his parenting time pending the outcome of the MCFD investigation. [11] On January 13, 2021, a social worker with MCFD advised Mr. W.'s counsel by email that "there was not enough information for sexual abuse finding, however, the children are saying they are scared of Mr. W." [12] On February 4, 2021, the social worker reported to Mr. W. that, when interviewed, the children both had positive things to say about him, particularly M. H. said that she did not feel safe with Mr. W. because he had pinched her vagina on one occasion but she was unable to provide details of this. In a follow up interview with the children two weeks later, M. said that she was now also scared of Mr. W. I note that M. had not seen Mr. W. in the intervening period. [13] The social worker reported that she (the social worker) was not really concerned about the allegations of inappropriate touching but was

concerned that H. reported being scared of Mr. W. The social worker indicated that MCFD was agreeable to starting supervised visits with Mr. W. but was concerned about the nature of interactions between the parents. She said that a conflict was enough to have caused the behaviours in the children that were of concern to MCFD and the exchanges were a significant element in this conflict. [14] On February 10, 2021, the MCFD social worker advised that further clinical assessment and recommendations from a counsellor were needed for the girls and that the social worker could not, at that time, "fully recommend supervised visits." However, within a week, the social worker wrote again and said that MCFD took no position on parenting time. [15] Also, in February 2021, there were emails exchanged with a counsellor who had been contracted by MCFD to work with the girls. [16] In response to an inquiry by Mr. W.'s legal counsel about some form of assessment for the suitability of supervised parenting time with Mr. W., the contract counsellor responded by stating, essentially, that her role was to be an emotional support for the girls and she would not do a formal assessment about supervised parenting time. [17] It is evident from her communications that the contract counsellor did not consider it to be her role to question the veracity or reliability of the reports of sexual touching or

the girls' assertions that they were afraid of Mr. W. She accepted the girls' statements that they did not want to see their father and she did not question whether there may be underlying or background factors that might be driving these sentiments. As Justice Blok would later say, and I agree, the contract counsellor did not seem to be moving the matter to any sort of resolution or end point. [18] In light of the counsellor's response, Mr. W. retained a psychologist, Dr. Krywaniuk, who has experience in preparing s. 211 reports. Dr. Krywaniuk provided an opinion on what the contract counsellor had said. He did not see the children nor opine on their circumstances and he offered no opinion on whether either daughter had been "abused". Rather, he offered some general opinions about why children might resist parenting time with one of the parents and he opined on the nuances that can be at play with a child's disclosure of sexual abuse. He was clear that he was not suggesting that what a child may have communicated is untrue but simply that it is not always possible to take what a child of a very young age might say as literal fact, depending on the circumstances. [19] On March 23, 2021, Mr. W. applied to the court for an order seeking supervised parenting time. He had not seen the girls since October 2020. As noted, that application came before Justice Blok who gave reasons for

judgment on March 31, 2021. [20] Ms. G. opposed the application on the basis that supervised parenting time went against MCFD's statement that it could not "fully recommend supervised parenting at this time." Ms. G.'s position, I note, ignored the subsequent communication from the social worker that MCFD was now taking no position on that issue. [21] Ms. G. also relied on the contract's counsellor's view that the children should not see Mr. W. against their wishes. [22] It is evident from Justice Blok's reasons that he was not especially persuaded by the allegations of sexual abuse. I note parenthetically that on July 22, 2021, four months after Justice Blok's decision, MCFD closed its file on the issue and reported that they had no ongoing child protection concerns. [23] Justice Blok was also underwhelmed by the contribution of the contract counsellor. As noted, he said she "did not seem to be moving toward any ascertainable end point or resolution in so far as she was simply providing comfortable, supportive visits for the children and nothing more." [24] Justice Blok said the status quo was not acceptable and it was a "highly undesirable situation for a parent not to be seeing his children." However, Justice Blok was also satisfied there are legitimate concerns about reintroducing the children to parenting by Mr. W. and held that this should be done under the direction of a

properly-qualified professional. He did not say those legitimate concerns related to the sexual abuse allegations. He said a professional should "look at the situation and formulate a way forward, including providing the necessary counselling herself or himself, if necessary, but most importantly, formulating a proper plan for the safe and secure reintroduction of the children to their father." [25] After receiving recommendations from the parties, Justice Blok ordered that Dr. Ellie Bolgar assess the children and make recommendations concerning parenting time in the manner of reintroducing Mr. W.'s parenting time, including any recommendations about counselling. Justice Blok said: Dr. Bolgar should be asked to give recommendations on any counselling for both parties and the children, with the overall goal of reintroduction and normalization of that parent/child relationship in a manner that is safe and secure for the children. He suggested that there was a "great likelihood" that the parties would accept Dr. Bolgar's recommendations and abide by them without having to come back to court. [26] Unfortunately, that was not to be the case. [27] Dr. Bolgar interviewed the children and the parties in April, May and June of 2021. She also interviewed the MCFD social worker, the contract counsellor, and the children's preschool teacher. Her assessment, dated July 12, 2021, is

generally positive with respect to Mr. W. and his engagement with the children and clearly sceptical about the reports of abuse. [28] Dr. Bolgar reported that during her first session with Ms. G. and the children, the children immediately reported that they were afraid of their dad, but after about ten minutes they spoke in a more natural and honest manner and said positive things about him. I infer Dr. Bolgar was implying that the children's stated fear of Mr. W. may have been suggested to them by Ms. G. [29] Dr. Bolgar goes on to state that Ms. G. presents as anxious and "projects her own feelings about [Mr. W.] on the children." She said Mr. W. presents as a loving and caring father to the children. [30] She concluded her assessment with this: In summary, it is difficult to say with certainty if [H.] was harmed or not by her father. On the other hand, it is the writer's opinion that negative statements made by [Ms. G.] to the children about their father contributes to their emotional distress. It is damaging to the children that they are exposed to their parents' arguments during drop‑off and pick‑up times. These experiences are causing great stress and could be traumatizing for the children. Both children are confused and caught in the middle of their parents' conflict which makes it difficult for the children to honestly express their feelings." [31] Dr. Bolgar's

recommendations are as follows: The children communicated that they missed spending time with their dad and their grandmother. My recommendation is for the children to have visitations with their father one afternoon during the week and one day during the weekend supervised by [Mr. W.'s] mother. This time could be increased over time dependent on further assessment. [32] Dr. Bolgar further recommended that exchanges occur in a public place to minimize conflict amongst the parties and that the children be scheduled for weekly appointments for reunification therapy with their dad. Finally, she recommended that the parties attend co-parenting therapy with a professional trained in family therapy and with a good understanding of high conflict situations. [33] Following Dr. Bolgar's report, Mr. W. sought Ms. G.'s agreement to the recommended supervised parenting time. He also sought to establish the recommended counselling and therapy through Dr. Bolgar. However, Ms. G. objected to any continuing involvement of Dr. Bolgar. [34] In an email dated August 13, 2021, Ms. G. advised Dr. Bolgar that she was not the best fit for the children or the situation. She outlined concerns she had with Dr. Bolgar's recommendation that Mr. W.'s mother serve as a supervisor for parenting time and suggested Dr. Bolgar and Mr. W. had unilaterally decided on times and dates for counselling without

consulting her. She wrote: What you are not considering is the children's activities, their bedtime, or my work schedule. The visit schedule needs to take these factors into consideration. I would appreciate you not having separate, secretive communications with [Mr. W.]. [35] Dr. Bolgar replied by email on the same date stating: I understand your concerns and I will no longer be providing services to you or your children. Good luck to you both. [36] Mr. W. then applied to the court for an order that Dr. Bolgar provide reunification counselling for the children and that Mr. W. have the supervised parenting time that Dr. Bolgar had recommended. Justice Blok heard the application and ordered that Dr. Bolgar's recommendation should be implemented immediately. He was unable to resolve a dispute between the parties as to whether Dr. Bolgar or another counsellor proposed by Ms. G. should do the reunification and other counselling but left it to the parties to try to work that out. He gave them leave to come back before him if they were unable to reach an agreement. He also ordered that the interim supervised parenting time as recommended by Dr. Bolgar begin immediately. [37] Not surprisingly, the parties were unable to reach agreement on counselling and reunification therapy. The matter again came before Justice Blok on November 23, 2021, for resolution. The transcript of that

proceeding is in evidence in this application. [38] At the hearing of that application, Mr. W. advocated for the appointment of Dr. Bolgar while Ms. G. advocated for another counsellor with a company called Next Steps. Mr. W. took issue with involving a new counsellor who would have to come up to speed on the matter whereas Dr. Bolgar was already very familiar with the family's circumstances. Mr. W. also expressed concerns about the Next Steps counsellor's independence and impartiality based on findings made by the Supreme Court in another case. [39] Counsel for Ms. G., who is not counsel on the application before me, submitted that Dr. Bolgar could not provide the counselling because she refused to do so in light of Ms. G.'s complaints. Counsel emphasized that Ms. G. was supportive of the counselling recommendations made by Dr. Bolgar but did not support Dr. Bolgar doing that work. [40] At this point, Justice Blok became understandably frustrated over the delays caused by Ms. G.'s position. According to the transcript, he stated: Anyway, how bad could [Dr. Bolgar] be? I mean, this is my frustration. This idle debate over the therapist has meant that eight months have gone by with no therapy for the children, with this never-ending debate over therapists, and conflict from your clients and with their proposed therapist And it causes me to wonder, how bad could [Dr. Bolgar] be

compared to the damage created by unreasonable delay in getting the appropriate counselling for the children and just bickering over whether somebody's got a doctor or a master or one thing or another. It is just enormously frustrating. And, you know, I do not know whether it is fair to draw this conclusion, but it does make me wonder just how committed your client is to their children's welfare that she would delay such beneficial treatment for the children for such a long time. [41] Ms. G.'s former counsel then deflected this concern back on to Dr. Bolgar. She stated: Because of issues that occurred during the process of the report being created by Dr. Bolgar, [Ms. G.] had concerns. [Ms. G.] raised those concerns, and, unfortunately Dr. Bolgar has set out numerous times that she is not comfortable providing these treatments now. Of course, Dr. Bolgar's discomfort was providing treatment for the family after Ms. G. had questioned her impartiality. [42] Justice Blok suggested that Dr. Bolgar could do the reunification counselling since that primarily involved the children and Mr. W. while the other proposed counsellor could do the co-parenting counselling. However, Ms. G. still opposed that because she understood she was to have some involvement in the reunification counselling. [43] At that point, counsel threw more sand in the gears by telling Justice Blok that Ms. G. had

filed a formal complaint about Dr. Bolgar to Dr. Bolgar's professional association and this too might interfere with her continued involvement. I observe that a copy of this complaint has never been produced. Dr. Bolgar advised in an email dated May 2, 2022, that she had never received or been advised of such a complaint. [44] The suggestion that this complaint was made was brought up again at the hearing before me but still no copy of it had been produced. The fact that it has never been produced, yet twice referenced in court, and that Dr. Bolgar is not aware of any complaint, adds considerably to the kind of doubt Justice Blok expressed, fairly in my view, about Ms. G.'s motivations. [45] Justice Blok expressed even more frustration that there was no clear evidence of what the reunification counselling was or to what extent it might involve Ms. G. He ultimately ordered - or perhaps directed - that the parties ask Dr. Bolgar if she was available to attend court the following week to explain the reunification counselling and if Ms. G.'s purported complaint to the regulatory body would exclude Dr. Bolgar from providing the reunification therapy. [46] On November 23, 2021, Dr. Bolgar advised that she had stepped back from providing services to this family and could not be in contact with Ms. G. She also advised that she was fully booked the following week and was unable to

attend court to answer Justice Blok's question. That concluded Dr. Bolgar's involvement in the matter. [47] The case then became before Justice Blok once again on April 28, 2022, on an application to appoint different counsellors for the reunification therapy and to provide additional parenting time for Mr. W. Justice Blok adjourned the parenting time application but ordered that Crossroads, a counselling service, be appointed to assess the relationship between Mr. W. and the children to determine whether reunification therapy is needed and, if it was needed, to provide that therapy. I gather that since Mr. W. had supervised parenting time for six months at that point, Justice Blok must have questioned whether the reunification therapy was still necessary. [48] This was the last of Justice Blok's involvement in the proceedings. [49] In June 2022, Lisa Low of Crossroads assessed the children and the parents and, on August 1, 2022, provided a report as ordered by Justice Blok. In that report, she reviewed the family history in detail including the allegations of sexual abuse which she described as "vague." She emphasized, though, that the scope of her report does not address the validity of those claims. The report is generally very positive about Mr. W. and his relationship with the children. Ms. Low noted that the girls were asking for more time with their father including

overnight visits. She said she had "no concerns about the interactions between [Mr. W.] and the children during the session." [50] Ms. Low concluded that reunification therapy was not needed. However, she recommended that Mr. W. and Ms. G. would benefit from working with a co-parenting counsellor to work on their communications, resolve conflict, and develop a parenting plan. She also recommended counselling for the children stating: Any interruption to a parental relationship could have negative impacts on children. A continued conflicted relationship between parents can also negatively impact children, especially if they have been exposed to this conflict or if the other parent makes disparaging comments about their co-parent. For this reason, Ms. Low would recommended that [M.] and [H.] work with a counsellor. [51] Ms. Low also suggested the parties would benefit from "an extensive assessment such as a s. 211 report" given the past allegations, ongoing parental conflict, and a break in the parent/child relationship. I note that neither party seems interested in pursuing that recommendation. [52] Mr. W. argues that the Crossroads report clears the way to resume his parenting time. He argues that reunification counselling was Justice Blok's primary concern and that concern is now being addressed by Crossroads. He points out that Justice Blok's first decision in March 2021

emphasized the need to resume Mr. W.'s parenting time and ensure that it be done properly with professional supervision. He argues the professional advice now supports restoration of his parenting time. [53] Ms. G. argues that it is still premature to resume Mr. W.'s parenting time. She continues to believe that the children were sexually abused and maintains that unsupervised parenting cannot resume until a counsellor says it is safe to do so. She points out that Crossroads was instructed only to assess whether reunification counselling was needed but it was not asked to opine on whether unsupervised parenting time could resume. This was confirmed in a subsequent email exchange Ms. G.'s counsel had with Ms. Low. [54] Ms. G. says she accepts her recommendations for counselling made by Dr. Bolgar and Ms. Low and argues that should precede any resumption of any unsupervised parenting time, let alone a return to the shared parenting arrangement contemplated by Final Order. [55] Despite taking this position, Ms. G. has provided no evidence of what counselling is immediately available or any plan for implementing it. She says that Crossroads can do the counselling work but she does not know if and when they have availability to start. The only information provided is that the cost will be $200 per hour but there is no evidence of how frequent the counselling should be. [56] For his

part, Mr. W. is not opposed to either co-parenting counselling or counselling for the children. However, he is not willing to write a blank cheque and would like to see a plan for the counselling before agreeing to it. He is willing to engage in co-parenting counselling immediately but says the parties should share those costs equally. He also maintains that this should not be a pre-condition to resumption of his unsupervised parenting time. Discussion [57] On this application, I am obliged to consider only the best interest of the children and the factors set out in s. 37 of the Family Law Act. Having regard to those factors, I agree with Mr. W. that an immediate restoration of unsupervised parenting time is in the children's best interests. So too is a graduated return to a shared parenting regime that was contemplated by the Final Order. This graduated return should be implemented immediately with a view to achieving the shared parenting arrangement by May 1, 2023. [58] I also agree with Ms. G. that the children's best interest require them to have counselling to assist and support them as Mr. W.'s parenting increases back to a shared parenting on an equal basis, as well as to help them cope and manage with their parents' ongoing conflict. However, it is not in their best interest that their parenting time with Mr. W. be delayed while that counselling is arranged and

implemented, as Ms. G. suggests. [59] In his March 31, 2021 decision, Justice Blok set in motion a process for restoring Mr. W.'s parenting time. I agree with Mr. W. that Justice Blok did not appear especially persuaded by the sexual abuse allegations and his focus was on a careful re-introduction of the children to Mr. W. after he had voluntarily surrendered his parenting time. Justice Blok wanted a professional to formulate a way forward. I do not take his reasons for judgment to be dismissive of the abuse allegations since he said the professional should formulate a proper plan for the "safe and secure" reintroduction. However, he certainly seems to have found the evidence of abuse unconvincing. [60] For my part, I am far from persuaded that the sexual abuse allegations have merit. There is now considerable evidence in the record from qualified professionals including Dr. Krywaniuk, Dr. Bolgar, and Ms. Low that leads me to seriously question the validity of the allegations. None of these professionals have offered an opinion on the validity of the allegations and, in fact, have suggested it is difficult to determine conclusively whether abuse took place or not. However, in reading their reports, I am satisfied no abuse had been established on the evidence before me. This is not a matter of disbelieving the children but rather, as Dr. Krywaniuk stated, "it is not always

possible to take what children of their age and circumstances say as literal fact." [61] Dr. Bolgar's report is particularly informative as she spent the most time with the children and her report addresses the allegations most directly. While she does not reach conclusion on the allegations, she recounts what the children have said about them and, in my view, the contents of her report leave substantial doubt about the descriptions of the alleged sexual touching. [62] I also consider it to be significant that MCFD closed its file on the matter in 2022 with no ongoing child protection concerns. This substantiates the verbal report MCFD made to Mr. W., recounted in Justice Blok's reasons for judgment, that MCFD was not concerned with sexual abuse but rather with fear over reunification. [63] In J.S. v. S.S., 2018 BCSC 355, at para. 186 Justice Shergill considered allegations of sexual touching in the context of applying the best interest of the child test. She said: [186] In assessing the impact of the alleged sexual touching on the best interests of G., this court must conduct a two‑stage analysis of the evidence. First, I must determine whether in fact sexual touching has occurred. Facts supporting this finding must be proven on a balance of probabilities. If I determine that it is not possible on the evidence to make such findings, then the second stage of the inquiry is

directed towards determining whether there is a real risk that sexual touching of the child has occurred or might occur in the future. [64] On the evidence before me, I find that neither the allegation of sexual touching nor a real risk of sexual touching has been proven on a balance of probabilities. To be clear, I find that no real risk that sexual touching has occurred or will occur has been established on the evidence. [65] Supervised access requires exceptional circumstances as it is just one step away from complete termination of the parent/child relationship: F.K. v. M.K., 2010 BCSC 563 at para. 47 and Ali v. Elfaz, 2022 BCSC 1339 at para.

54. Supervised parenting time is not appropriate where its purpose is to provide comfort to the other parent, C.M. v. N.L., 2020 BCSC 3 at para.

104. A continuation of supervised parenting time in this case has no support in the evidence and thus cannot be justified as a matter of law. [66] At this point my concern is whether the children are positioned to resume a fully shared parenting arrangement. The fact that Crossroads has concluded that reunification therapy is not needed goes a long way to satisfy me that they are ready for that. [67] Ms. Low suggested the children will benefit from ongoing counselling. She did not say it was necessary to complete that counselling before Mr. W. could resume unsupervised parenting time or to start a graduated restoration of shared parenting, although, as noted, she was not asked to and did not make recommendations in that respect. Nevertheless, Ms. Low's recommendation for counselling for the children must be taken seriously given the history of conflict between the parties and the fact the girls have been thrust into the middle of that conflict. [68] It would have been preferable for one or both parties to have come to court with a counselling plan from Crossroads or a comparable service provider that can be considered alongside the proposal to restore Mr. W.'s shared parenting time. In this respect, I note Justice Blok's frustration, expressed during the November 2021 hearing, that many months have passed at that point without the children receiving reunification therapy

because the parties could not agree on a service provider. [69] Now, more than a year after that, Ms. G. argues Mr. W.'s unsupervised parenting time should continue to be suspended pending counselling but offers no proposal for that counselling. I am concerned this is a pattern Ms. G. has followed to continuously delay Mr. W. having unsupervised parenting time and restoring the shared parenting time arrangement consistent with the Final Order. [70] Weighing the Crossroads recommendation for counselling for the children against the importance of restoring the children's unsupervised parenting time with Mr. W., I find the children's best interest is to immediately begin the restoration parenting time with their dad. Dr. Bolgar's report and Ms. Low's report both confirm the children have a good and loving relationship with Mr. W. Ms. Low reports that both children would like to spend more time with him, including overnight. [71] The parties agreed in 2019 that they would have a shared parenting arrangement with equal parenting time. This was derailed by the allegation of sexual abuse which I have now addressed. Further delaying the restoration of Mr. W.'s unsupervised and equal parenting time will risk reinforcing in the children a misplaced notion that Mr. W. is a bad parent or that he presents a real risk of harm to them, neither of which is supported on the evidence. That would

not be in their best interests. [72] It is clear from the totality of Justice Blok's involvement from March 2021 through April 2022 that he would not have expected the reintroduction of Mr. W.'s parenting time to have dragged out for almost two years after his first involvement absent some substantial impediment emerging. No such impediment has emerged. I therefore order that unsupervised parenting time for Mr. W. resume immediately. [73] I also order that para. 5 of the Final Order be varied so as to implement the "Graduated Parenting Time Schedule Option 2" as set out in Mr. W.'s notice of application. This graduated schedule is to be implemented immediately so that the equal parenting time schedule will be in place by May 1, 2023. I am satisfied I have jurisdiction to vary that part of the order pursuant to the review clause in para. 5 of the Final Order and the opportunity for that review has not expired since there is no date fixed in the order by which the review must take place: see Fitzpatrick v. Fitzpatrick, 2020 BCSC 738 at paras. 47-48. [74] Counsel for Ms. G. argues the review of parenting time requires a de novo assessment of all aspects of parenting but neither party has argued this application on that basis. The submissions focused only on whether unsupervised parenting time should be restored with a graduated process to return to shared parenting. I am satisfied

the change to the schedule for the 2019 order is in the best interest of the children since it reduces the frequency of the exchanges that have been volatile in the past and harmful to the children. [75] The parties agree that pick-ups and drop‑offs are to take place at Starbucks located at Unit 103‑18737 Fraser Highway in Surrey. I therefore, make that order by consent. For clarity, that constitutes a variation of para. 4 of the Final Order. [76] I also order that the parties enrol the children in the program of counselling Ms. Low recommended in the Crossroads report. I make this order with some hesitation, not knowing what the basic program of counselling will look like. However, given the history of this matter and the delays in conflict over counselling and therapy for the children, I conclude it is not in their best interest to further delay an order in this respect. Crossroads is a professional organization. I am confident they will propose a reasonable program of counselling that will fit within the parties' means. The cost of that counselling will be treated as a s. 7 expense and shared by the parties in proportion to their respective incomes. [77] I am further ordering that if the children's counsellor determines that the best interest of the children requires a change to the graduated parenting schedule that I have just ordered, the parties may apply to the court to

vary that schedule. I am, however, putting the following limitations on this order. a) First, the change to the schedule must truly be necessary in the best interest of the children. If the counsellor identifies changes that might be of some benefit but are not necessary to meet the children's best interests, there should be no application to vary the order. Of course, the parties are free to agree to a change based on the counsellor's recommendation and I would hope that they would give appropriately serious consideration to any such recommendation as any good parent should. However, it is only where the counsellor considers that a change is truly necessary to meet the best interests of the children that an application to vary the schedule I have ordered should be made. b) Second, all communications between a parent and the children's counsellor about any potential or recommended changes to the parenting schedule are to be by email only and copied to the other parent. There are to be no communications to or from the counsellor about potential or recommended changes to the parenting schedule that exclude one of the parents. [78] Since neither party has provided evidence of when Crossroads might be able to begin counselling, I recognize the schedule I have ordered could well be under way or perhaps even fully to the stage of shared parenting before a counsellor might have the

opportunity to assess whether a change to that schedule is truly required. That is unfortunate, but having regard to the best interest of the children, I find the need to resume regularized parenting by Mr. W. without delay outweighs uncertainty that might arise from this. [79] I am also ordering that the parties will enrol in co-parenting counselling as recommended by Ms. Low. I agree with Ms. Low that the children's best interests require better communication, conflict resolution, and planning between the parties. To be clear, I consider this counselling to be necessary for the children's best interests but it is not to be treated as a s. 7 expense. The cost of the co-parenting counselling will be shared equally by the parties. [80] With regard to Mr. W.'s request for make‑up parenting time, he has lost considerable parenting time with the girls over more than two and a half years through no fault of his own. The inordinate delay in resolving this matter was unnecessary and it is now impossible to make up all the time he and his children have lost with one another. However, I agree there should be some concentrated make‑up parenting time to help re-solidify the bond between Mr. W. and the children, even if it does not come close to making up the time he had actually lost. [81] I agree to Mr. W.'s proposal that he should have one additional week of parenting time in July or

August of 2023 exercisable on not less than two months' notice to Ms. G., and I will make that order. [82] I also agree that Mr. W. should have additional weekend time but his proposal that his parenting time be extended to 7.00 pm on Sundays for the first four months that the equal parenting time schedule is in place would mean the children would have no weekend parenting time with Ms. G. for those four months. I will, therefore, order that Mr. W. is entitled to select eight non-consecutive weekends between the resumption of equal parenting time which, under the schedule, is to begin on May 1st and the end of 2023 in which his parenting time may be extended to Sunday at 7:00 pm. I exclude from this Christmas Day and the children's birthdays all of which will continue to be governed by the Final Order. I also exclude Mother's Day. That is to say Christmas Day, the children's birthdays, and Mother's Day will not be included in a weekend that Mr. W. can select for make‑up parenting time. Mr. W. must give Ms. G. not less than two weeks' notice of a weekend on which he wishes to exercise this weekend make‑up parenting time. [83] Mr. W.'s application for an advance order, as I understand it, for make‑up parenting time when the children are sick is dismissed. The point was not seriously addressed in argument and I was not taken to any evidence that persuades me that an advanced order

of this nature is required. As the parties will now have equal parenting time, it is likely that they will equally bear the impacts of any illness of the children. I caution both parents, though, not to use the children's illnesses as an excuse to unduly deny the other party's parenting time. [84] With respect to the passports, there is no persuasive evidence that Mr. W. is a flight risk, but I do not see much utility in the parties exchanging custody of the passports every six months. I will, therefore, order that Ms. G. will continue to hold the passports but she must provide them to Mr. W. within 48 hours of him requesting them. Mr. W. will return the passports to Ms. G. within 48 hours of returning from travel with the children. [85] I also order that Ms. G. will forthwith provide Mr. W. with copies or photographs of the children's passports so that Mr. W. has details contained in those passports should they be needed to book travel. [86] Finally, given the very narrow scope of the review of parenting that I was asked to do, I order that the review of all other aspects of parenting arrangements, including summers and holiday time, may still be reviewed at a later date under para. 5 of the Final Order. (SUBMISSIONS RE COSTS) [87] THE COURT: Having heard submissions on costs, having regard to really what was the most important issue on this application, being the restoration

of the parenting time, I am satisfied that Mr. W. was substantially successful on this application and I will award him costs for the application. (SUBMISSIONS RE CO-PARENTING COUNSELLING COSTS) [88] THE COURT: I am just going to order at this point that co-parenting counselling be split equally. I will say that if, by their own choice one party chooses to have more extensive co-parenting counselling than the other and that co-parenting counselling is not suggested as being necessary, the parties can apply to vary this part of the order. But my intent here is - I am expecting that there is going to be equal time in co-parenting counselling, that the counsellor is going to suggest what is needed. If one party, because of their own circumstances out of the control of the other party, requires more extensive counselling then you can seek a variation of my order but, at this point, because I do not know what the counselling arrangement is, I am going to keep it as a shared cost. "Kirchner J."