Wulff v. Mehaffey

2020 BCSC 330 Wulff v. Mehaffey

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wulff v. Mehaffey, 2020 BCSC 330 Date: 20200309 Docket: E053828 Registry: Vancouver Between: Maris Wulff Claimant And Matthew Mehaffey Respondent Before: Master Muir Reasons for Judgment The Claimant appearing in person: M. Wulff Counsel for the Respondent: M. Lai Place and Date of Hearing: Vancouver, B.C. February 13, 2020 Place and Date of Judgment: Vancouver, B.C. March 9, 2020 introduction [1] This is an application by the respondent for: a) an order that the parties and their children attend a reunification program and very detailed orders regarding the participation in that program; b) an order for a Family Law Act, S.B.C. 2011, c. 25, [FLA] s. 211 assessment to be conducted in October 2020, with a report to be provided prior to the trial presently scheduled for February 16, 2021, with detailed ancillary orders; c) an order that the costs of both the reunification program and the s. 211 report be born initially by the respondent on a without prejudice basis, subject to a determination of the cost allocation at trial; and d) a conduct order, that the parties not directly or discuss the matrimonial litigation with the children, or make or convey any negative or disparaging comments about one another to the children in their presence. This order was consented to. [2] I note that the relief sought as set out above varies

somewhat from that sought in the notice of application. In particular, the s. 211 assessment was not sought in the notice of application. There was also additional relief in the notice of application, which has either been dealt with or was not proceeded with before me. Background [3] As is common in family matters, the parties' affidavits, in places, paint quite different pictures of the relationship history. [4] The parties met in 2000 and began cohabiting perhaps in 2003. [5] The relationship was volatile, but the parties married on August 27, 2004. [6] In 2005, the parties separated for four-and-a-half years. Their first child was born in 2006. The parties eventually reconciled, the claimant again became pregnant in 2010 and the parties began living together again. [7] Their second child was born in January 2011. [8] The parties separated in or about October 2016. [9] The respondent suffered from depression, exacerbated by alcohol abuse. He threatened suicide or self-harm repeatedly. Despite that, he obtained his law degree and has since worked as a consultant for indigenous groups and law firms. [10] The claimant has suffered from Fibromyalgia and Chronic Pain Syndrome since she was at least 12 years old. Despite that, she managed to take courses at the University of British Columbia, although I gather she did not complete her degree. She also has some training in Yoga.

She suffered two serious car accidents in 2010 and 2011, and two minor ones more recently. A letter from her physician dated October 16, 2019 confirms that in addition to the Chronic Fatigue and Fibromyalgia, she was at that point dealing with post-concussion syndrome. [11] The claimant has been totally financially dependent on the respondent from the outset of their relationship. [12] The respondent suggests in his materials that the claimant is intentionally underemployed, but for the purposes of this application, I do not accept that. The claimant was self-represented, and her conditions were an obvious impairment to her. That impairment was confirmed, both in her affidavit evidence and in other letters from her physician, the latest dated January 28, 2020. [13] The respondent was charged with threatening the claimant on or about November 18, 2016. His bail conditions included no contact with the claimant or the children. The Ministry of Children and Family Development (the "Ministry") became involved and also prohibited contact between the respondent and the children. [14] On November 30, 2016, the claimant made a without-notice application and was granted a protection order by Master Taylor. The order granted the claimant interim sole custody and all parental responsibilities for the children and provided that the respondent was to pay the claimant $7,520 per month,

undifferentiated between spousal and child support. The order further provided that the respondent could apply to have the order varied or set aside on seven clear days' notice to the claimant, but no such application was made until November 2017. [15] In September 2017, just prior to the date for the criminal trial on the first charge, the respondent was charged with six counts of breaching his bail conditions. His criminal trial was postponed until May 2018. [16] On November 6, 2017, the respondent brought an application, seeking: 1) the order of November 30, 2016 of Master Taylor be set aside; 2) joint guardianship of the children; 3) specified parenting time graduating from supervised parenting time to shared parenting over a period of a year; 4) reduction of his child support and spousal support obligations; 5) an order that it would be inappropriate to consider the views of the children due to extreme parental alienation; 6) the claimant undertake to refrain from acting violently to the children; 7) the respondent attend counselling sessions; 8) appointment of a parenting coordinator; 9) liberty to apply if the parties cannot agree on a parenting coordinator; 10) that the claimant destroy and refrain from using any letters from the respondent granting her guardianship or permission to travel with the children, 11) the claimant assume all responsibility for rent payment of

the lease for the former matrimonial home, 12) the claimant either pay the respondent for a Jeep Cherokee vehicle or return it to the respondent, and 13) until the claimant has complied regarding the lease of the home and the Jeep Cherokee, that the respondent can deduct both the rent and the loan payment for the Jeep from support payments. [17] The respondent's November 6, 2017 application was heard by Master Taylor. [18] The respondent, in his affidavit and submissions before me, says his application was unsuccessful, that Master Taylor did not hear much of his application, and that Master Taylor told the respondent that the respondent had a lot of problems and not to return to court until those had been resolved. [19] In fact, the court record of the terms of Master Taylor's November 6, 2017 order (the "Taylor order") indicates that joint guardianship of the children was granted. Although the respondent was not to have any decision-making ability, he did have the right to obtain information from third party providers to the children. Further, and more importantly for this application, the respondent was granted parenting time through a supervised parenting regime to be conducted at his cost. In addition, Master Taylor dismissed paras. 1, 5-7 and 10-13 and adjourned paras. 4, 8, and 9 of the respondent's notice of application. [20] The prosecutor in the criminal matter chose

to stay the charges and pursue a s. 810 peace bond hearing (Criminal Code, R.S.C. 1985, c. C-46) rather than a full trial. The application was heard in June 2018 and reasons delivered on September 17, 2018 denying the application. [21] No further court action was pursued until this application, which was filed by the respondent on September 16, 2019. It was originally heard by Master Cameron on October 28, 2019. Master Cameron ordered, on an interim and without-prejudice basis, specified supervised parenting time for the respondent. Master Cameron also granted ancillary orders, including that the supervisor be selected from a list approved by the Ministry by respondent's counsel, that the supervisor provide a written report after each visit to both parties, and that the respondent pay the cost of supervision until further order of the court. Master Cameron also gave the respondent liberty to apply to vary his order on proper notice (the "Cameron order"). The Respondent's Position [22] The respondent submitted that a program for reunification with his children was necessary as he has not seen them for over three years. He blamed that on the claimant. [23] After the parties separated in October 2016, the respondent says the claimant was very controlling about his seeing the children and that this resulted in a number of arguments. As noted, ultimately, the respondent was arrested

on November 16, 2016 and charged with threatening to kill the claimant. [24] It is important to note that separation was apparently a bit of a wake-up call for the respondent and he has undertaken at least some counselling since then to deal with his acknowledged issues. [25] It is worth quoting exactly what the respondent claimed in his notice of application: 5. Upon the arrest, the Respondent was prohibited from having contact with the children under his bail condition and by the Ministry of Children [and Family] Development ("the Ministry").

6. On November 30, 2016, the Claimant obtained an ex parte protection order and interim order granting her sole guardianship and parental responsibilities. No parenting time was ordered for the Respondent.

7. Between November 30, 2016 and June 2018, the Claimant made six additional allegations against the Respondent and the Respondent was charged criminally accordingly.

8. In November 2017, the Respondent applied to vary the ex parte interim order and to have some parenting time with the children. Upon the court learning the additional six criminal charges against him, the Respondent's application was immediately dismissed.

9. In June 2018, the Respondent had his criminal [trial]. The criminal court's Reason for Judgment was released on September 17, 2018. The trial judge dismissed all of the allegations made against the Respondent.

10. The trial judge found that the Claimant fabricated the allegation that the Respondent threatened to kill her on November 16, 2016.

11. The trial judge further found that the Claimant's allegations and the criminal proceeding was a tactical move to stall this family court proceeding rather than based on a fear of harm to herself or the children.

12. The Respondent had attempted to arrange his parenting time with the children with the Claimant without success. The Claimant would find various excuses to prevent, delay or stall the Respondent from seeing the children.

13. The Respondent had been prohibited from seeing his children since November 16, 2016. [26] As can be seen, the respondent's position is that the claimant falsely accused him of abuse and threats, which resulted in him not seeing his children after November 2016, and that now he has been totally exonerated. [27] The respondent says that his efforts to see the children since 2016 have been thwarted by the claimant. [28] He says that as a result of the history of the criminal charges, the fact that he has not seen the children in years, and the involvement of the children in the allegations against him, a reunification program is necessary. [29] The programs he suggests are ones that have been accepted by the courts. They are very extensive programs and the initial cost would be $35,000. The respondent says he would borrow in order to pay the cost up front, but that would be without prejudice to his right to argue it should be paid by the claimant. [30] He submits that once a successful reunification has been brought about, that there should be a FLA s. 211 investigation done in October 2020. [31] The respondent, judging from his November 2017 application, is aiming at shared parenting of the children. The Claimant's Position [32] The claimant says that she lived in terror of the respondent for years, even after separation. [33] She says that she lived with constant threats,

including of the respondent killing himself, of murder/suicide, of killing people she tried to make friends with, and of burning down the house. She says he was rarely at home, sometimes being absent for long periods with little explanation. She says she raised the children, and has put aside her interests and her health to see that they have had a good life despite the abuse. [34] The claimant says that she put up with the respondent's abuse and tried to help him when they were together, and that she has tried to help him see the children even after separation and the criminal charges. [35] The claimant says that the respondent simply has refused to see the children unless it is done on his terms. [36] The claimant points out that the respondent was granted supervised parenting time by the Taylor order and the Cameron order, but she says the respondent has not followed through. [37] She says that a reunification program and a s. 211 report are unnecessary, that the respondent should take advantage of the opportunities he has been given to exercise supervised parenting time and build up a relationship with the children. If that goes well, she submits that ultimately supervision might be done away with. [38] She submits that a reunification program and a s. 211 report would be too intrusive on the children and points out that there is simply no factual basis for either. She says

the children are not alienated from their father, they are estranged. [39] The claimant says that, despite her offering different supervision firms, the respondent has refused to cooperate and as a result has essentially refused to see the children. [40] She says that the respondent has continued his abuse by constantly bringing her to court and controlling the finances and, as a result, she has used all of her savings, including funds her parents gave her and she has amassed considerable debt. [41] The claimant says that although the support ordered is substantial, the respondent left with significant financial obligations foisted on her. Further, she alleges that the support he does pay is sporadic and leaves her and the children in a vulnerable and precarious position. [42] The claimant pointed to the respondent's own evidence of his financial support for her and the children, which shows various missing and late payments. [43] She submits that she simply cannot afford a reunification program and fears that, as the respondent has counsel and she does not, that the respondent would be successful in arguing that she should ultimately bear the cost. [44] As to the findings of the provincial court, the claimant points out that it was the prosecutor who determined that the charges should be stayed and that the matter should proceed to a s. 810 peace bond hearing and not a trial.

She says that the hearing was a travesty in that the prosecutor was unprepared and did not have the evidence at hand. The claimant even points to a handwritten note where the prosecutor asked her to get a police officer to bring in evidence. She says that that evidence was provided by her and an officer but was not used. [45] That evidence included several admissions of abuse made by the respondent that were before me, but apparently not before the provincial court. They included a notarized statement the respondent swore, dated April 29, 2016, which states, in part: [The claimant] has raised [the children] almost entirely on her own due to my abusive and destructive behaviour. I have abandoned her and our family. If at any time [the claimant] believes my behavior is abusive or creating an unsafe environment [the claimant] has full discretion, within reason to revoke any visitation or require additional terms and conditions. [46] An undated note addressed to one of the children, which states in part: I'm sorry for behaving in a way that scared you and [brother] and mama. I know that my actions have been very hurtful. [47] And an undated document that appears to be an email, which states in part: I have allowed myself to act in a despicable manner and rather than acknowledging what I have done I have made excuses and looked to blame everyone but myself. You are not to blame for

my violence or my abuse. You are not to blame for my anger and poisonous attacks. [48] Given this history and the length of time since the children have seen their father, the claimant submits there is sufficient concern that supervised parenting should be maintained, but there is no need for the reunification program or s. 211 report proposed by the respondent. Review of the Evidence [49] I have carefully reviewed all of the affidavit evidence before me. The respondent does not, in his evidence, deny any of the allegations made by the claimant about threatening and abuse. To his credit, he has undertaken at least some counselling to deal with the issues that he has. [50] As noted above, in his submissions, the respondent relies solely on the findings of the provincial court judge as having totally exonerated him. [51] The provincial court hearing was a Criminal Code, s. 810 peace bond hearing and not a trial of the charges. Section 810 provides, inter alia: 810 (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person (a) will cause personal injury to them or to their intimate partner or child or will damage their property; (3) If the justice or summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has

reasonable grounds for the fear, the justice or court may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months. [52] The findings of the provincial court judge, Judge Galati, of September 17, 2018, include the following: [51] I am satisfied that [the claimant] persevered with trying to rebuild a relationship where others may not have, and that in consequence she suffered emotionally due in large part to [the respondent's] mental health issues and abuse of alcohol, which undoubtedly contributed to his frequent threats to commit suicide, his destruction of property, and the numerous arguments between the parties. [51] [The respondent] acknowledge[s] subjecting [the claimant] to verbal and emotional distress. It appears that he relied on her to take care of him in the sense of talking him down or calling the police when his behaviour made it necessary. Any reasonable person can appreciate how difficult this must have been for [the claimant], particularly after there were children to take care of. [53] However there is no evidence that this suffering has at any time amounted to psychological harm that would satisfy the standard for the imposition of a preventative recognizance, and I do not accept that [the claimant] currently fears this emotional harm would recur at this

point in time now that the relationship with [the respondent] has been over for a significant period of time. [54] Rather, given the ongoing Family Court proceedings, which appear to have stalled awaiting the resolution of the criminal charges against [the respondent] and the outcome of this proceeding, the totality of the evidence points to an inference that [the claimant's] application is tactical rather than based on a fear of harm to herself or her children. [53] Thus, it can be seen that the submissions and evidence of the respondent as to the findings of the provincial court are gross exaggerations and overgeneralizations. Counsel for the respondent did not quibble when I pointed out that these findings, even if they amounted to the total exoneration urged by the respondent, which they do not, were not binding on me. [54] It is interesting, for example, that, in his evidence, the respondent says that the claimant dictated the notes and the notarized statement referred to above, but he does not deny they are true. Of course, denying the truth of a notarized statement, particularly when the respondent is trained as a lawyer, would put him in a very difficult position from a credibility perspective. [55] The provincial court acknowledges the past abuse, which would clearly amount to family violence as defined in the FLA. The conclusion of the provincial court, that the harm

did not "satisfy the standard for the imposition of a preventative recognizance", is quite irrelevant to the issues before me. [56] The difference between the proceedings is evident from the fact that the provincial court took no notice of the fact that Master Taylor granted a protection order in these proceedings on November 30, 2016. Although that order was made without notice, the respondent did not seek to appeal it or have it set aside and it remained in place for a full year. [57] There is one issue that perhaps could be said to overlap, and that is the allegation made by one of the children against the respondent. The child alleged that the respondent, in breach of his conditions, drove by the claimant's car when the child was a passenger and pointed his finger like firing a gun. The provincial court judge found this to be a fabrication. The respondent apparently had an alibi for the time alleged. The claimant says she and the child were simply mistaken on the date. [58] Regardless of the truth of the allegation, what the respondent does assert is that this is evidence of alienation between him and this child, particularly given that the child was extensively interviewed by the police. He also asserts that the claimant has negatively influenced the children against him, but other than this incident, he points to no such evidence. [59] The respondent insists that it is

the actions of the claimant that have prevented him from seeing the children. [60] His evidence in that regard is curious and worth looking at in some detail. [61] The respondent says after the charges in November 2016, he complied with the conditions of the Ministry in hopes that he could see his children again. He says he tried to negotiate supervised parenting time in February 2017, but the claimant's lawyer said they needed more time. He then says that he then could not afford two lawyers and chose to focus on the criminal proceeding. [62] The respondent's response to this application does not deal with the orders granting him supervised access of the children in November 2017 and again in November 2019. [63] Even in his affidavit, the respondent skates over the application and the Taylor order, without even noting that he was granted supervised parenting time with his children. He says that after his "unsuccessful" application in November 2017, he went on to negotiate with the claimant for supervised parenting time using the services of professionals who had experience in parental alienation. He says the claimant: refused to use a professional service which specialized in high conflict or parental alienation. Instead, she insisted on using a private detective agency she had found in Abbotsford. [64] The supervision agency proposed by the claimant in 2017 was indeed a

private investigation firm, Axiom Supervision Investigations ("Axiom"). The evidence of the claimant shows that they are established and have significant experience in supervision of parenting, including where reunification is an issue. The claimant says she chose them as they require their supervisors to have criminal record checks. [65] The respondent repeatedly refers to this firm as being from Abbotsford, but the evidence indicates they have offices in Vancouver and supervise parenting throughout the lower mainland. A quick review of reported decisions shows they have been used for parenting time supervision in Vancouver. [66] The respondent's evidence is that he "was concerned with using someone from a private detective agency to be the supervisor of the visits", but, as he "desperately wanted to see" his children, he was prepared to work with this agency "if that person can satisfy my concerns" but that "the private detective chosen by [the claimant] was unable or unwilling to answer any of my questions. [The private detective] disclosed a portion of our private communication to [the claimant] but in a distorted manner. [The private detective] failed to reply to my communication within agreed upon timelines. Ultimately, she withdrew her offer to supervise the visits." [67] In response, the claimant produces text messages between her and the agency, which of course are

hearsay, but which are not denied or otherwise dealt with by the respondent in any of the affidavits he has filed since his receipt of the claimant's affidavit sworn October 17, 2019. [68] The gist of those messages was that the Axiom representative said they had answered all of the respondent's questions at length, that the respondent then sent two further rambling, argumentative, and inaccurate emails to them. Axiom took the position at that point that they were done with the respondent's games and time wasting, and, therefore, declined to act. [69] The respondent says that those negotiations took until February or March 2018, at which point he decided to focus on his criminal trial scheduled for May 2018. [70] After the reasons of the provincial court were received in September 2018, the respondent says that he: proposed to start my parenting time of the children through supervision by a counsellor specialized in parental alienation because the children and I had not seen each other for two years. However, rather than agreeing to the use of a counsellor to supervise the children, [the claimant] referred me back to her previous offer of using the private detective agency in Abbotsford or through the Ministry. I could not understand why [the claimant] kept wanting to use a private detective to supervise the visit, especially by this time the court had found that I pose no harm

to the children. Supervising service through the Ministry was also not an option as our file under the Ministry was closed. [71] His position regarding the necessity for reunification is somewhat belied by a text he sent to the claimant at this time, in which he says: Let me know when I can pick up [the children] and introduce them to my criminal lawyer. It [is] probably better if he explains your lies than if I do. And since you won't agree to my proposal that's the only option I see. Oh, I forgot to mention as well, I will be posting the court decision on the school bulleting board and sending it [to] the Little League Canada as well as Jericho Little League. You want to keep going this way, let's go. I'm not afraid of your lies anymore. [72] I gather nothing happened then until early 2019. The respondent says: I did not want the disagreement over parenting time to make matters worse for the children over the Christmas holiday as [the claimant] tends to put the children in the centre of our disputes. I also do not want to run the risk of facing further allegations of any criminal nature from [the claimant] because disagreement over the holiday with [the claimant] likely would upset her more and increase the chance of her making allegations against me. As a result, I decided to wait until after the new year in 2019 to initiate further attempt with [the claimant]. [73] In

February 2019, apparently the claimant approached the respondent in an attempt to resolve matters out of court. In that context, the respondent again proposed reunification counselling and a parenting coordinator as well. [74] The respondent's evidence is: Having faced twenty-two months of accumulated false criminal accusations from [the claimant], I did not have any trust in her. Her commitment and willingness to facilitate the children's commitment to a family reunification program and the use of a parenting coordinator was necessary to show me that she has the good faith to settle the matter with me outside of court and move forward. To date [August 8, 2019] [the claimant] has not yet truly responded to the proposal I made dealing with our parenting arrangement. She has always responded in a manner which prevents me from being able to rebuild my relationship with my sons. I am afraid to have direct contact with [the claimant]. I have gone through a nightmare which lasted two years. I am afraid that having direct contact with [the claimant] would allow her to make further false allegations against me. [75] It is not clear to me how there would be any scope for a parenting coordinator to act given that the claimant has all parental responsibilities. The claimant opposed such an appointment. [76] The respondent says that his further attempts to see the children were to no avail. I note his counsel's email to the claimant of August 15, 2019, which sets out his position as follows: Here is what [the respondent] is asking: 1. [The respondent] will have parenting time of the children from 11:30 a.m. - 1:30 p.m. every Saturday, supervised for the first 5 visits and unsupervised thereafter.

2. The supervisor will be from Westcoast Family Centre or Network of Inner City Community Service (NICCSS) or Vancouver Psychology Centre. These three agencies all provide professional supervisors. Westcoast Family Centre is also used by the Ministry. 3. [The respondent] and the children will enroll in a family reunification program and through the program, a further parenting plan would be developed and followed by you, [the respondent] and the children. [77] That was not agreeable, as the claimant remained of the view that a reunification program was unnecessary. The claimant's evidence is, however, that she told the respondent she was agreeable to the respondent selecting a supervisor and that she had never been opposed to the children getting counselling if necessary. [78] The respondent's application, as noted above, was heard by Master Cameron on October 28, 2019, who ordered, amongst other things, supervised parenting time for the respondent. As I gather there was not sufficient time to deal with the whole application, some aspects were adjourned and came before me in this hearing. [79] The respondent has not availed himself of the parenting time with the children ordered by Master Cameron. The respondent's evidence in that regard in his January 20, 2020 affidavit is as follows: 5. I did not start to apply to an agreed agency for a supervisor for my parenting time

immediately. I did not think it was a good idea for me and the children to start seeing each other without any counselling support in place. My children were not only put in the middle of the conflict between the claimant and me, they were put in the middle of the criminal proceeding against me. [80] The respondent then deals with the statements made by one of the children about him pointing his finger at the claimant's car like "firing a gun". The provincial court reasons and says: 9. I am concerned that the children's view of me were reinforced by the claimant telling them that the reason why nothing happened to me at the end of the criminal proceeding was because the Crown messed up, not because those allegations were unfounded by the court. Because of the claimant's reaction to the result of the criminal proceeding, I am worried that seeing the children without any support system in place would make things worse for the children and make them stuck further in the middle of the conflict. [81] The respondent then shares, completely inappropriately, things that were allegedly said in a Judicial Case Conference, and continues: 11. I had been hesitant to sign on with West Coast Family Service for a supervisor for my parenting time. I had eventually done so due to Master Cameron's order. However, I am frustrated with the court process I am going through.

12. West Coast Family Service requires the claimant to sign the necessary documents and follow their guidelines. I have emailed those documents to the claimant for her to sign them. I do not know if she has signed those documents yet. West Coast Family Service informs me that their intake process could take up to 6 months in the worst-case scenario depending on how cooperative the other party would be. [82] The claimant's evidence is that she completed the required forms and forwarded them to Mr. Wong of West Coast Family Services on January 19, 2020, and further that she had discussed with Mr. Wong in the fall of 2019 whether the parties would be able to set up supervised visits with West Coast Family Services. Analysis [83] The starting point of the analysis here is the FLA. The sections dealing with parenting time make it clear that the best interests of the children are the only consideration. Sections 37 and 38 provide: 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. Assessing family violence 38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [84] The respondent has not provided any actual evidence of alienation of the children. He asserts that the claimant has turned the children against him and that this is evidenced by the accusations by the older child that the respondent pointed his finger at them like firing a gun. [85] Of

course, the respondent has not seen the children for over three years. It is impossible, therefore, for him to provide anything other than circumstantial evidence from which he asks the court to infer alienation. [86] Part of that submission is his insistence that the barrier to his seeing the children has been the intransigence of the claimant in refusing to consent to a reunification counselling program. I do not accept that assertion. [87] It is clear from the respondent's own evidence that, from the outset, he has insisted that his parenting time with the children be on his terms. [88] After he completed the counselling required by the Ministry in 2016, he did not apply to have the protection order varied to allow him to see his children. [89] He viewed the application before Master Taylor on November 6, 2017 as unsuccessful, despite his being granted supervised parenting time. His actions in dealing with Axiom indicate to me that he was never serious about having parenting time supervised by them. [90] He says he was focussing on the criminal trial, but after he received reasons in September of 2018, he did nothing except again propose a reunification program. [91] Even when the claimant told him he could select the supervisor in August of 2019, he refused and insisted on a reunification program. [92] There is no adequate explanation of the long gaps where the respondent

did nothing about seeing his children. There is no adequate explanation for his failure to engage in supervised parenting time. [93] His actions are quite inexplicable for someone who says he is desperate to see his children. It is clear from, amongst other things, his offer to pick up the children and have them speak with his lawyer, that his insistence on reunification is somewhat disingenuous. [94] The evidence of the claimant is that the children are not alienated from the respondent, but estranged. As one would expect with children of that age who have not seen someone for more than three years. [95] The only real independent evidence that I have as to the children is from the claimant's doctor, Dr. Bradley Fritz, who is also the children's doctor and who, in his letter of October 16, 2019, stated: Due to her care as a mother, the children are both happy, healthy, and well-adjusted and she has provided for them a community of supportive friends as well as activities for them that they enjoy. [The claimant] has instilled an exceptional education for them, enriching their lives with travel and culture, education about the environment, extra time and energy, the love of reading, parties and playdates with friends as well as her time, constant love and devotion. [96] I am satisfied from the evidence that the children are largely happy and well-adjusted. There is no question

that they have witnessed and perhaps been the object of family violence perpetrated by the respondent. The respondent has attended counselling to at least begin to deal with his issues. [97] As to the respondent not seeing the children, I have concluded that is entirely his own doing. He has simply refused to see them on any terms other than in the context of a reunification program. [98] There is no evidence that a reunification program is necessary here. The children may require counselling to assist them with issues that arise for them in seeing their father again, but there is no evidence that they have been subject to parental alienation and I am not convinced that such an inference is necessary from the evidence before me. The claimant has said that she is willing to agree to counselling for the children if that is necessary. [99] The imposition of a reunification program would be a significant intrusion into the lives of the children. [100] In a recent decision considering reunification counselling, J.M.C. v. C.J.C., 2019 BCSC 1408, Justice Macintosh held: [9] On all of the available evidence, C. is doing reasonably well. No one should be ordered to receive counselling if there is no apparent need for it. J.M.C. alluded to there being a basis for C. requiring counselling, but elected not to disclose that, and that is not enough for me to be able to properly subject C. to

a counselling program at this stage. [Emphasis added.] [101] I understand the respondent will be bringing an application to reduce the amount of spousal and child support he was ordered to pay to the claimant under the Taylor order. Both parties here claim they are in financial difficulties. In those circumstances, I would not order the parties to embark on a reunification program with an initial cost of $35,000 without clear and cogent evidence that it would benefit the children. Here, it would seem that that money could be better used to benefit the children in other ways--whether that be directly or indirectly. [102] I agree that the children need protection and a gradual reintroduction to their father in a secure environment. [103] The supervised parenting time ordered by the Cameron order remains the best way to reintroduce the children to their father in the safety and protection of supervision by a qualified professional supervisor. [104] There is also no evidence that an s. 211 report is necessary at this juncture. I am satisfied that the children are well-adjusted living in the primary care of the claimant. conclusion [105] The application of the respondent for a family reunification program and orders ancillary thereto is denied. His application for a s. 211 investigation and report is denied. [106] Paragraphs 1 to 5 of the Cameron order will stand, with the exception

that the Cameron order is no longer "without prejudice". [107] As to para. 6 of the Cameron order, unless the supervisor of the parenting time recommends a change, there are not to be any applications to vary parenting time until the children have had at least 16 supervised visits with the respondent. [108] I further order that the parties are not to have any contact with one another, other than through counsel or by email on matters regarding the children. If the parties are at any point both unrepresented, contact is to be only by email and limited to matters regarding the children or matters that are necessitated by the litigation. [109] I will also make the conduct order that the parties consented to. They are not to discuss the matrimonial litigation or any issues arising therein, such as changes to parenting time, with the children, or make or convey any negative or disparaging comments about one another to the children or in their presence. Costs [110] Not only was the respondent substantially unsuccessful on this application, if he had availed himself of the ability to see his children granted by the Taylor order and the Cameron order, this application would not have been necessary. [111] As a result, the respondent will pay the claimant costs of this application in the amount of $2,000, payable forthwith in any event of the cause. These costs are to be paid to the claimant within 30 days of this order. "Master Muir"