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Old 08-01-2015, 12:55 PM
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Simply breaking it down into sections. Further below:

C. Inability to facilitate access

[182] Section 10 of the DA requires the judge to consider the partiesí willingness to facilitate contact with the children.

[183] The joint custody and guardianship model assumes the parties are willing to facilitate contact. For guardianship matters, this includes a partyís willingness to consult with the other and communicate to the point of making mutual decisions in the interests of the children. For parenting time, it includes a parentís ability and willingness to take all reasonable steps to facilitate parenting time: J.K.K. v. T. P.K, 2010 BCSC 1202 (CanLII), at para. 66, Davidson v. Davidson, 1997 CanLII 1974 (BC SC), 1997 CanLII 1974 (B.C.S.C.).

[184] In D.L.S., I made the observation at para. 172 that it is not necessary for a judge to find a parentís conduct has caused the child to lose parenting time with the parent before concluding a parent has interfered with the childís right to see their parent:

[A] pattern of conduct by the other parent that interferes with or disturbs the childís enjoyment of their parenting time with parent is no less serious than conduct depriving them of it altogether. This is because such conduct interferes with the parentís ability to devote time and attention to the child, which is clearly in the childís best interests, and it exposes the child to parental conflict, which clearly is notÖ

[185] Conduct by a principal resident parent that interferes with the childís ability to receive and enjoy the other parentís love, companionship, and instruction stands in opposition to the DAís guiding principle that a child has a right to maximum contact with both parents consistent with the childís best interests. Such disruptive conduct by a parent is contrary to the childís best interest because it inhibits the ability of the parent who has lost parenting time to exercise their parental responsibilities. Such conduct can weaken the childís relationship with the parent, which is against the childís best interests. It can hamper the childís physical, psychological and emotional well-being, psycho-social development, emotional well-being and sense of security, also against the childís best interests.

[186] In some cases, a custodial parentís conduct may foment litigation and cause the other parent to suffer stress-induced medical problems. Such conduct may cause the other parent economic harm, depleting resources that would have been available to the child to facilitate time with their parent. That has occurred in this case.

[187] As I understand the DA, the FLA and the authorities, judges must be sensitive to how close the child-parent bond is to the emotional well-being of both parents and children.

[188] The evidence in the present case shows a long-standing pattern of conduct by the Respondent that has impeded the Claimantís ability to communicate with the children, facilitate access visits, inform others involved in the childrenís care of access terms and meeting obligations the guardianship order requires of her. She has breached court orders and sought to impose her own views, for example in insisting on separate visits by the children, contrary to express terms of the parenting arrangement.

[189] The evidence shows, on the other hand, a long-standing pattern of the Claimant trying to reach agreements and proposing ways the children can maintain contact to make it easier to schedule parenting time. This demonstrated willingness to try to reach agreements argues in favour of a change in principal residence for B.B.

[190] I am confident the Claimant will, as he would be required, facilitate parenting time with the Respondent in a non-confrontational way which will minimize conflict.

[191] Without a change in principal residence, I find the Claimant would be confronted with a continuing pattern of opposition and interference, sometimes subtle, sometimes overt, which would be contrary to B.B.ís best interests.
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