S.S. v. D.D.S. Date:, 2015 BCPC 349

Citation: S.S. v. D.D.S. Date: 20151201 2015 BCPC 0349 File No: F70005 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.S. APPLICANT AND: D.D.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: K. Rongve

Appearing in person: Mr. S . Place of Hearing: Nanaimo , B.C. Dates of Hearing: December 17, 18, 2014, September 8, 9, 10, November 18, 20, 2015 Date of Judgment: December 1, 2015 [ 1 ] Mr. and Ms. S. married in September, 2011 and separated in July, 2013. They are the parents of one child, E., now about 32 months old. Mr. and Ms. S. disagree on issues of guardianship, parenting time and parental responsibilities, and seek a judicial determination of those issues. [ 2 ] There is a remarkable degree of animosity between Mr. and Ms. S.

The problems which that creates are exacerbated by a similar degree of hostility between the two sets of grandparents, each of whom has a significant role in E.’s life. [ 3 ] Since the parties separated, E. has resided primarily with her mother. Mr. S. has had frequent and consistent parenting time with E. Because of the hostility between the parents, that parenting time has been determined by a series of interim orders. From December, 2014 to July, 2015, Mr. S. had parenting time for one 48-hour period each week. Since July, 2015, Mr.

S. has had parenting time from 8:00 a.m. to 5:00 p.m. on two days during each week. [ 4 ] The change in Mr. S.’ parenting time

schedule resulted from a report prepared by Dr. Larry Waterman under the authority of

section 211 of the Family Law Act SBC 2011, C 25. One of Dr. Waterman’s recommendations was that Mr. S.’ parenting time be limited to the hours between 9:00 a.m. and 6:00 p.m. Dr. Waterman’s reasons for that recommendation are the pivotal issue of fact in this case. [ 5 ] Dr. Waterman advises that: a. E. has formed strong attachments to each of her parents and grandparents. Those relationships are important to her, and should be fostered as much as possible, having regard to the safety issues discussed below. b. Psychological tests, administered by Dr. Waterman, indicate that Mr.

S. suffers from major depressive disorder, anxiety and schizoid personality traits, and that he has either abused drugs or is now doing so. Those test results are consistent with Dr. Waterman’s observations of Mr. S. during interviews, and with collateral information provided to Dr. Waterman from other sources. c. Mr. S.’ psychiatric condition poses risks to E. while she is in Mr. S.’ care. The risks are of three kinds: i. Mr. S. is likely to lose control of his temper from time to time. Dr. Waterman thinks that this risk will become more serious as E. grows older. ii. Mr. S. is a suicide risk. iii. Mr.

S.’ drug use may render him unable to respond if E. needs his attention. For example, if he is taking sleep medication (which would be appropriate for a person with his mental disorders), he may not hear E. if she wakes up during the night and needs him. d. Mr. S. is in need of ongoing psychiatric care. Prescription medications are likely to be an important element of his treatment program. e. Dr. Waterman is of the opinion that the current parenting time

schedule is in E.’s best interests, and that overnight visits at Mr. S.’ home would be constructive if supervised by appropriate people. He would regard Mr. S.’ parents as appropriate supervisors. [ 6 ] Dr. Waterman expressed no concerns about the mental health or parenting capacity of Ms. S. or of her parents. [ 7 ] Mr. S. called as his witnesses Dr. Nel, his family doctor, and Dr Fadeyi, his treating psychiatrist. Dr. Nel sees Mr. S. several times each month. Dr. Fadeyi saw Mr. S. for four office visits in 2010, two office visits in 2011, not at all in 2012 – 2014, and for three office visits in 2015. Drs.

Nel and Fadeyi say that: a. Mr. S. suffered from an addiction to opiates and from excessive use of alcohol, but that those addictions are now in full remission; b. Mr. S. is not afflicted by a psychosis, and, in particular, is not schizophrenic; c. Mr. S. suffers from anxiety and depression, but that those conditions are now being managed with appropriate medication; and d. there is no reason to fear that Mr. S.’ medications may prevent him from dealing appropriately with an emergency which might arise during the night. [ 8 ] Dr. Fadeyi says that Mr. S. poses no threat to himself or others. Dr.

Nel says that all patients who, like Mr. S., suffer from depression and anxiety, must be followed carefully because of the suicide risk arising from those conditions, but that Dr. Nel does not consider Mr. S. to be a suicide risk at present. [ 9 ] Dr. Fadeyi says that he does not know Mr. S. well enough to enable Dr. Fadeyi to comment on Mr. S.’ parenting skills or capacities. Dr. Fadeyi referred to the assessment of those issues in Dr. Waterman’s report, and says that the collateral sources mentioned by Dr. Waterman provide Dr. Waterman with a better information base to assess Mr.

S.’ parenting skills and capacities than the

information available to Dr. Fadeyi. [ 10 ] Dr. Nel has met E. on one occasion when he provided her with medical treatment and on several occasions when she has accompanied Mr. S. to Dr. Nel’s office for Mr. S.’ appointments with Dr. Nel. Dr Nel says that he has no concerns about Mr. S.’ parenting skills or capacity. [ 11 ] The difference of opinion between Dr. Waterman, on the one hand, and Drs. Nel and Fadeyi, on the other, derives in part from the different methods used by each. Dr. Waterman is a psychologist. His opinion is based on: (

i) the results of a battery of psychological tests which Dr. Waterman administered to Mr. S.; (ii) interviews of E’s parents and grandparents; (iii) observations of E. in the homes of each parent, in the company of each parent, separately, and each grandparent; and (iv) information provided to him by 18 collateral sources, whom he interviewed at length. Drs. Fadeyi and Waterman are medical doctors. Their opinions are based on their observations of Mr. S. during office visits. Dr. Nel said that he lacked the training to comment on the battery of psychological tests administered by Dr. Waterman. Dr.

Fadeyi was not asked to comment on that subject. [ 12 ] It is currently fashionable to prefer objective data to subjective impressions. If one were to assess the conflict in the medical evidence by that standard, one would prefer the evidence of Dr. Waterman, as being largely based on objective data. However, when the subject of discussion is human mental health, I am not sure that objective psychological testing is inherently more reliable than the subjective impression of an experienced and well-qualified psychiatrist.

That might be so, but I lack the qualifications to draw that conclusion for myself, and there is no basis in the evidence for such a conclusion. [ 13 ] I think that there are two risks to be managed: a. The hostility among the parents and grandparents poses a risk to E.’s sense of security and healthy emotional development. I think that I should do what I can to: (

i) mitigate that hostility; and (ii) to the extent that it cannot be mitigated, shield E. from it. b. Dr. Waterman expresses concern about risks to E.’s safety during overnight visits with Mr. S. While I cannot say that Dr. Waterman is necessarily right, and Drs. Fadeyi and Nel necessarily wrong, about the risk which Mr. S. may pose to E. during overnight visits, I cannot discount the risk that Dr. Waterman may be right. If Dr. Waterman is right, and I allow overnight visits, the consequences for E. are likely to be very serious. If Drs.

Nel and Fadeyi are right, and I decline to allow overnight visits, the potential consequences for E. will be much less serious. That being so, I do not think that I should allow overnight visits at this stage. [ 14 ] The challenge is to devise a parenting regime which sufficiently protects E. from physical and emotional harm, while fostering, to the extent possible, her relationship with each of her parents and grandparents. I analyse that challenge in the following way: a. Cooperative parenting will not be possible. The animosity among the parents and grandparents is too strong.

The parenting responsibilities described in

section 41 of the Family Law Act must be exercised by one parent or the other. Clearly, the custodial parent should have those responsibilities. b. Mr. S.’ mental health issues render him, at present, unsuitable for the role of custodial parent. Dr. Waterman expresses the hope that Mr. S.’ condition will improve with continued treatment. If so, changes to the parenting regime may be appropriate. However, even if Mr.

S. were to fully recover some time from now, I would be reluctant to appoint him as the custodial parent, simply because of the importance of stability and consistency in the living arrangements of young children. Ms. S. has been the custodial parent since the parties separated. I would require a compelling reason to order a change in E.’s primary residence. The evidence discloses no such reason. c. There should be a change in the arrangements for transfer of E. from the care of one parent to the other.

The manifest hostility between her parents and between her two sets of grandparents must be obvious when she transfers from one parent to the other. She should not be exposed to that hostile atmosphere. In many cases, such problems can be solved by asking the grandparents to act as intermediaries. That solution is not available in this case because of the hostility among the grandparents. Two possible solutions occur to me: i. It may be possible to recruit a neutral intermediary. ii. Many daycare and community centres offer programs for children of E.’s age. It may be possible for Mr.

S. to pick up E. from such a program at the beginning of each visit and return her to the program at the end of the visit. I encourage the parties to explore those, and other, options, with the objective of avoiding situations in which E. is in the presence of both parents at the same time. d. I am concerned about the proposal that Mr. S.’ parents should supervise extended periods of parenting time. I asked each of them whether they gave any credence to Dr. Waterman’s report. Mr. S.’ father replied that he had read the report, that he considered Dr.

Waterman to be entirely mistaken in his conclusions, and that he put no credence in the report. Mr. S.’ mother replied that she had read part of the report, but had stopped reading it because she found it distressing, and that she put no credence in the report. In my judgment, Mr. S.’ parents are not suitable candidates for the role of parenting time supervisor. An effective parenting time supervisor must be: (

i) aware of the risks which led the court to impose a supervision requirement; and (ii) ready, willing and able to take steps to manage those risks in a way which will keep the child safe. Mr. S.’ parents do not believe that there are any risks. As a result, they would not be reliable supervisors. e. Mr. S. puts forward his pastor, Mr. Zvonar, as an alternate supervisor. Mr. Zvonar has generously offered to have Mr. S. and E. as overnight guests at Mr. Zvonar’ s home. Mr. Zvonar has two young children at his home, with whom E. is on good terms. Mr. Zvonar was not asked whether he had read Dr.

Waterman’s report. f. At the moment, there is no sufficient proposal in place to allow overnight visits. However, it would be in E.’s interest to devise such a proposal. I think that these are the essential elements:

(

i) An appropriate supervisor must be identified and recruited. That supervisor must be a person who has read Dr. Waterman’s report and these reasons, and who is willing to accept and take seriously the supervision obligation. Mr. Zvonar might be such a person. (ii) I do not think that weekly overnight visits would be in E’s best interest at this time. The first priority now should be to stabilize the situation and reduce the level of conflict among the parents and grandparents. When that objective has been attained, it may be possible to arrange more extensive parenting time for Mr.

S. (iii) It would be useful for Mr. S. to investigate opportunities for him to have longer, but less frequent, intervals of supervised parenting time with E. For example, there may be an opportunity for them to attend a church camp for a week in the spring or summer. If Mr. S. is able to identify such opportunities, he should propose them to Ms. S. If the parents are unable to agree, Mr. S. should be at liberty to apply to the court for such parenting time. [ 15 ] Ms. S. expressed concern as to Mr. S.’ parenting skills, particularly in relation to E.’s standards of hygiene while in Mr. S.’ care.

There is some evidence to support her concern. Mr. S. does not accept that there is any reason for concern or criticism, and rejected my suggestion that it would be helpful for him to address the concern by registering for a parenting course. This is an example of an underlying problem. Mr. S. is a highly defensive individual, who believes himself to be a victim of the process, and is not receptive to constructive suggestions which might assist in reducing the level of conflict in the parents’ relationship. A reduction in that level of conflict would do much to facilitate E.’s healthy emotional development.

For that reason, it would be helpful if Mr. S. were to take a less adversarial approach to the issues and to make an effort to address constructively the concerns which have been raised. His success or failure in that respect will be a significant factor in creating opportunities for him to have more parenting time with E. [ 16 ] It will be obvious from the comments in paragraphs 14 and 15 that E. would not be well-served by a final order at this stage. A healthy ongoing relationship with her father and her paternal grandparents would be in her interest.

That can only be achieved by the implementation of the measures discussed in paragraphs 14 and 15. That will require: (

i) constructive engagement by both parents and both sets of grandparents; and (ii) some time. I think that I can and should play an ongoing role in that process. The sooner such measures are implemented, the sooner the parties can move to a stable, long-term modus vivendi which will not require ongoing assistance from the court. For those reasons, I direct that: (

i) I will be seized of future court proceedings in this case; and (ii) the parties arrange with the Judicial Case Manager for a family case conference, to be held in February or March, 2016. At that family case conference, I will expect to be informed respecting progress on the matters discussed in paragraphs 14 and 15. [ 17 ] I make the following interim orders, to remain in effect until further order of the court: a. E.’s primary residence will be with her mother. b. Ms. S. will exercise the parental responsibilities set out in

section 41 of the Family Law Act SBC 2011 c 25. c. There is an existing order which determines Mr. S.’ parenting time until early January. Thereafter, Mr. S. will have parenting time with E. on two days each week, between the hours of 9:00 a.m. and 4:00 p.m. d. On the 15 th day of each month, Mr. S. must provide Ms. S., by e-mail, with a list of the dates during the following month on which he wishes to have parenting time with E. If Ms. S. finds any of those dates to be inconvenient, she must propose alternate dates to Mr. S. by e-mail no later than 5 days after receipt of Mr. S.’ e-mail.

If the parties are unable to agree on the dates, either party may apply to the court to fix the dates. e. I am conscious of the financial burden which these proceedings have placed upon Ms. S. For that reason, I think that I should take steps to manage future proceedings to ensure that they are no more protracted or expensive than necessary. I direct that, if Mr. S. wishes to bring further applications before the court, he may file notice of his application and any supporting material, and he may serve those documents on Ms. Rongve. However, Ms.

S. will not be obliged to file any responsive material unless I decide that the application is sufficiently meritorious to proceed. If I am not available, and another judge of this court is of the opinion that Mr. S.’ application is sufficiently urgent to proceed in my absence, that judge may do so. November 30, 2015 __________________________ T. Gouge, PCJ