N.R.G. v. G.R.G., 2013 BCSC 1770

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.R.G. v. G.R.G., 2013 BCSC 1770 Date: 20130925 Docket: 13-1789 Registry: Victoria Between: N.R.G. Claimant And: G.R.G. Respondent Before: Master Bouck Reasons for Judgment Counsel for the Claimant: G.M. Lidstone Counsel for the Respondent: J.A.C. Stewart Place and Date of Hearing: Victoria, B.C. September 12, 2013 Place and Date of Judgment: Victoria, B.C. September 25, 2013 The Applications [ 1 ] In this high conflict family law proceeding, the parties bring cross-applications largely concerning the interaction between the father and the parties’ five children.

To provide some measure of anonymity to the family, the parties will be described as the “Mother” and “Father” in these reasons. [ 2 ] I use the word “interaction” deliberately as the Mother’s application for a protection order seeks to restrict the Father from being anywhere near the children, except as agreed, and might include a prohibition against a chance encounter with the children at a public place. [ 3 ] The Father’s application is for specific parenting time with all five of the children. [ 4 ] The adjudication of these applications is complicated by the fact that interim orders have already been made by the Provincial Court.

A trial date is set for early November 2013 for that court to deal with a final protection order and perhaps some other aspects of the relief sought by each of the parties. [ 5 ] While jurisdictional questions arise under s. 193 of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”), I determined that it was in the best interests of the children to hear the applications.

Whether those best interests are served by making any orders in the Supreme Court pending final adjudication is another matter. [ 6 ] At the conclusion of the hearing, I did make an order allowing the parties’ two older children to attend sailing events taking place in the Greater Vancouver area in September and October of this year. The order might not have been strictly necessary; however, the fact that the relief was opposed provides some indication of the lack of cooperation between the parties on questions of parenting.

Background [ 7 ] Much of the parties’ evidence was diametrically opposed, even on inconsequential facts. Important facts concerning the parties’ conduct should not and will not be resolved on this interim application. In addition, much of the evidence before the court on these applications was inadmissible hearsay: Creber v. Franklin , [1993] B.C.J. No. 890 (S.C.) . [ 8 ] What follows is a very general overview of the parties’ circumstances and events which led up to these applications. Some of the evidence which is in conflict will be mentioned but, again, no finding is made on those disputed facts.

[ 9 ] The parties were married in October 1988 and separated sometime between November 2011 (says the Mother) and January 2013 (says the Father). They are the parents of five children: S. (aged 12), T. (aged 10), A. (aged 7) and four-year-old twins, N. and A.R. [ 10 ] The Mother is a medical doctor, while the Father describes himself as a businessman. The parties met and married in the United States but relocated to Victoria in or about 2005.

The Mother says that the Father did not relocate to Victoria until some five years later, but rather visited the family from time to time in the intervening years. [ 11 ] The Father’s work has historically required travel to the United States and other countries. The parties disagree on the length and frequency of these business trips. [ 12 ] Both parties claim to have been the children’s primary caregiver during the marriage. The Mother took parental leaves of varying duration.

The Father says that his work allowed him to be the children’s primary caregiver for months at a time once the Mother returned to her employment. [ 13 ] Presently, the Mother is working while the Father is pursuing employment opportunities in the United States. The Father may be working outside of Victoria for month-long periods depending on the employment ultimately secured. [ 14 ] S., T. and A. attend an independent school. The twins are enrolled in a pre-school program. [ 15 ] S. and T. are accomplished sailors.

This activity necessitates travel to events outside of the Victoria area and even internationally. [ 16 ] Neither party has extended family in the Victoria area. [ 17 ] For most of the marriage, the parties enjoyed a very comfortable lifestyle which included overseas travel and the ownership of recreational property. However, the Father lost his employment sometime in 2010 and the family home has since been sold in foreclosure proceedings.

These financial issues clearly put a strain on the parties’ relationship, but the marriage appears to have been in trouble for some time. [ 18 ] As a result of the foreclosure proceedings and the marriage breakdown, the former family home was vacated. The Mother says that she and the children moved out but the Father stayed in the family home for several months until that property was eventually sold. The Mother says that she allowed the Father to reside with the family in the new home “out of compassion” after the family home was sold.

The Father says that all of the family moved to this new residence at the same time. [ 19 ] Between November 2011 and January 2013, the parties shared the parenting of all five children. Again, there is a large discrepancy in the evidence over who cared for which children and when. However, the Father certainly had a parenting relationship with S. and T. during this time. For example, in the summer of 2012, the Father accompanied S. and T. for six weeks of sailing training and competition outside of Canada. [ 20 ] Sadly, there are allegations of violence on the part of both parties.

These allegations are disputed. If the facts alleged are true, the violence has been directed by both parties towards some or all of the children and towards each other throughout the marriage. [ 21 ] Indeed, the events which appear to have contributed to the estrangement between S. and T. and their father concern allegations of violence between the parties in early January 2013. The details of these events are not important for the purposes of these reasons. The Father removed himself from the shared residence after this event.

Three days later, the Father appeared in Provincial Court to obtain ex parte orders, the details of which are described below. [ 22 ] The Mother says that the Father subsequently removed one of the twins from school and kept her in his care without any agreement to that effect. The Father denies these allegations. [ 23 ] No criminal charges have been laid with respect to the January events and no Peace Bonds are in effect. The Ministry of Children and Family Development has no active involvement with the family although the Mother suggests that some investigation is presently being pursued.

The Father also denies this allegation. [ 24 ] After these events, the parties’ relationship became significantly more strained. Nonetheless, the Mother expressed a “willingness” to allow the Father parenting time with the children, but only on an agreed upon schedule. [ 25 ] In the Spring of 2013, the parties pursued the collaborative law process and involved divorce coaches. [ 26 ] A counsellor also became involved for the purposes of obtaining the views of the children. That counsellor interviewed S., T. and A.

According to the Mother, the three older children told the counsellor that they did not wish to have contact with their father. A.’s views were somewhat ambivalent. The counsellor did not prepare a written report but rather conveyed the information to the parties verbally. The Mother says that the Father did not accept the veracity of the information relayed. [ 27 ] The Father has had no contact with S. and T. since January 2013, but now enjoys some parenting time with A. The Mother maintains that S. and T. still do not wish to have anything to do with their father.

The Father says that there is evidence of parental alienation by the Mother; however, he is willing to work with counsellors and the Mother to re-establish a relationship with these two children. [ 28 ] As of recently, the Father has had parenting time with the three younger children for part of each weekend and once during the week. Specifically, the Father has parenting time with the twins on Wednesdays from 4:00 p.m. to 7:00 p.m., with A. on Fridays from 4:00 p.m. to 7:00 p.m., and with all three of these children on each Saturday from 5:00 p.m. to Sunday at 5:00 p.m.

Counsel advised during the course of this hearing that this parenting time is going well.

[ 29 ] The parties have attempted mediation of the parenting issues, obviously without any success. [ 30 ] There are no trial dates set in the Supreme Court action. Procedural History [ 31 ] This action was commenced in May 2013. [ 32 ] Before that date, the following orders were made by the Provincial Court: 1. An Interim order made ex parte on January 21, 2013, by Her Honour Judge Chaperon, making the parties joint custodians and guardians of all five children. The mother is at liberty to set this order aside upon seven days’ notice. A police enforcement term is included in the order.

No steps have been taken by the Mother to set aside the order. 2. An interim order made January 24, 2013, by His Honour Judge Smith requiring, among other things, the return of N. by the father to the child’s pre-school by a certain time; a substitute police enforcement clause; a prohibition against either party removing any of the children from Vancouver Island without agreement or court order; the surrender of the children’s passports; and the adjournment of access issues to January 31, 2013 (“Smith Order No. 1”); 3.

A further interim order of Her Honour Judge Chaperon made January 31, 2013, by consent, specifying the Father’s parenting time with the three younger children on February 1, 2 and 3, 2013, and requiring a family case conference to be scheduled; 4. A further interim without prejudice order of His Honour Judge Smith made April 11, 2013, prohibiting the Father from attending the children’s schools and requiring that any future parenting time be as agreed in writing between the Father and Mother’s counsel.

Both parties are prohibited from attending each other’s place of residence, place of employment, place of education or place of recreation (“Smith Order No. 2”). [ 33 ] The parties next appeared before His Honour Judge Brooks who determined that the various issues raised by the parties could not be resolved in the time available that day and set the matter over for a three-day trial. [ 34 ] The Mother’s application in this action was filed on June 13, 2013, with the Father’s following on July 2, 2013. [ 35 ] On the Father’s application, an order has been made by consent requiring the preparation of a report pursuant to s. 211 of the FLA .

That report has been commissioned but the delivery time is undetermined. The parties are doubtful that the report will be available for the November 2013 Provincial Court trial. [ 36 ] The balance of the relief sought in the parties’ applications was heard in part by Thompson J. on July 24, 2013. No orders were made and the applications were adjourned generally.

The parties had yet to conduct a judicial case conference, and neither party had sought leave to proceed with the applications before such a conference was concluded. [ 37 ] A consent order was made August 19, 2013, following a judicial case conference before Gray J. That order provides the Father with the interim parenting time with the three younger children, and also requires the Father to provide the Mother’s counsel with three names of proposed counsellors for S. and T. The Mother is to choose one of these individuals to provide counselling to these two children.

Counsel advised that the pool of available counsellors is fairly limited and not much progress had been made on this part of the order to date. The order of Gray J. has yet to be entered. Discussion [ 38 ] The jurisdictional question loomed large in this hearing. Many of the orders sought in the Mother’s application at least overlap and, in some instances, duplicate orders already granted by the Provincial Court. The Father’s application for parenting time is still alive in the Provincial Court. [ 39 ] It might have been prudent to adjourn the parties’ applications pending the outcome of the November trial.

If the trial proceeds, the Provincial Court might finally determine certain aspects of the relief sought by the parties. On the other hand, there is no certainty that the November trial will proceed. Any final determination on parenting issues will probably need to await the delivery of the s. 211 report. [ 40 ] As expressed by counsel, some of the orders made to date resulted from the insufficiency of judicial time to fully adjudicate various issues.

Both counsel suggested that the Provincial Court was doing its best to “put a lid on a boiling pot.” [ 41 ] To some extent, relief was sought in the Supreme Court because there is a perception of greater access to judicial resources. In any event, the parties are required to bring proceedings in Supreme Court to obtain a divorce and to deal with property and debt claims. Nevertheless, at this point, neither party is willing to abandon the Provincial Court proceedings entirely. Thus, any orders made by this court ought not to prejudice a party’s ability to obtain a final order in the Provincial Court.

Furthermore, any orders made should not prejudice the parties’ position in any Supreme Court trial. [ 42 ] In their respective notices of application, the parties rely solely on the FLA . In those circumstances, an order made by the court with respect to parenting time must only consider the best interests of the children. Sections 37(2) to (4) of the FLA provide that: 37.

(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. [ 43 ] Other considerations might apply to the final orders made at a Supreme Court trial if the provisions of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), are invoked: M.V.B. v.

A.R.D., 2013 BCSC 885 at paras. 180-191 . [ 44 ] Dealing firstly with the Mother’s application, I have determined that the relief sought in paragraphs 2 through 9 ought to be adjourned pending an adjudication of the issues in the Provincial Court. [ 45 ] There are protection orders in place as between the Mother and Father in Smith Order No. 2.

The Father is already prohibited from attending at the children’s schools and residence, although the Gray J. order permits the Father to pick up A. from school on Fridays. [ 46 ] The parties remain joint custodians and guardians of all five children by virtue of the January 21, 2013, order. Admittedly, the parties’ inability at present to constructively communicate is incongruent with the order: M.V.B. v. A.R.D. at para. 183 . Nonetheless, the granting of the order sought by the Mother would further restrict communications between the parties.

That result is not in the children’s best interests. [ 47 ] The Mother is granted leave to re-set her application if no final orders are made in the Provincial Court proceedings after conclusion of the November trial or if the Provincial Court proceedings are abandoned. [ 48 ] There will be an order that for the interim, the children’s primary residency is with the Mother, subject to any further court order or agreement between the parties.

There will be a further order that, in the interim, the Father’s parenting time with the children will be as ordered by the court or agreed in writing between either the parties or counsel, if necessary. This order merely reflects the reality of the present circumstances and might assist the parties in dealings with third parties. The order is also duplicative of the terms in Smith Order No. 2. [ 49 ] The Father’s application is more problematic. As the interim order for primary residency reveals, I am not prepared to order that the parties share parenting of the children on an equal basis.

The Father’s suggestion in his affidavit material that, joint custody means “50/50”, parenting time is simply not correct at law. [ 50 ] The notice of application seeks “specified access” to all five children. In submissions, the Father suggested that the parties share parenting of the five children on a month on/month off basis. Such an arrangement would allow the Father to pursue employment in the United States and thus provide financial support for the children.

The Father further submits that the shared parenting model is reflective of the status quo during the parties’ marriage, with the current situation being the result of unilateral actions taken by the Mother to frustrate his parenting time.

The Father describes the Mother as “irrational” and “controlling” of the children. [ 51 ] The Father also submits that some immediate parenting time is necessary with the two older children in order to allow the s. 211 report author to make a proper and complete evaluation. [ 52 ] The Mother firmly resists any parenting time between the children and their father other than what was agreed to in the Gray J. order. [ 53 ] At the risk of stating the obvious, it is impossible in this case to fully and properly consider the best interests of the children given the widely divergent facts presented by the parties.

Without testing that evidence (including that of the parties’ supporters), it would be wrong to prefer one party’s evidence over the other on the question of parenting. There are inconsistencies in both parties’ evidence but not sufficient to allow me to make any findings on credibility.

[ 54 ] About the only common ground that can be found in the evidence is that post-separation, the Father did have a relationship with S. and T. and that relationship broke down in January 2013. [ 55 ] The s. 211 report may be illuminating on the children’s views but this expert will decide whether or not the children will be interviewed. The Mother has relayed the views of S. and T. through her affidavit, including exhibiting a letter allegedly written by S.

However, the Father may be correct in his view that S. and T. are being inappropriately influenced by their Mother. [ 56 ] If family violence is given the appropriate consideration, then it is contrary to the children’s best interests to be parented by either party.

Again, the veracity of those allegations needs to be explored at trial. [ 57 ] There is no objective, admissible and uncontroverted evidence on the children’s psychological health and, in particular, that of S. and T. which assists the court on this application. [ 58 ] The Father’s proposed parenting arrangement could only be considered in the children’s best interests if the court were to completely ignore the Mother’s evidence which is simply not going to happen. [ 59 ] The only glimmer of good news at this time is that A. and the twins are enjoying the parenting time with the Father and no concerns have been expressed by the Mother on those arrangements.

Importantly, this parenting time comes a few months after A. allegedly expressed an unwillingness to spend time with her father.

There is some room for optimism that this parenting time will be expanded, but given that the arrangement is so new and working well, I am not prepared to order any additional parenting time with A. and the twins at this juncture. [ 60 ] The Father’s application for parenting time is with respect to all of the children, but the real void in the present arrangements is any time with S. and T. [ 61 ] Other than a consideration of these children’s views, the evidence with respect to the s. 37 factors is the same for all of the children.

As noted, it is impossible to tell whether S. and T. are being influenced with their Mother or what their present views might be with respect to parenting time. In any event, the views of the children are but one of the s. 37 considerations.

Although S. is approaching the age where, for practical reasons, the parenting arrangements might be strongly influenced or even dictated by the child’s views, she is not there yet. [ 62 ] Absent some evidence from an objective third party, I am not persuaded that these two children’s emotional well being will be in jeopardy if they are required to spend some time with their Father. Any concerns about being “taken” by their Father (if actually expressed by these children) should be ameliorated by the positive parenting time experienced by A. and the twins.

By virtues of Smith Order No. 2, the Father remains prohibited from attending at the children’s schools, so that should not be a concern to S. and T. [ 63 ] The question to be answered is how much parenting time is in these two children’s best interests? [ 64 ] On the most objective view of the evidence, any parenting time at this stage ought to be fairly modest and introduced gradually. It is hoped that these two children will receive counselling in the near future. The results of this counselling may well influence any future parenting arrangements.

Nonetheless, if an investigation into parenting is to be truly comprehensive and address the best interests of these children, there ought to be some interaction between the Father and S. and T. [ 65 ] I have concluded that the Father’s parenting time with S. and T. should be separate from the time spent with the other children. There are clearly different dynamics involved with these two children and the focus should be on each of them during the parenting time. [ 66 ] There is very little information in the evidence about S. and T.’s extracurricular commitments, other than sailing.

Thus, the parenting arrangements will require some flexibility by the parties and may mean that one or both of these children miss an event on occasion. [ 67 ] The order made is as follows: 1. For the weeks which commence on September 30, October 14 and October 28, 2013, S. and T. shall have interim parenting time with the Respondent from 5:00 p.m. to 7:00 p.m. on one weeknight with the day of the week to be agreed on between the parties, or through counsel if necessary, but if no agreement can be reached, the weeknight shall be a Thursday; 2.

Commencing November 4, 2013, S. and T. shall have parenting time with the Respondent on one weeknight from 5:00 p.m. to 7:00 p.m. on a weekly basis with the day of the week to be agreed on between the parties, or through counsel if necessary, but if no agreement can be reached, the weeknight shall be a Thursday; 3. The pick-up and drop off venues for this parenting time is to be agreed between the parties, or through counsel if necessary; 4. The parties are at liberty to agree in writing to additional parenting time between the Respondent and any or all of the children; and 5.

Either party is at liberty to apply to vary terms 1 and 2 of the order upon presenting evidence from the s. 211 report author and/or the counsellor(

s) agreed upon by the parties that purports to address the best interests of the parties’ children. [ 68 ] The final term of this order should not be seen as an invitation to involve the children with health care professionals beyond what has been agreed to or ordered by the court to date. Rather, the term is intended to provide a safeguard for all of the children in the event that the counsellors or the s. 211 report author offer an opinion on the children’s best interests in terms of parenting pending the final adjudication of this issue.

[ 69 ] Term “4.” of the order is somewhat redundant but necessary, in my view, given that no such order is in place in this proceeding. [ 70 ] The Mother is entitled to her costs in any event of the cause with respect to the application filed September 5, 2013. This application should not have been necessary as the children were not travelling with a parent and the Mother simply wished to avoid any perceived breach of Smith Order No. 1. It is in the best interests of S. and T. to attend these sailing events. [ 71 ] Success on the two other applications has been mixed. Thus, the parties shall bear their own costs on those applications. “C.P. Bouck” Master C. P. Bouck