L.K.S. v. S.S.S. Date:, 2016 BCPC 35

Citation: L.K.S. v. S.S.S. Date: 20160112 2016 BCPC 0035 File No: 10209 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.K.S. APPLICANT AND: S.S.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: D.R. Pedersen

Counsel for the Respondent: P.P.S. Sahota Place of Hearing: Chilliwack , B.C. Dates of Hearing: November 12, 2014, March 18, October 16, December 4, 2015 Date of Judgment: January 12, 2016 Introduction [ 1 ] The Applicant L.K.S. and the Respondent S.S.S. are the mother and father, respectively, of the child J.S., who was born on (d.o.b.) 2006. The parties separated in December of 2007, a year after the child’s birth. [ 2 ] The Applicant seeks an order continuing the present status quo, which requires the Respondent’s contact with the child to be supervised.

She does so because of the Respondent’s lack of regular contact with the child, because of his drinking and because of the Respondent’s two convictions for acts of family violence. [ 3 ] The Respondent seeks an order permitting him to have contact with the child in an unsupervised setting. He argues that the concerns which led to the current status quo are unfounded or exaggerated and says that there are no grounds which require his contact with his child to be supervised. [ 4 ] Following is a

summary of the evidence heard at the trial of this matter, the positions of the parties, the applicable law, and the reasons for making the order which follows.

Summary of Evidence [ 5 ] The parties were married in India in March 2006 as part of an arranged marriage. The Applicant had first met the Respondent the previous month. The Respondent testified that the marriage was arranged by a man who was his father’s friend and also was the father of the Applicant’s aunt. The Applicant testified that when she first met the Respondent, he told her that he didn’t drink alcohol. The Respondent claimed in his evidence that he told the Applicant that he was a drinker of alcoholic beverages.

The couple lived at the Respondent’s home in India at first and the Applicant testified that while they were living there the Respondent was drinking. The Respondent agrees that he was drinking then almost every day. This concerned the Applicant, who testified, “I couldn’t do much about it. I had to put up with it because if I didn’t, my parents would not support me.” The Respondent testified that he remained in India for about two months after the marriage before returning to Canada so that he could apply to have his wife immigrate to Canada. [ 6 ] The parties’ child was born in India in December of 2006.

In February of 2007 the Respondent returned to India for six months and in July of 2007 the parties and the child moved to Canada. At first she and the child lived in Surrey with the Respondent’s brother. The Respondent’s parents also lived in the home. The Applicant took a job at a milk packaging plant and shortly after that she got a better job at a chocolate factory in Coquitlam. She worked there from 5:00 a.m. to 3:00 p.m. and testified that she was required to give her pay cheques to the Respondent.

While the parties were working, the child was cared for by the paternal grandmother. [ 7 ] According to the Applicant, in December of 2007 she left the home due to the Respondent’s drinking and due to family violence. She said that the Respondent had not been violent when they lived in India. The Applicant testified that the Respondent was a terrible alcoholic who drank most of the day and who would get so drunk that he couldn’t walk. She said that he was beating her and had tried to choke her, so she called the police. She testified that this happened on two occasions.

After the first occasion she moved the child to another bedroom in the house, but when family violence occurred again on December 21, 2007 she dialled 9-1-1 to report the assault. She said that on that occasion, the Respondent also threatened her, telling her that she would be going back to India “in a body bag”. She said that she left the home when the Respondent was passed out. The Applicant added that on each occasion that the Respondent assaulted her he had been drinking. [ 8 ] The Respondent denies that he ever assaulted the Applicant.

He testified that the police were called when he was asleep, and that after the Applicant left, he had no idea where his child was. Despite denying that he committed any offence, the Respondent pleaded guilty to a charge of assaulting the Applicant. [ 9 ] The Applicant testified that she didn’t know anyone in Canada other than her husband’s family. After the assault in December, she stayed in a transition house in Langley at first, before moving to Hope, B.C.

After she moved to Hope she began these court proceedings. [ 10 ] On April 23, 2008, the Honourable Judge Cohen of this court made an order granting the Respondent what was then termed “access” to the child each weekend from Saturday at 10:00 a.m. until the following Sunday at 4:00 p.m.

Judge Cohen included conditions for how the Respondent’s access was to be exercised, including requirements that pick up and return of the child take place at a Tim Horton’s restaurant in Chilliwack, that the Respondent be accompanied by one of his parents, and that the Respondent be sober when exercising access. [ 11 ] On June 21, 2008, while the parties were subject to Judge Cohen’s order, an incident occurred during one the visits that the Respondent was having with the child at Tim Horton’s. According to the Applicant, at the exchange of the child, the Respondent grabbed her by the arm and tried to kiss her.

When she moved to avoid the kiss, the Respondent threatened to kill her. She told him that she was calling the police, and the Respondent told her that he was not afraid of the police. A friend of hers called the police and the Respondent was later arrested. The Applicant testified that she was unsure if the Respondent was under the influence of alcohol at the time of the event. [ 12 ] The Respondent has a different version of what took place at Tim Horton’s that day. He denies that he made any threat to kill

the Applicant. He testified that when he had his access visit with the child, he could smell smoke on the child’s clothing and that he wanted to complain to the Applicant about this. If this is true, this still does not explain or justify the deliberate breach on the Respondent’s part of his probation order which required him to have no contact with the Applicant. [ 13 ] The Respondent was arrested and held in custody until July 18, 2008. At that time he pled guilty to one count of assaulting the Applicant and one count of breach of a probation order that he was still on for the earlier assault conviction.

He was sentenced to time served, which was calculated to be the equivalent of a 56 day sentence and he was placed on probation for a further period of 18 months. Under the terms of his probation order he was not to have any contact with the Applicant or with the child except as required for him to exercise access to the child as permitted by court order. The Respondent claims that he pled guilty so that he could get out of jail. In cross-examination he said “my lawyer made me lie. My lawyer’s instructions were for me to do so.

Otherwise I would have faced a year in jail.” [ 14 ] According to the evidence of the Applicant, the Respondent did not make any attempt to contact the child throughout the period of his probation, which ended in January of 2010. In fact visits between the Respondent and the child did not resume until long after that. On February 25, 2011, the parties appeared before the Honourable Judge MacKay of this court. At that time, Judge MacKay made an order allowing the Respondent to have access to the child once per week for a period of two hours.

The access visits were ordered to be supervised by the Ann Davis Society or by such other supervisor agreed upon between the parties. [ 15 ] The Applicant testified that the visits did not start up again until sometime in 2012. On June 8, 2012 the parties appeared in front of the Honourable Judge Cohen, who confirmed the terms of Judge MacKay’s order of February 25, 2011 and ordered that the visits were to recommence “forthwith”.

Judge Cohen also awarded the Applicant what was then termed “sole custody” of the child on a without prejudice basis and he allowed the Applicant to travel with the child to India for a one month vacation after November 30, 2012. [ 16 ] The visits which occurred in 2012 were supervised in some cases by the Ann Davis Transition Society and in some cases by West Coast Family Link Supervision & Access Service Ltd. One of the issues which arose during the supervised visits was the language that the Respondent used to communicate with the child in.

Initially the supervisor refused to permit the speaking of Punjabi because this made it impossible for the supervisor to understand what was being said to the child and to determine whether it was appropriate. This hampered the quality of the Respondent’s visit with the child because his first language is Punjabi and he says that his English is very limited. In a supervised visit which occurred on June 12, 2012, the supervisor admonished the Respondent for attempting to speak to his child in Punjabi. The supervisor also refused to allow the Respondent to take a photo of his child.

It is unclear why the supervisor did so and why the Respondent was not permitted to take a photo of his own child, since the Applicant testified that she did not instruct the supervisor that there was to be no picture taking. [ 17 ] The language spoken was also an issue during a supervised visit of July 9, 2012 the Respondent was once again told by the visit supervisor that he could not address the child in Punjabi. The Applicant disputes the Respondent’s evidence that he is unable to speak to the child in English.

She testified that she is aware that he speaks English in his work. [ 18 ] The Respondent testified that his visits with the child went well. An incident occurred at a supervised visit on July 7, 2013 when a visit was cancelled because the Respondent turned up at a visit with alcohol on his breath. As soon as this was discovered by the visit supervisor, the visit was cancelled. At the same visit the Respondent had brought another adult male with him and the Respondent was told that he wasn’t permitted to bring others along on the visits because this made it much more difficult to supervise the visit.

The Respondent agrees that the visit was cancelled for this reason, but he testified that he had been drinking the night before the visit, not on the day of the visit. He was asked in cross-examination if he would submit to testing to determine the extent to which he was drinking and his answer was not one that inspired confidence in his ability to parent in a sober fashion. The Respondent said “I will go through a test once I get permission to take my child home.

Otherwise I am not willing to take any test, even if she’s willing to pay for it.” His lack of willingness to be accountable was concerning. [ 19 ] When the Respondent testified in March of 2015, he said that he could not recall the last time he saw the child, but that it was probably a couple of months before that. [ 20 ] According to the Applicant, J.S., who recently had his ninth birthday, is described as a very friendly and good-natured child. He takes karate lessons and is very healthy. [ 21 ] The Respondent testified that his goal is to be able to take his child home for visits.

He testified that he is now employed as a long-haul truck driver and that due to the nature of his employment, he is unable to adhere to a fixed

schedule as to when he can see his child. He also added that if he was as bad of an alcoholic as the Applicant claims he is, it is unlikely that he would be able to carry out his profession. [ 22 ] The Respondent’s father testified that his son drinks alcohol but not to excess. He denied that his son is an alcoholic.

He testified that the child spoke the Punjabi language when the child was living in his home in Surrey, adding “that’s the only language we speak.” He said that the current situation is preventing the child from getting to know his cousins. [ 23 ] The Applicant is seeking an order that she be the sole guardian of the child. The evidence is clear that since the Applicant left the home with the child, she has been solely responsible for the child’s care and up-bringing and she has been responsible for seeing that the child is clothed, fed, sheltered and nurtured.

Position of the Parties [ 24 ] On behalf of the Applicant, Mr. Pedersen asks for an order which recognizes his client as the sole guardian of the child. He says that since she had an order giving her sole custody of the child prior to the change in legislation, the transition provisions of the Family Law Act operate so that she is now the sole guardian for this child. He asks that the Respondent’s contact with the child should be supervised and it should be supervised by a professional who speaks Punjabi.

He notes that the Respondent’s father was present when the Respondent was arrested in June of 2008 and he did nothing to either prevent or report the offence that the Respondent committed and therefore the Respondent’s father is not an acceptable supervisor for the contact time.

[25] Mr. Pedersen states that before the Respondent should be allowed to have unsupervised contact, he must demonstrate the abilityand the willingness to follow the rules. Specifically the Respondent’s sobriety should be verified independently and objectively by someform of testing. There should also be a period of supervised visits that the Respondent actually shows up for so that the Respondent isno longer a stranger in the child’s life. He notes that a great deal of time has passed since the Respondent last visited the child and theRespondent is largely a stranger to the child.

It would not be in the best interests of the child to force the child to have unsupervisedvisits with the Respondent under these conditions. [26] On behalf of the Respondent, Mr. Sahota states that there are no grounds shown for requiring his client’s contact with the childto be supervised. He says that there are no safety concerns, especially when one considers that during the time his client was onprobation there were no breaches of the probation order and no new offences committed. Mr. Sahota argues that the child has a right tohave a meaningful relationship with the Respondent.

He states that the only reason for asking for an order for supervised contact isbecause the Applicant is demanding it, unreasonably so in his opinion. [27] Mr. Sahota argues that there has been no evidence presented to show that the child has any fear of the Respondent. There isalso no evidence to show that the Respondent has ever harmed the child or that the Respondent has ever neglected the child whendrinking. He also argues that the Applicant’s characterization of the Respondent as an alcoholic is exaggerated, especially when oneconsiders the Respondent’s ability to function as a long-haul truck driver.

Applicable Law 1. Best Interests of the Child [28]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements orcontact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child,all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

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, parentingtime 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 thechild 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 carefor 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, includingwhether 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. [29]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person'sconduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Supervised or Unsupervised Contact [30] As a general rule, children have a right to a meaningful relationship with the parent that they do not reside with. However, asthe Supreme Court of Canada pointed out in Young v. Young (1993) (SCC), 84 B.C.L.R. (2d) 1, that objective may berestricted where the welfare of the child requires it.

Contact between the non-resident parent and his or her children is often restricted,made subject to conditions or even denied completely, where it presents a risk to the child. [31] The decision on whether or not to order supervised contact will depend on what is in the best interests of the children. Someexamples of when supervised contact (formerly supervised access) has been ordered as being in the best interests of children include: (

a) Where the child has not seen the party exercising access for a long time and that person is essentially a stranger (e.g. McCann v.McCann 2006 BCSC 880) (

b) Where the child has a fear of the person exercising access (e.g. V.G. v. T.G. [2005] BCJ No. 493, 2005 BCSC 299) (

c) Where the person exercising access has an untreated substance abuse problem (e.g. Polajzar v. Polajzar 2005 BCSC 899; Uto v.Szemok 2005 BCSC 912; Gallant v. Gallant 2007 BCSC 151) (

d) Where there is a reasonable possibility that the party exercising access has been physically abusive or sexually inappropriate withthe child (e.g. K.M.E. v. D.M.Z., [1996] BCJ No. 464 (B.C.S.C.); B.D.L. v. B.K. [2004] BCJ No. 536; 2004 BCPC 58) (

e) Where the party exercising access has removed or attempted to remove the child outside of the jurisdiction of the court in

contravention of a court order (e.g. Grant v. Grant 2006 BCSC 1974 ; J.C.M. v. I.C.M. [2007] S.J. No. 256 ) 3. Effect of Guilty Plea [ 32 ] When a party pleads guilty to a criminal offence, it is considered at law to be an admission which is admissible in a subsequent civil proceeding. In The Law of Evidence , Sopinka, Lederman and Bryant, the authors summarize the law on this point in

section 6.305 as follows: “A plea of guilty in a criminal proceeding or a proceeding arising out of the commission of a provincial offence is considered an admission which is admissible as such in a subsequent civil proceeding. As in the case of all admissions, except those known as ‘judicial or formal admissions’, the party who made it may later lead evidence at trial to reveal the circumstances under which the admission was made in order to reduce its prejudicial effect.

It should be noted that, before a plea of guilty is admissible in a subsequent civil action, the latter proceeding must have arisen out of the same or similar circumstances which formed the basis of the criminal charge.” Analysis [ 33 ] At this point in time, the Respondent has had little contact with the child for over a year. Before that there were long periods during which the Respondent did not see the child.

Without affixing responsibility for this, the reality of the situation is that the child has had little interaction with the Respondent and therefore it would not be in the best interests of the child to remove the child from the world he now knows and force him to spend a significant amount of time with the Respondent unless doing so could be shown to be in the best interests of the child. Having said that, the child is entitled to a relationship with his father and it is not in the best interests of the child to deprive him of that.

The best way to address both of these concerns is to implement a system of gradual contact between the child and the Respondent in which the child can be made to feel safe while this is occurring. [ 34 ] Counsel for the Respondent argues that there is no reason why the Respondent should not immediately have unsupervised contact with the child of a significant length of time.

In my view there are three concerns which present themselves and which must be addressed before the Court can be satisfied that increased contact between the child and the Respondent can be said to be in the child’s best interests. [ 35 ] The first of these is the lack of contact between the Respondent and the child: As the child has grown up, he has not spent much time with the Respondent.

The child is essentially a stranger to the Respondent and it is necessary that the bond between father and son be re-established before unsupervised overnight contact between the Respondent and the child can be said to be in the child’s best interest. The Respondent believes this is the fault of the Applicant for seeking court orders requiring supervision. This point of view blindly ignores the Respondent’s

part in all of this. In reality, he must accept responsibility for his actions and decisions in choosing not to take advantage of of all of the supervised contact time afforded to him by orders of this court, and by showing up on at least one visit with alcohol on his breath. [ 36 ] The second concern is the unresolved concern about the Respondent’s drinking. It is not enough for him to say “I can’t have an alcohol problem because I’m a professional driver and I haven’t lost my license or my job.” The best interests of the child demand more of the Respondent.

His refusal to cooperate in any testing to verify what he says is troubling. The Respondent must make a decision about which is more important to him: his consumption of alcohol or his relationship with his child. The evidence about his alcohol consumption in the home and its contribution to the family violence in the home presents his drinking as a serious issue which cannot be ignored. The Respondent must be accountable on this issue before it can be found that the amount of contact that he desires is in the child’s best interest. [ 37 ] Thirdly there is the issue of family violence.

The Respondent has two convictions for violence against the child’s mother. His statement that he pled guilty on two occasions out of convenience and not because of any wrong-doing on his

part is not credible. There is a lack of appreciation on the part of the Respondent of the significance of this issue in the life of his child, and it is not in the best interests of the child to live in an environment in which each parent shows contempt for the other parent. The responsibility for allowing the child to feel comfortable loving both of his parents without being made to feel that he is being disloyal to the other parent is one that rests with both the Applicant and the Respondent.

Part and parcel of this is the Respondent furnishing more than just his own self- serving evidence to satisfy this Court that this is not an issue of concern. [ 38 ] In the final result, the Respondent should at some point be able to have contact with his child without the need for supervision, but before that can take place, the three concerns that are now preventing this from occurring must be addressed. To be fair to the Respondent, it must be made clear what will be expected of him before the requirement of supervision can be lifted.

The following preconditions should be met before unsupervised conduct can occur: [ 39 ] Firstly, the Respondent must attend the supervised contact visits regularly. This is essential in order that he is no longer a stranger to the child. It is also unfair for the child to believe that he will be spending time with his father only to have the Respondent fail to attend the visit. This Court has ordered such contact to occur but the Respondent has chosen not to make use of that time because it is not on his terms. He will have to decide whether or not his child is more important to him than his ego.

The Respondent should attend at least eight supervised visits with the child, within a reasonable period of time, in order to rebuild his relationship with his child. There is no reason why he should not be allowed to speak in the Punjabi language to the child during the visits, but the visits should be supervised by someone who also speaks the language. Some of the Respondent’s testimony, including his denial of the two assaults that he pleaded guilty to, presents reason to trust his account of things.

A report should be made of the visits in order that a determination can be made as to whether or not the Respondent has behaved appropriately, and to record the child’s reaction, before removing the need for supervision. [ 40 ] Secondly, the child’s point of view must be independently heard. A “Views of the Child” report under

section 211 of the Family Law Act should be obtained, prepared by the Family Justice Counsellor (unless the parties are able to agree on a private report writer). But the views of the child should not be taken until the Respondent has completed the eight visits with the child as contemplated in the previous paragraph.

[ 41 ] Thirdly, the Respondent must be more forthcoming about his issues with alcohol and must demonstrate a willingness to have the true nature of this issue assessed. This can be best accomplished by an independent assessment and by the Respondent complying with orders to participate in testing as previously ordered.

According to information furnished to this Court by the Fraser Health Authority, that agency will perform such assessments and it would be a wise course of action for the Respondent to participate in such an assessment, or alternatively to seek out the services of a reputable alcohol counsellor or to consider attending one of the Punjabi speaking twelve step meetings of Alcoholics Anonymous that are available in the Fraser Valley.

The word of a sponsor may be another way to provide sufficient evidence that the Respondent is adequately confronting this issue. [ 42 ] Finally, the Respondent must participate in a counselling program which educates him on the impact of family violence in the life of a child. It may be that he has already done so as part of his probation order, though if that is so, the Respondent did not demonstrate any benefit from such counselling while giving his evidence. His evidence that he has done nothing wrong is not credible.

His gaining of insight into his conduct is something which will enhance the emotional security of his child as well as improving the quality of his relationship with the child. [ 43 ] Taking into account all of these considerations, an order will now be crafted setting out the prerequisites for the Respondent’s contact with his child to be expanded to become unsupervised contact, once the Respondent has addressed the concerns referred to. Order [ 44 ] Upon the Court being advised that the name and birth date of the child is J.S. born (d.o.b.), 2006, this Court Orders: 1.

The Court is satisfied that the Applicant L.K.S. is the guardian of the child under section 39(1) of the Family Law Act (FLA), and by virtue of the operation of section 251(1) of the FLA. 2. Under s. 40(3) (

a) of the FLA and by virtue of the operation of section 251(1) of the FLA the Applicant will have all of the parental responsibilities for the child. 3. Under s. 59(3) of the FLA the Respondent S.S.S. shall have contact with the child and such contact will be supervised by West Coast Family Link Supervision & Access Service Ltd., by the Ann Davis Society or by another person or agency agreed between the parties or approved of by this Court. The Respondent shall be responsible for payment of the costs of the supervisor.

The Respondent shall be permitted to speak with the child in the Punjabi language during such contact time if the contact supervisor is also conversant in that language. The Respondent’s contact time shall occur once per week for a period of two hours at times which do not conflict with the child’s school

schedule or the Respondent’s work schedule. If the Respondent exercises his contact time as scheduled for a consecutive period of four weeks, then the contact time shall increase to three hours. The Respondent shall not be permitted to exercise his contact time with the child if, in the opinion of the supervisor, the Respondent is under the influence of alcohol or has consumed alcohol in the previous twenty-four hours. 4. Pursuant to

section 211 of the FLA, a Family Justice Counsellor shall prepare and submit to this Court a report concerning the views of the child about unsupervised contact with the Respondent, provided that the child shall not be interviewed until the report writer is satisfied that the Respondent has had no fewer than eight visits with the child pursuant to the previous paragraph of this order and that those visits have taken place within an eleven week period. If both of the parties consent and notify the Family Justice Counsellor of their consent, the report may be written by another qualified report writer. 5.

The Respondent may apply to this court to amend the terms of this order to change his contact with the child from supervised to unsupervised and to increase the amount of the contact provided that the following conditions have been met: (

a) He has exercised at least eight supervised visits with the child in a sober condition within an eleven week period; (

b) The Views of the Child report has been completed (provided that a review may be scheduled in anticipation of a completed report, but the review shall not proceed without the completed report unless the Court is of the opinion that the review should occur without the completed report); (

c) The Respondent furnishes evidence at the review from a qualified independent source concerning his use of alcohol and assessing any risk to the child from the Respondent’s current alcohol use; and (

d) The Respondent furnishes evidence at the review as to his completion of a satisfactory program or counselling addressing the issue of family violence and its effect on children. Dated at the City of Chilliwack in the Province of British Columbia this 12 th day of January, 2016. _____________________________________________ (The Honourable Judge K. D. Skilnick)