N.N.K. v. S.F.L. Date:, 2014 BCPC 297

Citation: N.N.K. v. S.F.L. Date: 20141210 2014 BCPC 0297 File No: 11742 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.N.K. APPLICANT AND: S.F.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Applicant: Ms. Nicole Villareal

Counsel for the Respondent: Mr. Carman Kane Place of Hearing: Kamloops , B.C. Dates of Hearing: June 2, 3, 4, 5 and 6, 2014 Written Submissions: July 18, August 8 and 15, 2014 Date of Judgment: December 10, 2014 [ 1 ] The parties, N.N.K. and S.F.L., are the parents of C.J.K. C.J.K. was born [omitted for posting]. She is now 7 years old.

The Applicant, S.F.L., seeks an order under the Family Law Act setting aside existing orders and providing for joint guardianship of C.J.K., shared parental responsibilities and regular and unsupervised parenting time with the child. [ 2 ] The Respondent, N.N.K., is opposed to the Application on the basis that the child has disclosed on several occasions that she was sexually abused by S.F.L. C.J.K. has exhibited sexualized behaviours and N.N.K. submits that she is a child vulnerable to further sexual abuse.

N.N.K. takes the position that any time S.F.L. has with the child should be supervised in the child’s best interest. S.F.L. has denied any abuse of C.J.K. and asserts that the child has been put up to the allegations by N.N.K. He also points to the fact that C.J.K. been abused and sexualized by her older brother. The Best Interests of the Child [ 3 ] The parties are aware that the ultimate issue to be determined is what is in the best interests of the child as required by the Family Law Act . Sections 37 and 38 reads as follows: 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. 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. Family Violence [ 4 ] The term “family violence” as used in the Family Law Act is broadly defined in s. 1. The definition encompasses the physical and sexual abuse of a family member, attempts at physical or sexual abuse, emotional abuse including coercion or threats as well as direct or indirect exposure of family violence to a child. [ 5 ] The definition

section of the Act , s. 1, provides as follows: " family violence " includes (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence; [ 6 ] I will address the issue of family violence between the parties including physical abuse, threats and the allegations of sexual abuse involving C.J.K. Background [ 7 ] N.N.K. is the mother of C.J.K. as well as C.D.K., born in [omitted for posting]. He is now 12 years old. C.D.K. is a half-brother to C.J.K. and is not a blood relation to S.F.L. C.D.K. has behavioural challenges and is believed to suffer from fetal alcohol spectrum disorder and attention deficit hyperactivity disorder.

C.D.K. was himself a victim of sexual abuse at the hands of a babysitter in December, 2005 when he was only 3. N.N.K. uncovered the abuse in late 2005 or 2006 after C.D.K. put his tongue into N.N.K.’s mouth when kissing her. [ 8 ] The parties met in 2006 while N.N.K. was employed at a massage parlour in Surrey. S.F.L. was a customer. N.N.K. and S.F.L. began to see each other away from N.N.K.’s work. A relationship developed between them though the parties never resided together on a regular basis.

S.F.L. denied that the relationship was ever romantic and said it was one of convenience. [ 9 ] S.F.L. admitted he was involved in the drug trade for a number of years until 2011. Both parties have used drugs.

S.F.L. alleged that N.N.K. had a drug problem and smoked marijuana when she was pregnant with C.J.K. [ 10 ] It is to be remembered that s. 37(4) of the Family Law Act requires that conduct, and necessarily misconduct, is only to be considered “if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” [ 11 ] In September, 2006, N.N.K. became involved with the Ministry of Child and Family Development. There were appropriate concerns expressed about physical and emotional abuse regarding C.D.K.

There were Ministry intakes both before and after the birth of C.J.K. In 2007 C.D.K. was the subject of a temporary custody order and C.J.K. a supervision order while supports were provided to N.N.K. [ 12 ] It is not in dispute that over the years N.N.K. has struggled with the task of raising her children as a single parent and with

feelings of being overwhelmed. In particular the challenges presented by her son have been difficult. She receives regular support from the Ministry including monthly respite care. [ 13 ] In December 2007, with the assistance of a Family Justice Counsellor, S.F.L. and N.N.K. reached an agreement in writing regarding C.J.K. The agreement was filed with the Provincial Court in Kamloops. The agreement provided, among other things, that the parties would share custody and guardianship of C.J.K., that C.J.K. would reside principally with her mother and that S.F.L. would have reasonable and generous access.

S.F.L. was also to pay $250 each month in child support. Family Violence in 2008 [ 14 ] In 2008, N.N.K. and S.F.L. travelled to Saskatchewan for the funeral of S.F.L.’s father. N.N.K. said that during this trip S.F.L. assaulted her in a Regina hotel room. She said that the couple travelled on to Vernon, BC, where S.F.L. assaulted her again. Police were called and on that occasion, S.F.L. was charged with assault. N.N.K. alleged a third assault by S.F.L. while she was holding the infant C.J.K. in her arms.

No convictions resulted in any case. [ 15 ] N.N.K.’s accounts of assault included allegations that he held her throat and choked her. S.F.L. admitted that he did touch N.N.K.’s throat but denied choking her. I’m satisfied that he applied a grip to her throat in anger amounting to a choke hold. This act of violence was not justified and amounted to an assault on the civil standard of proof. [ 16 ] These events in 2008 led N.N.K. to file an Application to Change or Cancel an Order, namely the filed separation agreement.

N.N.K. sought sole custody and guardianship, and requested that S.F.L.’s access to C.J.K. be supervised by a third party. Under s. 37 of the Family Relations Act , an order was also sought restraining the conduct of S.F.L. in terms of his contact and communications with N.N.K. [ 17 ] On December 3, 2008 the application was granted in the absence of S.F.L., though duly served. N.N.K. was granted sole custody of C.J.K. S.F.L. was granted reasonable but supervised access to C.J.K.

In fact he spent little time with C.J.K. from that point until 2009. [ 18 ] In 2009, S.F.L. suffered serious health challenges related to diabetes mellitus. Around this time his relationships with N.N.K. improved and he saw more of C.J.K. He travelled to Kamloops to stay with N.N.K. and to see his daughter in 2009 and 2010. In November or December, 2010, he arranged with N.N.K. to take C.J.K. with him to Saskatchewan for a visit with his family.

C.J.K.’s Sexualized Behaviours [ 19 ] In June, 2009, Ministry social workers were advised by N.N.K. that C.J.K., then 2½ years of age, had tried to kiss N.N.K.’s privates. When asked about this, C.J.K. told her mom that her brother C.D.K. had kissed hers. S.F.L. said N.N.K. did not advise him of that disclosure. [ 20 ] N.N.K. acknowledged that over the years she has been alert to the potential risk C.D.K. poses to C.J.K. She has attempted to keep a close eye on her children when they are together and acknowledged that she had observed them in concerning situations.

In October, 2011, N.N.K. said, C.D.K. admitted picking up a toy and trying to put it into C.J.K.’s “bum.” This occurred when C.J.K. bent over to pick up a towel after she had showered with her mom. [ 21 ] It is not in issue that C.J.K. has been sexually abused by her brother and that she has exhibited sexualized behaviours from an early age. During the Saskatchewan trip in late 2010, S.F.L. observed sexualized behaviours from C.J.K. that caused him concern. She put her tongue into his mouth, saying that was what her brother C.D.K. did.

N.N.K. agreed that this was a behaviour she had learned from her brother. [ 22 ] There was another incident where C.J.K., then not yet 4 years of age, grabbed S.F.L.’s groin. C.J.K.’s behaviours in the regard have continued and been observed by visitation supervisors since the events of May, 2011. C.J.K. has attended counselling at the Kamloops Sexual Assault Centre. [ 23 ] Maeve Topolinsky was a long-time instructor in the Parenting Awareness and Individual Development (“PAID”) program run by Interior Community Services, a Ministry contractor in Kamloops. Ms.

Topolinsky taught S.F.L. in that parenting program in the fall of 2012 and also provided subsequent access supervision for him with C.J.K. Over at least two dozen sessions with S.F.L., she gave him good marks in the course and for his parenting behaviour with C.J.K. Ms. Topolinsky described father and daughter as strongly bonded. She had no concerns about S.F.L. based upon her own observations. [ 24 ] Ms. Topolinsky did however observe sexualized behaviours from C.J.K. She described that C.J.K. would “almost naturally” grab at S.F.L.’s groin. On one occasion she put her hands into the back of his pants.

On each occasion, S.F.L. stopped her and set limits by telling her that little girls don’t touch dads there. Another time she hit S.F.L. in the groin and said “I hit you in the balls!” S.F.L. told her that she shouldn’t be talking like that. [ 25 ] Ms. Topolinsky was sufficiently concerned about C.J.K.’s behaviours to report her observations to a Secwepemc Child & Family Service social worker. Similar behaviour by C.J.K. was said to have been observed by a supervisor at the Interior Friendship Centre, according to the Ms. Oland’s s. 211 access report. Events of May, 2011

[ 26 ] N.N.K. gave evidence that it was in December, 2010, that C.J.K. first alleged that S.F.L. touched her inappropriately. N.N.K. raised the matter with S.F.L. who dismissed the allegation as untrue. N.N.K. accepted his assurance and made no report to the Ministry or police. [ 27 ] In the spring of 2011 S.F.L. moved to Williams Lake where N.N.K. was then residing. He found employment there as a hotel bouncer. In late April or early May of 2011, N.N.K. left Williams Lake for a few days and left both children in S.F.L.’s care. [ 28 ] N.N.K. returned on May 4, 2011.

An argument ensued, during which N.N.K. punched S.F.L. in the head. S.F.L. went to the police, he said, not to request charges against her but to document the incident in case he decided to seek custody of C.J.K. Nonetheless, police arrested and released N.N.K. on a charge of assault. The charge was not proceeded with by the Crown. [ 29 ] In the course of this trial, S.F.L. said he was attacked by N.N.K., however N.N.K. said she was only defending herself and that she had punched him after he lunged at her.

S.F.L. denied lunging at her. [ 30 ] S.F.L. played a smart phone audio recording of part of the altercation, including the point where he was punched by N.N.K. The recording contains furious screaming, cursing, and swearing by N.N.K. towards S.F.L., plainly within the hearing of children, who can also be heard on the tape. There was nothing on the tape which supported the suggestion that S.F.L. was the aggressor in the conversation. [ 31 ] N.N.K. didn’t deny that the tape was accurate as far as it went, but asserted that S.F.L. provoked the loud response from her before he commenced recording the conversation.

She said the recording captured only her response to his provocation. [ 32 ] While there may be some truth to this, I am satisfied on a balance of probabilities that the evidence of S.F.L., bolstered as it is by the tape, is substantially correct. I accept that N.N.K. punched him in the head and thereby assaulted S.F.L. and that she did so without lawful excuse. [ 33 ] S.F.L. said that a few hours after this assault, N.N.K. recorded a voice message on his telephone. The next day, May 5, 2011, S.F.L. attended the Williams Lake RCMP with the recording. The recorded message was transcribed by police.

The message included an exchange between N.N.K. and C.J.K. In the exchange N.N.K. can be heard coaching C.J.K. what to say with C.J.K. repeating her mother’s words. The message ends with a threat by N.N.K., in the presence of C.J.K., to kill S.F.L. N.N.K. agreed that both she and C.J.K. are heard on the tape. [ 34 ] The police transcription effectively reads as follows: N.N.K.: (Indecipherable) C.J.K.: Mommy. N.N.K.: Okay, I love my mommy. C.J.K.: I love my mommy. N.N.K.: She’s a good mommy. C.J.K.: She’s a good mummy. N.N.K.: Don’t you bad people take me away. C.J.K.: Don’t bad people to take me away.

N.N.K.: Say daddy don’t hurt me like that. C.J.K.: Daddy don’t hurt me like that. N.N.K.: There you go S.F.L. don’t you fuckin’ dare do this to me ‘cause I swear to God I’ll fuckin’ kill you.

[ 35 ] It was just a few days later, on May 14, 2011 according to N.N.K., that C.J.K. made a further disclosure of inappropriate touching by S.F.L. N.N.K. said C.J.K. was in the bath. N.N.K. was washing around her tail bone when C.J.K. said that N.N.K. was touching her bum, “like daddy.” N.N.K. also reported that C.J.K. had dancing about the house singing a song about putting your hands on your bum. [ 36 ] On May 16, N.N.K. reported the disclosure to the Ministry of Children and Family Development. N.N.K. spoke to child protection social worker Ms.

Lehaise and then went to Williams Lake detachment, RCMP, the same day. Police and Ministry Investigations [ 37 ] In 2011, Ms. Lehaise was a new social worker with the Ministry, having received her BSW in 2010. She had been called out by Williams Lake RCMP on May 5, 2011 following the altercation between N.N.K. and S.F.L. Ms. Lehaise spoke to both parties and to collateral witnesses about the care of the children. [ 38 ] To Ms. Lehaise, the children seemed content and N.N.K. was cooperative with the social workers. S.F.L. expressed some concerns about N.N.K.’s lifestyle and said he wanted to speak to his lawyer.

Ms. Lehaise said that S.F.L. had glazed eyes and was sweating profusely. She wondered whether he was under the influence of an intoxicant. [ 39 ] In the result, the children were not removed and no proceedings were commenced at that time under the Child, Family and Community Service Act (“ CFCSA ”). [ 40 ] On May 16, 2011, N.N.K. provided a police statement at the detachment office to. Constable Nakatsu (then Cst. Barrie) who was an officer well-experienced in child abuse investigations.

N.N.K. repeated to the constable the disclosure she said she received from C.J.K. [ 41 ] While N.N.K. was speaking with police, C.J.K. was in the waiting area with Ms. Lehaise. There C.J.K. made a disclosure to Ms. Lehaise about inappropriate touching by her father. C.J.K. told Ms. Lehaise, “My dad puts his fingers in my bum.” C.J.K. went on to say that this had happened twice, once in a tent. C.J.K. said she told her dad she did not like this but he didn’t listen. Ms.

Lehaise asked no questions of C.J.K. as she did not want to jeopardize any subsequent statement C.J.K. might give to police. [ 42 ] On May 19, 2011, Cst. Nakatsu, conducted a 45 minute interview with C.J.K., but C.J.K. made no disclosure to the officer. At one point C.J.K. told Cst. Nakatsu that she had told her mommy a lie, but would say nothing further about what the lie was. [ 43 ] On May 25, 2011, Cst. Nakatsu spoke to S.F.L. about the allegations made against him. He was asked for and agreed to provide a video recorded statement under police caution. He declined an opportunity to speak with counsel.

In his statement, S.F.L. denied any improper conduct with his daughter. He discussed C.J.K.’s concerning behaviours, specifically that she had grabbed his groin and had put her tongue in his mouth. He repeated C.J.K.’s explanation to him that her brother had done this with her. [ 44 ] A week later, on June 1, Ms. Lehaise and her supervisor, Ms. Tanis, continued the Ministry investigation. They interviewed C.J.K. in her home. Both had received training in interview techniques for child sexual abuse complainants which included rapport building and asking open ended questions.

The interview was not recorded. [ 45 ] On this occasion C.J.K. said that twice her dad had put his fingers in her bum. She was on her stomach; he was rubbing her back and singing her a song. He put his fingers in her “bum” - “the hole where you poop from” she said. It had happened far away from home. She said her mom and her brother were still at their home in Williams Lake.

She was aware of her private parts and knew that people weren’t to touch there. [ 46 ] The statement was not recorded and verbatim notes were not taken during the interview. [ 47 ] Both social workers said they saw nothing in C.J.K.’s statement that suggested to them that she had been coached to say these things.

One might, for example, look for words and phrases incongruent with the child’s age or state of development or a frank admission by the child that she had been told what to say. [ 48 ] The social workers came to the view that child protection proceedings were not necessary as N.N.K. was cooperative, particularly around ensuring only supervised access to S.F.L. and engaging Ministry services.

N.N.K. asked for continued Ministry support including respite care for the children. [ 49 ] Constable Nakatsu concluded the police investigation without recommending charges against S.F.L. [ 50 ] The Williams Lake social workers transferred the Ministry file to Secwepemc Child & Family Services, a delegated agency, when N.N.K. moved to Kamloops. [ 51 ] S.F.L. has had only supervised visits since May 2011 and has worked hard to find acceptable supervisors to maintain contact with his daughter.

Admissibility of Hearsay Evidence [ 52 ] Witnesses in this case including N.N.K., have related in court statements made out of court by C.J.K. regarding improper touching by S.F.L. and her brother.

[53] Counsel for S.F.L. submits that these utterances of C.J.K. are objectionable as hearsay statements. Mr. Kane submits they arenot admissible in evidence as they do not meet the common law test of admissibility modified by the Supreme Court of Canada in R. v.Khan (SCC), [1990] 2 S.C.R. 531 and elaborated in subsequent cases: S.F.R. v. E.C.R. (BCSC),[1997] B.C.J. No. 1830. [54] The threshold test for admissibility of hearsay evidence at common law requires that the reception of the hearsay evidence beboth necessary and reliable. Reliability factors to be considered (per R. v.

Khan p. 547) may include: timing of the statement; demeanourof the child; personality of the child; intelligence and understanding of the child; absence of motive of child to fabricate; absence ofmotive or bias of the person who reports the child's statement; spontaneity; statement in response to non-leading questions; absence ofsuggestion, manipulation, coaching, undue influence or improper influence; corroboration by real evidence; consistency over time; andstatement not equally consistent with another hypothesis or alternative explanation. [55] The common law test has been modified in Family Law Act matters by s. 202 of the Act, which may to some degree reduce thenecessity requirement in the best interests of a child who is absent.

That

section provides that: In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following: (

a) admit hearsay evidence it considers reliable of a child who is absent (

b) give any other direction that it considers appropriate concerning the receipt of a child's evidence. [56] A similar provision is found in the Child, Family and Community Service Act.

Section 67(

b) provides that in a hearing underthat Act, the court may “admit any hearsay evidence of the child that it considers reliable.” [57] In the case at bar there is no question that the child C.J.K. was absent from the proceedings. She was not called as a witness nordid either party seek to call her. Given her age and stage of maturity it would not likely have been in her best interests to be called to giveevidence in the hearing of this litigation between her parents.

Neither, I expect, would it have been a productive exercise. [58] A significant issue here is that of the threshold reliability of C.J.K.’s statements and in particular those reportedly made toN.N.K. after the altercation on May 4, 2011.

With respect to statements reported by N.N.K., there are no significant circumstantialguarantees of reliability arising from the circumstances in which the statement was made. [59] I have in mind the close timing between complaint of assault raised by S.F.L. against N.N.K., the consequent arrest of N.N.K.and the prospect of criminal charges taken against her on the one hand, and the disclosure alleged to have been made by C.J.K. to hermother on the other.

There also falls to be considered the deep antipathy demonstrated by N.N.K. in her voice message to S.F.L., herthreats of harm towards him in the presence of C.J.K., the coaching of C.J.K. demonstrated in the telephone message, and the evidentwillingness of C.J.K. to please her mother by responding as she was requested. [60] These circumstances bear directly on a number of the reliability factors listed for consideration in Khan, including thefollowing: • an absence of motive of child to fabricate; • an absence of motive or bias of the person who reports the child's statement; • the statement was made in response to non-leading questions; • an absence of suggestion, manipulation, coaching, undue influence or improper influence; [61] The threshold test for reliability with respect to C.J.K.’s statements to N.N.K. after May 4, 2011 has not been met.

Accordingly,those statements to N.N.K. are not admissible as exceptions to the hearsay rule, that is to say they are not admissible to establish the truthof the information contained within them. [62] The same considerations do not apply with the same force to the statements made by C.J.K. prior to May 4, 2011 or to the socialworkers. Ms. Lehaise and Ms. Tanis are social workers who had no interest in the outcome as they performed their child protectionduties.

Although there have been concerns raised about taint, I’m satisfied that the threshold for reliability has been sufficiently met. [63] The other reliability concerns raised by counsel for S.F.L. go to the issue of ultimate reliability and the weight which to beattached to this evidence by the trier of fact. The evidence of C.J.K.’s statements to the social workers Ms. Lehaise and Ms. Tanis will beadmitted as exceptions to the rule against hearsay.

Section 211 Report [64] A

section 211 report was ordered and prepared regarding access by S.F.L. Ms. Oland, the reporter, an experienced familyjustice counsellor, canvassed those issues set out in s. 37 of the FLA. [65] Ms. Oland also gave evidence. She stated that N.N.K. was not very open about providing a release for Ministry files. N.N.K.

gave in evidence that she exercised her right not to sign a release on her Ministry files to Ms. Oland because N.N.K. “was afraid she’duse my problems with my son against me.” [66] Neither did N.N.K. advise Ms. Oland that C.D.K. had sexually abused C.J.K. by touching her “bum”. Ms. Oland properlydescribed this as a significant omission. In the intake form completed by N.N.K. for the s. 211 report, she answered that she had beenviolent with S.F.L. three or four times. In evidence, she said she was confused, that she had intended to say that he had assaulted her thatnumber of times. [67] Under the rubric of the child's health and emotional well-being as referred to in s. 27(2)(

a) Ms. Oland said the following: The significant issue is the emotional impact of the violence in her parent’s relationship, the impact on C.J.K. of living with a half-brother who has significant behavioural issues, and the alleged and actual sexual abuse in her past. [68] At the time of writing her report, Ms. Oland was aware that C.J.K. had reportedly disclosed sexual assault by her father in May,2011 to her mother and to social workers. She was also aware that there had been no such disclosure to police or C.J.K.’s counsellor atthe sexual assault centre. [69] Under the heading “Child’s Views” Ms.

Oland wrote that C.J.K. was a happy six year old. She was present for a supervisedvisit between C.J.K. and her father in June 2013. She described C.J.K. as happy and comfortable with her father and observed that C.J.K.enjoyed the games and activities suggested by S.F.L. They spoke easily about times they had shared and enjoyed outdoor play together.C.J.K. expressed to Ms. Oland that she would prefer to have visits with her father’s place but knew that wasn’t allowed. C.J.K. said shenever felt scared when with her father. [70] Ms.

Oland commented that S.F.L.’s determination to achieve supervised visits was commendable. He had been resourceful infinding assistance with supervision. [71] Ms. Oland was aware of S.F.L.’s assertions that the sexual abuse disclosure by C.J.K. was the result of coaching by N.N.K. Ms.Oland had seen the police transcription of N.N.K.’s voice message to S.F.L. and understood it was made the day after S.F.L.’s assaultallegation was made on May 4. In evidence, Ms. Oland stated that she was not sure that she focused on this.

On checking her notes, Ms.Oland thought it likely that she had not discussed the voice message with N.N.K. [72] In her report Ms. Oland related the opinion of Marilyn Puff, Family Counsellor at Interior Community Services, on coaching:that N.N.K. “was not capable of such behaviour”. Ms. Oland added that Ms. Lehaise stated her opinion that the disclosure was“absolutely not” the result of coaching. Those opinions were not put before the court directly in the course of these proceedings andwould not likely have been admissible in evidence if tendered. There is no evidence that either Ms. Puff or Ms.

Lehaise have theexpertise to offer opinions on the likelihood of coaching. [73] Ms. Oland said that it would be very unfortunate if an appropriate relationship between C.J.K. and her father was not possibledue to a coached sexual abuse complaint. However, Ms. Oland noted and accepted the views of social workers that C.J.K. should haveonly strictly supervised “line of sight” parenting time with her father. This, she said, would provide for the safety, security and well-beingof C.J.K. Ms. Oland said that any error had to favour the safety of the child and she hoped her report portrayed that.

The Safety of C.J.K. [74] The fundamental issue relating to the best interests of the child remains C.J.K.’s safety while in the hands of her father. Seriousallegations of child abuse have been raised. N.N.K. says that the allegations do not come from her but from C.J.K. herself.

It is a differentmatter altogether if the child, previously victimised by someone else entirely, is coached to say that her father had done these things. [75] The court has an obligation to ensure on the one hand that a child is not put into the hands of an abuser, and on the other not tounnecessarily deprive a child of the love and support of an innocent parent. [76] In J.P.A.D.Z. v. K.L.A.D.Z. [1999] B.C.J. No. 2282 (B.C.S.C.) Justice C.L. Smith dealt with an interim application by a fatherfor unsupervised access to his four-year-old daughter under the Family Relations Act.

The father in that case also faced allegations ofsexual abuse of his daughter. [77] At paragraph 19 Justice Smith reflected on the standard of proof required in such cases: This matter is not set for trial until one year from the present date. It is not possible to leave the status quo of supervised access in placepending trial without taking the risk that K.'s relationship with her father, assuming he is innocent of wrong-doing, will have beenneedlessly impaired. On the other hand, the protection of children from abuse is a high priority and responsibility of our court system. AsMs.

Dunnaway for the defendant argued, this child is entitled to protection. She referred me to B.S. v. Director of Child, Family andCommunity Services (1998), (BC CA), 160 D.L.R. (4th) 264 (B.C.C.A.) in which Mr. Justice Lambert discussed theissue of proof in child protection cases. He confirmed that the standard of proof is the standard in civil cases, i.e., the balance ofprobabilities. He said that when the assertion is about a past event then the actual occurrence of that event must be shown by the weightof the evidence to have been more probable than not.

However, when the assertion is that there is a risk that an event will occur in thefuture, then "it is the risk of the future event and not the future event itself that must be shown by the weight of the evidence to be moreprobable than not" (at p. 277). Thus, in assessing the risk of future harm or the threat of future harm there is room for a variableassessment depending on the magnitude of the threatened harm. He gives the example that a threat of harm through neglect of the child's

hygiene might have to be much more probable in order to meet the test than a threat of serious permanent injury through physical or sexual abuse.

He states (at p.277) "generally speaking, a risk sufficient to meet the test might well be described as a risk that constitutes 'a real possibility'." [ 78 ] Applying these considerations to the application for unsupervised access before her, and after reviewing the evidence in that case, Justice Smith stated at paragraph 23: Recognizing that it is impossible to be certain about the central issue, whether the child needs to be protected from sexual abuse by her father, I also recognize that certainty is not the standard. Referring to the standard articulated in B.S. v.

Director of Child, Family and Community Services, supra, I cannot conclude on the balance of probabilities that the child K. has been sexually abused by her father in the past. Nor can I conclude that there is a real possibility this will occur in the period between the present and the conclusion of the trial. [ 79 ] I have had the opportunity to hear and observe the witnesses, N.N.K.’s evidence struck me at times as not credible, particularly her evidence around the events which occurred in May, 2011.

I have rejected her account of the altercation on May 4 and found her to have assaulted S.F.L. [ 80 ] The voice message she left for S.F.L. shortly thereafter was a blunt demonstration by N.N.K. of her willingness and ability to coach C.J.K. to say bad things about her father.

C.J.K. demonstrated her capacity to repeat the words fed to her by her mother: “I love my mommy; she’s a good mummy”, “don’t bad people… take me away,” and “daddy don’t hurt me like that.” [ 81 ] To ensure that S.F.L. took home the message from N.N.K., N.N.K. ended her message with a blunt threat, made in the presence of C.J.K.: There you go S.F.L. don’t you fuckin’ dare do this to me ‘cause I swear to God I’ll fuckin’ kill you. [ 82 ] N.N.K. had no reasonable explanation for leaving such a threatening telephone message.

I do not accept her evidence that she was merely reporting C.J.K.’s allegations to the Ministry, and further to the effect that she was not invested in the outcome. N.N.K. allowed that in her anger she may have told S.F.L. that he would not see C.J.K. again. [ 83 ] I am satisfied there was a nexus between these events: S.F.L.’s assault complaint to the police, N.N.K.’s threatening voice message, and the allegations of abuse by S.F.L.

I do not accept, as N.N.K. would have it, that the timing of these events was no more than unfortunate chance. [ 84 ] The foreseeable impact of these events was that C.J.K.’s ability to spend time with her father was seriously compromised as were any prospects of S.F.L. regaining custody of his daughter. [ 85 ] N.N.K. made a point of ensuring that relevant information was compartmentalized. C.D.K.’s sexual abuse of C.J.K. was not shared at first with S.F.L., or later with Ms. Toplolinski or the report writer, Ms. Oland. In fact N.N.K. refused to grant Ms.

Oland consent to access the contents of Ministry files which involved more than ten child protection intakes over a six year period. [ 86 ] To be clear, I am not satisfied that has been shown on a balance of probabilities, that S.F.L. committed the sexual abuse which has been alleged against him. Neither am I satisfied that there is a sufficient foundation to say that there is ‘ a real possibility' of future such harm to C.J.K. at the hands of S.F.L.

The risk of harm to C.J.K. would seem to be more substantial from her brother. [ 87 ] There has been family violence committed by both parties to each other and in the presence of C.J.K. This violence has taken the form of assaultive behaviour and threats as set out above. I consider that the likelihood of further such violence can be diminished by restrictive terms. Changing, Suspending or Terminating Orders [ 88 ]

Section 215 of the Act allows for an order to be varied where there has been a change of circumstances since the order was granted. In this case, the order which is sought to be varied is the order of August 24, 2011 granting sole guardianship of C.J.K. to N.N.K. S.F.L. points out that among other changes since that order was granted August 24, 2011, he has cleaned up his life, left drugs and crime behind him, has become a trained and better parent and has developed a better and close bond with C.J.K. [ 89 ] S.F.L. submits that C.J.K.’s best interests do not require that his time with her be supervised.

N.N.K. submits to the contrary, that she is a vulnerable child and her time with her father should be supervised in her best interests. Best Interests of Child

[ 90 ] I have set out above the factors set out in s. 37(2) of the Act to be considered in determining the best interests of the child. (

a) C.J.K.’s Health and Emotional Well-being [ 91 ] C.J.K. is a happy and healthy child whose relationship with her father is a positive in her life. This relationship should be encouraged. I have found that there is no real possibility of future harm to C.J.K. at the hands of her father. Nonetheless, be cause of her sexualized behaviours, she may be at higher risk generally of being abused in the future. Continued counselling through the Kamloops Sexual Assault Centre may be the best means of ensuring early detection of any future abuse. (

b) C.J.K.’s Views [ 92 ] Given her young age, not much evidence has been put before the court as to her views. C.J.K. did comment to Ms. Oland that she would prefer visits at her father’s home but knows that it is not allowed. She added that she never felt scared with her father. (

c) Nature and Strength of the Relationship [ 93 ] There is no doubt that C.J.K. has a close relationship with her mother. Although S.F.L. spent little time with C.J.K. as a baby, her relationship with her father has become close in recent years. This was attested to by Ms. Oland and Ms. Topolinsky. Both observed C.J.K.’s happiness at being involved in play and activities with her father. (

d) History of C.J.K.’s Care [ 94 ] C.J.K. has been in her mother’s care since birth. N.N.K. remains her primary caregiver except for the monthly Ministry respite care used by N.N.K. to manage the stresses of raising her children. S.F.L.’s care, as noted above, was minimal when she was an infant, but has become more regular now over the last few years. (

e) The Ability of S.F.L. to Exercise Guardianship and Parenting Responsibilities [ 95 ] S.F.L. has had little opportunity since the order of August 24, 2011 to exercise guardianship or parenting responsibilities with respect to C.J.K., and had not taken a great deal of responsibility prior to that. [ 96 ] S.F.L. has however demonstrated his willingness to improve his parenting skills through PAID and other parenting programs. He has improved his own life circumstances and there is no reason to believe that he will be anything other than a responsible parent to C.J.K. (

f) The Ability of S.F.L. and N.N.K. to Cooperate on Issues Affecting C.J.K.’s Safety, Security and Well-Being [ 97 ] The parties are agreed that they have an acrimonious and conflicted relationship and that it will be difficult for them to work together for C.J.K.’s benefit. On that basis, N.N.K. submits that an order for joint guardianship should not go. S.F.L. disagrees. Both parties are agreed that they will need clear guidance from the court going forward.

It is to be hoped that the Ministry will continue to assist. [ 98 ] I am satisfied that joint guardianship can be a workable arrangement between the parties in C.J.K.’s best interests, though it is appropriate that N.N.K. should have the last word on decision making, subject to the review by the court. (g) & (

h) Assessing Family Violence [ 99 ] Subsections 37(

g) and (

h) and s. 38 of the Act require an assessment of family violence through the factors set out. I have considered these factors and have come to the view that the family violence, as found above, has been engaged in on a few occasions by both parties, sometimes in the presence of C.J.K. While concerning, it has not on the evidence before me resulted in an observable effect upon C.J.K. For these purposes I am not including in this discussion the impact upon C.J.K. of any sexual abuse by her brother. [ 100 ] It is of course of great importance, for the children’s sake, that family violence be avoided by all involved.

I consider that these concerns about family violence can be diminished by ensuring that the parties are not in a common living situation and that they accept contact restrictions until some level of trust and respectful communications can be built up. Order

[ 101 ] I am satisfied that an order should go in the following terms: 1. The court is satisfied that pursuant to s. 39(3) the parties are and shall be guardians of the child. 2. The child shall reside primarily with N.N.K. 3. The guardians will exercise all parenting responsibilities with respect to the child on the following terms:

a) in the event of the death of a guardian, the surviving guardian will be the only guardian of the child;

b) each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the child;

c) each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;

d) the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement onthose decisions;

e) in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, N.N.K. will be entitled to make those decisions and S.F.L. will have the right to apply for directions on any decision he considers contrary to the best interests of the child, under s. 49 of the Family Law Act ; and

f) each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers. 4. Commencing January 3, 2015, S.F.L. shall have reasonable and unsupervised parenting time with C.J.K. three Saturdays out of four as follows:

a) First and second visits to be two hours;

b) Third, fourth and fifth visits to be four hours:

c) Sixth, seventh and eighth visits to be six hours; and

d) Ninth and tenth visits to be eight hours. These visits will commence at 10 a.m. unless otherwise agreed between the parties. 5. After the completion of the last eight-hour visit, S.F.L. shall have parenting time every other weekend from Saturday at noon until Sunday at 6:00 p.m. 6.

Under s. 225 of the Family Law Act , the parties will communicate with each other only by writing or email correspondence, or such other means as the parties may agree in writing, and only with respect to issues concerning the child, including arranging parenting time, pick-up and drop-off of the child, exchanging information regarding parenting of the child or parenting responsibilities for the child. 7. The parties shall:

a) put the best interests of the child before their own interests;

b) encourage the child to have a good relationship with the other parent and speak to the child about the other parent and that parent’s partner, if any, in a positive and respectful manner; and

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the child. 8. This matter shall be set down for a Family Case Conference review before Judge Harrison after April 1, 2015. [ 102 ] In the event that the Director wishes to commence proceedings under the Child, Family and Community Service Act with respect to these matters, the Director should do so.

It would of course be inappropriate for the Director, or anyone acting on behalf of the Director, to express any view calculated to cause a party to ignore an order of this court. _____________________________ S.R. Harrison Provincial Court Judge