S.T. v. I.I. Date:, 2015 BCPC 347

Citation: S.T. v. I.I. Date: 20151124 2015 BCPC 0347 File No: 1343346 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.T. APPLICANT AND: I.I. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Appearing on their own behalf: S.T. Appearing on their own behalf: I.I. Place of Hearing: Prince George , B.C.

Date of Hearing: September 22, 24, 2015 Date of Judgment: November 24, 2015 BACKGROUND [ 1 ] Ms. S.T. and Mr. I.I. come before the Court seeking resolution of the following issues: 1. Guardianship; 2. Parenting responsibilities; 3. Mr. I.’s parenting time; 4. Child support for J.(J.)M.S.T.-I., born [omitted for publication]; 5. A claim for spousal support by Mr. I.; 6. A continued Protection Order sought by Ms. T. to limit contact with Mr. I. [ 2 ] The two parties met while they were going to college. They married in 1999 and separated July 31, 2013. J. resides with his mother. Ms.

T. describes the last few years of their marriage as being very rocky. From her evidence, Mr. I. was drinking heavily and using prescription painkillers such as hypo-morphine and smoking marijuana. Although Ms. T. sometimes smoked marijuana with Mr. I., she did not consume as much as he did. Ms. T. testified that Mr. I. used his extra money to buy his drugs. Of particular concern was her detailed description as to how he would take a handful of the painkillers and wash them down with alcohol. [ 3 ] Ms. T. also described several incidents that would lead an observer to conclude that Mr.

I. was delusional and violent. It was one of these physical assaults that led her to make an ex parte application on August 2, 2013 for a protection order which would limit contact between her and Mr. I. to texting. Ms. T. is still afraid of Mr. I. She related an episode in Valemount, British Columbia, at her parents’ home where Mr. I. announced in conversation with Ms. T. and her parents, that he was “a soldier of God” and that Ms. T. deserved to be tortured and killed. Ms. T. left J. with his grandparents in Valemount and drove Mr. I. back to Prince George. Ms.

T. describes a very unpleasant ride back to Prince George in which she is driving and having to defend off physical attacks from Mr. I. [ 4 ] Mr. I. testified that it was he who was the victim of physical violence by Ms. T. His evidence is that he was unjustifiably removed from the family home and not allowed to see his son for almost two years. As a result of injury and illness he has been unable to work and therefore not able to pay any child support. He is also demanding spousal support based on the fact he stayed off work and took care of J. while Ms.

T. was going to school to become a licensed practical nurse. EVIDENTIARY PROBLEMS [ 5 ] Mr. I. and Ms. T. were both self-represented. In spite of a number of Court Orders for documents to be exchanged by September 11, 2015, new documents were still being introduced at trial. The only witnesses at the trial were the parties themselves. Mr. I. categorically denied any suggestions by Ms. T. that he was violent or mentally disturbed. Although records from the RCMP, MCFD and Mr. I.’s doctor had been previously disclosed to the parties, neither introduced any of these documents into evidence. GUARDIANSHIP [ 6 ]

Section 39 of the Family Law Act states that both parents are Guardians of the child if they were living together when the child was born. The case of D. v. D. decision of the Honourable Judge Merrick 2013 BCPC 135 , examined the issue as to whether a parent could lose their guardianship status. Judge Merrick’s decision, particularly on page 5, indicates that a parent’s behaviour would have to be extreme in order to lose their rights as a guardian: [27] With respect to Mr. D. there is a serious concern about his parenting capacity in his abilities expressed by Dr. A. I accept her opinion in that regard. Mr. D.

I find has committed more than one act of family violence. This does place Mr. D. in the extreme range that I have referred to. However there is a strong bond between Mr. D. and the children. The children wish to continue to have meaningful relationship with their father and there’s been some improvement to Mr. D.’s circumstances since December 2012. [28] These factors mitigate the situation to some extent. These mitigating factors in my determination that parenting responsibilities can be reallocated such the remains the best interests of the children that Mr.

D. remains a guardian, the application to terminate his guardianship is dismissed. Mr. D. will remain a Guardian.” [ 7 ] The evidence is that after J. was born, he lived with his parents. Even though there are issues between Mr. I. and Ms T. concerning parenting responsibilities and parenting time, they are both guardians. PAYMENT OF CHILD SUPPORT & SPOUSAL SUPPORT [ 8 ] Mr. I. makes a claim for spousal support and Ms. T. makes a claim for child support. I will deal with the spousal support claim first. [ 9 ] Mr. I. identified Exhibits 2 and 3 as being his resumes. They show employment history up to 2007. Mr.

I. admitted that he is a certified bookkeeper and has some accounting skills. In fact, he was a collections officer for [omitted for publication], Prince George, B.C., and later obtained training as a heavy equipment operator in 2007. The resumes show Mr. I. has experience and education in management and accounting. Mr. I.'s testimony is that he was working for a call centre in India collecting accounts receivable at the

time Ms. T. decided to return to school to obtain her qualifications as a licensed practical nurse. He claims he took care of J., did the cleaning, did the washing, and did the cooking. [ 10 ] Ms. T.’s testimony is that during these times at home Mr. I. was the under the influence of alcohol and painkillers. Again, Mr. I. denies this in total. [ 11 ] Ms. T. testified she went to school and put in some very long days of studying due to the combination of classroom and laboratory work. She would arrive home after being at school for 12 hours and would find Mr.

I. demanding she make dinner, even though she was totally exhausted. He did little work around their home. [ 12 ] His return to work was further complicated by a motor vehicle accident that occurred on March 26, 2011. He states that he was injured as a result of this accident which was solely the fault of the oncoming driver and not any actions by Ms. T. Mr. I. described his injuries as affecting his back, his right leg, his spine and ankle. He settled his claim with ICBC in March 2014 for general damages in the amount of $63,000.00 plus costs in the amount of $12,200 for a total of $75,700.00. Of those funds Mr.

I. received $43,624.46. The report letter from Mr. I.'s lawyer is entered in evidence at Exhibit 5. This is just the front page of the letter. [ 13 ] Mr. I. testified he did not know the whereabouts of the remaining pages of the letter. He was not able to tell me the breakdown of the damage award. It would have been of assistance in assessing his claim if he could have provided evidence on how much had been attributed to lost wages and loss of future income. Upon being questioned on the breakdown of damages, particularly for lost income or future capacity, Mr. I. was vague and evasive. [ 14 ] Mr.

I. also testified that he suffers from blood clots in his right leg which prevents him from pursuing gainful employment. He does not know if this condition is a result of the motor vehicle accident. I note that there is an Order in the file for the production of his medical records from his doctor. None of these clinical records were provided to assist the court on the cause of the blood clots or any other limits to his employability. [ 15 ] Mr. I. testified that having to leave the house by virtue of the Protection Order of August 11, 2013 left him destitute and on the social assistance.

He has to use the proceeds from his accident settlement to pay for his daily living expenses. [ 16 ] The objectives of spousal support is defined in s. 161 of the Family Law Act of British Columbia, which states as follows: 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 17 ] It is difficult to assess the evidence that Mr. I. says support his claim for spousal support. The reasons for this are: 1. Mr. I. said he was working in India when he made the decision to return to Canada and be a stay-at-home dad. There is no mention of this employment on his resumes nor was any documentation presented that would support his claim salary for this job. 2. It is unclear whether the injuries sustained by Mr.

I. in the motor vehicle accident have, in any way, affected his ability to work. I find it suspicious that Mr. I., given his education and background, could not tell the court about the breakdown in his award. The missing pages of the final report letter from his lawyer also raise the question whether Mr. I. is withholding evidence from the court. 3. None of these funds were used to support the household or provide child support for his son. [ 18 ] Given these conclusions I have no evidence that Mr. I. was placed in a financial disadvantage due to the relationship with Ms. T.

His current financial position does not raise an obligation on Ms. T. to relieve any economic hardship. The lack of information concerning the resolution of Mr. I.'s claim from the motor vehicle accident makes it difficult to assess whether this accident was an intervening cause. [ 19 ] The claim for spousal support is dismissed. CHILD SUPPORT CLAIM [ 20 ] Ms. T. testified she is working on a casual basis at the [omitted for publication] as an LPN. This means she has no regular shifts but is called in to work when other LPNs are unavailable.

She works primarily on the surgical floor and any other areas of the hospital where there are openings. She works all the shifts she can to support herself and J. - something she is doing without the assistance of Mr. I. I note again that on the settlement of his motor vehicle accident claim Mr. I. made no contribution for child support. [ 21 ] Mr. I. for his part has been working for [omitted for publication] in 2014 and earned $6,031.00 doing tax returns. From his Financial Statement he is not in a position to pay child support.

The damage award, however, puts him in a position where he has an ability to pay some child support while he looks for other work. PARERNTING RESPONSIBILITIES [ 22 ] Since the breakdown of the family in August 2013, Ms. T. has had primary residence and primary responsibilities for J. Her

parents have relocated to Prince George to live with Ms. T. and help raise their grandson. This has been going on for the last two years. [23] Ms. T. told the court that even though Mr. I. has a car, he has not assisted in picking up and dropping off J. from school or hisother activities. As noted previously he has not contributed any money for child support. He does buy gifts for his son and spendsmoney on his birthdays and at Christmas. I accept that Mr. I. enjoys his visits with his son. Ms. T. testified that J. enjoys being with hisfather on the weekends. [24] I conclude from the evidence that Ms.

T. has been providing the majority of parental and financial support for J. This isparticularly important since J. has autism and has some special needs for care. In determining the issues of parenting responsibility andparenting time, I have to consider the best interests of the child as set out in the Family Law Act s. 37. The relevant criteria set out in s.37 for consideration are:

(1) In making an agreement or order under this part respecting guardianship parenting arrangements or contact with the child the partiesand the court must consider the best interests of the child only. 2) To determine what is in the best interests of the child all the child needs and circumstances must be considered including thefollowing:

a) the child health and emotional well-being;

b) the child’s views unless 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 and development;

f) the ability of each person who is 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 the childor 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 or to 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 member; and

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being. [25] My conclusion from the evidence that J.’s best interests are served by Ms. T. continuing to exercise the parentingresponsibilities and maintaining J.’s primary residence. Mr. I.’s parenting time must be maintained so that J. develops a meaningfulrelationship with his father (Young v Young (1993), (SCC), 49 R. F. L. (3d) 117(SCC)). These relationships have to beexamined in the context of sub paras (

g) through (

j) listed above. FAMILY VIOLENCE [26] The pallor on this trial is the issue of family violence as set out in s. 37(2). According to Ms. T.'s testimony J. witnessed someof the physical violence between her and Mr. I. [27] Mr. I. denies categorically that any of the violent incidents alluded to, just did not happen. In fact, Mr. I. says that he was thevictim of physical violence. He produced a photocopy of a picture [Exhibit 9] in which Mr. I. says the swelling on the left side of hisface was caused by a blow from Ms. T. Ms. T. testified the swelling on Mr. I.'s face is as a result of a dental abscess.

I note she paid forthe treatment as per the statement from their dentist, Dr. Willoughby, at Exhibit 1. [28] The whole scope of s. 37 is to safeguard the best interests of the child and the court must consider the issue of family violenceas it affects the child’s best interests. One thing that was apparent from the proceedings is that Ms. T. is still fearful for her safety whereMr. I. is concerned. There is no evidence that Mr. I. was violent towards his son. [29] Ms. T. has described certain risks to her safety both at the ex parte hearing and at the trial.

I conclude that she is fearful of Mr.I. and that she is at risk. I see no reason why there should be any contact between the parties, other than through texts, to makearrangements for Mr. I.'s parenting time and for other issues concerning J.’s well-being. [30] I have to take these issues into account in determining whether the Protection Order should be extended.

I note the risk factorsset out in s. 184 of the Family Law Act and in particular “whether any psychological or emotional abuse continues or is evidence of apattern of coercive and controlling behaviour directed at the at risk family member.” From my observation of the parties during theproceeding I conclude that Mr. I. still wishes to bully and control Ms. T. [31] The Protection Order will therefore be extended. CONDUCT [32] I noted throughout the hearing that Mr. I. has hostility and resentment towards Ms. T. I am advised subsequent to the hearing of

this matter Mr. I. brought a motion before the court to deal with his issue of parenting time. This was with the full knowledge that reasons would be delivered in this case on November 24, 2015. I note that Ms. T. must work as many hospital shifts as she can to support her and J. She should not be summoned to the court by Mr. I. in what I see as a coercive course of conduct. To that end there will be an order pursuant to s. 222 of the Family Law Act, that Mr. I. must seek approval of the court before making any further and applications. In particular, such permission should be sought from myself, if I am available. I am seized of this case for the next six months. ORDERS

a) Both parties are Guardians of the child, J.M.S.T.-I., born [omitted for publication];

b) S.T. will have primary parenting responsibilities as set out in s. 41 of the F amily Law Act;

c) S.T. will advise I.I. of any issues concerning J.'s education and health;

d) All communication between the parties will be by text message;

e) I.I. shall have parenting time with J. on alternative weekends from Friday after school at 2:35 PM until Monday morning at 8:30 AM;

f) That on the intervening weeks between his weekend parenting time, Mr. I. will have parenting time with J. from 2:35 PM [the end of school] on Wednesday until Thursday morning at 8:30 AM or as otherwise agreed by the parties;

g) All pickup and drop offs will be at J.’s school.

h) On non-instructional days I.I.'s parenting time will begin at 2:35 PM the day before the non-instructional day and end at 8:30 AM of the school day immediately following the non-instructional day. This will not include a weekend should the non-instructional day fall on a Friday or on Monday of a weekend during which Mr. I. does not have parenting time;

i) Parenting time on non-instructional days in 2016 are as follows: • January 29, 2016 - I.I. • February 26, 2016 - S.T. • April 22, 2016 - I.I. • June 30, 2016 - S.T.

j) I.I.'s parenting time for a holiday day is 10:00 AM to 10:00 AM the following day, or as agreed between the parties. Pickup and drop- off location to be at an agreed upon McDonald’s restaurant in Prince George.

k) S.T. will have parenting time during Christmas holidays 2015 (December 21 - January 2) and every alternate year thereafter;

l) I.I. will have parenting time during Christmas holidays 2016 (December 21 to January 2);

m) I.I. will have parenting time on the following holidays: • March 14-28, 2016 • July 1, 2016; and • September 5, 2016 [ 33 ] I.I. will take J. to all extracurricular activities such as Boys Group or swimming lessons that occur during his parenting time.

He will also be responsible for birthday party gifts, parties, and arrangements that occur during parenting time with J. [ 34 ] I.I.'s claim for spousal support is dismissed. [ 35 ] On the first day of December 2015 and on the first day of every month thereafter I.I. will pay to S.T. the sum of $100.00 in child support for J. [ 36 ] On June 1, 2016 and every year thereafter, I.I. will provide to S.T. a copy of his Income Tax Assessment from the Canada Revenue Agency. [ 37 ] I.I. must seek approval of the court before filing any applications in this matter. [ 38 ] Judge R.W.

Callan is seized of this matter until June 20, 2016. [ 39 ] Judge Weatherly’s Protection Order of August 2, 2013 is extended to November 24, 2016. _______________________ R. W. Callan

Provincial Court Judge Province of British Columbia