R.R.B. v. C.E.H. Date:, 2010 BCPC 40

Citation: R.R.B. v. C.E.H. Date: 20100427 2010 BCPC 0040 File No: 13451 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: R.R.B. and C.P.B. APPLICANTS AND: C.E.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: J. A. Thompson (for R.R.B.) Appearing on their own behalf: C.P.B. Counsel for the Respondent: M. A. Crimp Place of Hearing: Abbotsford , B.C. Date of Hearing: April 7, 19, 2010 Date of Judgment: April 27, 2010 Introduction [ 1 ] The Applicant R. R.

B. and the Respondent C. E. H. are the parents of two daughters: K. E. B., born (d.o.b.), 2004, and K. M. B., born (d.o.b.), 2006. The Applicant C. P. B. is the mother of the Applicant R. R. B. and is the children’s paternal grandmother. [ 2 ] The parents of these children began a common law relationship in 2003. They lived in the Okanagan (Penticton and Summerland) until the summer of 2009 when they moved to Mission, B.C. They separated in late December of 2009. At that time the children were left with C.P.B.

Bray and the Respondent returned to Penticton, where she was able to access the support of family and friends. [ 3 ] On January 4, 2010, the Applicants applied for and obtained an ex parte order for custody of the children. They alleged that the whereabouts of the Respondent were unknown and that they were unable to contact her. The order gave the Respondent reasonable access to the children. The Respondent is now asking that the order be set aside and that the children be placed in her care.

The Applicants oppose this and ask for the ex parte order to remain in place, or alternatively ask that the children be placed in the care of the grandmother.

Summary of the Evidence

[ 4 ] The Applicant R. R. B. and the Respondent C. E. H. began living together sometime in 2003. They lived in the Okanagan until the summer of 2009 when the family moved in Mission, BC. During the course of their time together, their parental roles were clearly defined. The father was the bread-winner of the family. He worked outside of the home and brought money into the household. He appears to be a hard worker and for much of the time he worked long hours and was able to bring a good income into the household. The mother was caregiver to the children.

Even when the father was at home, he was usually tired from his long work days and the duties of looking after the children fell on the shoulders of the mother. [ 5 ] It appears that, towards the end of the relationship, the responsibilities of raising two small children without much help from her partner became overwhelming for the mother. The mother denies that this is so, but the grandmother’s evidence seems more objective on this subject.

Complaints about the mother’s parenting include allegations that she left the children unsupervised with scissors and other sharp objects, that she slept late and ignored calls from the kids on child monitors, as well as concerns about the cleanliness of the children and their rooms including unhygienic levels of urine and feces . A concern was also expressed about her brother, who lived with the family.

It was alleged in evidence that he displayed cruelty to the family pets and that he would discipline the children by restraining them in a chair called the “naughty chair” after which he would scare them by turning out the lights and tell them that monsters were coming for them. [ 6 ] The mother has explanations for each of these complaints, denying some and minimizing others. Her only unguarded response to any of these accusations came in the form of a message on the Facebook website, in which she acknowledged that the children were disciplined in the “naughty chair” by her brother.

She didn’t think that the children were scared by this, but she did state “(the uncle) threatens them with monsters sometimes... I am starting to think that he should move back with my parents. There are a lot of things he does that I do not like.” [ 7 ] The Applicants expressed concern about the mother’s use of marijuana. She admits to using marijuana in the past, but says that it never interfered with her parenting. She has provided a very recent drug test showing that she is clean from the use of all illicit drugs tested for, including marijuana.

If her marijuana use was ever at a level where it threatened the welfare of the children, it does not appear to be an issue at the present time. [ 8 ] The grandmother’s concern is that the mother is suffering from depression and that it of a severity that affects the mother’s ability to parent the children. It is the grandmother’s evidence that she has tried to convince the mother to get help for her depression, but that the mother is unwilling to do so. The mother denies that depression is an issue in her life. [ 9 ] There were a number of incidents that have raised concerns about the welfare of the children.

On November 21, 2009, the younger child fell out of a second story window on to an area in front of the home. Fortunately the child’s injuries were not as severe as they might have been, but she suffered two sprained feet and a great deal of bruising. The Ministry of Children and Families investigated the matter and according to social worker Alicia Fulton, the parents promised that the child would not be left alone upstairs while unsupervised.

Accusations have followed that the mother has not kept this promise. [ 10 ] On December 23, 2009, the mother told the father that she was ending her relationship with him and that she intended to move back to Penticton with the children. There is a divergence of evidence about what took place next, though both parents agree that a firearm was present. The mother says in her affidavit that “[R.R.B.] was upset and took a gun and bullets and said goodbye to the girls and told them he would never see them again.” The father denies this and simply says that he took this opportunity to move the gun to a safer location.

Clearly this is not an incident of recent invention on the part of the mother because according to both her evidence and that of the grandmother, the mother phoned the grandmother in a hysterical state, making the same complaint. Astonishingly, none of the adults thought enough of the safety of the children to call the police. If the matter was exaggerated, as the father says it was, this could have been corroborated by the independent investigation of the police. More important, if the father’s emotional state posed a risk of harm to the children, the police should have been called.

The safety of the children ought to have been at the forefront of everyone’s concern, ahead of whatever trouble this might have caused for the father. [ 11 ] Instead, the children were picked up by the grandmother’s sister. The next day the grandmother came to Mission to pick up the children and take them back to her home. Later that night the mother and her brother went to their parents’ home in Oliver. There is once again a divergence of opinion about what happened next.

The Applicants allege that they had no idea where the mother was, and on January 4, 2010 they applied for and obtained an ex parte order for interim custody of the children. The mother alleges that the Applicants knew how to contact her and are being disingenuous in their testimony that they did not know how to reach her. [ 12 ] The father testified and immediately red flags were raised about his anger. In cross-examination, despite being questioned by Ms.

Crimp in a very courteous and professional manner, the father not only displayed considerable belligerence, but became intent on arguing even the most basic points. His mother conceded in her final submissions that anger has been a serious problem for her son, but she insists that he is improving and getting better at controlling his temper.

However nothing in his evidence inspired any confidence that if he became the custodial parent of these children, he would do what it takes to insure that the girls cultivated a good relationship with their mother, or that he would be able to set aside any resentment he has against the mother in favour of maximizing the girls’ contact with their mother. [ 13 ] In the months since the parents have separated, the father has entered into a new relationship and is living with his girlfriend and her two children.

By all accounts she is a nice person and would be more than capable in caring for these girls during the time that the father is at work. The mother even acknowledges that since the children have been living in this household, the father’s new girlfriend has been more reasonable to deal with in matters of access. It appears that, if awarded custody, the routine in the father’s home would follow a similar pattern as when he was living with the mother.

That is, he would continue to work long hours and be a good provider, while his partner or other caregivers accepted the day to day responsibility of looking after the children. [ 14 ] The mother expressed similar concerns about the possibility of the father becoming the custodial parent of these children. She is quick to remind everyone that she was the primary caregiver of these children until the ex parte order was granted. It is her evidence that the father had minimal involvement in caring for the children. She is concerned about his volatile temper, his drinking and smoking and his guns.

Most of all she is afraid that he will restrict her access to the children out of spite. From his demeanour on this witness stand,

this concern has more than an air of reality, as he presented as someone who is not above being petty. [ 15 ] The mother complains that while the ex parte order has been in force, access has been interfered with by the father, something he disputes. A major impediment to the exercise of access has been the mother’s financial situation. During the time that she lived with the father, she became financially dependent on him. In the time that she has been on her own, she had only been able to obtain part-time work.

She has chosen to live in Penticton because she has no family, friends or base of support in the Mission area. It is difficult to fault her for going back to where her family and friends are. However she is also unable to financially afford the cost of being able to see the children while they live in Mission. In order to alleviate this, the grandmother has magnanimously agreed to absorb the cost of transporting the children to and from any access visits with their mother. Best Interests of the Children [ 16 ] In making an order for custody, guardianship or access to children, this court is directed by

section 24 of the Family Relations Act , to give consideration to the factors set out in the legislation. This

section reads as follows: 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(1.1) The references to "other persons" in subsection (1) (

c) and to "each person" in subsection (1) (

e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child...

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2). [ 17 ] The first issue to be addressed is that of custody. Three options present themselves. The father and grandmother urge me to leave the ex parte order in place and have the children primarily residence with the father. However my concern is that if I do so, this will adversely affect the ties that the children have to their mother.

Whatever concerns may exist about the mother’s parenting ability, she has been the primary caregiver for all of their lives and had formed a strong bond with the children. Since most of the evidence called centred on the faults that each side found with the other’s parenting, little or no evidence was called about the views of the children, other than for each parent to quote self-serving statements from the children supportive of their respective side of the conflict. It is difficult to assess, on the evidence presented, how a continued separation of the children from their primary caregiver will affect them.

However all children are entitled to two parents that they can love and feel loved by, without being caught in the middle of parental conflict. Whenever children are made to feel that they can not express love for one parent without being made to feel disloyal to the other, emotional harm results. [ 18 ] Here, the evidence satisfies me that, while the father pays lip service to the notion of having the children maintain a good relationship with their mother, his demeanour and anger paint a different picture.

If he is unable to restrain his contempt for the mother in court prior to the making of an order, I am not optimistic about what kind of relationship the children would be permitted to have with her if he was given control in the form of a custody order.

While his new relationship presents signs of mellowing his anger, it has only been a few months, and it appears that he once again intends on abdicating the day to day responsibilities of looking after the children to his new partner while he focuses on making a good living. [ 19 ] The mother seeks custody, taking the position that the ex parte order was wrongfully obtained. While she may feel that way, little in the evidence supports her on this point, in my view. It is clear that while she was caring for the children, factors in her life conspired together to overwhelm her ability to parent.

This may have been due to the stress of being in a non-loving relationship, as well as concerns about how she would support herself and the children in the event of a separation. The extent to which her drug use may or may not have affected her ability to parent is unclear, but prior to the making of the ex parte order, her parental judgement had been adversely affected.

The evidence suggests that her momentary neglect resulted in her youngest daughter’s injury, that her loyalty to her brother took priority over to the negative effect that he was having on the children, and that her attention to the needs and hygiene of the children was less than satisfactory. [ 20 ] The mother is not yet ready to acknowledge any of this. This is one of the significant problems with an adversarial family court system.

Instead of admitting any mistakes and working together to correct them, parents are often afraid to do so for fear that this will be seen as a weakness to be pounced on and exploited by the other side. From the nature of the evidence presented, these parents are consumed with the hurt that they perceive that the other has caused them, above and beyond any notion of pulling together in the same direction to try and arrive at the best possible solution for their children.

[ 21 ] To her credit however, the mother is taking some steps to address her parenting issues. She has taken a “parenting wisely” course and has submitted a clean drug test. She is willing to continue with drug testing to prove her claim that her children are well above her drug use on any priority scale. If the mother is able to show herself to be a responsible parent, to continue to monitor and address any feelings of being overwhelmed and to establish a responsible life for herself, it is likely that she will then present the better option for the children in meeting their best interests as defined in

section 24 of the Family Relations Act . However good her intentions may be though, she has not yet arrived at a place where the court could have confidence that, if the children were to be returned to her care at this time, they would not be exposed to the same risks regarding safety, hygiene and inappropriate conduct by relatives that they were prior to the ex parte order. [ 22 ] The third and best option for these children is for the grandmother to care for them, hopefully on a temporary basis.

The grandmother has expressed a willingness to do so as a “Plan B”, though her preference is for them to remain with their father. For the reasons I have set out earlier, I do not believe that leaving the children with their father would be in their best interests. I am concerned that he would impede their relationship with their mother and attempt to alienate their affection for their mother. I am not as optimistic as the grandmother is that the father’s anger is subsiding, and if the children were left in his care, they would almost certainly have less contact with their mother.

I hope that the grandmother is correct in her optimism, but it is far too early to hang a “mission accomplished” banner. [ 23 ] The grandmother on the other hand is the most objective among the parties when it comes to looking out for the children and for their best interests. She has done the most to ensure that the children maintain contact with their mother. While in her care, the children are in the safest and most emotionally nurturing environment. They are safer physically because she is able to devote more time to them and is able to exercise better judgement in matters of their care and nurturing.

They are also safer emotionally because she is best capable of providing an environment where they are free to love each of their parents without being made to feel disloyal to the other. While they are in her care, the children will be better sheltered from the anger that that the parents display towards one another. She is also the most likely to ensure that there is no restriction on the time that the children spend with their mother or with their father. [ 24 ] The grandmother has done her duty in raising her own children and it is therefore the hope that this will be a temporary situation.

Perhaps the mother will develop the maturity to be able to care for the children with confidence that they are safe and nurtured, and that stability enters her life such that she is able to once again resume her role as the children’s primary caregiver. However she should not assume this to be a foregone conclusion, but rather something she will have to earn. Alternatively, perhaps the father will let go of the anger that is apparent to everyone else in the room, but that he appears to be in denial about.

If he is able to do so and can put his children’s happiness ahead of winning any conflict with their mother, he may be able to convince this court that the children’s best interests can be better served in his care. It is too early to project any ultimate outcome; both parents have some maturing to do. [ 25 ] The grandmother has expressed the possibility of moving from the Okanagan to Mission at some point in the future. If she chooses to do this, this will adversely affect the mother’s access and will therefore almost certainly constitute a change in circumstances that will affect the order I am about to make.

It is hoped that the children will remain in the Okanagan for some time so that their contact with both parents can be maximized. [ 26 ] The parties have raised the issues of a report on the views of the children pursuant to

section 15 of the Family Relations Act , and the mother has asked for this file to be transferred to Penticton. Despite a lack of agreement on the issue, I believe that a report under

section 15 would be of great assistance to the judge who decided the ultimate issue of custody because little evidence was presented about the children themselves. I will also address the issue of transferring this file to Penticton, mindful that the parties have not been fully heard on this issue. Order [ 27 ] For these reasons, it is ordered that C. P. B. will have interim sole custody of the children K. E. B., born (d.o.b.), 2004 and K. M. B., born (d.o.b.), 2006. The children shall reside primarily with C. P. B., provided that, in her discretion C. P. B. may permit the children to reside with R. R.

B. until the later of the conclusion of K. E. B.’s current school year or until June 30, 2010. [ 28 ] R. R. B. and C. E. H. shall have reasonable access to the children. [ 29 ] This file shall be transferred to the Penticton Provincial Court Registry on June 30, 2010, unless an application is made before that date by any party for the file to remain in the Abbotsford Registry. In such event the file shall remain in the Abbotsford Registry until such application is decided. [ 30 ] I direct the Family Justice Counsellor to prepare a report, pursuant to

section 15 of the Family Relations Act, on the parenting capacity of the R. R. B. and C. E. H. and, to the extent it is feasible, on the views of the children. [ 31 ] This order replaces and rescinds the ex parte order made on January 4, 2010. Dated at the City of Abbotsford, in the Province of British Columbia, this 27 th day of April, 2010. ________________________ K. D. SKILNICK, P.C.J.