K.M.A. v. S.M.A. Date:, 2015 BCPC 326

Citation: K.M.A. v. S.M.A. Date: 20151118 2015 BCPC 0326 File No: 1444786 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: K.M.A. APPLICANT AND: S.M.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Applicant: J. Reed Counsel for the Respondent: R. Craig Place of Hearing: Prince George , B.C.

Date of Hearing: April 2, 2015 Date of Judgment: November 18, 2015 [ 1 ] This is my decision regarding K.A.’s Application for an order requiring both parties to abstain from the consumption of alcohol while they exercise parenting time to the two children of the marriage. BACKGROUND [ 2 ] The parties were married October 6, 2007 and separated April 21, 2014. They have two children, M.R.A., born [omitted for publication], and F.G.A., born [omitted for publication]. After the parties separated, S.A.’s parenting time was supervised according to an Interim Consent Order made by Judge Callan on May 29, 2014.

On March 30, 2015, the parties entered into a final Order by consent which provided that S.A. (“S.”) would have unsupervised parenting time with a plan that he have increasing parenting time each week which will ultimately lead to two weeks on/two weeks off commencing at the end of June 2015. The question of whether the parties should be governed by an order prohibiting the consumption of alcohol during parenting time was adjourned to April 2, 2015.

POSITION OF THE PARTIES [ 3 ] K.A. (“K.”) says that although she enjoys having a glass of wine after the children are in bed to help her relax, she is prepared to give up that enjoyment for the sake of the best interests of the children. She gave evidence of a number of incidents in which, she says, S. engaged in angry and violent behaviour directed at their son, M., or at herself, or others when the children were present in the home. Some of these incidents occurred when S. was under the influence of alcohol, but some occurred when he was sober, or hung over.

K. says that S. is a different person when he is drinking, that he is very volatile, angry and has a tendency to lose his temper. She says there is no point to having an order that prohibits the parties from drinking to the point of intoxication because she says S. won’t stop drinking if he reaches that point, and points out the practical difficulty for a person who is drinking to recognize looming intoxication.

Her position is supported by the evidence of J.A., S.’s mother, who testified that S. partied and drank heavily with his friends when K. was away working during the relationship, such that the children stayed with Mrs. A. during the time that K. was away each week working and she never saw S. without a drink in his hand. [ 4 ] S. agrees that he is volatile and speaks aggressively and shouts when he’s angry or when things don’t go his way. However, he says that he is that way whether drinking or not.

While he agrees that the various incidents complained of by K. did occur, his account differs from hers on certain details and he suggests that she is exaggerating or interpreting the events incorrectly. He gives an account of his drinking habits which is very modest by comparison to the account given by K. and his mother. He submits that K. is the “woman scorned” and, as a result, the court should give less weight to her evidence.

He submits that the court should not accept the evidence of his mother as to his drinking habits and behaviour either because she disapproves of his “lifestyle.” EVIDENCE K.A. [ 5 ] K. testified that S. has a violent temper and has been violent to their son, thrown objects in the home, and threatened to burn down the house. She gave evidence of several incidents that she says should cause the court to be concerned about S.’s violent temper and aggressive behaviour, which is exacerbated by drinking. She says he is a different person when he is drinking, is volatile, angry and prone to lose his temper.

Parking lot incident [ 6 ] She described an incident which occurred in April 2014 in which M., then aged six, got out of the family vehicle and ran out into the parking lot at the store. K. says that S. grabbed him by the hair, swearing, and pushed him against the family van and was swearing at him loudly. She said M. was scared. She reported the incident to the Ministry for Children and Families and it was investigated, but nothing came of it because she said her son and daughter didn’t say anything to the investigators.

There was no alcohol involved in that incident since S. had just come from work. [ 7 ] S. says that M. was about to run into traffic and he had to act quickly to protect him. He says he grabbed M. by the hair simply because that’s the part he could reach and that he was not shouting but did speak sternly to M. He agrees that when he grabbed M. by the hair, M. hit the van door, but not hard - he “just smacked the van door.” S. demonstrated how he pointed his fingers at M. and maintained eye contact while he spoke to him sternly.

He says at that time in M.’s development it was necessary to physically control M. and make eye contact in order to make M. pay attention. M.’s birthday [ 8 ] K. described an incident that occurred on M.’s birthday in December 2013. There was a family dinner to which S.’s parents were invited. K. says that M. left his seat at the table to run to his grandma, J., who was also seated at the table. She says S. jumped up and pinned him against the wall by his throat, yelling at M.

She said M. was scared and shrunk against the wall looking like he was about to cry. [ 9 ] J.A. confirms that she was seated at the table when little M. was excited and got up to do something. She says S. got angry, came around behind her, took M.’s hand and put it up to the base of his throat and shoved M. up against the wall. She says that M. was terrified, with his eyes bugged out and he just stood there and shook. Both J. and K. states that S. had been drinking and S. agrees. [ 10 ] S. admits grabbing M. by the collar and putting him up against the wall but says he didn’t do it by the neck.

He said this was because M. ran over his little sister in the hallway after dinner.

Smashing chair incident [ 11 ] K. also gave evidence about another incident in February 2012, prior to the separation of the parties, in which S. broke a chair into pieces, slammed doors, slammed the broom against rails in the house, and screamed very loudly during an argument while he was hung over from excessive drinking the night before. She said that she was crying and the children were crying. S. agrees there had been a dinner party the night before.

He says the chair was old and easily broken, but agrees that he deliberately smashed the chair causing it to break in order to emphasize a point he wished to make. He says the children were present but running in and out of the house, as it was a nice day when events occurred. Ice cubes incident [ 12 ] K. says there was an incident one night in 2013 before the parties separated, when she, S., and A.B. were all at home and all drinking alcohol. A. is S.’s current partner, but he began his relationship with her while K. was working out of town during the week and then sought to have Ms.

B. become an additional marital partner as an experiment with “polyamorous relationships.” Thus, at the time of this incident, A. was a partner of S. in addition to K. K. says that A. and S. were in the kitchen and A. dropped some ice cubes. S. became angry at her as a result and K. came to her defence. S. became so angry that he smashed a hole in the wall with his fist. That night she believes he threatened to kill himself because in addition to consuming a lot of alcohol, he took Tylenol, sleeping pills, Nyquil and Advil.

She says on the basis of her experience as a paramedic, when people do that they are suicidal. S. agrees that he had been drinking and took “a bunch” of Tylenol (for the resulting headache), and some Advil and can’t remember whether he took Nyquil, but says he didn’t threaten suicide; he admits he was angry at A. (he says for breaking a glass) but denies smashing the wall. J.A. [ 13 ] J.A., S.’s mother, also gave evidence. She said that while her son can be quite pleasant, he can also be volatile and belligerent and will explode with anger, yelling and threatening.

She said that while S. can be really good with the children he is a lot more patient with them while sober. Once into the alcohol, she said, he becomes more belligerent and demanding and that confuses the children. She said that during the last year prior to the separation of S. and K., she never saw S. without an alcoholic drink in his hand. She said during that time, when K. was working several days per week in V., S. did not look after the children. Rather, K. dropped the children off at Mrs.

A.’s residence on Thursday morning before heading off to work in V., where they remained until K. returned from work in V. on Sunday. During that period, she says, S. did not look after the children. He went out partying and uniformly returned to his mother’s home intoxicated late at night or in the early morning hours and would go downstairs to their rec room to “sleep it off”. She noted that Ms.

B. often drove him home. [ 14 ] S. says that although he did go out to party and to play Dungeons and Dragons with friends, there wasn’t excessive drinking because people had to drive home; however, he also gave evidence that he wasn’t driving because he did not have a licence to drive, so the explanation he provides for temperance among his friends manifestly did not apply to him. S.A. [ 15 ] S. says he is a volatile and a very verbal person who can be extremely aggressive and “to the point” in his tone.

He says his consumption of alcohol was moderate during his relationship with K., with less during the week and “a couple of drinks here and there” on the weekend and it did not increase when Ms. B. was introduced to his marriage and now he drinks just one to three drinks in an evening. He says that drinking heavily will interfere with his competition in strength related sport. He says that a “no drinking” condition is unnecessary but is not a problem for him. He agrees there should be no intoxication around the children.

FINDING OF FACT [ 16 ] For the most part, the evidence of the witnesses is consistent; the conflicts are mostly matters of degree and perception, not substance. However, having considered the evidence of all of the witnesses, I find that S. has considerably minimized his alcohol consumption during the relationship and I therefore cannot rely on his account of it since the relationship has ended. For instance, he says that he took Tylenol and Advil to deal with the headache he had from drinking in the ice cubes incident, but cannot remember, due to drinking, whether he also took Nyquil.

That lack of memory is consistent with a great deal more alcohol consumption than just “a couple drinks here and there.” Similarly, I accept Mrs. A.’s account of his consistent intoxication when she was looking after the children. He was clearly giving regular drinking with his friends, greater priority than responsibly parenting his children. I accept the evidence of K. and Mrs. A. to be a more accurate account of S.’s alcohol consumption. [ 17 ] I also accept K.’s evidence that during the ice cubes incident, S. punched a hole in the wall.

I find that S. has minimized his violent and aggressive behaviour both in the incidents described by the parties and generally. He seems to be of the view that while he may have behaved as described it is somehow normal or acceptable for him to behave that way. For instance, he was of the view that it was perfectly normal and acceptable to smash a chair to emphasis his point. He says he was raised to believe that the “loudest one wins” and admits that there is a “lot of shouting” when things don’t go his way.

S. agrees he behaves in that fashion and he certainly demonstrated a tendency to loudly and aggressively talk over counsel while in the courtroom. I accept the evidence of K. and Mrs. A. with respect to S.’s aggressive and volatile behaviour, whether under the influence of alcohol or not. [ 18 ] I also accept the evidence of K. and Mrs. A. concerning S.’s rough treatment of M. S. admits catching the boy by his collar and putting him up against the wall, but denies touching his neck. I am unable to see how one could catch anyone by the collar and not touch some part of their neck or throat.

That account of the event just does not make sense. I find that S.’s consumption of alcohol that evening likely had something to do with his treatment of M. which appears to me to have been out of all proportion to whatever misdeed the small boy committed. K. and Mrs. A. testified that M. had done nothing more egregious than run around the table to see his grandmother. I do not accept S.’s evidence that M. ran over his sister, but even if he had, that would not have justified his father’s response.

The irony of the situation is, of course, that if S. were really trying to teach the boy to take more care and be more gentle with his sister (and others,) his father’s method of instruction will teach him the opposite. LEGAL FRAMEWORK

[ 19 ] In considering the issue of parenting arrangements, including the order sought herein, I am governed by the Family Law Act , which provides the following: 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. [ 20 ] Under s. 1 of the FLA , family violence is defined 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; [ 21 ] In my view the obligation of the court to make orders in the best interests of the children does not give the court carte blanche jurisdiction to interfere with how people live their lives or parent their children. While some might argue that the consumption of alcohol by parents is never in the best interests of their children, others would say that the consumption of alcohol in a responsible way models that behaviour for children and is therefore good for them.

It seems to me that the court ought not to make an order restricting people from the consumption of a perfectly legal substance unless there is evidence before the court that such consumption has, in fact, adversely affected a particular parent’s ability to parent their child within acceptable parameters. [ 22 ] S. admits smashing a chair during an argument. To my mind, there is nothing normal or acceptable about smashing furniture in the course of an argument - deliberately smashing objects is a violent act intended to convey the threat of violence to everyone present.

There can be no doubt that such behaviour is, and is intended to be, intimidating. I find that this behaviour perpetrated by S. is family violence as defined in the FLA . This occurred after a dinner party where alcohol was consumed and while S. was suffering from a hangover.

[ 23 ] K. says the children were present during this incident and that she and they were crying. S. says the children were outside and therefore suggests that violence did not occur in their presence, but I do not accept that evidence nor that inference.

It is unchallenged that this incident took place in February, when it is highly unlikely in my view that the children would be “running in and out.” I accept K.’s evidence that the children witnessed this family violence and that they were, understandably, very distressed by it. [ 24 ] Similarly, S.’s behaviour in pinning M., just turned six, up against the wall by his throat was family violence. Such behaviour would be a violent assault if committed against an adult and I do not see how such behaviour could be appropriate discipline for a six year old, regardless of the cause.

S. was consuming alcohol on that occasion as well. [ 25 ] In this case, I am satisfied that the consumption of alcohol does in fact impair the ability of S. to parent within acceptable parameters. I have concerns about S.’s complacent attitude towards his aggressive behaviour while sober. I have grave concerns, however, about his aggressive and violent behaviour while under the influence of, or suffering the after effects of, the consumption of alcohol. It is clear to me that the use of alcohol exacerbates his existing tendency towards aggressive behaviour.

I find that behaviour to be harmful to the safety and emotional well-being of the children, both because it obviously frightens and distresses them, but also because they will learn to believe that such behaviour is acceptable, when in fact it is not. [ 26 ] I accept that S. has, in fact, perpetrated family violence upon K. and the children. His ability to parent responsibly is generally impaired by his attitude which condones the use of aggression, intimidation and violence to get his way, but that impairment is exacerbated by his consumption of alcohol.

I find that an appropriate protective measure, which is in the best interest of the children, is to restrict S. from the consumption of alcohol while he exercises parenting time with the children. [ 27 ] K. sought an order restricting both parties from the consumption of alcohol during parenting time. She admitted that when the parties were still together, particularly after the introduction of Ms. B. to the relationship, she was drinking more alcohol; however, since K. left the relationship she says she may have one glass of wine or a beer, after the children have gone to bed.

Her evidence on this point was not contradicted and there is no evidence before me to suggest that even while under the influence of alcohol, her behaviour was anything other than it should be towards the children. Thus I have no evidence before me to support placing such a restriction upon K. [ 28 ] I therefore order that S. must abstain from the consumption of alcohol during his parenting time with the children and within 12 hours in advance of the commencement of parenting time with the children. ____________________ S. K. Keyes Provincial Court Judge Province of British Columbia