L.H. v. S.L., 2019 BCPC 214

Citation: L.H. v. S.L. 2019 BCPC 214 Date: 20190827 File No: 15-28150 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.H. APPLICANT AND: S.L. RESPONDENT RULING ON NOTICE OF MOTION OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Applicant: R. Taylor Counsel for the Respondent (December 5, 2018, May 14, 15 and June 7, 2019): J. Liu Appearing on their own Behalf (July 24 – 26, August 6, 2019 inclusive): S. L. Place of Hearing: Vancouver , B.C.

Date of Hearing: December 5, 2018, May 14, 15, June 7, July 24, 25, 26, August 6, 2019 Date of Judgment: August 27, 2019 INTRODUCTION [ 1 ] This is my ruling on a Notice of Motion filed by the Respondent, the father S.L., on the following matters:

1. terminating an order made in his absence by Judge P. Meyers, on May 14, 2018, suspending his parenting time. S.L. wishes to have his parenting time reinstated; 2. reinstating parenting time pursuant to the order made by Judge P. Doherty, on March 9, 2018; 3. vacating an order made at paragraph 6 (

a) in the order made by Judge N. Phillips, on December 1, 2016; 4. vacating paragraph 6 of the order made by Judge Doherty on March 9, 2018; and 5. issuing a protection order for the father. [ 2 ] On the day this matter began both parents had counsel. However, on June 7, 2019, the father’s counsel, Jerry Liu, advised the court that after that day he would no longer be acting and the father would be self-represented. BRIEF BACKGROUND REGARDING PARTIES AND THEIR RELATIONSHIP [ 3 ] S.L. and L.H. were married on or about July 27, 2009, in China.

As I understood their evidence they were both living in China at the time and were Chinese citizens. They lived together in China as husband and wife. While in China, S.L. worked for a government department and L.H. worked at a television station. The background regarding their status in Canada was not addressed in any detail during these proceedings. However, as I understand the evidence, they previously lived in Canada and, in October 2012, they obtained permanent residence status in Canada. [ 4 ] L.H. became pregnant. She eventually travelled to Canada.

According to L.H. she arrived in Richmond, British Columbia in June 2013. She gave birth to a child of the marriage, D.L. who has also been referred to as D.L. (the Child) in the s. 211 report. The Child was born on [omitted for publication]. The Child is now six years old. [ 5 ] L.H. came to Canada to give birth to the Child. S.L. and his brother may have arranged this. According to S.L., L.H. and his younger brother travelled to Canada in February 2013 in anticipation of the birth of the Child. However, L.H. said she arrived shortly before the birth.

S.L. also came for the birth of the Child but only remained several weeks. He then returned to China where he continued to work. L.H. stayed in the Lower Mainland for several months after the birth of the Child but returned to China with the Child in September 2013. [ 6 ] Until about January 2014, the parties lived together with the Child in a city in China. S.L. claimed that during this period his parents paid for two nannies to assist with the care of the Child. As well, he and L.H. jointly cared for the Child. L.H. does not agree with S.L.’s testimony that he cared for the Child.

Instead, L.H. testified that she was primarily responsible for caring for the Child. [ 7 ] In early January 2014, S.L. and L.H. separated. L.H. left the family home she had shared with S.L. and went to live with her parents. She eventually left her parents’ home to travel to Canada in mid-October 2014. From January 2014 to the time L.H. left China for Canada, S.L. testified he only saw the Child sporadically because L.H. kept the Child from him. S.L. said he did not know that L.H. had left China with the Child.

He only found out about this later, after making inquiries. [ 8 ] L.H. said that she took the Child and went to her parents’ home because of domestic violence she experienced at the hands of her husband. S.L. denied this was the case. [ 9 ] L.H. and S.L. gave various and different descriptions of interactions each had with the other and with L.H.’s parents. The evidence they gave was similar with respect to time frame and the broad brushstrokes of the interaction.

However, their testimony about the details, including who began the altercation, the type of altercation, who was hurt, who was not, and so on, was diametrically opposed. S.L. claimed he was assaulted and abused by L.H. and her parents while in China in 2014. He also claimed that L.H. wanted him to sign over some property to her parents. On the other hand, L.H. claimed that she was assaulted and abused in various ways by S.L. during the same period. [ 10 ] S.L. testified that in October 2014, L.H. stopped answering his texts and phone calls. S.L. then tried to find the Child and L.H.

He eventually found out that a ticket under the Child’s name had been issued for a flight to Vancouver International Airport on or about October 21, 2014. [ 11 ] Both parties acknowledged that L.H. filed for a divorce in China in May 2014. S.L. did not agree to the divorce. The parties were given six months to attempt reconciliation. L.H. explained this is the law regarding divorce in China. [ 12 ] The six-month period given by the Chinese court did not result in a resolution of the relationship issues between S.L. and L.H.

During the hearing on this Notice of Motion, considerable time was spent by both S.L. and L.H. outlining the difficulties between them. The testimony they gave in this regard was often diametrically opposed. [ 13 ] L.H. said the reason she took the Child to Canada was that the Child had a visa to be in China. That visa had expired. She needed the Child’s birth certificate to apply for a renewal of the visa in China. She did not have the birth certificate when she left the family home. Accordingly, L.H. said, she had to take the Child back to Canada.

She was concerned that because the Child had, as she put it, overstayed the visa he had a bad record in China. [ 14 ] L.H. testified that her plan was to move to Vancouver, British Columbia, to get a new birth certificate for the Child. However, she also testified this would also allow her to be in a new environment. Shortly after arriving in Vancouver, British Columbia in 2014, L.H. began residing at a woman’s shelter and lived there for approximately two years. She later received help to get a residence with BC Housing. [ 15 ] S.L. arrived in Canada in early to mid-December 2014.

He made various efforts to find the Child.

[ 16 ] The inferences I drew from the evidence heard during this hearing, is that sometime in 2015 S.L. made an application of some sort to the Supreme Court of British Columbia. At or about the same time, L.H. made an application to the Provincial Court of British Columbia. S.L. and L.H. were divorced in Canada pursuant to an order made in the spring of 2016 in the Supreme Court of British Columbia. [ 17 ] On April 1, 2015, Judge T. Gove made the first order on this matter in the Provincial Court of British Columbia. It was an interim order, without notice (ex parte).

The order applied for by the Applicant, the mother L.H., on that ex parte application was granted. L.H. was granted sole guardianship, sole exercise of parental responsibilities, and a protection order limiting S.L.’s contact with L.H. and the Child. A number of other subsequent orders were made on other applications by other judges of this court. However, many of those orders will not be set out in this ruling.

Suffice it to say, that since 2015 there have been numerous orders made by judges of this court on various aspects of this family file. [ 18 ] Below I review the orders that are the subject of S.L.’s Notice of Motion. [ 19 ] On December 1, 2016, Judge N. Phillips made a consent order. Each party was represented by counsel at the time. That order addressed a number of issues including exchanges of the Child for parenting time. At paragraph 6(

a) the court ordered that S.L. shall not videotape or otherwise record the exchanges of the Child. [ 20 ] On March 9, 2018, Judge P. Doherty subsequently amended that order. The order made by Judge Doherty on March 9, 2018, was an interim order by consent. It dealt with a number of matters addressed in Judge Phillips’ order of December 1, 2016.

In particular, at paragraph 6, Judge Doherty ordered that, “Neither Party shall record the other Party at the pick-up or drop-off of the Child by electronic means or otherwise.” [ 21 ] Judge Doherty in his order of March 9, 2018, also set out parenting time for S.L. as follows: 2. The Respondent, S.L., shall have parenting time with the Child from Tuesdays at 5:30 p.m. to Wednesdays at 5:30 p.m. commencing on Tuesday, March 13, 2018. 3. The Respondent, S.L., shall take the Child to the Child’s daycare/pre-school on Wednesday mornings at 8:30 a.m. commencing on March 14, 2018. 7.

The Respondent, S.L., shall be the primary caregiver of the Child during his parenting time, save and except for pre-school and/or daycare and save and except as agreed in writing between the Parties. Such written consent shall not be unreasonably withheld by the Applicant, L.H. 8. Not less than two (2) times a week at 8:30 p.m., when the Child is with her, the Applicant, L. H., shall facilitate face to face contact, through the Internet, with the Child by the respondent, S.L. 9.

Not less than two (2) times a week at 8:30 p.m., when the Child is with him, the Respondent, S.L., shall facilitate face to face contacts, through the Internet, with the Child, by the Applicant, L.H. [ 22 ] On May 14, 2018, Judge P. Meyers made an interim order without notice (ex parte) on the application of L.H. That order provides as follows: 1. The parenting time with the Child D.L., born [omitted for publication], granted to the Respondent, S.L., pursuant to the Order of Her Honour Judge N. Phillips made December 1, 2016; pursuant to the order of His Honour Judge P.L.

Doherty made March 9, 2018 and pursuant to Clause 2 of the Protection Order, made by Her Honour Judge N. Phillips on June 29, 2017; and pursuant to Clause 1 of the Protection Order, made by His Honour Judge P.L. Doherty on March 9, 2018, is hereby suspended pending further Order of this Court. 2. The respondent, S.L., shall have liberty to apply to this Court for reinstatement of his parenting time upon three (3) days clear notice to the Applicant, L.H., through her Counsel. [ 23 ] S.L. also seeks a protection order under s. 183 of the Family Law Act or, alternatively, under s. 225 of the Family Law Act .

The orders he seeks is that L.H. be prohibited from:

a) attending at, entering or being found within 250 metres of any residence, place of employment or place of education of S.L.;

b) being found within 5 metres of S.L. during the exchanges of the Child at the designated exchange location or at the Child’s daycare or school; and,

c) communicating directly or indirectly with S.L. except through email only strictly for the purpose of discussing matters related to the Child.

SECTION 211 FLA REPORT [ 24 ] On March 9, 2018, Judge Doherty ordered that a full s. 211 report be prepared. A Family Justice Counsellor, Nancy Callan, prepared that report. It was submitted on July 10, 2019. The Family Justice Counsellor interviewed the mother, the father and the Child. She also spoke to two MCFD social workers by telephone, a teacher at the Child’s school, and the vice-principal at the Child’s school. After setting out a full background history, the Family Justice Counsellor reviewed the Child’s views. [ 25 ] The Child’s views were: • He believes his parents get along. • He loves his mother, father and both sets of grandparents.

• He believes they all love him. • He described what he did when he was with his mother and what he did when he was with his father. • The child told the Family Justice Counsellor that he does not see his father every day because his father “has to work to pay money”. • The Child would like to see his father a little bit every day. • Seeing him for a whole day would be too much because his mother would say… “Today we have to go somewhere”. • His mother would be angry if he wanted to stay for a whole day. • If his mother said it would be all right, the Child would want to see his father for a whole day. • If he went with his father for Saturday or Sunday, that would not be good, because the Child said he would miss his mother a lot. [ 26 ] In the

summary of the s. 211 report, the Family Justice Counsellor noted that both parents have established suitable homes for the Child. Their Child appeared happy and engaged during both home visits. She noted: Given the information I have collected, any increase in parenting time with S.L. should be gradual to avoid unnecessary upheaval in (the Child’

s) life. (The Child) would benefit from having some time with S.L. during school days and weekends, so that S.L. can understand and share in the two important parts of his life. When possible, transitions between the homes should take place at D.L. school with only one parent present. ANALYSIS [ 27 ] Both parties , but in particular S.L., spent a significant amount of court time testifying about a litany of events going back to a time before the Child was even born.

As I have already noted, the father’s version and the mother’s version of events about what led to their separation and various interactions they had in the past are diametrically opposed on many of the significant details. This court does not intend to review the history of S.L.’s and L.H.’s failed relationship or their failed attempts to arrive at a détente so that they could focus on the best interest of their Child. This is because there is limited time available, and because this matter has now become urgent.

The current order governing the father’s parenting time, which I granted on June 7, 2019, ends on August 31, 2019. That order was by consent and without prejudice to the parties’ position on this Notice of Motion. [ 28 ] After hearing and reviewing the testimony of the parties, I have concluded that I must approach their recitation of “the facts” with caution. Both of them testified that they only have the best interest of the Child in mind. Given what I heard during the hearing on this Notice of Motion, I take those assertions from both parents with a grain of salt.

However, in this case I do not need to make credibility findings about the father’s or the mother's testimony because I have the recommendations of a neutral third party, namely, the Family Justice Counsellor who prepared the s. 211 report in this matter. THIS COURT'S ORDER [ 29 ] Having considered all of the evidence placed before me, including the testimony of the parents and a review of previous court orders, I make the Interim Order set out below, effective immediately. For the sake of absolute clarity, I note that sometimes I have referred to the mother and the father as "the parents".

When I have used that term I mean S.L. and L.H., the parents of the Child. My Interim Order is: 1. Both the mother, L.H., and the father, S.L., are the Child’s guardians under s. 39 (1) of the Family Law Act . 2. The Child shall reside primarily with his mother L.H. 3. The mother and the father shall jointly share parental responsibilities regarding the Child and, without limiting the generality of the provisions of the Family Law Act, the following terms apply;

a) Each parent will advise the other parent of any matters of a significant nature that affect the Child;

b) Each parent will consult the other parent, in advance, about any important decisions that must be made regarding the Child;

c) Each parent will make his/her best efforts to reach an agreement concerning any such important decisions; and

d) If the parents are not able to agree on how to address a parental responsibility regarding the Child, when it is imperative that such a decision must be made the mother shall make that decision. However, the father is at liberty to apply to this court to review any such decisions made by the mother, upon giving the mother 3 days notice. 4. Neither parent shall remove the Child from the Metro Vancouver Regional District of British Columbia without the written consent of the other parent, or a court order, obtained in advance.

Parental consent from either the mother or the father must not be unreasonably withheld. 5. Under s. 225 of the Family Law Act the parents must not communicate directly or indirectly with each other, except by emails or texts and then only and strictly for the purpose of discussing matters relating to the Child. Each parent shall ensure that the text/email messages exchanged with the other parent are respectful. Each parent shall also ensure that he/she responds to those emails/texts promptly (that means within 24 hours or less) and deals with the subject matter addressed by the other parent.

6. Under s. 227 (

c) of the Family Law Act, neither parent shall attend or enter, or be found at any residence, place of employment, place of education, or place of worship that each parent knows the other parent likely attends. 7. Neither parent shall record the other parent by electronic means or otherwise, this includes but is not limited to videotape, audiotape, or photographs, at the pickup or drop-off exchanges of the Child. 8. The ex parte order made by Judge P. Meyers is hereby terminated, in other words the father's parenting time with the Child is no longer suspended. 9. The interim order made by, Judge M.

Giardini made on June 7, 2019, by consent and without prejudice is hereby terminated effective midnight August 31, 2019. 10. The father shall have unsupervised parenting time with the Child every Tuesday, beginning Tuesday, September 3, 2019, at 5:30 p.m. to Wednesday at 5:30 p.m. and every Tuesday to every Wednesday thereafter, until further court order or the parents reach a written agreement. 11.

Additionally, the father shall have unsupervised parenting time with the child every Thursday beginning Thursday, September 5, 2019, at 5:30 p.m. to Friday at 5:30 p.m. and every Thursday to every Friday thereafter, until further court order or the parents reach a written agreement. 12. The other orders contained in Judge Doherty's March 9, 2018, order continue to apply. However, any outstanding and current protection orders are hereby suspended until a hearing on the merits of all outstanding applications. 13.

Beginning the first weekend in December 2019, the father shall have alternate weekends of overnight parenting time with the Child. Accordingly, beginning Saturday, December 7, 2019, at 9:00 a.m. and continuing overnight to Sunday, December 8, 2019, and overnight to Monday, December 9, 2019, at 9:00 a.m. the Child will be with the father. This will continue every alternate weekend thereafter, until further court order or the parents reach a written agreement.

If the father's return of the Child on a Monday falls on a school day, the father shall take the Child to the pre-school or school at the time required by the teacher or the principal or vice-principal of the school. 14. Since the pickup and drop-off location has been a contentious issue between the parents, beginning September 1, 2019, the pickup and drop-off locations will alternate.

The mother shall choose a location for pickup and drop-off for the month of September 2019; the father shall choose a location for pickup and drop-off for the month of October 2019, and that will continue to alternate thereafter, until further court order or the parents reach a written agreement. 15. The mother and the father may choose the Child's extracurricular activities on an equal basis so long as neither's choice interferes with the other parent's parenting time. [ 30 ] In addition, I make the following Conduct Orders: 16. The parents will put the best interest of the Child before their own interests.

They will 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. The parents must make a real effort to maintain polite, respectful communications with each other, and refrain from any negative or hostile criticism, communication, or argument in front of the Child. 17. The parents shall not question the Child about the other parent or time spent with the other parent.

Additionally, the parents will not discuss with the Child any court or legal matters or blame, disparage, or otherwise criticize the other parent to the Child. 18. The parents shall also encourage their respective families to refrain from making any negative comments about the other parent and his or her extended family and from having any discussions in front of the Child concerning family issues or litigation. [ 31 ] S.L. and L.H. have so far battled each other through the courts. For the sake of the Child and in the best interest of the Child, this ought to stop.

Of course, it would not be appropriate for this court to prevent either parent from seeking redress for their legitimate concerns through this or any other court. However, this court has the authority and jurisdiction to manage the current court file, including the hearing of applications, trials, etc. [ 32 ] Accordingly, the orders made today (see above) shall stay in place until any current or past issues raised by the parents have been addressed on the merits in a final order.

No future applications, notices of motion, or other court filings are to be filed, unless the applying parent has applied for and obtained leave of the court with notice to the other parent. [ 33 ] In order to case manage this family file, I am directing the Judicial Case Managers to set a family case conference or a case management conference, or both at the earliest time that is available. I further suggest that this matter be set for 90 minutes. The parents have until Monday, September 30, 2019, at 3:00 p.m. to file a written plan with the Registry at Robson Square.

In that plan, the parents must set out the outstanding issues they believe need to be addressed by this court. Additionally, they must identify any prior un- adjudicated applications, notices of motion etc. that they have filed with the court and that remain outstanding. The parents must provide an outline in point form of all final orders they seek. That includes such issues as Christmas parenting time, spring break parenting time, summer holiday parenting time, that have not yet been resolved between the parents. [ 34 ] This matter has languished for far too long.

Therefore, if the parties have counsel and if counsel is not reasonably available for family case conference/case management conference dates offered by the Judicial Case Managers, the parties and their counsel must appear forthwith before the Regional Administrative Judge or his designate at Robson Street, to address the scheduling issue.

_____________________________ The Honourable Judge Giardini Provincial Court of British Columbia