W.H.E. v B.A.L. Date:, 2015 BCPC 185

Citation: W.H.E. v B.A.L. Date: 20150619 2015 BCPC 0185 File No: 15075 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: W.H.E. APPLICANT AND: B.A.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BIRNIE Counsel for the Applicant: W. DeWolfe Counsel for the Respondent: I. Lawson Place of Hearing: Smithers , B.C.

Date of Hearing: June 11, 2015 Date of Judgment: June 19, 2015 [ 1 ] W.H.E. (father) and B.A.L. (mother) are the parents of D who is now ten years of age. Over the past five years there have been various parenting time and responsibility arrangements whereby the child has been primarily resident with his father at times and with his mother at times.

Before getting into the substance of the applications I heard on June 11 th I am going to give a very brief history of this file to provide some context. [ 2 ] On April 5, 2013, after a hearing, an Order was made that both parents are guardians of the child and both have equal parenting time and parenting responsibilities. In August 2014 the father applied to vary that order to have D live primarily with him. The father’s primary, though not only, concern was regarding family violence as between the mother and her partner.

The Ministry of Children and Families became involved in August 2014 and advised the father the child should be staying with him. He then kept the child and did not allow the mother to have her parenting time as he was concerned that if he did so the Ministry would apprehend D. The mother was able to have parenting time with D only in public places in accordance with a Ministry safety plan. [ 3 ] Meanwhile, the mother brought an application to have the parenting time reinstated which was heard on February 23, 2015.

On that date I ordered that there be a graduated return to equal parenting time which would be fully in place as of mid-April. I made conduct orders requiring the mother to ensure that neither she nor anyone else was drinking or under the influence of alcohol during her parenting time and that she and her partner attend no less than 6 couples counselling sessions focusing on relationship violence issues by May 31, 2015 unless she was directed otherwise by the MCFD. She was also required to provide confirmation from the counselling provider to the court file by June 15 th that these sessions had been attended.

She was ordered to provide confirmation to the court file and to the father by May 31, 2015 that she and D had attended a Strengthening Families Parenting Program by May 31, 2015. I note that at the February hearing I requested information from MCFD as to their current concerns but I received no information from them. [ 4 ] I also ordered a full s. 211 report - on the basis that the father’s application to vary the April 5, 2013 Order is still to be heard. [ 5 ] In early June both parties filed the Notices of Motion which were heard on June 11 th .

The mother seeks to enforce the February 23, 2015 order, an order for compensatory parenting time and that the father post security to ensure future compliance with that order. [ 6 ] The father seeks an interim order that the mother’s parenting time with D be supervised until she provides negative drug tests and that her partner F.K. have no contact with D during the mother’s parenting time.

Facts: [ 7 ] The parties relied on affidavits and some additional information provided by counsel in response to my questions - on the basis of which I make the following findings of fact. [ 8 ] Both of the parties live in Smithers. The father works out of town at a mine - one week on and one week off. He has arranged child care for D with another family while he is on his work week at the mine. [ 9 ] After I made the Order of February 23, 2015 the MCFD applied, on February 27 th for a supervision order under s. 29.1 of the CFCSA .

Their concerns as set out on the Report to Court, Form F, were domestic violence, drug and alcohol use by the mother and F.K., and the mother’s mental health. They referred in that report to incidents of domestic violence in April 2011, June 2011, February 2013, September 2013, May 2014 and July 2014. These involved the mother and F.K. [ 10 ] The April 2011 incident is an allegation the mother and F.K. were fighting - though there are no details provided in the MCFD disclosure, (which was appended to one of the father’s affidavits) - or at least, no details I could find.

In June 2011 the mother called the police and both she and F.K. claimed they had been hit by the other. [ 11 ] In February 2013 they had a verbal argument and F.K. threw a glass. In September 2013 D called the RCMP as his mother and F.K. were screaming at each other. On May 12, 2014 the police attended at the residence in response to a complaint from the mother that she and F.K. were arguing and he was breaking some of her things. D was present and spoke to the police telling them that he had heard the adults arguing and that it scared him.

On July 30, 2014 D called the police and reported that F.K. was choking his mother. The police attended and determined that there had been a verbal argument; the mother had struck F.K. with a baking sheet. He had then taken her to the ground with his hands around her neck. He had also punched the microwave and injured his hand. [ 12 ] There have been other incidents of the mother and F.K. arguing and swearing at each other, or as D has put it, “talking loud”. These were on October 9, 2013 and April 14 2014.

D told social workers after the October report that he felt unsafe with the fighting between his Mom and F.K. [ 13 ] In another incident in December 2013 the mother called the police alleging that F.K. had pushed her after a verbal argument. There was a further incident of screaming and yelling as between the mother and her 15 year old daughter on February 15, 2015. [ 14 ] The Ministry was also concerned about drug use by the mother and F.K.’s involvement in selling drugs.

Though this is not detailed in the Report to Court on their February 2015 application it is set out in their file history, (exhibit “B” to the father’s affidavit of June 2, 2015) as follows.

- April 14, 2014: the mother appearing high on drugs, “tweaking and twitching”, - Nov 5, 2014: the mother taken to hospital by police as she is in an emotionally upset condition and drug consumption was suspected but not confirmed. - Dec 2014: F.K. was arrested for possessing stolen property which had reportedly been traded to him in return for crack cocaine.

A search warrant did not reveal any cocaine but the mother was in possession of a small amount of marijuana. - August 12, 2014: mother appears to a social worker to be under the influence of drugs, - Oct. 7, 2014: mother appears to be under influence of drugs, walking in circles, stuttering, upset, speaking rapidly. [ 15 ] Both the mother and the father have been drug users in the past.

The mother was diagnosed with a bi-polar disorder in early 2013 and has been under a doctor’s care for this and taking medication. [ 16 ] The supervision order sought by the Ministry was not contested and an order is now in place, expiring August 29, 2015 which provides:

a) the Director has announced and unannounced direct access to D at any time to ensure his safety and wellbeing,

b) the mother and F.K. are subject to random drug testing,

c) both the mother and F.K. must be alcohol and drug free apart from prescription medications during and for 24 hours prior to parenting time with D,

d) there must be no physical or verbal violence in the presence of D

e) the mother will attend individual counselling and also couples counselling with F.K.

f) D will attend counselling

g) the child may be removed if any of these terms are breached. [ 17 ] The mother and F.K. have been living apart since April 2015, though F.K. comes to her home regularly. They started couples counselling through the Northern Society for Domestic Peace in late May. As of June 9 th they had attended three sessions.

She completed a Strengthening Families Program before Christmas 2014 with D and F.K., but has yet to provide confirmation of this to the father. (The expectation in the Order of February 23, 2015 is that she provide some confirmation from the program itself of her attendance at and completion of the program with D.) [ 18 ] She has provided drug tests as requested by the Ministry since April 2015 and is prepared to continue to do so.

She is prepared to have the results of those drug tests provided to the father. [ 19 ] She is very frustrated that she has been unable to have her weeks of parenting time since mid-April. She feels D is getting depressed at not seeing her often enough. She has been permitted to have D only on alternate weekends, sometimes overnight and sometimes not. She understands that these are the directions that the father has given to the family who cares for D when he is at the mine.

She calls to say goodnight to D each night and often those calls are not accepted by the father. [ 20 ] The father deposed that the mother was simply not exercising her parenting time but after some questions I was advised through his counsel that in fact he took the position that: as I had said on February 23, 2015 that the parties would need to sort out whether the equal parenting time would be 4 days alternating or 7 days alternating, and this had not been sorted out, therefore the equal parenting regime had not really started.

I think it is reasonable to infer that he has instructed the family providing childcare for D that the mother is not to have D with her during the week he is away except on the weekends. Best Interests of D.: [ 21 ] The father’s concern is that given the history of family violence as between the mother and F.K. and the continuing concern around the mother’s drug use it is in D’s best interests that the mother have parenting time with D only during the day time every second weekend and that this parenting time be supervised until she provides drug tests showing she is drug free.

He asks that F.K. have no contact with D during the mother’s parenting time. [ 22 ] The mother says that she should have equal parenting time as provided for in the Feb 23, 2015 order and that there is no need either for supervision or for any no contact as regards F.K.

She points to the existing supervision order as all the protection that is required in the event that there are concerns about drugs or violence - which she says there should not be. [ 23 ] In my view the main concern regarding D’s best interests in relation to the time he spends with the mother is the concern around family violence which relates primarily to her relationship with F.K.

It appears that since Judge Jackson’s order of April 2013 there have been five instances when the police were called to deal with either verbal or physical fighting between the mother and F.K. (September, October and December 2013, and May and July 2014). On all of these occasions D was present and it was in fact he who called police on two occasions, including the most recent one in July 2014 which precipitated the Ministry involvement and in which he thought F.K. was choking his Mom.

He is reported as telling a social worker in September 2014 -“Who will help Mom and call the police if I am not there?” (p. 216/330 Ex B to the father’s June 2, 2015 affidavit.) [ 24 ] The Ministry has a supervision order in place until August 29, 2015 to address these concerns. The mother has started the counselling she was ordered to take in February with F.K. but this has not been completed. D has not seen his mother other than on some

weekends overnight and some weekends during the day since February and prior to that from early August 2014 on he was only able to see her in a public place. [ 25 ] This is not because the mother is not interested. The father has been unwilling to facilitate her parenting time because of his concerns about domestic violence and drug use, despite the Court Order of February 23 rd which required him to do so. [ 26 ] The reality for D is that he needs regular, secure, predictable time with his mother during which he will feel safe from any apprehension of possible family violence.

He needs to reconnect with his mother in a home setting and be reintroduced to F.K. in a safe context. He needs to experience being a child who does not have to protect his mother from F.K. [ 27 ] I do not agree with the father that the mother’s parenting time needs to be supervised in terms of her drug use. There is now provision for her to provide drug tests to the Ministry and she is doing so. If there is any concern they have the means to follow up on this.

I also do not agree with the father that D should be able to see his mother only on weekends during the day. [ 28 ] I think the key to D being safe with his mother is that he be able to reconnect with her without F.K. being in the home. This is not about blaming F.K., or saying he is the aggressor, or that he would harm D in any way. This is about providing D with an environment where he feels safe.

This is about allowing him to have his mother’s time and attention without the distraction of her working out her relationship with F.K. - which she can do on her non-parenting time. [ 29 ] I find that D may be in the presence of F.K. during his time with his mother as long as they are in a public place in the presence of at least one other sober adult person.

This will allow D to be reintroduced to F.K. as part of the mother’s life in a setting where he should be able to relax and not feel on edge that an argument or any shouting is going to occur. [ 30 ] I am confirming the equal parenting time I ordered on February 23, 2015. It will be seven days with the father and seven days with the mother in accordance with the father’s work schedule. The mother’s parenting time will commence during the next 7 day rotation when the father is at work.

Until August 29, 2015 - and thereafter until she has provided the confirmation of the six sessions of couples counselling required by the Order of February 23, 2015 - the mother must ensure that F.K. is not in the presence of D during her parenting time unless she is with D, and they are in a public place in the presence of at least one other sober adult person. [ 31 ] The mother must not consume alcohol or non-prescription drugs during her parenting time with the child and must ensure that no one else consumes or is under the influence of alcohol or non-prescription drugs in the child’s presence. [ 32 ] The mother must also ensure that there is no verbal or physical violence in the presence of or within the hearing or awareness of D during her parenting time. [ 33 ] I am not, (at this point), reading any “mala fides” into the father’s actions in not following the order of February 23 rd .

I believe he was motivated by his concern for D which caused him to read the February order in an unreasonably strict manner. He has no history of disregarding this Court’s orders. For these reasons I am not ordering that he provide security to assure his compliance with this order. [ 34 ] The mother has sought compensatory parenting time of 17 days. The only reason I am not going to order this is that I think what D needs now is a predictable

schedule and equal time with both parents.

The mother may renew her request for this in the context of the hearing of the father’s application to vary the April 5, 2013 order, as by that time my hope is that D will be comfortable and secure with the parenting arrangement and we will have the benefit of the 211 report. [ 35 ] The parties having consented I also make the following orders: 1) Both parties will provide copies of any random drug tests they are required to undergo through their employment, the Ministry of Child and Family Development or otherwise and the father will arrange for random drug testing for himself by June 18, 2015 and provide the results of such testing to the mother, 2) The mother will have telephone contact with D each night when he is not in her care.

The father will ensure that D is available for such a call at 9:00 pm. unless D has advised the mother in advance that he won’t be available at that time. 3) Subject to the approval of counsel for the Ministry the disclosure from the Ministry of Child and Family Development ordered on March 6, 2015 will be updated and provided to counsel for the father who will provide copies of such disclosure to counsel for the mother. [ 36 ] This file will go to the JCM to fix a date for the father’s application of August 13, 2014 and his application of April 20, 2015 regarding child support arrears.

Counsel should contact the JCM prior to June 30 th at 1:30 to fix these dates. ____________________ C. Birnie Provincial Court Judge