B.H.C. v. F.G.J.P., 2017 BCPC 378

Citation: B.H.C. v. F.G.J.P. 2017 BCPC 378 Date: 20171207 File No: 1547765 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: B. H. C. APPLICANT AND: F. G. J. P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Applicant: R. Gibbs, Q.C. Appearing on their own behalf: F. P. Place of Hearing: Prince George , B.C. Date of Hearing: May 10 and June 23, 2017 Date of Judgment: December 7, 2017

A Corrigendum was released by the court on January 1, 2018. The corrections have been Introduction [ 1 ] This is an application by F. P. to set aside a Protection Order pursuant to s. 187 of the Family Law Act . On September 4, 2015, Ms. C. obtained an Order prohibiting Mr. P. from communicating with her and her children for a period of one year. The Protection Order was extended from time to time and currently expires May 9, 2018. [ 2 ] Ms. C. and Mr. P. are the parents of four year old M. P. Ms. C. also has two older children from a prior relationship, 16 year old Z. and 12 year old M. L. who lived with Ms.

C. and Mr. P. during the couple’s 4.5 year relationship. The couple separated permanently in June 2015. [ 3 ] Mr. P. does not contest the imposition of a Protection Order with respect to Ms. C. or her older children. He objects to continuing to be restrained from having contact with his daughter, M.(1). He has had no contact with M.(1) since separation. [ 4 ] It is not disputed that during the parties’ relationship Mr. P. had a substance abuse problem which contributed to family violence and ultimately led to their separation. The bulk of the violence was perpetrated against Ms.

C., although there is an allegation of one incident where Mr. P. inappropriately disciplined M.(2). There is no suggestion Mr.P. targeted M.(1) in any acts of family violence. Some acts of violence against Ms. C. occurred in the presence of the children. [ 5 ] Mr. P. has been generally compliant with the terms of the Protection Order since it was imposed over two years ago in September 2015. Although there is no application for contact time in these proceedings in light of the extant Protection Order, Mr. P. hopes to ultimately secure some contact time with M.(1) which would be facilitated through third parties.

Ms. C. argues that in the absence of compelling proof from Mr. P. that he is now sober, he should continue to be subject to a Protection Order prohibiting his contact with M.(1). Issues 1. What general purposes and principles apply to protection orders under s. 183 of the FLA? 2. Is family violence likely to occur? 3. Are Ms. C. and/or her older children “at risk family members?” 4. Is M.(1) an “at risk family member?” 5. Should there be a protection order prohibiting contact with Ms. C. and her older children? 6. Should there be a protection order prohibiting contact with M.(1)?

Issue #1: General purposes and principles applicable to Protection Orders [ 6 ] Section 183(2) of the Family Law Act provides that the court may make an order against a family member for the protection of another family member where family violence is likely to occur and the other family member is an at-risk family member. Protection orders may include terms such as prohibiting or limiting contact with that family member or another person, restricting a party’s ability to attend at specified locations, and prohibiting the possession of weapons.

These orders are filed in a designated registry and are enforced by Peace Officers, such that a person found in breach of a protection order may be arrested and charged with an offence. [ 7 ] The purpose of these provisions is to recognize the danger to vulnerable family members that can arise in often-volatile relationships and to ensure that courts have the means of ensuring the safety of those who are at risk. The broad and inclusive definition of "family violence" recognizes harm which can extend beyond the infliction of purely physical violence ( Morgadhino v.

Morgadinho , 2014 BCSC 192 at par. 59 ). [ 8 ] The provisions of the FLA relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties: ( L.S. v.

G.S. , 2014 BCSC 187 , aff'd 2014 BCCA 334 at para. 26 ). [ 9 ] Where it is alleged a parent’s (non-violent) actions constitute family violence towards a child, the court must be careful not to label that conduct as "family violence" where there is no evidence the child has suffered any physical or emotional harm as a result of the parents' conduct ( C.L.M. v. M.J.S., 2017 BCSC 799 at par. 365 ). [ 10 ] Protection orders are governed by

Part 9 of the FLA which seeks to address the problem of family violence that can manifest when parties separate or engage in family law disputes. This limited and pressing objective must always be borne in mind when considering applications for a protection order. Protection orders should not be imposed for purposes unrelated to mitigating the real risk of family violence. For example: (

a) Protection orders should not be used to circumvent the guardianship and parenting arrangement provisions of

Part 4 of the FLA .

Part 4 of the FLA articulates different considerations for determining what contact, if any, a parent should have with their child than those set out in

Part 9 . For example,

Part 9 does not contemplate that a protection order can be made on the basis that it is “in the best interests of the child.” By contrast, the presence of family violence is expressly contemplated as a relevant factor to the child’s best interests when determining parenting time or arrangements under s. 37(2). In other words, just because it may be in a child’s best interests to have limited contact with a parent due to family violence, it does not automatically follow that a protection order should issue to achieve that end; (

b) Part 9 of the FLA does not vest the Provincial Court with jurisdiction over the division of family property. The power to remove a spouse from the family residence and restrain that spouse from returning can only be exercised for the sole and limited purpose of

protecting other family members from family violence. S. 183 of the FLA should not be used for the dominant purpose of awarding sole occupancy or sole possession of matrimonial property to the “protected” spouse; and (

c) Protection orders are not probation orders or CFCSA supervision orders. They should not be imposed for the dominant purpose of compelling a spouse to engage in counselling, abstain from drugs or alcohol, or otherwise engage in rehabilitative undertakings. [ 11 ] In conclusion, while “family violence” should be defined broadly in light of the social context and problems the legislation was intended to address, the purpose of the protection order scheme remains narrow, namely, to protect individuals from harm where family violence is likely to occur.

Issue #2: Is family violence likely to occur? [ 12 ] “Family violence” as defined in s. 1 of the FLA has a broad definition which includes psychological and emotional abuse. In the case of a child, “family violence” includes direct or indirect exposure to family violence. Section 184(1) of the Act sets out the relevant considerations in a protection order application, as follows: 184

(1) In determining whether to make an order under this Part, the court must consider at least the following risk factors: (

a) any history of family violence by the family member against whom the order is to be made; (

b) whether any family violence is repetitive or escalating; (

c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (

d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; (

e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; (

f) the at-risk family member's perception of risks to his or her own safety and security; (

g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence. [ 13 ] Judges hearing protection order applications must approach the issue of family violence from a broad and contextual perspective, taking into account a variety of factors that frame the risk analysis in determining whether family violence is likely to occur. The inquiry is future oriented, but it takes its shape from past conduct and present circumstances that inform the assessment of risk ( S.M. v. R.M ., 2015 BCSC 1344 , at par. 25 ). (

a) History of Family Violence [ 14 ] Mr. P. testified as to improvements he has made in managing his addictions since separation and to his non-communication with Ms. C. since the initial Protection Order was made. In response, Ms. C. attested to several historical episodes of substance abuse and violence perpetrated by Mr. P. during their relationship. I find Mr. P. either expressly or implicitly agreed that many of these incidents occurred as alleged. With respect to some of the incidents, Mr.

P. made weak denials stating he did not remember the event due to extreme intoxication but believes he would not have committed the impugned acts. Mr. P. admits he was prone to violence when intoxicated and often did not remember things, only learning of his actions after the fact. [ 15 ] Ms. C. testified that when she was pregnant with M.(1) in late 2012 or early 2013, Mr. P. shoved her in the course of an argument which caused her to fall against an armoire. Ms. C. believes this fall contributed to her suffering a placental abruption and pregnancy complications. Mr.

P. was not confronted about this assault in cross-examination and no expert medical evidence was adduced. I accept the assault described did occur, but cannot make any findings about the cause of Ms. C.’s pregnancy complications. [ 16 ] According to Ms. C., later on in her pregnancy with M.(1), Mr. P. kicked Ms. C. out of bed intentionally with both of his feet, causing her to fall on the floor. Ms. C. claimed she suffered a concussion, however, no medical evidence was adduced in support of this contention and that injury was not put to Mr. P. Mr. P. admitted kicking Ms.

C. out of bed, but claimed he did so in his sleep. I find Mr. P. did kick Ms. C. out of bed intentionally, but cannot make any findings about Ms. C. suffering a concussion. [ 17 ] Ms. C. said that while pregnant with M.(1), the couple were living in Prince George; however, Mr. P. was regularly working in the community of Ft. St. James approximately 150 km away. Ms. C. learned Mr. P. was partying with other women when he was supposed to be working so she drove out to Ft. St. James to confront him. An argument ensued during the course of which Mr. P. shoved her. In cross-examination Mr.

P. was confronted with the argument at Ft. St. James but not any alleged assault. Mr. P. was able to uniquely demonstrate a clear recollection of this particular incident. I find Mr. P. screamed at Ms. C. as alleged but I am unable to find he assaulted her on that occasion. [ 18 ] Ms. C. testified that a couple of days after M.(1) was born she was driving the child and Mr. P. back home from the hospital in a borrowed van. Mr. P. was intoxicated so Ms. C. had to do the driving and stop to shop for baby necessities. An argument ensued during which Mr. P. grabbed the steering wheel while Ms. C. was driving.

At one point Mr. P. hit Ms. C. in the stomach with a diaper bag in circumstances where Ms. C. had just had undergone a caesarian section. When the couple got home Mr. P. broke the window of the vehicle, grabbed M.(1)’s car seat from the car and took the baby into the house. Ms. C. says she got the baby back and while she was nursing Mr. P. was taking knives and throwing them on the cutting board nearby, prompting her to move. Mr. P. admits he broke the

van’s window but denies he assaulted Ms. C., qualifying his denial with “I don’t recall”. Given Mr. P. had a propensity for violence while intoxicated which he was later unable to recall, I find this incident occurred as Ms. C. alleged. [ 19 ] Mr. P.’s actions with the knives were not accompanied by any words or actions consistent with an intention to harm or intimidate Ms. C. or baby M.(1). I do not find this conduct constituted

an act of family violence. That being said, I do find Mr. P.’s conduct was reckless and inherently dangerous, especially given his level of intoxication at the time. [ 20 ] Ms. C. testified that in May 2013, her friend and friend’s spouse came to visit. Mr. P. and the spouse kept disappearing to the basement where Ms. C. believes they were surreptitiously drinking alcohol and consuming cocaine. Ms. C. later found Mr. P. passed out on the porch and tried to wake him because it was too cold to sleep outside. When Mr. P. awoke he punched Ms. C. in the temple 20 - 30 times without any provocation, prompting Ms.

C. to call the police. While none of the children witnessed the assault, Ms. C.’s daughter Z. was home and was upset by seeing the state of her mother immediately following the assault. Infant M.(1) was in her crib in an upstairs bedroom. [ 21 ] Due to his level of intoxication at the time Mr. P. has no current memory of this incident. While Mr. P. did not admit this assault, he was in no position to refute it. Ms. C. said she had a brain scan but did not attest to any injuries. While I am not convinced Mr. P. punched Ms. C. 20 - 30 times given the lack of injury, I do find Mr. P. punched Ms.

C. multiple times in the head. Mr. P. was charged with assault but the proceedings were resolved by way of a peace bond after Mr. P. attended private residential treatment in 2013, which was funded by his mother. The peace bond was negotiated, in part, on Ms. C.’s advice to Crown counsel that she wanted to reconcile with Mr. P. [ 22 ] After the peace bond was imposed MCFD put safety plans in place which required that any access by Mr. P. to the children be supervised. Ms. C. had a roommate move in who supervised this access and MCFD ended their involvement with the family in December 2013. [ 23 ] Ms.

C. testified that Mr. P. was sober for around a year after the imposition of the peace bond in September 2013. In the fall of 2014, Mr. P. took a job in Mackenzie and relapsed into drinking and philandering. In December 2014, Mr. P. advised Ms. C. that he wanted to end their relationship. At that point the couple had already arranged to rent a house in Kamloops for half of a year to allow Mr. P. to take a plumber’s upgrading course and Ms. C. to take a course in nail esthetics. Ms. C. said when she came down to the Kamloops rental house with M.(1), she found Mr.

P. intoxicated and discovered cocaine and drug paraphernalia in his side table. Mr. P. denied the drug allegation at this hearing, however, he admitted that while in Kamloops he started drinking heavily again as a result of the stress of the couple’s break-up. [ 24 ] Ms. C. testified that around her birthday, May 1, 2015, she and Mr. P. got in an argument about Ms. C. finding messages on Mr. P.’s phone from another woman asking him to bring cocaine to their next rendezvous. At the time the couple were driving in Kamloops. The car had broken down and Mr. P. was on the ground trying to fix it. Ms.

C. was angry and smashed Mr. P.’s phone. Mr. P. retaliated by punching Ms. C. in the face, breaking her nose. M.(1) was in the car and Ms. C. had to walk home carrying the child while nursing a bleeding nose. She told him to leave. Mr. P. admits he was doing cocaine at that time, but qualified it was “not that much.” Mr. P. admits he punched Ms. C. but claims he did so reflexively in self-defence because she was kicking him in the face while he was trying to change the tire. I do not accept his evidence and I find he deliberately punched Ms. C. [ 25 ] Ms. C. testified that a couple of days later Mr.

P. returned to the Kamloops home where her children were present. Mr. P. smashed Ms. C.’s phone in retribution for her smashing his phone, pushed her and screamed at her. The police were called and Mr. P. packed his things and left. Mr. P. admits he smashed Ms. C.’s phone in the presence of her older children. Z. L. testified in this hearing and confirmed that she called police on her phone after witnessing Mr. P. push her mother and smash her mother’s phone. Ms. C. was ambivalent about making a statement to police at that time as she feared this would invite further involvement by MCFD.

I find this act of family violence occurred as described by Ms. C. and Ms. L. [ 26 ] Ms. C. testified that when the family was preparing to move back to Prince George from Kamloops in May 2015, there was a stand-off because neither she nor Mr. P. would agree to leave the family home upon return. Ms. C. told Mr. P. that she was going to get someone to move in with them because she did not feel safe living alone with Mr. P. In response, Mr. P. told Ms. C. he had a gun in the family home and would shoot her and anyone else who moved into the house with her. Ms.

C. called her mother and asked her to search the residence for a gun. Ms. C.’s mother testified she found a rifle in a duffle bag under the master bed with a loaded clip nearby. Ms. C. had not been aware of the presence of that gun in her house. [ 27 ] Mr. P. admits he inherited the gun when his father passed away and that he did not possess a firearms license. Mr. P. acknowledged the gun may not have been properly stored despite there being children in that house. In cross-examination Mr. P. at first denied threatening to shoot Ms.

C., then acknowledged maybe he did say it, but that he didn’t think “he would” ever say anything that direct. I take his answer to be indicative of his general admission that when intoxicated, he was capable of committing acts of threats or violence which he could not remember once sober. I find this threat constituted family violence and occurred as described by Ms. C. [ 28 ] Ms. C. testified that in June 2015, she had obtained a tincture of marijuana infused with vodka from a cancer patient with the intention of giving it to a friend of the family who was also a hospice cancer patient. Mr.

P. found and drank most of this tincture, becoming grossly intoxicated. Mr. P. was sleeping in the bedroom and when Ms. C. turned on the lights, he became angry, grabbed the bed linens and went to sleep on the couch. Ms. C. followed Mr. P. in an effort to get some bed linens back and a fight ensued. Ms. C. says Mr. P. hit her, threw a mixture of bleach and puppy urine at her and threw her to the ground. Ms. C. hit him back. Police were called and arrested Mr. P. but ultimately no charges were laid. There is no evidence any children witnessed this assault, but they were home. Mr. P. denied he assaulted Ms.

C. in any way that evening and says, in fact, she gave him two black eyes and the police did not charge him. I find that Mr. P. initiated the violence as described by Ms. C., and both parties ultimately engaged in violent acts towards each other. [ 29 ] Ms. C.’s mother, J. F., testified that one evening in early 2015 she came to the family residence while Mr. P. was caring for M. (2) alone and found the child crying with a raised welt on his middle back. Mr. P. told her M.(2) got hurt when he tried to tip over a

dresser. M.(2) protested this was a lie and claimed Mr. P. had hit him. Mr. P. admitted in cross-examination that he struck 10 year old M.(2), but explained he was spanking M.(2) when M.(2) jumped out of the way, causing Mr. P.’s blow to land on the child in an unintended fashion. Mr. P. said he was not drunk, but Ms. F. saw a bottle of vodka on the counter. I find Mr. P. intentionally struck M. (2). [ 30 ] In conclusion, I find there is a history of family violence perpetrated by Mr. P. (

b) whether any family violence is repetitive or escalating; and (

d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; [ 31 ] The parties have now been completely separated for over two years. Ms. C. acknowledged she has had very little contact with Mr. P. since he was arrested in June 2015. After his arrest Mr. P. was released on a police undertaking prohibiting him from contacting Ms. C. That Undertaking was cancelled when charges were not pursued following which Mr. P. started sending texts to Ms. C. demanding to see his daughter.

This contact prompted Ms. C. to obtain the first Protection Order on September 4, 2015. Once Mr. P. learned of the Protection Order, he did not contact Ms. C. further other than sending one text on M.(1)’s birthday. [ 32 ] After the September 2015 Protection Order was made, Mr. P. attended the family residence a few times with RCMP members to obtain his belongings. Otherwise, there is no suggestion Mr. P. has gone to Ms. C.’s residence or workplace. Ms. C. initiated contact with Mr. P. in 2016 by sending an email asking him to effectively sign over the family home to her. Ms. C. believes Mr.

P. is responsible for hacking her Facebook and posting photos on it in December 2016, but there is no evidence to support that contention. I find the only contact Mr. P. has had with Ms. C. since June 2015 were the texts sent asking to see M.(1) which were sent at a time when there was no prohibition on Mr. P.’s contact with Ms. C.; the text Mr. P. sent on M.(1)’s birthday; and Mr. P.’s reply to Ms. C.’s request about the family home. [ 33 ] Other than while in court for this hearing, Mr. P. has not seen or spoken to Ms. C. in person since 2015.

I am satisfied that there have been no incidents of threatening, violent, stalking or other concerning behavior since the initial Protection Order was imposed in September 2015. Mr. P. is in a new relationship and he has not expressed any desire to pursue any relationship or communications with Ms. C. or her older children. He agrees to submit to a protection order with respect to them. (

c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; [ 34 ] I find there has been no coercive or abusive conduct from Mr. P. to Ms. C. since his arrest in June 2015. I would characterize Mr. P.’s conduct towards Ms. C. during the relationship as impulsive acts of violence inflicted while intoxicated. I am not satisfied this violence was the product of a greater design to control Ms. C. through emotional and psychological abuse.

Even if there were such an intention at the time of the relationship, he has not been communicating with her since 2015. [ 35 ] There is no evidence to suggest Mr. P. emotionally or psychologically abused M.(1). (

e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; [ 36 ] Ms. C. submits that Mr. P.’s addictions increase the likelihood of the infliction of family violence if a protection order is not made. The incidents of violence reported in her testimony occurred while Mr.

P. was using alcohol and/or illicit drugs. [ 37 ] In addition to the incidents of family violence, Ms. C. attested to other conduct which did not involve violence but demonstrated that Mr. P.’s addiction during their relationship was out of control and drove him to act recklessly while under the influence. Mr. P. once left his residence to get intoxicants and disappeared for hours, leaving his young son, D., home alone without a caregiver. D. and D.’s young friend were home for a sleepover the night Mr. P. drank the marijuana vodka tincture.

He obtained back-to-back immediate roadside prohibitions for driving under the influence of alcohol, resulting in both family vehicles to being impounded and leaving Ms. C. and the children with no means of transportation. [ 38 ] Z. L. testified that when she lived with Mr. P. he would behave in a manner consistent with substance abuse, such as leaving in the middle of dinner and disappearing, acting strange and jittery, locking himself in his room, yelling on the phone, and passing out. Mr.

P. once arrived at her uncle’s house intoxicated and attempted to drive her and her siblings home in that state - an event which fortunately was prevented by the intervention of her uncle. Mr. P. did not admit this incident, but admitted he would drink to the point of blackouts and may not remember it. [ 39 ] The current status of Mr. P.’s sobriety is very much in issue. In his direct testimony Mr. P. asserted that he completed treatment, had been sober for two years and regularly attends AA and NA meetings. However, in cross-examination Mr.

P. admitted he has consumed the occasional drink in the last two years and his attendance at AA and NA meetings has declined. It was put to Mr. P. that he was recently shoplifting alcohol with his girlfriend, which he denied. I make no findings about this allegation. [ 40 ] In his evidence Mr. P. downplayed his cocaine use and the extent of his substance abuse problem. He identified others as being “extreme cases” but does not consider himself to fall into that category.

He also showed poor insight by attributing some of his past alcohol-fuelled misconduct to being the product of a “bad night” or a “bad week.” The evidence discloses Mr. P.’s substance abuse was a chronic, not periodic problem. [ 41 ] Ms. C. alleges that Mr. P. was “high” during both of his attendances at court. This was not observed by me, and I take judicial notice of the fact that many legally prescribed drugs can produce the symptoms described by Ms. C. More importantly, I note that even if Mr.

P. were under the influence of drugs as alleged, he presented as calm, respectful, and non-confrontational during both days of hearing which involved highly charged subject matter and an aggressive cross-examination. In court Mr. P. did not demonstrate the

violent and explosive conduct which Ms. C. says is typically associated with his drug use. [ 42 ] I accept the submission of Ms. C. that Mr. P. has likely not achieved full sobriety and has not abstained from the consumption of intoxicants in the last two years. I also accept that Mr. P.’s abuse of substances increases his propensity for family violence. However, I accept that Mr. P.’s substance abuse has declined from the level of intensity observed in 2014 - 2015, and that he has abstained from committing any acts of family violence since June 2015. This suggests Mr.

P.’s current use of alcohol or drugs is sufficiently manageable as to attenuate some of the risks of family violence posed by his addictions. Further, even in the worst throes of his addiction, Mr. P. did not harm or threaten to harm M.(1). [ 43 ] In making this finding it is important to emphasize that in this application I am only considering the extent to which Mr. P.’s abuse of substances may increase the likelihood of future family violence. I am not considering how his substance abuse may affect his ability to parent or care for M.(1). (

f) the at-risk family member's perception of risks to his or her own safety and security; [ 44 ] An expansive definition of family violence is contemplated by the Family Law Act, and a court must make allowances for an at-risk family member's perception of risks. However, this cannot rest on subjective perceptions alone. There must be some objective evidence of family violence before concluding that family violence may occur in future ( S.M.A. v. R.E.W ., 2015 BCPC 34 at par. 55 ). [ 45 ] Ms. C. testified she fears that Mr.

P. may harm her and the children if he were able to come to her house in connection with exercising access to M.(1). She also expressed fear he will put the children at risk if he suffers a blackout. I would characterize Ms. C.’s fears to be grounded on concerns that Mr. P. may be violent if he attends at her residence and may neglect or harm M.(1) if M.(1) is permitted to be in his care. [ 46 ] Ms. C.’s expressed concern is that Mr. P. is not a good or fit parent to be around M.(1). However, that is not the focus of this inquiry.

The issue I must decide is whether or not there should be a protection order prohibiting Mr. P. from having any contact with M. (1) in order to protect M.(1) or Ms. C. from emotional, physical or psychological harm. That is a different inquiry than whether or not it is in M.(1)’s best interests to have parenting or contact time with her father. [ 47 ] I do not find Ms. C.’s fears about the risk of M.(1) being subjected to family violence in the absence of a protection order to be objectively reasonable based on the evidence. I am not satisfied on the evidence that Mr. P. ever harmed or intended to harm M.(1).

Any concerns of risk arising from Mr. P.’s abuse of substances can be addressed by carefully crafted contact time conditions or supervision, assuming he is granted any contact time at all. I accept Ms. C. has an objectively reasonable basis to fear the risk of family violence being committed against her or her older children. (

g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence. [ 48 ] While M.(1) is young, this does not necessarily make her more vulnerable to family violence. Because of her age Mr. P. cannot have any contact with M.(1) as of right. Even in the absence of a protection order, Mr. P. cannot effectively have contact with M.(1) unless the court grants him contact or parenting time, in which case conditions on contact can be imposed to protect M.(1).

Conclusion: Whether Family violence is “likely to occur” [ 49 ] While I am satisfied that past acts of family violence have taken place, s. 183 of the FLA is prospective and requires a finding that family violence is likely to occur in the future. The reasoning process underlying this analysis was explained in Dawson v. Dawson , 2014 BCSC 44 , at paras 44-45 : [44] The fact that there has been

an act of physical family violence, even a single act of physical family violence, may provide a sufficient basis to conclude that family violence is likely to occur in the future. Although the passage of time may serve to reduce the probative force of such evidence, to the extent the circumstances giving rise to the earlier act of violence remain at large, the predictive quality of that earlier act may not be diminished with the passage of time. Moreover, it seems to me that when assessing the "likely" threshold set out in s. 183(2)(

a) regard should be had to the gravity of the harm that might follow from

an act of physical family violence. [45] ...Given the protective purpose of orders under

Part 9 of the Family Law Act , it is reasonable in my view to apply what might be termed a sliding scale to the threshold. The potential for very serious acts of violence is sufficient to engage the provisions of the Act , even if those acts of violence are, in absolute terms, not particularly likely. [ 50 ] While Mr. P. has abstained from any acts of family violence for the last two years and has demonstrated gains in improving his level of sobriety, the past numerous and serious acts of family violence against Ms. C. engage the reasoning explained in Dawson . I find the risk of harm to Ms.

C. should family violence occur in the future is sufficiently grave that it engages the protective provisions of s. 183 of the FLA. I find that the likelihood of future family violence may diminish with the passage of more time with Mr. P. acting peaceably. Issue #2: Are Ms. C. and/or her older children “at risk family members?” [ 51 ] S. 183(2) of the FLA requires the court make two findings of fact in order to impose a protection order, namely, that family violence is likely to occur and that the family member to be protected by the protection order is an at-risk family member.

These requirements are conjunctive and must both be established. [ 52 ] Pursuant to s. 182 of the FLA , an "at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member. [ 53 ] I find that Ms. C., Z. and M.(2) are at-risk family members. Mr. P. repeatedly assaulted Ms. C. in the past. They are still in the

midst of a property division dispute and will likely proceed into a parenting time dispute concerning M.(1) which places them in a continued position of conflict. Ms. C.’s older children are clearly aligned with her, Mr. P. assaulted M.(2) in the past, and both older children were exposed directly or indirectly to family violence at an age where they could understand and be negatively affected by it. Ms. L. does not wish to have contact with Mr. P. Issue #3: Is M.(1) an “At risk family member?” [ 54 ] The words of

an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament ( Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at par. 26 ). As set out in s. 8 of the

Interpretation Act , R.S.B.C. 1996 c. 238, e very enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. [ 55 ] A review of the FLA demonstrates a child-centred approach which emphasizes the best interests of the child and prioritizes those interests over the desires of their parents. Children are not viewed as extensions of their parents and their needs are defined independently of the needs of their parents. The fact that Ms. C. was treated badly by Mr.

P. in the past and no longer wishes to have any contact with him does not automatically blanket her daughter with the same perspective. [ 56 ] In my view, s. 183(2) requires the court to independently assess each person proposed to be protected under a protection order and make a finding whether or not they are an “at-risk” family member. Interpreting s. 183 in the context of the Act as a whole, I find that the court is required to closely and carefully consider the evidence of actual risks of harm when the request is to impose a protection order prohibiting contact between a parent and a child.

It is not sufficient only that the requisite grounds have been established to impose a protection order for the benefit of a spouse or another family member. In my view, the court must undergo the analysis with respect to each proposed protected family member separately, and not automatically make global orders protecting multiple family members on the basis that the applicant has established that the respondent poses a risk to one or some of them. [ 57 ] Children have relationships with their parents independent of their parents’ relationship with each other.

Those relationships are often important to a child and their well-being. The court should be reticent to sever those relationships completely under the auspices of a protection order absent evidence that the child herself is at material risk of being subjected to family violence or of being used to indirectly inflict family violence upon another protected family member. In this context “family violence” is still defined broadly and can include exposing a child to hateful and alienating statements directed at the protected parent ( see C.L.M. v.

M.J.S. , 2017 BCSC 799 ). [ 58 ] I am not satisfied that M.(1) is an at-risk family member. There is no evidence Mr. P. has ever harmed or threatened M.(1). I have no basis to conclude that in the absence of a protection order there is a risk Mr. P. will physically, psychologically or emotionally abuse M.(1) or otherwise subject or expose her to family violence. While M.(1) was present during a couple of incidents of family violence, I find she was an infant and too young to have observed and been affected by the family violence around her. In terms of future risk, as long as Mr. P. has no contact with Ms.

C. or her older children, there is very little risk M.(1) witnessing family violence. Issue #4: Should there be a protection order prohibiting contact with Ms. C. and her older children? [ 59 ] For the reasons cited above, I find it appropriate to continue the Protection Order prohibiting Mr. P. from communicating with Ms. C., Z. and M.(2), or from going to their residence, school or workplace until the Order expires in May 2018.

Issue #5: Should there be a protection order prohibiting contact with M.(1)? [ 60 ] Even though M.(1) is not an at-risk family member, the court may still impose a protection order prohibiting Mr. P. from communicating with her pursuant to s. 183(3)(a)(

i) of the FLA. [ 61 ] Pursuant to s. 183(3)(a)(i), the court can restrain a spouse from having contact with a “specified person” who is not an at-risk family member. As a protection order can only be made for the protection of an “at risk family member,” this provision must be construed as intending to address situations where restricting communications with a third party is necessary to protect the at-risk family member. Such cases may arise where a spouse uses contact with third parties to indirectly inflict family violence upon the at-risk family member.

Examples might include threatening or harassing the at-risk family member’s extended family, friends or dating partners, communicating threats though the specified person, or trying to mine the specified person for information about the at-risk family member as part of stalking behavior. [ 62 ]

Section 185 of the Act directs the judge hearing a protection order application to consider the impacts of family violence on children whether or not they are at-risk family members: 185 If a child is a family member, the court must consider, in addition to the factors set out in

section 184 [whether to make protection order] , (

a) whether the child may be exposed to family violence if an order under this

Part is not made, and (

b) whether an order under this Part should also be made respecting the child if an order under this

Part is made respecting the child's parent or guardian. [ 63 ] Counsel for Ms. C. argues that the court ought to look at the relationship between Mr. P. and Ms. C. globally with the children and consider his conduct with respect to any one of them in assessing the risk of violence he poses to the others. It is submitted that the court ought not parse out each individual family member and assess the risk he poses to each one. For reasons stated above, I disagree that this is the appropriate approach when determining who is and is not an “at-risk” family member pursuant to s. 183(2)(b). This raises the question of how to interpret s. 185. [ 64 ] Applying the principles of statutory

interpretation explained earlier, s. 185 should not be construed as authorizing the court to impose a protection order prohibiting contact with a child as part of an unreasoned “add-on” to an order protecting the child’s parent.

There must be some articulable risk to the child or the protected parent justifying the no-contact order. [ 65 ] In my view,

section 185(

a) of the FLA merely reinforces the definition of “family violence” in s. 1 which includes, in the case of a child, direct or indirect exposure to family violence. The court always has to consider that risk of exposure in any protection order application. If a child would be exposed to family violence in the absence of a protection order, the child is already deemed to be an “at- risk family member” and a protection order protecting the child can be made on that basis. [ 66 ]

Section 185(

b) reinforces the court’s authority to make an order under s. 183(3)(

a) prohibiting contact with a “specified person” who is not an at-risk family member by directing the court to consider whether contact with the child may expose the protected guardian to further family violence. Again, if a child were at-risk of being subjected or exposed to family violence, a protection order could already be made on the basis that the child is an at-risk family member. If the child is not an at-risk family member, they may be a “specified person” under s. 183(3)(

a) for whom a protection order should be made in order to protect the parent or guardian from indirect family violence. [ 67 ] In

summary, s. 185 instructs the court to turn its mind to the potential impacts of family violence on any child of the parties even where the child herself is not the target of the family violence. The authority to issue any protection order prohibiting contact with the child arises from s. 183(3)(

a) upon finding that the child herself is an at-risk family member or that the child is not at risk but is a “specified person” for whom contact should be prohibited in order to protect the at-risk family member.

Section 185 should not be construed as authorizing the imposition of protection order prohibiting contact between a parent and a child as a matter of course whenever a protection order respecting the protected parent is made. [ 68 ] In my view there is no evidence to suggest that Mr. P. should be prohibited from contacting M.(1) in order to protect Ms. C. There is no history of Mr. P. using his contact with M.(1) to harass or threaten Ms. C. If he were to engage in such conduct in the future, it would be open to Ms. C. to renew her application on the basis of this change in circumstances.

As stated above, the Protection Order prohibiting contact with Ms. C. would address the risk of potential exposure by M.(1) to family violence. [ 69 ] Ms. C. argues the court ought to impose a protection order because Mr. P. has not sufficiently demonstrated his addictions have abated or that he has undertaken counselling to address the issues underlying his prior acts of violence. In essence, I understand Ms. C. to be arguing that the Protection Order should continue for so long as Mr.

P. fails to demonstrate a material change in circumstances, the criteria which usually applies to justify changes to a final FLA order. [ 70 ] In my view, this is an incorrect

interpretation of the scheme of the legislation. A protection order is different from other types of orders made under the FLA . Protection orders are governed by their own part under the FLA . They are memorialized in a distinct form of order separate and apart from any other relief granted in the same hearing. Unlike other FLA orders, protection orders are automatically enforceable by a peace officer who is authorized to use reasonable force, if necessary. They are registered in a specially designated registry.

Breaches of a protection order can result in criminal charges being laid pursuant to s. 127 of the Criminal Code . [ 71 ] Also, unlike other FLA orders, protection orders are time limited by default, expiring after one year unless the court orders otherwise. To that extent, the legislation itself contemplates that the passage of time is a material change in circumstances. In S.H.F.N. v.

A.B.N., 2015 BCCA 314 , Saunders, J.A. characterized a protection order as an order for “interim relief” for the purposes of Rule 2.1 of the Court of Appeal Rules in circumstances where it was subject to further extensions by the court and was not the entire relief sought in the litigation. There is no presumption in the FLA that a protection order should be renewed year over year absent a material change in circumstances. In my view, once a protection order expires, the burden shifts back to the applicant to establish the requisite grounds for the issuance of a new protection order.

There is no onus on the respondent to prove there has been a material change in circumstances, failing which the court must impose a new protection order. [ 72 ] As stated above, protection orders should not be used to circumvent

Part 4 of the FLA concerning parenting time and parenting arrangements. The “best interests of the child” test already expressly contemplates the effect of family violence in assessing what contact, if any, a parent or guardian should have with a child. There may be situations where a past history of family violence has so adversely affected a child or their relationship with a parent that the court finds it is not in the child’s best interests to have any contact with their parent, notwithstanding there may be little risk of future family violence and no grounds for a protection order.

While a protection order and an order denying any contact or parenting time may have the same effect in practice, they are based on different rationales. A protection order is intended to prevent family violence while the

Part 4 order is intended to promote the best interests of the child. [ 73 ] Ms. C. argues that since Mr. P.’s commitment to sobriety is either unknown or dubious, the Protection Order with respect to M. (1) ought to remain in place. The difficulty with this argument is taken to its logical conclusion, unless Mr. P. becomes fully rehabilitated, M.(1) might never have contact with her father until she is an adult.

Even children who have been apprehended by the Director under the Child Family and Community Service Act are not necessarily completely deprived of all contact with their parents except in extreme cases of child abuse. Parents who suffer from addictions and mental health issues are still generally encouraged to have a relationship with their children, even if their contact is limited or supervised. [ 74 ] Again, declining to impose a protection order relating to M.(1) is not akin to ordering that Mr. P. have contact with M.(1). Mr.

P. would still need to apply and convince the court that contact is in M.(1)’s best interests and be limited by whatever form of contact the court allows. [ 75 ] The current Protection Order was extended during this hearing as a form of interim relief pending this decision. In conclusion, I do not find that it is appropriate or necessary to continue the Protection Order prohibiting contact with M.(1). The current Protection Order is set aside and replaced with the order herein. There will be a Protection Order in respect of Ms. C., Z. and M.(2) pursuant to s. 183 on the following terms: 1. Under s. 183(3)(

a) of the FLA , F. P. shall not have contact or communicate directly or indirectly with B. C. except for the following:

a) while in attendance at a settlement conference or family case conference in a court action, or a court appearance in which F. P. is compelled by law to attend under subpoena or in which F. P. is a party;

b) for communication through legal counsel in F. P.’s absence; and 2. Through a third party or telecommunications if such communication is authorized by a separate family court order. Such communication may only be for the limited purpose of facilitating and exercising contact or parenting time with F. P.’s child, M. P., if such contact or parenting time is ordered. 3. Under s. 183(3)(

a) of the FLA F. P. shall not have contact or communicate directly or indirectly with Z. L. or M. L. 4. Under s. 183(3)(

a) of the FLA F. P. shall not attend at, enter or be found within 100 metres of the residence, place of employment or school of B. C., Z. L. or M. L., even if he is an owner or has a right to possess or enter such a place. 5. Under s.183(3)(

a) of the FLA F. P. shall not own, possess or carry any weapons as defined by s. 2 of the Criminal Code of Canada . 6. Under s.183(3)(

a) of the FLA F. P. shall not own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things, and any related authorizations, licenses and registration certificates. 7. Under s.183(3)(

e) of the FLA F. P. shall immediately attend a police station or detachment and accompany a police officer, including any RCMP officer having jurisdiction in the Province of British Columbia, to the location of any firearm, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things and to the location of any related authorizations, licenses and registration certificates he or she possesses and surrender the said items to the police officer until further order of the court. 8.

Under s. 183(3)(c)(iii) of the FLA , any police officer, including any RCMP officer having jurisdiction in the Province of British Columbia, who is provided with a copy of this order is directed to seize from F. P. any weapons as that term is defined in s. 2 of the Criminal Code of Canada and related documents, and hold such items seized until further order of the court. 9.

Under s. 183(4) of the FLA , this order will expire on May 9, 2018 at midnight. __________________________________ The Honourable Judge Cassandra Malfair Provincial Court of British Columbia CORRIGENDUM - Released January 5, 2018 In the Reasons for Judgment dated December 7, 2017, the following changes have been made: [1] Paragraphs 60 and 61 and 10(

b) as follows: “Reference to s. 184 of the Family Law Act in Paragraph 10(

b) should be corrected to reference s. 183” “Reference to s. 184(3)(a)(

i) of the Family Law Act in Paragraphs 60 and 61 should be corrected to reference s. 183(3)(a)(i)”