S.K.S. v. T.L.B. Date:, 2017 BCPC 134

Citation: S.K.S. v. T.L.B. Date: 20170508 2017 BCPC 134 File No: 16214 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.K.S. APPLICANT AND: T.L.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Natalie Hebert

Counsel for the Respondent: Mr. Christopher Soll Place of Hearing: Kamloops , B.C. Date of Hearing: February 23, 2017 Date of Judgment: May 8, 2017 [ 1 ] This is T.L.B.’s application to set aside the protection order. [ 2 ] T.L.B. does not agree with the protection order and says that conduct orders applicable to both parties will suffice.

He is also opposed to continued supervision of his parenting time but if the parenting time is to be supervised, T.L.B. prefers that it be M.N. or his mother rather than paid supervisors or someone of S.K.S.’s choosing. [ 3 ] There is no question that this has been a volatile and toxic relationship for many years. The children involved are B.B. born [omitted for publication] and T.B. born [omitted for publication]. From the outset of the relationship, which commenced in 2008, there had been suggestions of drug abuse by both parties, physical and verbal altercations, and inappropriate parenting.

Much of both parties’ retelling of their history has been recast so that each party may shed themselves in a better light. As a result, neither one of them has entirely compelling credibility. What is clear is that the two parties, until they have taken some considerable counselling, cannot conduct themselves in a respectful co-parenting manner. That is not the issue before me. [ 4 ] As I have said, the parties began their relationship in 2008. T.L.B. had just completed his house arrest for a sentence related to trafficking in drugs.

T.L.B. testified that he had met S.K.S. at her home, which was a drug party house. He meant to condemn her with this testimony but he was not persuasive. [ 5 ] The parties lived together for approximately three years in Ladner, British Columbia. In 2015, T.L.B. purchased a home in [omitted for publication] and moved the family there. The idea was for him to obtain work closer to [omitted for publication]. As it turned out, he continued to work on the coast while his family lived in [omitted for publication]. [ 6 ] T.L.B. gave some very uncompelling evidence that he considered the relationship to be over.

However, he knew that S.K.S. did not have a vehicle and would be living in an isolated area. That isolation bound her to him while she raised the children on her own without any of her personal family supports. This does not reveal a relationship that is over, but one that T.L.B. preferred to control. [ 7 ] Following the last altercation in the relationship, S.K.S. left T.L.B. and sought a protection order.

That protection order was granted on April 6, 2016 and was modified over time to allow for telephone access and supervised parenting time for T.L.B. and the children. [ 8 ] The evidence on this hearing was a confusion of violence and inexplicable behaviour. Compounding this case was the astounding behaviour of both parties during the course of the trial. While S.K.S. and her witnesses were testifying, T.L.B. sneered, snickered and snorted his derision. It was only after he was told to stop behaving himself in this manner that he made any effort to control himself.

Following this admonishment, T.L.B. evidently made a comment to one of the witnesses waiting in the hallway, which caused her upset. At that point, T.L.B. was warned about interfering with justice participants and the charges that could flow from that. [ 9 ] Although S.K.S. was in the courtroom at the time these warnings were given to T.L.B., she also snickered during T.L.B.’s testimony. One of her supports also made threatening gestures toward T.L.B.

It is simply mind-boggling that litigants would conduct themselves in such a manner and, more to the point, that S.K.S. absorbed nothing from the warnings that were given to T.L.B. It is partly against the backdrop of their in-court behaviour that I must assess their credibility to determine whether it is appropriate to continue the protection order and the supervised parenting time. The Law [ 10 ]

Section 183 of the Family Law Act enables the court to make an order against a family member for the protection of any other family member if family violence is likely to occur and the person to be protected is an at-risk family member. At-risk family member is defined in s. 182 as “a person whose safety and security is or is likely at risk from family violence carried out by a family member”. [ 11 ] In considering whether to make a protection order, there has to be consideration of the mandated factors under s. 184: 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.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be madeagainst one person only, taking into account (

a) the history of, and potential for, family violence, (

b) the extent of any injuries or harm suffered, and (

c) the respective vulnerability of the applicants.

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the personagainst whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist: (

a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order; (

b) the family member against whom the order is to be made is temporarily absent from the residence; (

c) the at-risk family member is temporarily residing in an emergency shelter or other safe place; (

d) criminal charges have been or may be laid against the family member against whom the order is to be made; (

e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order isto be made after family violence has occurred; (

f) an order under

section 225 [orders restricting communications] has been made, respecting the at-risk family member, against thefamily member against whom the order is to be made. [12] In the decision of J.C.P. v. J.B., 2013 BCPC 297 , 2013 B.C.P.C. 297 , my brother Judge Merrick determinedthat the non-payment of child support could constitute family violence in certain circumstances. He found in that case that the failure topay was designed to inflict psychological and emotional trauma to the mother and was therefore

an act of family violence. [13] The Family Law Act also defines family violence 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 ofreasonable 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 [14] Finally, also in assessing the family violence, the court must consider the following set out in s. 38: 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child], a court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directedat a family member; (

e) whether the family violence was directed toward the child;

(

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [15] Some of the areas will be difficult to decide because there were occasions when broad, general questions were put to S.K.S.about her conduct and various incidents in their history, but the specifics of them were not. T.L.B. then testified giving particular detailsof certain instances that were not put to S.K.S. As a result, a full exploration of the evidence is not available to me. It is constructive, aswas the case with my brother Judge Brecknell in N.C.R. v. K.D.C., 2014 BCPC 9 , 2014 B.C.P.C. 9 , that the rule inBrowne v. Dunn be revisited.

At paragraph 104 of N.C.R., supra, Judge Brecknell cites from the Ontario Court of Appeal decision of R.v. Dexter addressing the purpose of this rule: [104] The seminal case on the issue of confrontation is described as the Rule in Browne v. Dunn. It was recently reviewed by theOntario Court of Appeal in the case of R. v. Dexter 2013 ONCA 744 , [2013] O.J. No. 5686. In that decision the Court ofAppeal reiterated that the Rule is not merely procedural but a rule of trial fairness. When the rule is breached the effect that a courtshould give to that circumstance depends on the number of factors which may include:

a) the seriousness of the breach,

b) the context in which the breach occurred,

c) the stage in the proceedings when an objection to the breach was raised, and the response by counsel, if any, to the objection,

d) any request by counsel to reopen the case so that witnesses [whose] evidence has been impugned can offer an explanation,

e) the availability of the witness to be recalled. [105] Given the factors enunciated by the Ontario Court of Appeal it is still open to the Court to give consideration to the evidencepresented bearing in mind that lesser weight may need to be given controversial evidence where confrontation was not utilized even if noobjection or a request to recall a witness was pursued. [16] On the topic of supervised parenting time, I was also provided with the decision of Goldstein v. Benmosh and Peepeetch, (SK QB), a decision of the Family Law Division of the Queen’s Bench of Saskatchewan citing from Mitchell v.

Mitchell,(1988), (SK UFC), 16 R.F.L. (3d) 462 at page 463: If access is to be granted at all, it should be genuine access. Both parent and child must be given the opportunity to continue or todevelop anew their relationship. Supervised access restricts that opportunity. The watchful eye of a third person creates an artificialenvironment that inhibits the natural and spontaneous behaviour that healthy relationships are built upon. History of Family Violence [17] As I have indicated already, this was a volatile and toxic relationship.

The children were often subjected to domestic violenceand the police have been involved from time to time. Both parties have testified that it was the other party who precipitated the violence,each casting themselves as the victim. What cannot be denied is that these children have been the victims of domestic violence both seenand heard. [18] S.K.S. testified that T.L.B. had assaulted her and punched her in the stomach when she was pregnant with T.B. but she wasafraid to press charges. She described a man who was violent both physically and emotionally, particularly when he is drunk.

When hewas presented with evidence of his conduct while impaired, he would laugh and say he did not remember. [19] On one occasion, there was a birthday party at their home on the coast. After T.L.B.’s family left, S.K.S.’s mother was in thekitchen cleaning and S.K.S. went looking for T.L.B. She found him in a home across the way where she suspected that he had beendoing cocaine. When she challenged him on it, he grabbed her by the hair and dragged her around a tree. S.K.S.’s brother pulled T.L.B.off of S.K.S., S.K.S’s mother called the police and the RCMP attended.

T.L.B. waved and smiled as the police drove him away. [20] S.K.S.’s mother, M.S., testified that while she was cleaning up, she and S.K.S. did not know where T.L.B. was. They went outto the porch and they saw him come from across the way. M.S. described T.L.B. grabbing her daughter by the hair, dragging her outsideand around a tree, and smashing her head into the cement several times. She described her son grabbing T.L.B. by the collar and pullinghim off. M.S. called the police whereupon T.L.B. was arrested.

She also testified that T.L.B. smiled and waved as he was driven away. [21] T.L.B. describes the relationship with S.K.S. as being an unpredictable one where she would become angry over inconsequentialmatters such as smoking the last cigarette. She would claw him and punch him. On the occasion of this birthday party, T.L.B. said thathe was drunk and happy to get out of there when the police arrested him. However, he said he remembers most of the incident becausehe was not drunk at that time. He highly doubts that S.K.S.’s brother pulled him off of S.K.S. Then he said that it did not happen.

Hesaid that he shoved her off in defence and denied hitting her head on the curb. His evidence did not hold together and was not credible. [22] J.R. testified with respect to the birthday incident. She lived across the way and was the person S.K.S. believed he was visiting. J.R. testified that T.L.B. was a good father and she would see him out playing with the children quite a bit. She never saw any issueswith his parenting. On this occasion, T.L.B. was at her home when S.K.S. came to the door and asked for him. She testified that whenT.L.B. came downstairs, S.K.S. smashed him in the head with a bottle.

She then saw S.K.S. punch T.L.B. multiple times in the head butwhen the police came he was the one who was taken away.

[ 23 ] It defies explanation, but J.R. said she did not go out when the police arrived. It would seem that as a direct witness to such a violent offence, it would behove her to at least offer her statement to the police. Instead, she watched as a person she believed to be entirely innocent in the circumstances be arrested and taken away in a police vehicle. Her evidence defies credulity and I do not accept it. [ 24 ] There were a number of other instances both parties referred to in their testimony regarding prior violence between them. Most notable was the final day the parties were together.

S.K.S. recorded the incident because she knew that he would lie and she needed proof of his behaviour. He called her foul names and ridiculed her in front of the children. He was foul-mouthed, rude and belligerent. In contrast, S.K.S. sounded tired and defeated. I take into consideration that he was unaware of the recording while she was very much aware of it. I accept that she could have adjusted her tone and behaviour accordingly. [ 25 ] S.K.S. left for a women’s shelter.

She returned the next day with the RCMP and her friend, K.W., to recover some of her goods. [ 26 ] When they arrived at the home, T.L.B. was sleeping in their son’s bed, his sister was dancing in the living room intoxicated and her boyfriend was on the couch. The house was “thrashed” with pictures on the floor, lamp shades under the bed and none of her items to be found. S.K.S. discovered later that he had burned her belongings in the back yard.

She was able to recover some items for the children and to leave with them. [ 27 ] K.W. said that she was concerned about repercussions after the attendance at the family home. She asked her husband with whom she was separated to stay with her for a time. He did so. One evening after the incident, they were returning home when they saw T.L.B. in the driveway. K.W. got out to speak to him to calm him down. T.L.B. thought K.W. had S.K.S. and the children in her home. He threatened to go to K.W.’s place of work and have her fired.

He then went to the truck where K.W.’s husband and children were and said that he liked the children but, and pointing to K.W. said, K.W. did not know who she was dealing with. He also threatened to come back and kill them. Criminal charges are outstanding on that matter. When K.W. removed her daughter from the truck, her daughter had been so scared that she had peed herself. As of the date of trial, her daughter was still scared to be left alone in a room at the house. [ 28 ] In addition, S.K.S. appears to have been associated with someone who was also involved in the drug world in the past.

He had evidently put out a hit on T.L.B. The RCMP visited T.L.B. to warn him of this. T.L.B. said that he had spoken with this person and resolved the issue between them. Even so, this kind of lifestyle is itself an environment of violence that the children should be spared. [ 29 ] While I can confidently determine that these two people were violent and inappropriate toward each other, that T.L.B. attempted with violence and emotional abuse to control S.K.S., and that S.K.S. was inappropriate and violent toward T.L.B. as well, it is the evidence of the interviews of the children that is most compelling.

These interviews were conducted by the social worker Ms. Reany and her colleagues. She reported that the afterhour social worker interviewed all four children when they were transferred from the [omitted for publication] to Kamloops. All of them independently disclosed that their father was mean to their mother; called her names, like monkey retard; and threatened her. Ms. Reany then attended S.K.S.’s home and interviewed each child alone. Each of them reported to her that their father was mean to their mother and they were happy to be gone. [ 30 ] On one occasion when Ms.

Reany was interviewing the children, S.K.S. had a protective intervention order in place with respect to T.L.B. However, during that home visit, Ms. Reany said the telephone rang about 30 times from him. Ms. Reany called T.L.B. from the parking lot to make sure he knew there was an order preventing his contact. She also spoke to him about his drinking and about his seeking supports to be successful in his relationship with the children. He was belligerent with Ms. Reany and also related to her the incidents of S.K.S. hitting him. Following that conversation, Ms.

Reany re-interviewed the children and they did not support the allegation. In fact, she said B.B. was astonished when Ms. Reany asked him to tell her about the time that his mom hit his father. [ 31 ] Ms. Reany, apart from these interviews, also attended S.K.S.’s home several times and spoke to the children several times on those occasions. [ 32 ] She had also seen the pictures from the home in [omitted for publication]. She saw holes in the walls, piles of children’s items and S.K.S.’s items in burnt piles, and items such as pictures and fish tanks that had been thrown out in the yard like garbage.

Amongst the items in the photographs, she could see pictures of the children. [ 33 ] I am satisfied on the balance of probabilities that there was a considerable amount of domestic violence in this home and that it was primarily precipitated by T.L.B. I am also satisfied that the children did not witness S.K.S. attacking T.L.B., and that T.L.B. destroyed family belongings in an uncontrolled expression of anger. [ 34 ] In addition, after S.K.S. moved to the coast to pursue work, T.L.B. learned that she was working as a care aide with [omitted for publication].

The recording of his telephone call to this employer was played in court. He was foul-mouthed and demanded to know why they would hire someone who was crazy and mentally challenged and was well known in Ladner for pushing down an old lady. He declined to leave his name or number but the call was sufficiently disturbing that her employer was no longer able to place her with work in vulnerable environments. [ 35 ] The impact on S.K.S. and the children was immediate and profound. The lack of work reduced her cheque for that month to $30.

Compounding the economic pressure, T.L.B. had not been paying his child support. Despite this, S.K.S. continued to take the children to the exchanges although there is a considerable cost associated with this. She has household expenses to pay and the children to support. [ 36 ] This is precisely the sort of domestic violence contemplated in J.C.P. , supra .

While T.L.B. claims today that he regrets taking the action that he took and justifies it by believing he was doing the right thing, it was a calculated and manipulative action designed to hurt S.K.S. [ 37 ] Despite S.K.S. moving to the lower mainland, T.L.B. also opposed S.K.S.’s application to move the court file to the coast. He complained that he had not been given notice of the move, which is only relevant in circumstances where S.K.S. moves further away and

not closer to T.L.B. His only explanation for opposing the move of the file was that he had already retained his lawyer.

Again, this is indicative of T.L.B. attempting to control and manipulate S.K.S. [ 38 ] I am not persuaded that it would be appropriate to set aside the protection order at this time. [ 39 ] It is clear that co-parenting is not possible at this point and so any parenting time T.L.B. has with the children cannot put them or S.K.S. at risk. [ 40 ] To date, T.L.B. has had supervised parenting time but S.K.S. objects to his chosen supervisors. [ 41 ] Supervised parenting time as opposed to merely supervised exchanges is essential for the time being.

Given my findings with respect to domestic violence, it would be inappropriate for T.L.B. to have unsupervised parenting time until such time as he has taken some anger management and parenting counselling. Specifically, apart from the significant issues of domestic violence, T.L.B. has also conducted himself inappropriately around the children. [ 42 ] He has refused to allow B.B. to take home a family picture even though T.L.B. is not in it and B.B. had specifically asked for it.

He also inappropriately engaged the children in the ongoing dispute between himself and S.K.S. by producing to them items which he told them their mother had said were burnt. His purported reason for doing this was to reassure the children that their items had not been destroyed. This is also manipulative and inappropriate conduct particularly for children who are so young and vulnerable. [ 43 ] It is equally important that T.L.B. have appropriate, meaningful parenting time with his children.

While there is much dispute about whether he was engaged in their care and daily lives before the end of the relationship, it is equally clear that the children enjoy their time with him and will benefit from his participation. [ 44 ] Until such time as he is taking the appropriate parenting counselling and anger management courses, and has shown himself to be more responsible and reserved in his dealings with S.K.S., supervised parenting time must continue. [ 45 ] It is the children who deserve to have parenting time conducted in an environment that allows them to explore and strengthen their relationship with their father.

Consequently, while supervised parenting time is essential in this case, given T.L.B.’s violent and manipulative behaviours, and given his lack of parenting skills, I am satisfied that it ought to be with supervisors the children are comfortable being around. Proposed Supervisor [ 46 ] T.L.B. would like to have either his mother or a family friend, M.N., serve as supervisors. S.K.S. is opposed to either person being a supervisor. With respect to T.L.B.’s mother, she feels betrayed by the post-separation position that his mother has taken. She is also concerned that Ms.

B. would not intervene if T.L.B. were to conduct himself inappropriately given the history between the parties that also included Ms. B. Given Ms. B.’s evidence on this file and her apparent knowledge of her son’s behaviours, she is not an appropriate supervisor. I can have no confidence that she will view such a role with the appropriate degree of caution or make fulsome and frank disclosures of the parenting time activities when required to do so. [ 47 ] M.N., on the other hand, has been a foster parent for the Ministry of Child and Family Development since 1999.

She has had children of all levels of ability in her care, focusing now on youth who are at risk. She has already undergone the screening process which included background checks and training. [ 48 ] M.N. is familiar with T.L.B. and, while she seems to harbour an allegiance to him that can be dismissive of S.K.S.’s concerns, I am satisfied that she is a more than appropriate supervisor.

She will fulfil the needs of the children to engage in meaningful parenting time with their father and, with some instruction, will be appropriate for ensuring that there are no inappropriate behaviours during that parenting time. [ 49 ] Provided that M.N. is advised T.L.B. cannot have private parenting time with any of the children and is advised of the issues that are of most concern, then I am satisfied that she will be able to provide the appropriate supervision. [ 50 ] M.N. needs to be advised that T.L.B. is not to speak to the children in a negative manner about their mother; he is not to discuss the court proceedings or any of the evidence including the factual history with the children; and he is not to raise any issues that may be troubling to the children including the name calling, the burnt property, the preserved property, their residence location, or their activities with their mother. [ 51 ] T.L.B. does not understand boundaries.

He has conducted himself in an abhorrent fashion toward the mother of his children. He requires counselling not only with respect to how to parent properly in such circumstances but also with respect to how to conduct himself when dealing with S.K.S., including engaging in anger management. Until he has undertaken such counselling, supervision must continue.

Similarly, until he has undertaken such counselling and can show that his violent, manipulative and inappropriate behaviour has been corrected, the protection order must remain in place. [ 52 ] As I have said, there appears to be no connection with Kamloops for this file. Either party is at liberty to make an application before any judge of this court to transfer the file for all purposes to one of the court locations nearer to where both parties reside. ________________________________ S.D. Frame Provincial Court Judge