H.M. v. B.A. Date:, 2016 BCPC 193

Citation: H.M. v. B.A. Date: 20160617 2016 BCPC 193 File No: 1648646 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: H.M. APPLICANT AND: B.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES Counsel for the Applicant: James Pakenham Counsel for the Respondent: Charles Hutchinson Place of Hearing: Prince George , B.C.

Date of Hearing: March 9, June 13, 2016 Date of Judgment: June 17, 2016 [ 1 ] The Parties are parents of N.D.A., born [omitted for publication]. The Parties had lived together since November 2013. Ms. M. brought four other children into the relationship. The Parties separated on January 13, 2016 when Mr. A. told Ms. M. to leave the family home with N. and her other children. An informal arrangement was made later in January whereby Mr. A. spent daytimes with N. three times per week and every other Sunday. Ms.

M. filed an Application for guardianship, parenting time, parental responsibilities, spousal and child support on February 10, 2016. On February 20, 2016, Ms. M. left Prince George with N. and moved to Kelowna where she had secured employment and a home for herself and her children. Mr. A. has filed a Notice of Motion seeking to have N. returned to Prince George and for specified parenting time. [ 2 ] At an interim hearing before Judge Weatherly on March 3, 2016, Mr. A. was granted overnight parenting time with N., supervised by his mother. The matter was set before me on March 9, 2016 on an urgent basis.

I heard evidence from Mr. A., his brother B.A., a family friend C.E. and Ms. M. The evidence had not concluded by the end of the day on March 9, 2016. I made an “Interim Without Prejudice” Order that N. return to Kelowna in his mother’s care and provided that Mr. A. could exercise parenting time with N. via Skype daily if he wished. [ 3 ] The matter continued before me on June 13, 2016. Counsel made the following admissions with respect to various matters occurring between March 9 and the present: 1. That Mr.

A. was obliged to attend GF Strong for three weeks of rehabilitation in March 2016 and on the way back from rehab he visited N. in a public place with Ms. M. present in Kelowna; and 2. That Ms. M. brought N. to Prince George to visit Mr. A. on the May long weekend and the weekend immediately preceding this hearing; and 3. That Ms. M. stayed at Mr. A.’s residence with N. and Mr. A. during these visits. [ 4 ] I heard submissions on June 13, 2016. This is my decision with respect to Mr. A.’s Notice of Motion seeking to have N. returned to Prince George and for interim parenting arrangements. BACKGROUND [ 5 ] Ms.

M. and Mr. A. moved in together in November 2013. She brought with her four children from previous relationships. The Parties then had a child together, N., born [omitted for publication]. Ms. M. worked at various part-time positions, but after N. was born she was primarily at home looking after the family. Mr. A. worked as a [omitted for publication] and earned between $70,000.00 - $90,000.00 per year. [ 6 ] In July 2015, Mr. A. suffered a stroke while the family was enjoying a picnic at Summit Lake.

He remained in hospital at University Hospital of Northern BC until August 2015, when he was transferred to the GF Strong Rehabilitation Center in Vancouver, BC. He remained there until October 7, 2015. He has been unable to return to work and is in receipt of short term disability benefits from his employer. He is in the course of applying for long term disability benefits. Mr.

A. testified that he received take home income of approximately $2,300.00 per month; he has since filed a Financial Statement that confirms he receives approximately that amount in disability benefits which are non-taxable. [ 7 ] I have been provided a copy of Mr. A.’s discharge report from GF Strong which details his diagnosis, the contributing factors of the stroke, and the recommendations for post stroke management and rehabilitation. That report indicates that contributing factors to the stroke included Mr.

A.’s lifestyle which included drinking alcohol and smoking, and his pre-existing condition of atrial fibrillation, which was also a contributing factor with respect to his previous stroke in 2012. The report also notes that he has a significant cardiac history including, but not limited to, his atrial fibrillation. [ 8 ] The stroke in 2015 caused significant brain damage and according to Ms. M., Mr. A. continues to have a large clot positioned in his brain. When Mr. A. was in hospital and rehabilitation, Ms.

M. was fully briefed by his medical professionals as to his condition and their recommendations for his treatment. Among the remarks and recommendations of the health professionals was that when Mr. A. returned home he would be subject to fatigue and low frustration tolerance and would require rest, quiet, and time on his own each day with reduced stimulation. It was also recommended that Mr.

A. have sufficient rest periods because he would become easily fatigued and that fatigue would lead to an aggravation of the irritation and frustration which were symptoms of his brain damage. [ 9 ] The report recommended that if possible, the number of people in the house should be reduced, especially when Mr. A. first returned home. The report also recommended a number of strategies to assist Mr. A. to remain calm, but noted those efforts were “a work in progress.” [ 10 ] It was also recommended that Mr. A. not smoke or drink because the contributing factors to his stroke were smoking and alcohol consumption.

Mr. A. agrees that he was on blood thinner medication after his first stroke in 2012 and remains on blood thinners to this day. He agreed that the instructions when taking blood thinner medication are that he must not drink alcohol, but he admits consuming regularly before the second stroke, and to continuing to drink alcohol since then.

[ 11 ] To accommodate Mr. A.’s needs, Ms. M. made temporary arrangements for the children to reside with their father for the first week after Mr. A. came home. Thereafter, at Mr. A.’s request, the children came home only two days per week and remained with their father the rest of the time. This was a radical change from the previous arrangements under which the children remained with their mother almost all of the time. I also note that this accommodation for Mr. A. necessarily meant that N. was separated from his siblings for a period of time. Ms.

M. testified that she was also instructed to remove all alcohol from the home, which she did. Ms. M. was unable to work outside the home after Mr. A. returned home because she needed to look after him as well as the baby N. [ 12 ] Despite these efforts, Ms. M. testified, and I accept, that Mr. A. was upset, agitated, and angry much of the time, often about financial matters. He also displayed anger at her and her children and on one occasion threatening to take a hammer to the pets of her 13 year old child. She said that Mr.

A. did try to get up at night occasionally with N., but when he did he was fatigued during the day and his anger and frustration were worse when he was fatigued. Mr. A. admits that he was angry and frustrated by the other children but said that he was never frustrated by N. [ 13 ] Ms. M. said Mr. A. was also angry and frustrated about their financial situation, so on January 13, 2016, she wrote down all their bills and income and sat down with him in an effort to create a budget. She said he became irrationally angry and told her to take her children and “get the fuck out”. Mr.

A. testified he could not recall the words he used but confirmed he told her to leave and confirmed he found the children and finances frustrating. Ms. M. gathered up the children and left in her car with nothing but a diaper bag and a baby bottle. It is similarly not disputed that when Mr. A. told her to leave the family home, he knew Ms. M. had nowhere to go and no employment sufficient to support herself and her children. She and the children stayed in a hotel for several nights, until she ran out of money. [ 14 ] Ms.

M.’s sister paid for some additional time at an apartment she was vacating when she left town so that Ms. M. could have temporary shelter. Ms. M. was left a table and couch by her sister and no other furniture, beds, or any other furnishings required to live. It is not disputed that Mr. A. knew Ms. M. had been a stay at home mum during her relationship with Mr. A., which was particularly due to the young age of N. and the requirement to care for Mr. A. after his stroke. He knew her only source of income, aside from child tax benefit, was approximately $400.00 per month from cleaning houses.

Despite that knowledge, Mr. A. refused to pay child or spousal support between the date of the Parties’ separation and the date of the move to Kelowna, nor would he permit Ms. M. to have any of the household furnishings, even things he was not using. Ms. M. testified that Mr. A. refused to give any of the household furnishings to her unless she waived child and spousal support. [ 15 ] It is not disputed that Mr.

A. paid nothing at all toward the support of N. until a Court Order was made by consent for child support in the amount of $150.00 on March 3, 2016; nor is it disputed that guideline child support, based on Mr. A.’s income, is far in excess of that amount. Mr. A. was later ordered to pay $276.00 per month on April 7, 2016 based on an estimated guideline income of $30,700.00. At no time has Mr. A. voluntarily offered or paid child support aside from consenting to do so at Court after the court application. [ 16 ] It is not disputed that the Parties agreed on January 22, 2016, that Mr.

A. would have parenting time with N. on Mondays, Wednesdays and Fridays and every other Sunday. However, he missed several of those parenting occasions due to changes in his appointments, and on at least one occasion, because he chose to go ice fishing instead. He chose not to inform Ms. M. of his intention not to exercise parenting time until after the time at which he was to have picked up N. had passed, which resulted in Ms. M. missing some of the little work she had. [ 17 ] She made every effort to obtain employment and housing sufficient to meet their needs but was unable to do so.

She was told by her landlord that she had to leave that residence on February 20, 2016. She had run out of funds to live on. At that point, she took up the offer of employment and housing made by a friend in Kelowna and left Prince George with N. [ 18 ] Ms. M. now works as a live in nanny in the five bedroom home of her friend in Kelowna. At the hearing in March, she testified that all of her children would be joining her there by the end of March. She now has sufficient income to support her children in that residence and she has the use of a spare room where Mr.

A. can stay if he wishes to visit N. in Kelowna. [ 19 ] She testified that N. is a typical active one year old baby and that he continues to awaken several times per night, requiring her attention. CREDIBILITY [ 20 ] I listened carefully to the evidence of the Parties when they testified and I have also considered their Affidavits which were filed in this proceeding. I found Ms. M. to be a straightforward and reasonable witness whose account of events made sense. She was surprisingly sympathetic, compassionate and accommodating to Mr A. I found that Mr. A. to be quite the contrary. Although Mr.

A. admits that he told Ms. M. and the children to leave the family home, he described his manner of doing so as “I might have asked her to leave.” This response is a gross minimization of ordering his spouse, baby, and her 4 children to vacate their home. [ 21 ] Similarly, Mr. A. seems to be eager to abide by the recommendations of the GF Strong report only when they happen to suite his choices, but not otherwise. For instance, he agrees that the children cause him fatigue and frustration and he should have quiet time away from the children when he can use that to rid himself of Ms.

M.’s children, but will not acknowledge that N., as a one year old, could make him frustrated and angry and that he is afraid he can’t handle him, despite his admission to that effect to C.E. [ 22 ] Similarly, while he justifies missing parenting time with N. when it suited him to go to programs or sessions for rehab (or go ice fishing), he has not stopped consuming alcohol despite the clear instruction to do so which he admits is right on the label of the blood thinning medication he takes and despite the notation in the GF Strong report that consuming alcohol was a contributing factor to his stroke.

When confronted about continuing to drink contrary to medical advice, he repeatedly asserted that “it had not been proven” that alcohol was a factor and asserted “No one said anything about alcohol use” in direct contradiction to the remarks and recommendations in the GF Strong report.

[23] I am particularly concerned however, that Mr. A. seems untroubled by a gross misrepresentation contained in his Affidavit. Mr. A. swore in his Affidavit that Ms. M. had transferred a trailer registered in his name to a neighbour without his knowledge, claimingin his Affidavit, sworn February 23, 2016, that “we had paid $16,000 for it.” Mr. A. admitted in his testimony that his only contributionto the acquisition of the trailer was the payment of the Provincial Sales Tax on it and that, in direct contradiction to his sworn Affidavithe had contributed nothing to the $16,000.00 purchase price of the trailer.

Once Ms. M. paid him back by agreeing to let him retain thefamily washer and drier, he transferred the trailer into the name of Ms. M., because it belonged to her. Yet he sought to create theimpression that Ms. M. had improperly sold a trailer registered to him and at least in part, owned by him, when that was completelyuntrue. [24] As a result of the foregoing I place no weight on the evidence of Mr. A. and where his evidence differs from that of Ms. M., Iprefer the evidence of Ms. M. ISSUES Should Ms. M. be required to return N. to Prince George? What parenting regime is in N.’s best interest?

LAW Relocation [25]

Section 46 of the FLA applies to this situation because there was no written agreement or court order in place at the time of themove from Prince George to Kelowna, the change in the child’s place of residence can reasonably be expected to have a significantimpact on the child’s relationship with another guardian and because Ms. M. had made an application for parenting arrangements. Inorder to determine what parenting arrangement will be in N.’s best interest, I must consider the factors set out in s. 37 of the FLA to dowith the best interests of the child and Ms.

M.’s reasons for the move to Kelowna. [26] Nothing in s. 46 requires that notice be given to the other parent of one guardian’s plan to move. However, s. 48 states thatwhere informal parenting arrangements have been in place for sufficient time to have been established as a normal part of the child’sroutine, then the child’s guardian should not change those arrangements without consulting the other guardian, unless such consultationwould be unreasonable or inappropriate.

Unlike the relocation provisions of Division 6 of the FLA, there is no explicit requirement in s.46 that the move be made “in good faith.” [27] Counsel drew my attention to two case authorities: D.M.M. v. D.F. 2015 BCPC 310 , 2015 BCPC 0310 (“DMM”), andD.G.S. v. J.D.S. 2014 BCSC 2183 (“DGS”). In DMM, the mother was not required to return the baby to Prince George after she movedto Kelowna with the baby without notice to the father. In that case I found that family violence had been perpetrated by the father againstthe mother and that the reason for her without notice move was a legitimate fear of the father.

I found that it was in the child’s bestinterest to remain in Kelowna with the mother because the father’s perpetration of family violence affected his parenting ability to such adegree that he required supervision. [28] In DGS, Mr. Justice Betton found that a unilateral relocation of the children by the mother to Arizona was made in bad faith andcontrary to the provisions of Division 6 of the FLA, but nevertheless, he found it was in the best interests of the children that they not berelocated back to Kelowna.

In that case the relationship between the father and the children was not good, in part through the failures ofthe father to exercise parenting time regularly. The Court found the children’s need for stability and emotional well-being wereparamount. He took into account that the teenaged children were settled and thriving in Arizona and gave considerable weight to theirevidence that they were happy in Arizona and preferred to live there. Position of the Parties [29] Mr.

A. argues that the informal arrangement under which he agreed to exercise parenting time Monday, Wednesday and Fridayand every other Sunday, qualifies under s.48 of the FLA, such that Ms. M. was obliged to consult him before moving. He further arguesthat since she did not consult him that shows bad faith on her part.

If she showed bad faith by not consulting him, then, the argumentgoes, the move was in bad faith, and therefore she should be required to return N. to Prince George. [30] He further argues that the parenting regime that is in N.’s best interest is one in which N. is returned to Prince George so that hisrelationship with his father can be maintained. Mr. A. would like an arrangement in which N. spends equal time with each parent,perhaps on a week off/week on basis. He opposes supervised parenting time. [31] Ms.

M. argues that the Monday, Wednesday, and Friday agreement in place between January 22 and February 20, 2016, doesnot qualify as an arrangement that has been established as a “normal part of N.’s routine” because it was in place only from January 22 toFebruary 20 (less than a month) and in that time Mr. A. had failed to follow it, and unilaterally changed it, repeatedly. Thus, there wasneither sufficient time, nor sufficient regularity, to establish it as a “normal part of N.’s routine.” Even if it were an established routine,Ms. M. argues that it was not appropriate to consult Mr.

A. before leaving, given the circumstances she was in.

[ 32 ] She further argues that the parenting arrangement in N.’s best interest is that he remains in Kelowna with his mother and that he have visits with his father, either in Kelowna or in Prince George as the Parties are able to arrange. She has offered a room for Mr.

A.’s use should he visit N. in Kelowna and points to the arrangements made since the last Court appearance in March as examples of reasonable arrangements made to preserve the relationship of N. with his father. [ 33 ] She opposes unsupervised overnight or lengthy parenting time between N. and his father for two reasons: firstly, that overnight and extended parenting will be too fatiguing and taxing for Mr.

A. given his medical condition, which will result in his being angry and frustrated with N. (which will be bad for N.’s safety and emotional well-being) and secondly, that it is unsafe for N. to be left in his father’s care for an extended periods because Mr. A.’s medical condition is such that he could be incapacitated by another stroke at any time.

DISCUSSION and FINDINGS S. 48 FLA obligation of a guardian not to change informal parenting arrangements without consultation: [ 34 ] I find that the “Monday, Wednesday Friday and every other Sunday” visiting arrangement in place between January 22 and February 20 2016 had not amounted to a “normal part of N.’s routine.” To the contrary, it appears to me that there was no actual routine - it was simply that Mr. A. exercised parenting time when he wished to do so, and not otherwise.

He clearly treated his parenting time not as his obligation, but as his option, to be ignored when other events or better offers intervened. [ 35 ] However, even if it had amounted to an established routine, I find that consultation would not have been appropriate in the circumstances. Mr. A. had already thrown Ms. M. and her children, including N., out on the street. He had already refused to give her child support or spousal support, knowing her income was not sufficient to meet her needs or the needs of the children.

He had already refused to give her any household furnishings, knowing he was in possession of all of the household goods and had, instead, tried to extort from her an agreement that she would seek no child or spousal support. What possible good could any consultation have done, given those circumstances? [ 36 ] It is obvious to me that had Ms. M. consulted Mr. A., that would have made no difference to the reality of the situation - that she had no home, no job, no money and no ability to support herself or N. in Prince George. Mr.

A., having caused the situation in the first place, had demonstrated that he was unwilling to do anything at all to assist her and, in fact, sought to use her poverty and desperation to extort illegal concessions from her to waive support.

Section 46 FLA reasons for the move: [ 37 ] I return to the analysis under s. 46 of the FLA . Under that section, I must consider the reasons for the move and the best interests of the child. [ 38 ] Mr. A. argued that he was entitled to a “reasonable time” to consult counsel before providing any support for his spouse or child, in justification of his failure to provide support for them after kicking them out of their home in Prince George. The argument advanced by Mr. A. is that Ms. M.’s reasons for moving were “only” financial and that Ms.

M. could have, and should have, taken other legal steps to address her financial problems, such as seeking an order in Supreme Court for exclusive occupancy of the family home, or pursuing the father of her other children for child support. Ironically, Mr. A. suggests that Ms.

M. did not need to leave Prince George so quickly, because somehow, during the time period he spent NOT providing support while he “considered” his legal position, she could have obtained not only legal advice, but taken legal proceedings and succeeded in receiving financial support and housing as a result of those proceedings, all before she became homeless and destitute on February 20th. Unfortunately, it is a fact that such legal steps take not only time, but generally also take money, neither of which Ms. M. had. [ 39 ] Mr.

A. testified that his mother, brother, and many other relatives reside in Prince George and I see no reason that he could not, for the sake of his spouse and child, have moved out of the family home and in with his mother, so that his spouse and child could have shelter, but he did not do that, or provide any support to them whatsoever. He had choices in the situation, but Ms. M. did not. [ 40 ] I accept Ms. M.’s evidence that she had applied for numerous employment positions but had no success. She had run out of money and had no means to secure another place to live.

She had been told to leave by the landlord of the residence her sister had temporarily arranged for her. Her requirement for shelter and sustenance for herself and N. was immediate. Unlike Mr A., she had no home or resources in Prince George. [ 41 ] Her financial circumstances were dire. It is reality that shelter, heat, light and food, are things that must be paid for. Without the immediate financial ability to pay for those things, she had no real choice but to go where she could obtain those things. Given Mr. A.’s failure to support his spouse and child in Prince George, I am satisfied that Ms.

M. took the only steps she could to support N. in the only location she could do that: Kelowna. For the reasons given above I find that Ms. M. had good reasons to move to Kelowna. Parenting Arrangements [ 42 ] I now turn to the issue of arriving at a parenting arrangement that is in N.’s best interest. Mr. A. says the arrangement that is in N.’s best interest to live in Prince George, as before, where Mr. A. can have a shared parenting regime with N. and Ms. M. can seek to secure a job and a home sufficient to support her family. Ms.

M. says she has achieved all of that in Kelowna, where N. has the comfort and stability of residing with his mother and siblings, in a nice home where her employment is sufficient to meet the needs of her family, and that she has made reasonable and workable arrangements for Mr. A. to visit and stay with them in Kelowna and for her to bring N. to Prince George. [ 43 ]

Section 37 of the FLA particularizes a number of factors for the Court to consider in determining the best interest of a child.

S. 37(2)(

a) the child’s health and emotional well being: [ 44 ] N. appears to be a healthy and energetic one year old baby. He requires constant and attentive care from a caregiver capable of providing that care 24 hours per day, 7 days a week. His mother provides that care and has always done so. There is no suggestion that the environment she provides for N. could have an adverse effect on his health or emotional well-being. [ 45 ] The same cannot be said for Mr. A. I note that the July 2015 stroke was the second stroke that Mr.

A. has suffered and the evidence before me is that he has a large clot in his brain which could cause another stroke at any time. I note that Mr. A. was immediately incapacitated by the stroke. He was paralysed. He was confined to hospital for months after his stroke. Obviously, if Mr. A. were to suffer another stroke while caring for N. on his own, N. would be at grave risk of harm. Mr. A. testified that he has a plan to call 911 should he suffer another stroke, a plan that is utterly unrealistic given his complete paralysis on the last occasion. [ 46 ] I accept Ms.

M.’s evidence that she saw a case of beer at Mr. A.’s home when she attended there in February and that Mr. A. admits he has consumed alcohol since his stroke. I accept Ms. M.’s evidence that Mr. A. drank heavily during their relationship before his second stroke and I bear in mind his admission that the blood thinner medication he has been taking since his first stroke in 2012 until today warns him specifically not to consume alcohol. [ 47 ] The GF Strong report notes repeatedly that alcohol consumption was a contributing factor to his stroke, but Mr. A. refuses to accept that.

He asserts that he is willing and able to refrain from consuming alcohol when exercising parenting time with N., or even refraining altogether if so ordered, but I have considerable doubts about that assurance. If Mr. A. continues to drink alcohol despite two strokes and multiple medical instructions not to consume alcohol, when his life is at stake, I hardly think he will find it important to abide by a Court Order not to consume alcohol. [ 48 ] Ms. M. says Mr. A. cannot be trusted with overnight or extended care of N. because the brain damage he suffered as a result of the stroke changed his personality. Ms.

M. says that after the stroke Mr. A. displayed overt mood swings and intense frustration and irritability which led to his threatening to take a hammer and smash his stepchild’s reptiles, and his demand on January 13 that she take the kids and “get the fuck out of his house.” Ms. E., a friend of the Parties, gave evidence that Mr. A. told her in January 2016 that he felt frustrated and angry a lot and was afraid he might not be able to handle N. as he grew older. Mr. A. says he does not remember saying that, but I accept the evidence of Ms. E. [ 49 ] Mr. Hutchinson, for Mr.

A., argues that this is an interim hearing and that more extensive and full medical evidence will be presented at the eventual hearing with respect to a final order in this matter. He argues, and I heartily agree, that the Court will be in a much better position to assess the risk to N. of his father’s medical condition and the appropriateness of supervised parenting time once the full medical picture is available. [ 50 ] I am unable, however, to agree that given the state of the medical evidence before me at this time, I should assume that there is no risk to N. being left unsupervised in his father’s care.

To my mind there is a substantial risk of harm, physically and emotionally, to a completely vulnerable baby if he is left alone with a person who has known irrational mood swings, anger issues, a low frustration tolerance and a clear risk of another stroke. S. 37(2)(

b) The child’s views: [ 51 ] As a one year old baby, N. is too young for me to consider his views. S. 37(2)(

c) The nature and strength of the relationships between the child and significant persons in his life: [ 52 ] I accept that N. has a bond with both parents. I accept that N. has a relationship with Mr. A.’s relatives, although that bond is more limited. For instance, B.A., Mr. A.’s brother, testified he had seen N. only four times from the beginning of January to the time Ms. M. left town. On the other hand, N. has a relationship with his siblings with whom he had spent all his life, except while accommodating Mr. A.’s medical condition and/or demands required them to live apart temporarily. I understand N. has been reunited with those siblings since the move to Kelowna. Section 37(2)(

d) the history of the child’s care: [ 53 ] I accept that Ms. M. has provided primary care for N. since his birth. Before his stroke, Mr. A. participated in N.’s care when his work permitted, but he was often away working. While Mr. A. was in hospital, Ms. M. provided all of N.’s care and after the stroke, Ms. M. provided the bulk of N.’s care because Mr. A. was unable to do so. As his recovery has progressed, Mr. A. has provided more care and did take care of N. during the day, three days per week, after the Parties separated and before Ms. M. left Prince George, except when he unilaterally cancelled that parenting time. He has never had unsupervised overnight care of N. Section 37(2)(

e) The child’s need for stability, given the age and stage of development of the child: [ 54 ] I am of the view that for a small baby, stability in his life is provided by his home and the people around him, not the greater community he lives in. N. has already been substantially disrupted by multiple moves, first in leaving the family home, then to and from the hotel, then to and from the apartment without furnishings and lastly to Kelowna. He has now been residing in the same home in Kelowna since February 20, 2016.

The one constant person in his life is his mother, whose work in the home looking after her employer’s children enables her care for him as well. Thus he always has the benefit of his mother’s care in a constant setting. A return to Prince George, without a residence and without employment for his mother, would completely disrupt that stability. Section 37(2)(

f) The ability of each guardian to exercise his/her parenting responsibilities:

[ 55 ] As I have found in my remarks to do with the application of s. 37(2)(a), Mr. A. has a medical condition that poses a risk to N.’s safety should he be left alone in Mr. A.’s care. Mr. A. is at substantial risk of an incapacitating stroke. Even if he did not suffer another stroke, his medical condition renders him less able to manage his anger and frustration which has manifested itself in lurid, angry threats to his stepchild and his demand that his spouse and the children leave their home. I am not satisfied that Mr. A. has the ability care for an active baby on his own. [ 56 ] Further, Mr.

A. continues to require substantial rehabilitation. Most recently that rehabilitation required him to reside in Vancouver for three weeks. While he was in Prince George, he was required to attend various appointments. He explained his failure to exercise parenting time by the necessity of his attendance at these appointments. He did not give advance notice to Ms. M. that he would not exercise this parenting time nor did he make any arrangements to have child care in place when he could not attend. Clearly, Mr. A. does not perceive that the exercise of parenting time is a responsibility, rather than a choice.

Given his attitude, I question his ability to exercise his parenting responsibilities. Section 37(2)(

g) the impact of family violence on the child’s safety, security and wellbeing: [ 57 ] Mr. Hutchinson argues that this consideration does not apply because there is no family violence complained of. Mr. Pakenham argues for Ms. M. that the anger and frustration exhibited by Mr. A. should cause the Court to have concern with respect to family violence.

Section 1 of the FLA defines family violence to include a number of behaviours, only one of which is physical abuse of a family member. Family violence can also include deprivation of the necessities of life, coercion or threats, and includes threats respecting other persons, pets or property. [ 58 ] In this case I find that Mr. A. threatened, when angry, to take a hammer to his stepchild’s reptiles. I have already found that Mr. A. kicked his spouse, child and stepchildren out of their home, knowing they had nowhere to go and were unable to support themselves.

He then exacerbated that problem by refusing to provide any furnishings in an attempting to coerce a waiver of child and spousal support from Ms. M. These are all forms of family violence. [ 59 ] I find this behaviour certainly effected N.’s security and well-being since it rendered him and his mother and siblings homeless and without support. The lurid threats to the stepchild must have been terrifying to the family members present. Mr. A.’s persistent irrational anger would have created an oppressive atmosphere in the home.

Although N. would have been too young to understand the meaning of the threat, I find that the anger displayed by Mr. A. and the fear and alarm that occasioned to the other family members would have had an adverse effect on his emotional well-being. Section 37(2)(

h) whether the actions of the person perpetrating family violence may be impaired in his ability to care for the child: [ 60 ] It seems to me obvious that anyone who behaves as Mr. A. did is impaired in his ability to care for N. and meet his needs - Mr. A. did not, in fact, meet his needs. Ms. M. did that. Mr. A. does not even acknowledge that to treat his family, including his stepchildren as he did, was wrong. He appears to think he was justified in behaving in a threatening, coercive, and high handed manner. He has given not the smallest indication of contrition.

He appears to think he has “rights” with respect to N. that everyone else must accommodate, but that he does not have any responsibility to do anything. Whether these self-entitled attitudes are pre-existing personality characteristics or an unfortunate consequence of the stroke, I find that these attitudes and Mr. A.’s conduct towards his family demonstrate that he is impaired in his ability to care for N. and to meet N.’s need for security and emotional well-being. Since Mr. A. appears to feel his behaviour does not require modification, I have no confidence that this situation will improve. Section 37(2)(

i) whether the need for the Parties to cooperate regarding parenting arrangements would effect the security and well- being of the child or other family members: [ 61 ] There is no suggestion that there is a risk to the safety of anyone regarding making parenting arrangements. The Parties have recently demonstrated a good ability to communicate in that regard. In particular, Ms. M. has voluntarily brought N. to Prince George on two occasions to facilitate parenting time for Mr. A. with N. without any court ordered obligation to do so. Since Mr.

A. is not working, nothing prevents his attendance in Kelowna for parenting visits, whether or not he is inclined to take Ms. M. up on her offer of accommodation. DECISION [ 62 ] In view of the foregoing, I find that the parenting arrangement that is in the best interest of N. is to remain in his mother’s care in Kelowna. Mr. A.’s Notice of Motion seeking to have N. returned from Kelowna and declaring that N.’s residence to be Prince George is dismissed. [ 63 ] With respect to parenting arrangements, N. will reside with and remain in the primary care of Ms. M. in Kelowna. Mr.

A. will have reasonable parenting time supervised by Ms. M. or a person she approves, either in Kelowna or in Prince George, at dates and times that the Parties agree. During any time that Mr. A. exercises parenting time supervised by someone other than Ms M., he must not consume alcohol. Ms. M. will facilitate any reasonable request by Mr. A. to exercise parenting time with N. via Skype. [ 64 ] I understand that a Family Case Conference was already scheduled for June 15, 2016, before this decision was to be delivered. Mr.

Hutchinson submitted that it might be best to adjourn the Family Case Conference until after this decision was rendered. I therefore order that this matter go to the Judicial Case Manager to fix a date for a Family Case Conference after August 1, 2016.

____________________ S.K. Keyes Provincial Court Judge Province of British Columbia