J.F.A. v. P.J.A. Date:, 2017 BCPC 369

Citation: J.F.A. v. P.J.A. Date: 20171130 2017 BCPC 369 File No: 16818 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.F.A. APPLICANT AND: P.J.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Applicant: Ms. Aachal Soll Counsel for the Respondent: Mr. Jacob Brown Place of Hearing: Kamloops , B.C.

Dates of Hearing: July 5, 25, August 9 and September 1, 2017 Date of Judgment: November 30, 2017 [ 1 ] On June 27, 2017, the applicant, J.F.A., filed an application in Kamloops for an order providing for child guardianship, parenting time and a protection order, amongst other relief, all pursuant to the provisions of the Family Law Act [SBC 2011]

Chapter 25 (“the Act ” or “the FLA ”). [ 2 ] The applicant and the respondent, P.J.A., are the parents of the children Z.J.A. (“Z.”), born [omitted for publication], and A.H.A. (“A.”), born [omitted for publication]. Both parents are presumptive guardians of the children under s. 39 (1) of the FLA . The children are physically present in Kamloops. [ 3 ] P.J.A. opposes the application and submits that this court should decline to exercise jurisdiction on the strength of the FLA ,

Part 4, Division 7 ( Extraprovincial Matters Respecting Parenting Arrangements ) commencing at s. 72. The respondent’s submission is put on the footing that in applying the tests set out in s. 74, this matter is more properly brought before the Yukon courts. [ 4 ] A protection order was granted by this court on an interim basis on July 5, 2017 and has been extended until judgment is given on this application. I am advised that there are no orders made by or applications pending before the Yukon courts. [ 5 ] The evidence heard on this application has been by way of affidavit.

J.F.A. swore or affirmed two affidavits, the first on July 14, 2017 and the second on July 24, 2017. P.J.A.’s affidavit was sworn or affirmed on July 19, 2017. Facts Not in Issue [ 6 ] The parties dated when they were teenagers in high school about 2006 or 2007. In 2009, after graduating high school, the couple lived together in Surrey with J.F.A.’s parents. That same year the parties moved to Whitehorse, Yukon, where the parties lived with P.J.A.’s parents.

P.J.A. was employed by his father’s construction company. [ 7 ] In 2011, the parties moved to Red Deer, Alberta where P.J.A. was enrolled in a school to learn to become a heavy equipment operator. In 2012, while J.F.A. was expecting with Z.J.A., they moved to Surrey. P.J.A. attended in Surrey when he was not engaged in work with his father’s company. The same year P.J.A. took a job in a mining camp in Yukon, working three weeks in and three weeks out. [ 8 ] Shortly before Z.J.A. was born in October 2012, J.F.A. moved to Victoria to be with her family.

P.J.A. was laid off from the mine in the spring or early summer of 2013. On July 3, 2013 the family returned to Whitehorse where P.J.A. worked sporadically with his father’s construction company. [ 9 ] In 2013, J.F.A. became pregnant with A.H.A. The infant was born [omitted for publication] by emergency caesarean

section due to internal bleeding suffered by J.F.A. [ 10 ] Following A.H.A.’s birth, J.F.A. suffered from depression and from persistent pain due to fibromyalgia. [ 11 ] The parties were married on March 12, 2016. In September of the same year J.F.A. enrolled on a full time basis in the Northern Science program at Yukon College. The parties separated in December, 2016 and J.F.A. found housing. They agreed to a one week on, one week off parenting arrangement.

In March, 2017, J.F.A. and the children moved back in with P.J.A. [ 12 ] On April 26, 2017, the parties flew to Vancouver as P.J.A. had a medical consultation scheduled. The children remained in Whitehorse. Rather than returning to Whitehorse with P.J.A., J.F.A. remained in greater Vancouver to attend for medical and therapeutic treatment, including an attendance at the Delta Hospital for pain in the lower abdomen and “vaginal areas”. [ 13 ] J.F.A. returned to Whitehorse on May 12, 2017 and filed a sexual assault complaint against P.J.A. with the Whitehorse detachment, RCMP.

P.J.A. was consequently arrested and released by police on terms restricting his contact with J.F.A. [ 14 ] On May 26, J.F.A. withdrew her police complaint against P.J.A. and the bail terms were cancelled. That same day, P.J.A. provided an undated written consent for J.F.A. and the children to go to British Columbia for a month. [ 15 ] Between May 26 and June 3, 2017, J.F.A. and the children stayed with P.J.A. at his home. On June 3, 2017, J.F.A. left Whitehorse for British Columbia with the two children. After arriving in BC, J.F.A. left the children with her mother and found accommodation for them in Kamloops.

Since then the children and the applicant have been residing in Kamloops, without the agreement or consent of P.J.A. Allegations by J.F.A. [ 16 ] J.F.A. has alleged that she was sexually bullied, abused and sexually assaulted by P.J.A. over a period of 11 years, from the inception of their relationship in high school in Surrey until its conclusion in Whitehorse in 2017.

The applicant made a complaint to the police in Whitehorse on May 12, 2017 but withdrew the complaint two weeks later after what she described as manipulation by P.J.A. and his parents in violation of his bail terms. [ 17 ] J.F.A. also alleged that the respondent used displays of temper and violence, verbal abuse and property damage to keep his family in a state of fear. She expresses that both she and the children remain afraid of P.J.A. [ 18 ] P.J.A. has disputed the allegations as being largely untrue.

Allegations of Anger, Control and Abuse [ 19 ] J.F.A. gave evidence that P.J.A. would become very angry with Z.J.A. when Z.J.A. was an infant and he couldn’t stop Z.J.A. from crying. He would tell J.F.A. to deal with her “fucking kid.” He spoke of their dog in a similar manner in front of both of the children. P.J.A. agreed that at times he told J.F.A. to “get her fucking dog.” [ 20 ] According to J.F.A., the respondent could become irritated or angry with children over trivial matters and began hitting them across the head.

He would hit them across the head if they bothered him while he was engaged with his cell phone. The respondent would also spank the children if they did not stay in bed. [ 21 ] P.J.A. denied hitting the children across the head but stated that he would tap them on the forehead with a few fingers as a form of discipline not meant to cause pain or hurt. He agreed he would spank both children but not in any violent manner. He always used only his fingers “and only hard enough to get their attention, not to hurt them.” He said the applicant resorted to this spanking just as often as he had.

He had observed J.F.A. slap Z.J.A. in the face several times for misbehaviour and for hurting her. [ 22 ] The applicant replied that P.J.A. did not hit the children with his fingers but used a full hand with a great deal of force behind it, sufficient to cause them to cry and scream in pain. [ 23 ] The respondent stated in his affidavit that on occasion, Z.J.A. would get extremely upset and would yell and scream.

P.J.A. described moments of extreme frustration where he would yell back at Z.J.A. to get him to stop yelling at P.J.A. [ 24 ] The applicant gave in evidence that the respondent disapproved of her relationship with her parents and over the years discouraged her contact with them. [ 25 ] J.F.A.’s evidence included assertions that P.J.A. refused to work at low paying jobs and would yell at his father complaining about his rate of pay when his father had work for him.

P.J.A. agreed there had been an argument with his father over the rate of pay applicable on a particular job. [ 26 ] The applicant said that P.J.A. had a habit of punching surfaces such as walls, doors and a filing cabinet out of anger and showed the applicant holes he had punched. He would punch walls in the presence of the children.

He also slammed doors out of anger, also in the presence of the children, and sufficiently hard that he would damage the door frame and his father would make repairs. [ 27 ] J.F.A. said that the children would run to her in fear when the respondent engaged in these displays of anger. [ 28 ] P.J.A. admitted that he slammed doors occasionally and did break a door jamb which he repaired himself. He admitted he punched a wall in the bedroom but there were plans to remove that wall.

He also agreed that he put a hole in a bathroom door out of frustration and that he had punched a hole in a filing cabinet when he was upset and frustrated. [ 29 ] J.F.A. observed that the respondent exhibited road rage for as long as she knew him by showing his middle finger to people, pressing down the horn and swearing a lot even when the children were present. P.J.A. said he could be loud and passionate in argument but denied that he had exhibited road rage.

He added, “I have never once been violent.” [ 30 ] In December, 2016, when J.F.A. moved out of the family home, she said the respondent did not accept her decision to live apart. She described that he stayed at her house numerous times. She described that she felt that he had the power and that she was helpless to disobey him. In retrospect, she is of the view that he was very possessive and controlling of her.

The respondent denied this and deposed that the applicant invited him over to her home to assist with child care and to spend the night. [ 31 ] The applicant said she became increasingly concerned that P.J.A. was taking out his anger and frustration on the children by hitting them. In January, 2017, she reported her concerns to her family support worker who reported it in turn to child protection services. No child protection proceedings were commenced. [ 32 ] Thereafter, J.F.A. said P.J.A. would yell and swear at them, calling them names such as “jerk”, “asshole”, “bitch” and “cunt”.

She said his anger would rise over little things, such as the children not cleaning up their toys or for asking for help in getting their shoes on. The respondent denied yelling or swearing at the children but agreed he called them jerks when they misbehaved. [ 33 ] The applicant has been concerned that the children, in the course of playing or rough-housing with each other, are reflecting their fear of their father in their play. [ 34 ] J.F.A. said the respondent told her that he had stopped hitting them on the head after being reported or he would say that he hardly hit them at all.

The applicant noted a return from parenting time with the respondent that Z.J.A. would flinch fearfully if anyone moved too quickly around him. The respondent said he was not aware of any flinching by Z.J.A. but denied that it was due to him hitting the child. [ 35 ] The respondent said that if the applicant had legitimate concerns for the safety of the children while in his care, she would not have left them in his care for a month during the period April - May, 2017. The applicant said it was not true that she trusted him with the children, but it was necessary that she leave.

She said that she had requested child protection services and the day care to keep an eye on the children while she was away. [ 36 ] The applicant asserted that in the last year of the relationship, 2016 - 2017, she was ill and suffering from depression and fibromyalgia. She was also a full time student. The respondent was not working and assisted with the care of the children and she agreed that she sometimes stayed in bed until 10 or 11 a.m. before going to school. [ 37 ] The applicant observed on occasion that Z.J.A. would try to get his father’s attention.

She described that the respondent would ignore Z.J.A. until he would hit Z.J.A. across the head or spank him. J.F.A. deposed that Z.J.A. now hits himself and punches his own

face when he gets frustrated or feels he is not up to the task at hand. [ 38 ] J.F.A. said that over this period that the children did not respond to her “gentler forms of discipline” and became more violent to her. She assumed the children had witnessed how the respondent had treated her. The children would kick, hit or bite her and on one occasion bruised her. To her subsequent regret, J.F.A. spanked them. She had spanked the children before but she said not with the frequency or force with which the respondent spanked the children.

She said both children laughed at her and told her “that didn’t hurt, mommy.” The respondent later apologized to the children and said she would not hit them again. Sexual Allegations [ 39 ] J.F.A. related at some length her sexual history with P.J.A. from the point that they were dating in high school. From the start of their relationship, she said, he pressured her into sexual contact she did not want.

P.J.A. would frequently persist in unwanted sexual contact with her regardless of her telling him that she did not want to, that he was hurting her or that she wanted him to stop. [ 40 ] J.F.A. related at paragraph 49 of her first affidavit that: Any intercourse with the respondent was painful for me. The respondent never once cared for my needs. I was always in pain and always had vaginal bleeding from the violent sex he had with me. [ 41 ] P.J.A. deposed that he loved the respondent and had always cared for her needs. If she had ever indicated that she was in pain during intercourse he would have stopped.

He had never forced himself on the applicant. [ 42 ] They were both sexually active, he said. He described the applicant as an eager participant and an equal initiator of the sexual activity between them. He was not aware of any of the vaginal bleeding she claimed. J.F.A. replied at paragraph 13 of her second affidavit that she told him about the vaginal bleeding and that the flow was sufficient that she had to use a sanitary napkin. [ 43 ] In the summer of 2010, the parties were resident in Whitehorse. J.F.A. travelled to Surrey. J.F.A. said that during that trip she had sex with another man.

She said she told P.J.A. this over the telephone. [ 44 ] At paragraph 27 of her first affidavit, J.F.A. described her return home in the following terms: As soon as I walked through the trailer door, the Respondent grabbed me and pulled me into the back where the beds were and then slammed me into the bottom bunk bed. He held me down and told me that I was not allowed to that again and that I was his forever. He then raped me as hard as he could. I kept telling him to stop.

He told me that I deserved this because I was a “dirty bitch” and that I was his bad girl. (Emphasis in original.) [ 45 ] P.J.A. denied this incident occurred in the manner described and said that the applicant had reported to him that she had been sexually assaulted. The respondent denied having non-consensual sex with the applicant. [ 46 ] After the parties moved to Red Deer in 2011, J.F.A. went to the hospital several times for unexplained lower abdominal pains. While in Red Deer she had “a few miscarriages”.

She stated her opinion that “I think [the miscarriages were] from the respondent roughly forcing himself on me”. This statement is evidence of repeated, forcible sex but it is not proof of the medical cause of the miscarriages. [ 47 ] When the parties were living in Victoria, BC after Z.J.A.’s birth in 2012, P.J.A. would join the family when not working at the mining camp. Of her relationship with P.J.A. at the time, J.F.A. said at paragraph 40 of the first affidavit: If he wanted sex, my refusal would never be heeded. He would make me guilty and would keep pressuring me until he got what he wanted. Always.

I gave in to his advances so that he would leave me alone. If I did not, he would just force himself on me and ignore my refusal. [ 48 ] She described herself as having post-partum depression. She said thought that she was emotionally dependent on P.J.A. She began to think about “getting a divorce” but felt he would never let her leave. [ 49 ] At paragraph 4 of the first affidavit, J.F.A. recounted that on the many occasions they went away for “something special”, P.J.A. would force himself on her or make her feel guilty enough to do what he wanted her to do.

On one occasion he yelled at her words to the effect of “what the fuck was the point of us going if we were not going to have sex.” [ 50 ] J.F.A. said that when she became pregnant with A.H.A., P.J.A.’s forceful sexual advances continued. On February 7, 2014 he had violent sex with her which was followed by blood “gushing” from her. She described being rushed to the hospital for emergency care for the internal bleeding. A.H.A. was born the following day, about five weeks early, by way of an emergency caesarean

section due to the bleeding. [ 51 ] Of this episode, P.J.A. stated at paragraph 42 of his affidavit that he and the applicant were having consensual sex when they noted a large amount of blood emanating from her. They rushed her to the hospital.

P.J.A. was of the view that the bleeding was not due to any violent sex, but “was simply a complication due to the birth of A.H.A.” [ 52 ] There was no medical evidence adduced on this hearing which would cast light on the relationship, if any, between the violent sex described by the applicant, the internal bleeding observed by both parties and the subsequent premature birth of A.H.A. [ 53 ] In or around 2015, J.F.A. deposed, she stopped resisting the sexual advances of P.J.A. and did the sexual acts he wanted.

She said he had not been deterred by either her crying or her vaginal bleeding. [ 54 ] When J.F.A. reported that after finding separate accommodation in December 2016, she visited the respondent at his home. She said he then pressured her to get drunk with him. When she did, she said, he had violent anal sex with her. P.J.A. denied this and said that

they had consensual anal sex, when she told him to stop he did. He said that on many occasions she initiated the anal sex. This was not agreed by J.F.A. [ 55 ] After that episode, the applicant alleged that the respondent began to put his finger in her anus even though she had said “No” and told him it hurt. She went on to say at paragraphs 90 and 91 of her first affidavit the following: If we had intercourse he would always try to put his penis in my anus making me angry and I would have to tell him no again.

This did not stop him poking at my anus or attempted anal sex or him making comments towards how I should let him have anal sex. The respondent purchased an anal sex toy, and then constantly harassed me to let him use it on me. I refused. He would often jab it into my backside through my pants when I bent over. [ 56 ] P.J.A. admitted the purchase of an anal sex toy for the applicant but denied using it or assaulting her with it. [ 57 ] In March, 2017, after J.F.A. and the children resumed living with P.J.A., she said that he persisted in forcing himself upon her.

This is denied by the respondent. [ 58 ] The applicant said that he began to hit her hard across her lower back, causing her a lot of pain. She would tell him to stop and explain how much it hurt. He would apologize and say he wouldn’t do it again. P.J.A. denied hitting her lower back to cause her pain and said that although he did smack her “bum” playfully, he did so without any intention to hurt her. [ 59 ] On May 11, 2017, while J.F.A. was still in Vancouver, she texted P.J.A. about him engaging in sex with her while she was asleep.

Several screen shots of this text conversation were captured and exhibited to the applicant’s first affidavit. [ 60 ] In that text conversation, the respondent, in response to a comment of the applicant about unwanted penetration, texted to the applicant “And I told you that I would never do that” and “I won’t break that promise.” J.F.A. responded “This is what I have nightmares about PJ…” and “You have promised me many times and many times you have broke [sic] that promise.

How am I supposed to believe you when you say you promise now?” P.J.A. responded “Because I have never done it again .” (Emphasis added.) [ 61 ] In the text conversation J.F.A. complained to the respondent that he had penetrated her anally or vaginally multiple times after promising not to do that and how upsetting she found that. P.J.A. replied “Not while you are sleeping and ok I won’t do anything to you in the morning.” She responds “Yea, you have twice while I was sleeping!!”, “Wake up to you shoving it in”, “Twice”.

The respondent adds “I won’t touch you I promise.” The conversation ended shortly thereafter. [ 62 ] In response to this allegation, in his affidavit P.J.A. denied sexually assaulting J.F.A. while she slept and stated at paragraph 89 of his affidavit: …my responses to the claimant’s text messages were sent in order to try to convince her to return to Whitehorse. I was not agreeing with any of her allegations in the text messages.

I do not find this a convincing explanation for the admission carried within the texted answer “Because I have never done it again” made in response to the question “How am I supposed to believe you?” [ 63 ] It seems clear from her affidavits that J.F.A. had determined by May 11, 2017 that she would be making a criminal complaint about P.J.A. to the RCMP in Whitehorse and indeed she did on her return to Whitehorse the following day. To the extent that J.F.A. was trying to capture an admission from P.J.A. that he had done the things alleged, she was at least partially successful.

His statement that he had “never done it again” carried the implication that hat he had done it before. It is also noteworthy that in the text conversation, P.J.A. did not deny the allegations she repeatedly made against him in circumstances where an express or implicit denial would have been expected if her allegations were false. [ 64 ] P.J.A. set out in his affidavit that he never sexually assaulted the applicant when she was sleeping or otherwise. The respondent has sworn that he attends therapeutic counselling every two weeks and is looking for an anger management program.

Findings on the Evidence [ 65 ] I bear in mind that I have heard no oral evidence on this application and there has been no cross examination of either of the parties. Nonetheless, on the evidence before me I am satisfied that the applicant, J.F.A., has established on a balance of probabilities that she and the children were, during the currency of the relationship, victims of family violence at the hands of P.J.A. as that term is defined in s.1 of the FLA . [ 66 ] I have preferred the evidence of J.F.A. in her descriptions of P.J.A.’s conduct with respect to her, the children and family violence generally.

She described her relationship with the respondent as a decade of mistreatment. [ 67 ] The respondent’s affidavit evidence was not convincing on a number of issues including the topic of his recurrent abusive language to family members including the children, his demonstrations of temper with and in front of the children at home and while driving, his pattern of causing damage to the home, his excessive corporal punishment of the children as well as the accounts of the sexual activity he engaged in and the bullying and level of violence involved therein, including the phone text discussion of May 11, 2017. [ 68 ] The s. 1 definition of family violence in the Act reads 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 of reasonable 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, (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence; [ 69 ] In considering the best interests of a child, the FLA directs our attention to s. 37 (2) which requires that all of the child’s needs and circumstances must be considered, including those listed in subsections (2) (

a) through (j). Two of the factors, (

g) and (

h) relate to family violence : 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 70 ] In assessing the factors set out in s. 37 (2) (

g) and (f), the court must also have regard to s. 38 which provides: 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 directed at 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. [ 71 ] As it relates to J.F.A., the finding of family violence includes physical and in particular sexual abuse in respect of J.F.A., psychological or emotional abuse including intimidation, harassment and coercion and intentional damage to property. The finding covers a pattern of coercive and controlling behaviour directed at the applicant which over time negatively impacted her ability to assert

herself for her own benefit and that of her children. By 2017, it had become very difficult for J.F.A. to cope with the respondent, her physical and mental health issues and to care for her children. [ 72 ] With respect to the impact of the respondent’s conduct on the children, the finding of family violence does not include sexual abuse but does, I’m satisfied, include physical as well as psychological or emotional abuse, intentional damage to property and direct and indirect exposure to family violence.

This took place over a period of years and continued into 2017. [ 73 ] The evidence supports the conclusion that the family violence was serious, serial, persistent and sufficiently frequent that the parties and the children were all well familiar with it and reacted to it when it occurred. J.F.A. has observed fearful and identifiable behaviours in the children at the time and since; behaviours that she reasonably considers to be evidence of the harm caused to the children’s physical, psychological and emotional safety, security and well-being as a result of the family violence perpetrated by the respondent.

I am satisfied that this has amounted to serious harm, a subject to which I will return. Statutory Framework [ 74 ] The question as to whether a court should assume jurisdiction in a matter where children have been removed from the place where they have been habitually resident is addressed in

Part 4, Division 7 of the Family Law Act . In the present case the children were habitually resident in Whitehorse. The removal of the children to Kamloops in these circumstances and without the consent of their father does not affect their place of habitual residence (s. 72 (3) FLA ). [ 75 ] The manner of determining whether a British Columbia court should act under

Part 4 of the FLA is set out in s. 74 (2) of the Act , which provides three avenues to the grant of an order relating to guardianship. The applicant relies on only one avenue: s. 74 (2) (c): 74 (1) …

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met : (a) … (b) … (

c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (

i) remain with, or be returned to, the child's guardian, or (ii) be removed from British Columbia.

(3) A court may decline to make an order under this

Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. (Emphasis added.) [ 76 ] The questions to be addressed under s. 74 are threefold. Firstly, whether the children would suffer serious harm if they were returned to live with their father in Yukon. [ 77 ] Secondly, even if satisfied that the test under s. 74 (2) (

c) is met, whether this court should nonetheless decline to make the order sought if it is more appropriate for jurisdiction to be exercised in Yukon. The discretion to decline to exercise jurisdiction here is delegated to the court under s. 74 (3). [ 78 ] Thirdly, assuming I find that it has been established that the child would suffer serious harm if returned, and that jurisdiction is not otherwise declined, consideration must be given as to what order should be made. “Serious Harm” [ 79 ] This framework was considered in D.M.S. v. C.L.S. , 2016 BCSC 1551 , a decision of Mr. Justice Saunders. In considering s. 74 (2) (

c) of the Act , Justice Saunders said at paragraph 50 the following with respect to the burden and standard of proof: 50 Before making any order, I must therefore be satisfied - which I take to mean, I must find on a balance of probabilities - that the children would - not may, but would - not merely face a risk of serious harm, but actually be seriously harmed. [ 80 ] Clearly, the finding of a potential for serious harm to the child will not be sufficient. Neither is the standard one of proof beyond a reasonable doubt. A judge must be satisfied that it is more likely than not that serious harm would occur to the children if they (

i) remain with, or are returned to the guardian, or (ii) are removed from British Columbia. [ 81 ] Mr. Justice Tindale also gave consideration to the meaning of “serious harm” in Charnock v. Charnock , 2016 BCSC 44 , where the issue was whether or not the children in that case would suffer serious harm if they were removed from British Columbia. [ 82 ] Reflecting on the meaning of “serious harm” Justice Tindale wrote: 33 The FLA does not define the term "serious harm". As reproduced above, the FLA has defined family violence to include physical, psychological or emotional abuse and damage to property.

A plain reading of the term "serious harm", taken in conjunction with the objectives of the FLA, would simply mean significant physical, psychological or emotional abuse or significant damage to property.

34 The determination as to whether "serious harm" would result has to be based on the facts of each specific case. A single incident of family violence that involved a derogatory remark being made to a child may not necessarily lead to a determination that "serious harm" would occur if the child was returned to a particular jurisdiction.

However, a single incident of a threat to use a firearm against a spouse or child may in itself result in a determination that "serious harm" would occur if the child was returned to a particular jurisdiction. 35 Likewise, a series of relatively minor derogatory remarks made to a child may by their cumulative effect cause serious emotional damage or harm to the child. [ 83 ] Justice Saunders in D.M.S. at paragraph 53 agreed that a determination as to whether serious harm will result to a child is a “highly fact-specific process”.

He also stated that significant abuse falling within the definition of family violence will perforce constitute serious harm.

In his analysis, the word “abuse” captured both the conduct of the perpetrator and the effect on the victim, whereas the term “serious harm” was concerned only with the effect on the victim. [ 84 ] Conduct that does not rise to the level of abuse may result in serious harm but it may be more difficult in those circumstances to determine that serious harm is more likely than not to be the end result. [ 85 ] In the case at bar, I am satisfied that J.F.A. has shown on the civil standard of proof that that the children would suffer further serious harm if they were returned to P.J.A. in Yukon.

There is no reason, beyond speculation, to believe that the prolonged and repetitive pattern of abusive behaviour laid down by the respondent over a period of years would not cause or continue to cause serious harm to his children. The Discretion to Decline Jurisdiction [ 86 ] Section 74 (3) of the Act , as set out above, provides that:

(3) A court may decline to make an order under this

Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. [ 87 ] The objects of Division 7 are set out at s. 73 of the Act : 73 The purposes of this Division are as follows: (

a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child; (

b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction; (

c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child; (

d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders. [ 88 ] Counsel have also referred to s. 11 of the Court Jurisdiction and Proceedings Transfer Act (the “ CJPTA ”) which has been described by the Court of Appeal in Shortridge-Tsuchiya v. Tsuchiya 2010 BCCA 61 , paragraph 60 , as a codification of the doctrine of forum non conveniens : 11

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (

b) the law to be applied to issues in the proceeding, (

c) the desirability of avoiding multiplicity of legal proceedings, (

a) the desirability of avoiding conflicting decisions in different courts, (

e) the enforcement of an eventual judgment, and (

f) the fair and efficient working of the Canadian legal system as a whole. [ 89 ] Madam Justice Prowse, at paragraph 61 of Shortridge-Tsuchiya , commented that there was no inconsistency between s. 11 of the CJPTA and s. 46 of the former Family Relations Act (the “ FRA ”) (now s. 74 (3) of the FLA ). She went on to say in the same paragraph: The factors to be considered under s. 11 are inclusive, not restrictive, and permit the court to consider the purposes of

Part 3 set forth in s. 43 of the FRA , ( FLA s . 73) including the best interests of the child, in making the determination whether to decline jurisdiction. Further, the other purposes of

Part 3 are reflected in common goals of avoiding multiplicity of proceedings and conflicting judgments. The stated purpose in s. 43 ( FLA s . 73) of avoiding abductions or wrongful removal of children from one jurisdiction to another may be viewed in

this context as relevant to a consideration of the fair and efficient working of the Canadian legal system as a whole under s. 11(2)(f). [ 90 ] Most of the listed factors are neutral in the circumstances of the case at bar. Both BC and Yukon family law legislation focuses on the best interests of the child in parenting matters. In this case only one court action has been commenced and there are no competing or conflicting decisions.

Recognition and enforcement of court orders made between these jurisdictions should not be difficult. [ 91 ] The issue of comparative convenience and expense for the parties to the proceeding, and for their witnesses in the event of further litigation, was robustly argued by counsel for both parties. Potential witnesses may be called to give evidence from either Whitehorse or Kamloops and include the parties, collateral witnesses and perhaps educators, care provider, medical and mental health evidence. It is not known who those witnesses will be at this stage.

The relative poverty of J.F.A. would create a greater burden to her than the reverse would be to P.J.A., in my judgment, and would be harder on the children. [ 92 ] The strongest argument for the use of s. 74 (3) of the FLA or s. 11 of the CJPTA to decline to hear this matter in this province is that purpose set out in s. 73 (

c) of the FLA : “ to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child”. These children were certainly removed by the applicant without the agreement of the respondent or any order of any court. Abduction or removal should be discouraged, but not at the cost of serious harm to the children.

The best interests of the children remain a guiding purpose. [ 93 ] In Shortridge-Tsuchiya , Prowse J.A. commented at paragraph 58 the following: 58 As a result of finding that the criteria in s. 44(1)(b)(ii), (v), and (vi) were not met, the chambers judge concluded that the courts of British Columbia did not have jurisdiction over the issue of the child's custody and parenting. As earlier stated, the correct conclusion which flowed from his findings was that the court was not required to assert jurisdiction, but that it, nonetheless, had jurisdiction which it could exercise in appropriate circumstances.

One of those circumstances might be where there was evidence that the child would suffer serious harm within the meaning of s. 45 if the court did not assert jurisdiction ; another might be if there were circumstances which engaged the court's parens patriae jurisdiction. (Emphasis added.) [ 94 ] In light of the evidence heard and the findings made, I am of the view that it is not appropriate to decline jurisdiction to hear this case here. I have found it established to the required standard that a return of the children to the respondent would result in serious harm to the children.

Result [ 95 ] In the result, this court will hear the FLA application filed by J.F.A. on June 27, 2017. P.J.A. will have 30 days to file a reply. There will be an interim order that the children will reside primarily with the applicant and that applicant will not move the children from the Kamloops area without leave of the court or the written consent of the respondent. [ 96 ] The protection order on file will be extended until counsel can attend before me to be heard on whether that order should be further extended and if so on what terms.

The parties shall attend before the Judicial Case Manager on December 12, 2017 to fix one hour for submissions on that order. ________________________________ S.R. Harrison Provincial Court Judge