R.M.F. v. S.N.C. Date:, 2014 BCPC 370

Citation: R.M.F. v. S.N.C. Date: 20140211 2014 BCPC 0370 File No: 16823 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R. M. F. APPLICANT AND: S. N. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: K. Pollock Counsel for the Respondent: I. Lawson Place of Hearing: Smithers , B.C.

Date of Hearing: February 6, 2014 Date of Judgment: February 11, 2014 History [ 1 ] The parties started a relationship approximately seven years ago in Calgary. Three children were born of the relationship: NF - born [omitted for publication] RF - born [omitted for publication] BF - born [omitted for publication] [ 2 ] During the relationship the parties lived in Calgary, Saskatoon, and Prince George and since August 2013 in Grandisle, B.C.

Grandisle is also the home of RMF’s parents. [ 3 ] On January 23 rd , 2014 SNC left the home with the two youngest children and attempted to collect the oldest, NF from school. RMF intervened to stop the removal of NF. Matters escalated until SNC was arrested. She was taken to the hospital in Smithers under the Mental Health Act and released. [ 4 ] The RCMP have recommended criminal charges which have not yet been assessed by the Crown Counsel office. The police released SNC on bail conditions.

These were amended on January 30 th , 2014 to read as follows: You are to have no contact directly or indirectly and shall stay away absolutely from RMF except for the purpose of arranging visitation to her children through AR or DR. [ 5 ] Also on January 30 th , 2014 by consent an order was made that neither party will remove any of the children from the Smithers- Grandisle area without further court order or written consent of both parties. [ 6 ] January 28 th , RMF brought a Notice of Motion and application for guardianship, parenting responsibilities, parenting time, child support, a protection order and an order that the children not be taken out of B.C. without a court order. [ 7 ] January 30 th , SNC brought a notice of motion seeking an order that she have “daily care” of all three children. [ 8 ] February 4 th , RMF brought a Notice of Motion seeking disclosure of the RCMP file, SNC’s Alberta Child and Family Services Authority files, SNC’s medical files and for hair follicle tests on BF. [ 9 ] February 5 th , SNC filed a Reply seeking guardianship, parenting time, parenting responsibilities, child support and an order that the children not be taken outside of B.C. without prior court order or written consent. [ 10 ] January 28 th , RMF filed an affidavit.

SNC filed affidavits on January 30 th and 31 st . RMF and his mother, DR filed affidavits February 5 th and 6 th respectively. Evidence [ 11 ] The affidavits filed by the parties almost completely consist of allegations, counter allegations and denials. The common ground is that laid out in the history above. The underlying causes of the incident of January 23 rd and the breakdown of the relationship are completely in dispute. [ 12 ] RMF says that SNC suffers from clinical depression to the point of being incapable of caring for the children.

In his affidavit of January 28 th , he stated that his application was urgent as SNC was a danger to herself and their children. [ 13 ] RMF says that SNC has gone through long periods of depression during which she turns to alcohol dependency. [ 14 ] RMF says that at the end of the confrontation January 23 rd it was agreed that SNC, with the children, would leave their home and move in with his parents.

That did not happen. [ 15 ] RMF says that while the boys went to his parents, SNC instead took BF to a neighbour where she was drinking. [ 16 ] In paragraph 19 of his January 28 th affidavit RMF says that SNC then came to their home with BF to collect some personal effects. He states that she “was obviously intoxicated.” He says that she became increasingly agitated until she left BF inside the house (paragraph 20) and damaged his truck with a shovel.

[ 17 ] RMF says BF then came out onto the patio and was picked up by SNC who then chased him around with a five foot long ice scraper. He continues that his mother then arrived, calmed down SNC “a little” and took BF. A local RCMP auxiliary arrived and found SNC one block away from RMF carrying BF and in the company of DR. The officer then arrested SNC. [ 18 ] RMF says that the next day, Jan. 24/14, the RCMP advised that SNC was staying at the Smithers women’s shelter.

RMF agreed that BF would be turned over to SNC as he “felt quite a bit of pressure to agree to that plan because Constable C told me that if the Respondent and I started fighting about the children he would arrest us both and take our children into Ministry care for 72 hours.” [ 19 ] SNC in her affidavit of January 30 th says that she is the victim of domestic abuse.

She indicates that she had been last assaulted November 2 nd , 2013. [ 20 ] SNC also said that RMF has a history of violence and warrants out for his arrest in Alberta and Saskatchewan. [ 21 ] SNC specifically denied that she suffered from a mental illness apart from stress caused by the relationship. [ 22 ] SNC states that she had left the relationship three times previously during which time RMF had minimal contact with the children.

She added that during the relationship, RMF was barely involved in parenting. [ 23 ] In her January 31 st affidavit, SNC repeats that she was the sole caregiver for the children. [ 24 ] SNC further states that she has a close relationship with all three children and that RF is a “momma’s boy”. [ 25 ] In paragraphs 12 through 17 of the January 31 st affidavit, SNC provides detailed allegations of physical abuse and control by RMF, criminal behaviour of RMF and “financial abuse”.

SNC also describes drunken behaviour of RMF. [ 26 ] Concerning the events of January 23 rd , SNC says it was triggered by a lack of food in the home and RMF’s indifference to the situation. She says when RMF claimed that he had court ordered custody that she requested the school call the police. When the constable arrived that RMF lied to the officer and told him that the “court papers” had been burned. [ 27 ] SNC says her use of the shovel to damage the truck was to force RMF to return her jewelry because he had refused.

She makes no mention of chasing RMF with an ice scraper. [ 28 ] SNC says she was angry because she had to leave her sons and because RMF refused to return her jewelry but that the police officer arrested her under the Mental Health Act and took her to the hospital. She attached her Emergency Room Record which has a diagnosis of depression without any treatment prescribed. The record notes no hallucination, no delusion, and no suicidal idealization.

She was discharged to a “friend’s house.” [ 29 ] SNC specifically denies RMF’s allegation that she “drinks a substantial amount during the day.” [ 30 ] RMF filed an answering affidavit February 5 th . In it he denied “abusing SNC”. He states that he provides for the family and any cash shortages are caused by the need to take time from work to care for the children and SNC due to her depression. [ 31 ] RMF describes a plan he has to hire a caregiver, DM to care for the children while he is at work. He states that his work

schedule will allow him to be at home three days a week and return home at 3:00 p.m. other days. [ 32 ] RMF indicates that he has taken steps to deal with the outstanding warrants in Alberta and Saskatchewan. He specifically denies that SNC is the only caregiver for the children. [ 33 ] RMF specifically denies that he hits the children aside form light spanking over their pants. He explains his failures to pick up NF from kindergarten. He specifically denies being violent towards SNC.

He specifically denies 19 other portions of SNC’s affidavit of January 31 st . [ 34 ] DR states in her affidavit that she believes SNC “has a limited ability to properly care for the children” (paragraph 3). [ 35 ] DR says that she also witnessed SNC drinking very heavily while breastfeeding both the younger children.

The Law [ 36 ] Section 37(1) of the Family Law Act provides that: In making an order under this part respecting guardianship, parenting arrangements or contact with a child, the court must consider the best interests of the child only. [ 37 ] A non-exhaustive list of factors to consider in determining the best interest of the child are listed in s37 (2). Subsections 37(2) (g)(

h) add the requirement that the court must apply nine factors to assess family violence. [ 38 ] Before the court commences an analysis of the facts as required by s37 and other portions of the Family Law Act , the court must determine what the facts are. The standard of proof is on the balance of probabilities. Accordingly, the court must be satisfied on the evidence before it that a fact is more likely true than not before it can make that finding of fact. Analysis

[ 39 ] The determination of what the facts are is particularly difficult in this case. The parties both make serious allegations that the other party is unfit to care for the children. In broad strokes, RMF says that SNC is mentally ill to the point of unfitness to care for herself or the children. She denies this and says that she is situationally depressed because of his violent and controlling behaviour which if accepted would clearly render him unfit to care for the children under the factors of family violence in s.38 of the Family Law Act .

RMF vehemently denies those allegations against him. [ 40 ] If both sets of allegations are true, both parents are unfit and the children should be taken into the care of the Ministry. These applications were brought on quickly and indeed a Notice of Motion was added for disclosure of third party records concerning SNC. [ 41 ] While what happened on January 23 rd is clear, why it happened is hotly contested.

Either it was caused by SNC’s mental illness or by situational stresses caused by RMF’s violent and controlling behaviour. [ 42 ] Counsel for SNC argued that I should reject RMF’s allegations because at nine different times in his affidavits he only denied her allegations in general and not in detail. His tenth point was that RMF lied to the police about having court papers to prevent her taking NF from school. The argument about the nine denials would have some weight in assessing credibility in a viva voca hearing but would be dangerous when comparing the form of drafting on affidavits.

The point about the “court papers” also may have weight in assessing credibility if tested in cross-examination. In reviewing all of the evidence before the court on these interim applications I find it impossible to prefer either set of allegations where they conflict. Therefore, it is impossible to make the findings of fact necessary to rule in favour of either party’s position. [ 43 ] The parties have been sixteen days in the current parenting situation without incident. Both parties have made arrangements to care for the children.

The only potential parenting arrangement the parties agree upon is that the three children should be together. By inference both parties agree that the safety of the children is paramount until the trial of the issues. The court certainly agrees that the safety and other best interests of the children is the only concern. [ 44 ] The court, however, does not agree that in the interim having all three children live together is necessary.

Section 40(4) of the Family Law Act states: In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

a) that parental responsibilities should be allocated equally among guardians. [ 45 ] In submissions it was suggested that the parties “need time to let things settle down.” The court agrees. Therefore, the court shall largely maintain the status quo. [ 46 ] NF and RF have been with RMF since January 23 rd without incident. There is a plan for their care. On an interim basis they should stay in that situation. [ 47 ] BF has been with SNC since January 24 th without incident. There is a plan for her care.

On an interim basis she should stay in that situation. [ 48 ] During the hearing both parties offered parenting time to the other with the child or children in their care. However, the parties were unable to agree on details. Both parties should have reasonable contact with the child or children not in their care as agreed between the parties. [ 49 ] There are mutual allegations of the excessive use of alcohol by each parent. There are allegations of marijuana use by SNC and the history of drug use by both parties in the past.

Accordingly, on an interim basis neither parent shall consume alcohol or non- prescription drugs. [ 50 ] RMF also brought on short notice a Notice of Motion seeking orders for the production of certain third party records and for hair follicle testing of BF. The matter was canvassed during the hearing and the court is retroactively granting leave for short notice. [ 51 ] An order was sought for disclosure of the police file concerning the events between the parties on January 23 rd .

Orders for third party production of records require notice to the third party as per Provincial Court (Family) Rule 12(1)(b)(ii) unless a judge orders otherwise. (Rule 12(2)b). There are potentially three types of privilege that may be claimed by the Crown Counsel and RCMP on police investigations. As well, if the proposed charges are approved by the Crown Counsel office, disclosure of the file must be made to SNC.

Accordingly, the court will not make an order against the RCMP and the Crown Counsel. [ 52 ] While RMF has personal knowledge of most of what happened between the parties on January 23 rd , the potential contents of the criminal investigation may be relevant to this matter. Therefore, this court will order that SNC provide to RMF a copy of whatever disclosure, if any, that she receives from the RCMP or Crown Counsel. [ 53 ] An order was sought that SNC provide a consent and take any other step necessary to allow disclosure of her file currently in the possession of the Alberta Child and Family Services Authority.

The support for his application is the hearsay contained in paragraph 10 of RMF’s affidavit of February 5 th . Clearly as the parties agree that they left the drug lifestyle and Alberta seven years ago the material is dated. The relevance of the old record is undermined by a statement attributed to the Alberta Social Worker in paragraph10. It reads, “they would not permit SNC to have sole custody of any children in Alberta without re-opening her file and doing an assessment of her.” As was fairly put, they would base their decision on the current situation not the dated one.

This court therefore declines to order that SNC provide a consent or other assistance in obtaining that record.

[ 54 ] The Notice of Motion sought an order that SNC sign a consent to allow disclosure from her medical files with Dr. Buch in Prince George and her doctor in Saskatoon. Paragraph 11 of RMF’s February 5 th affidavit names him as Dr. Burg. The draft order filed names him as Dr. Berg. In oral submissions the name of the doctor in Saskatoon was given as Dr. Old. The court is satisfied that these medical records are relevant on SNC’s alleged clinical depression.

Therefore, the court will order SNC to provide the necessary consents to RMF’s counsel to obtain, at RMF’s expense, copies of the two medical records of the properly named doctors. In fairness, RMF shall be required to provide copies of those medical records to SNC. [ 55 ] The Notice of Motion also requests an order that RMF be permitted to take BF to Prince George to obtain a hair follicle test for drugs. The basis for the application is in paragraphs 9 and 10 of RMF’s February 5 th affidavit. It lays out his reason to suspect marijuana use by SNC involving the children.

It also indicates that the social worker in Alberta suggested the test to determine drug use. However, there is no evidence before the court on how these tests are performed and what evidence they might provide beyond the observations of drug use attributed to PH in paragraph 9 and in paragraph 7 of DR’s affidavit. [ 56 ] Accordingly, the court declines to make the order sought but leaves open a subsequent application for an order for such testing if scientific evidence as to the relevance is available.

Interim Order [ 57 ] The children NF and RF shall reside with their father in Grandisle until further order of the court or agreement between the parties. [ 58 ] The child BF shall reside with her mother in Smithers until further order of the court or agreement between the parties. [ 59 ] Both parents shall have reasonable contact with the child or children not residing with them as agreed between the parties.

Such access shall be arranged through either AR or DR. [ 60 ] Neither parent shall remove any of the children from the Smithers-Grandisle area without further order of the court or the written consent of both parents. [ 61 ] Neither parent shall consume alcohol or non-prescription drugs. [ 62 ] Leave to bring the Notice of Motion for short notice is granted to RMF. [ 63 ] SNC shall provide a copy of any disclosure she receives from the RCMP or the Crown Counsel office concerning criminal charges arising from the events of January 23 rd , 2014. [ 64 ] SNC shall provide written consents to counsel for RMF for the release of her medical records with Dr.

Berg or Dr. Burg in Prince George and her medical records with Dr. Old in Saskatoon. RMF shall pay all costs for the preparation of those copies of the medical records and shall provide a copy of those medical records to SNC. __________________________ W. F. M. Jackson Provincial Court Judge