C.N.D. v S.D.B. Date:, 2015 BCPC 53

Citation: C.N.D. v S.D.B. Date: 20150225 2015 BCPC 0053 File No: 16947 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C. N. D. APPLICANT AND: S. D. B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: W. MacGregor Counsel for the Respondent: T. Hudson Place of Hearing: Smithers , B.C.

Date of Hearing: February 17, 2015 Date of Judgment: February 25, 2015 Background [ 1 ] The parties were in a volatile relationship starting in 2004 and ending in late 2012. The parties separated and reunited several times during this period. During that time four children were born to the relationship. They are: M.F.D. born (d.o.b), M.C.D. born (d.o.b.), N.D. born (d.o.b.), N.J.D. born (d.o.b.). [ 2 ] In Victoria, on September 6 th , 2012, this court issued a consent interim “restraining” order under the Family Relations Act .

This order restrained C.N.D. from interfering with or harassing S.D.B. or the children. It further restrained C.N.D. from attending S.D.B.’s residence of the time or attending at the school of the children. [ 3 ] The September 6 th , 2012 order included a condition that C.N.D. not have access to the children “except with the express permission of the Director of Children and Families”. Both parties were represented by counsel at the time of this order. [ 4 ] In Victoria on December 6 th , 2012 this court issued a consent final order that S.D.B. have sole “custody” of the children.

It further ordered “joint guardianship” based on the “Joyce” model. It confirmed C.N.D.’s “access” to the children as per the “restraining” order subject to a review in three months.

Both parties were represented by counsel at the time of this order. [ 5 ] The file was then transferred to the Smithers Registry. [ 6 ] On July 18 th , 2014 this court issued a protection order prohibiting C.N.D. from having contact with S.D.B. [ 7 ] On July 18 th , 2014 this court also issued an ex-parte interim order imputing income to C.N.D, ordering child maintenance and suspending the joint guardianship in the order of December 6 th in favour of sole guardianship to S.D.B. [ 8 ] On September 10 th , 2014, this court, by consent, varied the ex-parte order of July 18 th , 2014 concerning the quantum of child support and rescinded the suspension of joint guardianship. [ 9 ] On November 25 th , 2014 C.N.D. brought a motion for specified parenting time with the children and an allocation of parenting responsibilities. [ 10 ] On January 29 th , C.N.D. brought a motion that the protection order of September 6 th , 2012 and all other protection orders currently in force be cancelled. [ 11 ] After several affidavits were exchanged and an adjournment of the November 25 th motion both motions came on for an interim hearing on February 17 th , 2015.

Evidence [ 12 ] The court was referred to two affidavits sworn by C.N.D., two affidavits sworn by S.D.B. and three affidavits attaching documents sworn by A.C. [ 13 ] In paragraph 59 of C.N.D.’s affidavit of November 25 th , 2014 he stated that he had taken counselling (some of it with S.D.B.) during 2013. [ 14 ] In paragraph 33 of that affidavit he stated in January 2012 that he had denied all of the allegations of threatening S.D.B., drug trafficking, mental illness and weapon offences. [ 15 ] In paragraphs 97 and 116 of that affidavit C.N.D. stated that he knew that the children had been traumatized by the mutual violent behavior of their parents.

[ 16 ] A.C.’s affidavit of January 29 th , 2015 attached the file of the Ministry of Children and Family Development concerning this family. Page 81 of the file mentions concerns of the school about aggressive behavior of the child M.F.D.

It quotes M.F.D. as stating that he and his brother were scared when his parents argue. [ 17 ] At page 82 of the Ministry file, it is noted that C.N.D. denied assaulting or threatening S.D.B. and further “refused to divulge if he does any programs or accessed any programs for his issues.” [ 18 ] At page 123 of the Ministry file, it is recorded that C.N.D. had seven sessions of relationship group counselling although there is no final assessment of progress. [ 19 ] At page 146 of the Ministry file is a Plan of Care for the children.

The plan required C.N.D. to take counselling on the issue of the effects of witnessing violence on the children as well as the children being victims of “verbal and emotional mistreatment”. As well, C.N.D. was to undergo counselling for violence in relationships with the evaluation to be an interview of the “therapist” by the Director. [ 20 ] At page 170 of the Ministry file is the Director’s Presentation Report dated February 8 th , 2012. It reviews the alleged physical violence and emotional abuse of S.D.B. by C.N.D. between January 2010 and October 2011.

The Director’s concerns are summarized as “the children are being emotionally harmed by C.N.D.’s treatment of their mother and witnessing domestic violence. The Director is concerned that when C.N.D. throws things and becomes extremely angry, he is capable of injuring one of the children.” [ 21 ] At page 350 and 351 of the Ministry file are two notes provided by C.N.D. showing that he had participated in eight sessions of group anger counselling and individual counselling from September into December 2012.

Both letters are dated December 18 th , 2012. [ 22 ] At page 423 of the Ministry file is the Social Worker’s note to the file that S.D.B. had made a new complaint of harassment by C.N.D. in September 2012. [ 23 ] At page 433 of the Ministry file is a copy of an email from C.N.D. to S.D.B. dated September 10 th , 2012. In that email, C.N.D. admits bad behaviour such as not respecting S.D.B.’s family, belittling her, marital infidelity and “There were times I got physical and very scary with you. It did go both ways at different times in the relationship.

However, when you became like that it was often much more provoked by me and I don’t blame you.” [ 24 ] At page 500 of the Ministry file is an intra-office memo that the Plan of Care which required counselling had been explained to C.N.D. but that he had not responded. [ 25 ] Social Worker D.D. gave viva voce evidence. He offered few opinions in response to questions about the file. However, he did testify that the Ministry’s position remained that C.N.D. should only have “access” to the children as expressly approved by the Ministry.

That is term two of the protection order of September 6 th , 2012. [ 26 ] D.D. testified that this position was based on concerns about the emotional impact on the children of witnessing family violence and anger issues of C.N.D. These are the same concerns that the Ministry had when the order was issued in 2012 and those mentioned in paragraph 20 above. [ 27 ] D.D. testified that the Ministry had had no communication with C.N.D. on what steps he had taken to address these concerns. Accordingly, he stated the Ministry was unable to assess if the risk to the children had been reduced.

He agreed that a formal risk assessment had never been done. Issues [ 28 ] Has the September 2012 restraining order under the Family Relations Act by the proclamation of the Family Law Act in March 2013 been converted into a protection order?

As such, has it expired because of the one year limitation on Family Law Act protection orders? [ 29 ] In the alternative, should the restraining order of September 2012 be cancelled as there is no longer any risk to the children? [ 30 ] Should the court order S.D.B. remove the children from the Christian School which they currently attend and enroll them in the French Immersion School which was agreed to before her unilateral change. Analysis [ 31 ]

Section 255 of the Family Law Act reads, “An order made under

section 37, 38 124 or 126 of the former Act continues in force in accordance with the terms of the order.” The September 2012 order is clearly an order under sections 37 and 38 of the Family Relations Act as it specifically deals with “harassment” and interference with children. Accordingly, the September 2012 restraining order is still in effect. [ 32 ] Under the Family Law Act the overriding test for the court is the best interests of the child(ren). The test is not the “rights” of the parents.

Second 47 of the Family Law Act states that the court may change or terminate an order concerning parenting arrangements if it is satisfied that in the interim there has been a change in the needs or circumstances of the child, “including because of a change in

the circumstances of another person.” [ 33 ] Counsel for C.N.D. submits that there has been a change in the circumstances of the children’s father in that he has matured over the past two years, there have been no incidents of family violence since the parties separated, that as there is no contact between the parents there is no longer a risk of harm to the children when they are with their father, and that counselling was taken in 2012 and 2013. [ 34 ] Counsel for S.D.B. submitted that the history of “family violence” and its impact on the children made unsupervised contact beyond that allowed in the September 2012 order not in the best interests of the children based on the allegations in the Ministry’s file. [ 35 ] There was ample evidence to justify the consent order when it was made In September 2012.

The question is whether the court is satisfied that circumstances have changed enough to vary or terminate the order. [ 36 ] The position of the Ministry is that they do not have enough information from C.N.D., particularly on whether his behavior has changed, to agree to a change. While their opinion is not definitive, the court must agree that there is insufficient evidence to be satisfied that a variation or termination of the September 2012 order is in the best interests of the children. The lack of volatile contact between the parents is not the sole concern.

The risk of harm to the children because of C.N.D.’s temper is a major concern. A formal risk assessment by the Ministry with a psychological component would be very helpful but the court must leave that to the Ministry and C.N.D. to consider. [ 37 ] On the issue of ordering a reversal of the unilateral change of school for the children, C.N.D. takes the position that it had been agreed by the parents that was in the best interests of the children.

S.D.B. takes the position that due to last year’s teachers’ strike and a subsidy of tuition by the Christian School that the change was in the best interest of the children. Without more evidence, the court is not in a position to determine whether a reversal of school enrollment would be in the best interests of the children. The court does consider that a switch of schools in late February would without more evidence likely not be in the interests of the children as it would be unnecessarily disruptive.

Decision [ 38 ] The application to terminate the September 2012 order is dismissed. [ 39 ] The application to vary the September 2012 order by specifying times of unsupervised times of parenting time is dismissed. [ 40 ] The application for an order that the Children be re-enrolled in the French Immersion School is dismissed. _________________________ W. F. M. Jackson Provincial Court Judge