B.L. v. S.B., 2021 BCPC 88

Citation: B.L. v. S.B. 2021 BCPC 88 Date: 20210401 File No: 17459 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.L. APPLICANT AND: S.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Applicant: J. Ball Counsel for the Respondent: S. Walter Place of Hearing: Kamloops , B.C. Dates of Hearing: March 9, 10 and 11, 2021 Date of Judgment: April 1, 2021 [ 1 ] This is an interim application by S.B. for the return of the child, O.N.S.A. born [omitted for publication], to Kamloops pending a resolution of the parties’ matters. There is no family case conference yet set; and S.B.’s Parenting After Separation certificate has expired.

He and B.L. are the biological parents of O.N.S.A. and both are deemed guardians. [ 2 ] An interim order is not meant to be a final determination on full review of the evidence. I appreciate that, in that context, the parties have not brought all the evidence to court that would support their positions. I am also cautious about making findings of fact that would bind the trial judge. [ 3 ] S.B. is 42 years old. He is employed with an inter-facility transport company moving patients from location to location. Prior to the COVID restrictions, S.B. would work over 90 hours per week.

He currently works 76 hours a week. If his child is returned to Kamloops, S.B. would further adjust his

schedule as needed. [ 4 ] S.B. lives with his parents. B.L.’s family are also in the interior. Her mother and younger sister and family live in Lytton and her older sister and family live in Kamloops. B.L.’s father also lives in town. B.L. has no family connections on Vancouver Island, although she has an aunt in Delta. [ 5 ] S.B. has had some medical issues including a stroke which led to lasting speech and thought impediments. [ 6 ] B.L. has also had some medical and mental health challenges of her own. She suffers from fibromyalgia and has been hospitalized for mental health challenges from time to time.

She receives treatment for post-traumatic stress disorder as needed. She continues to receive treatment as required. However, as a result of her fibromyalgia, she is on disability. Despite her mental health challenges, the considerable hurdles she has overcome and her disability, B.L. has strong political and social views she does not hesitate to advance or defend. She teaches this to O.N.S.A. [ 7 ] The parties were married in July 2008. Apart from the challenges presented by each parties’ medical issues, this family struggled with bankruptcy and the stresses of moves.

Without delving into all of the evidence it would appear that there was a good deal of conflict in this time. [ 8 ] They separated for a brief time in November 2018. B.L. describes a difficult time of living in veritable poverty in a building where there was a good deal of social marginalization. She felt unsafe and was unable to properly provide for herself and her son. S.B. was not paying child support in this time but was continuing to see and care for O.N.S.A. [ 9 ] They reconciled in January 2019. Not surprisingly, the parties see this reconciliation as premised on entirely different factors.

S.B. believed that he had met with B.L.’s expectations and the reconciliation was entirely mutual. B.L. had presented S.B. with a list of expectations that he was to meet before a reconciliation could occur. However, she said that he only superficially met those expectations. Because she was in such dire financial circumstances, B.L. felt compelled to reconcile in the best interests of O.N.S.A. [ 10 ] The letter demonstrates that there are significant concerns in this relationship.

While there were certainly other issues at play, S.B.’s anger, his expressed prejudice to B.L.’s heritage (she is Indigenous), and his dismissive unsupportive attitude toward O.N.S.A.’s own obsessive compulsive issues are not trifling matters. They were left largely unresolved although S.B. appeared to make some efforts toward each of these areas. [ 11 ] Despite the challenges the parties had, they opted in the summer or early fall of 2019 to move into a recreational vehicle. This was evidently their life dream to live in a recreational vehicle allowing O.N.S.A. to continue his online studies and them to travel.

It is clear from the evidence before me that the space was too confining and there was no privacy for the parents to discuss matters of importance to them. In addition, the environment was not a welcoming one for at least some visitors. As a result, the parties became more isolated than they had been previously. [ 12 ] S.B. appears to have had difficulty struggling with the tensions of such a confined space. This resulted in an incident that precipitated B.L. leaving once again.

While neither she nor O.N.S.A. were the object of S.B.’s anger or subject to any violence, they were witness to him losing his temper and repeatedly smashing a knife on the counter. [ 13 ] While this in conjunction with the history of their relationship would certainly warrant a separation, there was nothing that supports the subterfuge involved in that separation. Nothing warranted B.L. leaving without informing S.B. at least of where they were going. [ 14 ] There was certainly nothing that warranted her removing the child from Kamloops.

B.L. claims that this is because there is nothing available for people who are marginalized and leaving a relationship. This was based on her prior experience in winter 2018. She concedes that she did not check before she left about whether there was accommodation for her here in Kamloops, and says she wanted to leave the region ostensibly to avoid running into S.B. wherever he may be. This is because S.B. travels throughout the region for his work.

On the evidence before me, this was based more on her fear that she would succumb to pressure to reconcile than a threat posed by S.B. [ 15 ] On the evidence that I have heard, this approach was not warranted. B.L. also conceded that her own mental health struggles impact the way she views circumstances and reacts to them. [ 16 ] I also note as an aside that the incident with the knife that precipitated the separation occurred on the same day that B.L. engaged

in road rage. It would seem that she also has anger management issues. While she does not exhibit this to other drivers, both S.B. and O.N.S.A. were exposed to it. It was not a one-time occurrence. However, while she impressed upon O.N.S.A. that it was not appropriate for his father to lose his temper over the knife incident, she does not correlate this to her own anger issues while driving.

This becomes important because of the allegations of S.B. that B.L. is indoctrinating O.N.S.A. to her cause and alienating O.N.S.A. from his father. [ 17 ] This was evident in the recorded video calls S.B. had with O.N.S.A., as well as the Hear the Child Report provided to me. In his first Zoom call with his father, O.N.S.A. was angry because his father refused to pay for the Hear of the Child Report. O.N.S.A. should not have known that there was any issue about payment for the report.

His knowledge of the circumstances should have been limited to being informed that he would be giving his views to an objective third party who would prepare a report. B.L. involved O.N.S.A. in this dispute with S.B. It was entirely inappropriate. S.B., on the other hand, redirected O.N.S.A. away from the discussions and continued with the call. [ 18 ] There are also other alarming references in the Hear of the Child Report which strongly suggest B.L. has conscripted O.N.S.A. to her “side”. B.L. says it is because O.N.S.A. is very bright with an incredibly creative mind and an extensive vocabulary.

That may be so but it is obvious from the review of the video calls that he is also not particularly mature for his age. [ 19 ] O.N.S.A. also expressed the view that any court who thought that he was not expressing his own views should not be trusted with even a simple shoplifting trial. This sounds remarkably like he is parroting something he heard from adults around him. He also expressed the view that his father is abusive to him. This is despite a history of the child being distraught over the first separation and despite the evidently affectionate relationship they enjoyed on the video calls.

He calls his prior view Stockholm Syndrome. This change of heart may be because O.N.S.A. is older and able to form a better understanding of his circumstances; or it may be because interactions with his father over video calls provide the necessary buffer to allow that relationship to flourish. It may also be because B.L. has persuaded O.N.S.A. to feel this way. That is a matter for the trial judge to determine ultimately with more fulsome evidence.

There is at least a very concerning prospect that B.L. is impressing her views upon O.N.S.A. and garnering his support in her actions. [ 20 ] In any event, B.L. and O.N.S.A. now reside in Victoria where they have obtained subsidized housing. O.N.S.A. continues to do his schooling online but also meets up with a group of children to enhance that educational experience. They have started to make some friends but it is obvious that O.N.S.A.’s closest connections are in the interior, particularly Kamloops. [ 21 ] I was provided with a number of cases which I have reviewed. I summarize their importance as follows.

The parties agree that this application is properly heard under s. 46. That will also be for the trial judge to determine if it is should become an issue. There is no existing order or agreement despite there being a Supreme Court action for divorce proceedings. This court has jurisdiction to order the child be returned on an interim basis if it is in the best interests of the child. [ 22 ] When considering the best interests of the child in this case, it is clear that his mother has been his primary caregiver but his father has been fully engaged in his upbringing until this separation.

O.N.S.A. has grown up in Kamloops and was attending online school here. He can attend school in either location. [ 23 ] O.N.S.A. is living in comfortable and safe accommodation in Victoria. This was not B.L.’s experience when she left with O.N.S.A. on the first occasion in 2018 when she stayed in Kamloops. This is not a deciding factor.

However, when I compare it to the circumstances B.L. and O.N.S.A. left (the family was living in a recreational vehicle and was somewhat socially isolated), and S.B.’s current living accommodations at his parents’ home, it is clearly in O.N.S.A.’s best interests to continue to reside in the home his mother has found for them in Victoria. [ 24 ] There is a considerable amount of work both parents need to engage in to make the living arrangements for O.N.S.A. safe and appropriate. B.L. must not discuss these family law matters with O.N.S.A.

She protests that she has not done so but it is belied by O.N.S.A.’s knowledge of what is transpiring and his expressed “views”. [ 25 ] S.B. needs to attend to some work with respect to his anger and his attitudes. The history of anger and violence is not minor. If he is to have extended care of his son, S.B. needs to learn how to cope with O.N.S.A.’s challenges and to manage his own anger. [ 26 ] I am not satisfied, however, that the proposal by B.L. for continued video and occasional weekend parenting time is appropriate. S.B. is capable of caring for O.N.S.A. and has done so in the past.

However, I am not ordering the return of O.N.S.A. to Kamloops. S.B. works long hours, even with the reduced hours brought about by the COVID pandemic. While he is able to accommodate his

schedule to the times he has O.N.S.A., there is no clear plan for who would care for O.N.S.A. while S.B. is working even reduced hours. If it is S.B.’s plan to not work while O.N.S.A. is in his care, that would impair the family’s financial considerations. A better plan needs to be formulated.

In the meantime, much more needs to be done to counter the negative impressions O.N.S.A. is formulating in the absence of his father. [ 27 ] On an interim basis, S.B. shall have parenting time with O.N.S.A. on a weekly basis by Zoom or such other video platform as S.B. and O.N.S.A. agree, at a time to be determined by S.B. and O.N.S.A. There shall be no set length of time on the video call. B.L. shall not be present in the room during those calls. S.B. shall end the video call when O.N.S.A. indicates it has been long enough.

S.B. may have further telephone or video call parenting time as agreed between S.B. and O.N.S.A. [ 28 ] I further order that S.B. will have parenting time with O.N.S.A. on the third weekend of each month from Friday evening to Sunday evening commencing May 14, 2021. This may be adjusted by agreement of S.B. and B.L. to other dates or times.

Neither party shall change these times unilaterally. [ 29 ] On weekends where S.B. has parenting time with O.N.S.A. that includes a statutory holiday or professional development day, the weekend will be extended to include such additional day. [ 30 ] S.B. shall have parenting time for the fourth week of every month from Saturday morning to Friday evening, commencing August 21, 2021. This may be adjusted by agreement of S.B. and B.L. to other dates or times. Neither party shall change these times unilaterally.

[ 31 ] In the event that the parties have not reached a resolution of their outstanding matters with respect to parenting time before then, commencing in December 2021, the parties shall share the Christmas break regardless of the regular parenting schedule. In odd- numbered years, B.L. shall have parenting time with O.N.S.A. from the last day of school to the afternoon of December 26. S.B. shall have parenting time with O.N.S.A. from the afternoon of December 26 to the end of the day on January 1, 2022.

This will alternate in even-numbered years with S.B. having the first half of the Christmas break and B.L. having the second half of the Christmas break. This may be adjusted by agreement of S.B. and B.L. but may not be changed unilaterally by either. [ 32 ] Commencing summer 2022, S.B. may have two consecutive weeks of parenting time in each of July and August. The parties will make their best efforts to confirm summer parenting time for 2022 by April 30, 2022 and by April 30 of each year thereafter.

In the event that the parties cannot agree, S.B. shall select the July dates and B.L. shall select the August dates for S.B.’s parenting time. [ 33 ] The parties will communicate with each other by Talking Parents only on issues related to O.N.S.A.’s care and parenting time. They may communicate by telephone in the event of an emergency. [ 34 ] B.L. acknowledges that she took the only family vehicle being the truck S.B. continues to pay for. However, she makes a very reasonable proposal that they sell this vehicle and each buy their own vehicle with the proceeds.

Until then, S.B. has no means for effecting his parenting time. Until such time as the vehicle is sold and each party has their own transportation, B.L. will be responsible for transporting O.N.S.A. to and from his parenting time with S.B. This will have the added benefit of allowing O.N.S.A. to see his extended family who all reside in this area. This assumes there is enough equity in the truck to afford two roadworthy vehicles. [ 35 ] B.L. has limited financial means while the parties are awaiting the outcome of their divorce proceedings.

Until further court order the parties shall share the expense of the ferry transportation. In addition, it is reasonable for the parties to share the gasoline expenses. B.L. shall provide receipts to S.B. for the ferry fare and filling a tank of gas. He shall pay her for his half of the round trip ferry and one tank of gas by the end of his parenting time. I have specifically not used the Government of Canada mileage rate because S.B. is bearing the costs of that vehicle. [ 36 ] I am concerned about O.N.S.A.’s exposure to these proceedings regardless of how it is happening.

Neither party shall discuss these proceedings with O.N.S.A. except to advise when or where he may be required to meet with a report writer for the purposes of preparing any Views or Hear the Child Reports for this court, or to inform him of his parenting time with his father. Neither party shall discuss these proceedings within O.N.S.A.’s hearing with anyone, or leave any communications or documents where he may see them. [ 37 ] I order that S.B. complete, file and serve his Parenting After Separation not later than April 30, 2021.

I order that counsel appear before the Judicial Case Manager on April 13 at 10:00 a.m. for the purposes of fixing a date for a family case conference. No further hearings shall be set until the Parenting After Separation has been filed and the family case conference has concluded. [ 38 ] It will be invaluable for the court hearing the trial of this matter to have a Parenting Capacity Report conducted. I order that the Parenting Capacity Report be prepared and that counsel provide the necessary contact details for the purposes of preparation of that report.

Unless the parties agree to a private assessment, this shall be done by the Family Justice Centre. _________________________ S.D. Frame Provincial Court Judge