B.E.S. v. S.R.H. Date:, 2013 BCPC 411

Citation: B.E.S. v. S.R.H. Date: 20130515 2013 BCPC 0411 File No: 18293 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B. E. S. APPLICANT AND: S. R. H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: W. MacGregor Counsel for the Respondent: M. Griffith-Zehner Place of Hearing: Terrace , B.C.

Dates of Hearing: October 16, October 17 and October 18, 2012 Date of Judgment: May 15, 2013 Background [ 1 ] This is an application brought by BES for interim overnight parenting time with the child of the union EEH, born [omitted for publishing] . [ 2 ] The hearing of this file is scheduled for October 16, 17 th and 18 th , 2013. [ 3 ] An Interim Consent Order was signed March 8 th , 2013, but has not been issued by the Court. It provided for BES to have parenting time on Monday through Friday from 4:00 p.m. to 7:00 p.m. and Sunday from 11:00 a.m. to 7:00 p.m. commencing March 8 th , 2013.

The Order also specified that the exchange of the child would occur at the residence of BES’s parents. Evidence [ 4 ] There were six affidavits filed for this application. As well, the respondent, SRH provided testimony during the application. [ 5 ] The first affidavit was filed February 28 th , 2013 by SRH. In includes information that the parties separated September 28 th , 2012.

It also alleges that SRH’s “experiences with BES since 2008 (the start of our common law relationship) have shown me that he responds to stress and confrontation with verbal abuse, physical threats and death threats, as well as substance abuse.” [ 6 ] BES filed an answering affidavit March 4 th , 2013. This affidavit denied making any threats and stated “her allegations are entirely false.” Aside from the general contradiction of SRH’s earlier affidavit, his document gave details of incidents of conflict between the parties.

In paragraph 7, BES said concerning his breaking of SRH’s cell phone, “Her response was to the effect that I obviously cared about money more than her, to which I responded approximately, ‘this is how much I care about money’ and threw the phone to the floor, which broke it.” [ 7 ] SRH filed a counter affidavit April 16 th , 2013. This affidavit contains more detail of the allegations in her February 28 th affidavit.

In paragraph 3, it alleges that BES smoked marijuana several times every day, that he would often become angry and yell at her and insult her. [ 8 ] In paragraph 7 it repeats the allegations of the February 28 th affidavit.

These include increasing use of threats by BES throughout the relationship and the destruction of things around the home in fits of anger. [ 9 ] In paragraph 13 it alleges bullying by BES which included “threats to JB and RS as well as calling SRH names. [ 10 ] In paragraph 14 the affidavit gives one example of BES listening to music with headphones while EEH was crying and another example of SRH finding the stub of a marijuana joint in EEH’s mouth. [ 11 ] On April 29 th , 2013, BES filed an answering affidavit denying heavy marijuana use or any cocaine use.

In paragraph 4 he does admit to occasional marijuana use. [ 12 ] Paragraph 5 of that affidavit recites BES’s steady and uneventful work history as proof that he has not been impaired by heavy drug use. [ 13 ] In paragraph 11 he completely denies the incident where he was using headphones and ignoring the crying child and indicates that he does not smoke marijuana in his house so if EEH found part of a marijuana joint someone else must have brought it into the home. [ 14 ] On April 29 th , 2013 CS, mother of BES, filed an affidavit.

It indicates that she has never smelt marijuana on her son, on EEH or in her son’s home despite frequent contact. [ 15 ] On April 29 th , 2013 SRH filed a counter affidavit. It repeats the allegations of her earlier two affidavits and adds some new points. In paragraph 4 it notes that EEH is in the Strong Start program. It continues that EEH does not yet sleep through the night and “may have night terrors” which has been raised with a physician. [ 16 ] In paragraph 7, SRH alleges that BES has a drinking problem.

That paragraph reports a pattern of BES heavily drinking “one to four times a month to the point that he would not be able to care for a small child in a safe manner.” [ 17 ] Attached to that affidavit are fifty pages of print outs of Facebook, text messages and a recorded phone call on October 31 st , 2012. All are between the parties.

[ 18 ] In paragraph 9 of this affidavit SRH refers to an extract from the Facebook messages. On October 1 st , 2012 at 12:24:27 p.m. BES wrote, “Please give me it (one more chance), I will work on my temper issues, I will work on making you a happy person.” [ 19 ] SRH also testified during the application. The testimony highlighted the earlier evidence of her affidavits. She also indicated what she wanted concerning BES’s parenting time and why. In effect she said that she feared that BES would take out his hostility towards her on EEH. She stated that she was the only night-time caregiver EEH had ever known.

She concluded by saying that she would be agreeable to overnight access after BES had taken counselling (presumably for anger and alcohol) and after EEH had reached two years of age. That would be in three months (August 15, 2013). Analysis [ 20 ] The standard of proof on this hearing is the balance of probabilities. That is usually summarized as having to prove that something is more likely than not. [ 21 ] The only concern as per s37(1) of the Family Law Act is the best interest of the child. There are ten non-exhaustive factors to consider in determining the best interests of the child.

The one’s that are applicable to the evidence in this application are:

a) the child’s health and emotional well being;

b) the nature and strength of the relationships between the child and significant persons in the child’s life;

c) the history of the child’s care;

d) the need for stability, given the child’s age and stage of development;

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

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

g) 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. [ 22 ] SRH’s concerns over overnight time parenting by BES touch each of the above mentioned factors. The emphasis of her concerns is on the safety of EEH with BES overnight because of the child’s sleep patterns and his anger issues. [ 23 ] The evidence before the Court is highly contested. The affidavits for the most part expressly contradict one another.

Accordingly, on the balance of probabilities the Court is unable to prefer either BES’s or SRH’s version where they contradict. [ 24 ] However, there are admissions in BES’s affidavits and in his October 1 st , 2012 Facebook message. These are that he does use marijuana occasionally and that he does have temper problems.

The temper reference of October 1 st , 2012 is bolstered by his March 4 th affidavit (paragraph 7) where he says that he broke her cell phone during an argument to show her how foolish she would be to do so. [ 25 ] Accordingly, the Court finds that there is some form of family violence as defined in s2 of the Family Law Act . In turn, this finding requires the Court to assess the family violence under s38 of the Family Law Act . Those factors are:

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 behavior 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. [ 26 ] In the case at hand, the alleged family violence is verbal, emotional and psychological. The admission is of temper problems

without further detail.

All incidents of alleged and established family violence are directed at her, not the child, and occur during their relationship that ended September 28 th 2012 or shortly thereafter. [ 27 ] BES has had unsupervised parenting time with EEH for some months without incident. [ 28 ] The Court has considered the family violence factors and the sleep pattern issues of EEH; however, the Court is satisfied that increased overnight parenting time with BES is in her best interests, as it gradually will increase the amount of contact between the child and her father. [ 29 ] The Court is concerned that the child might come into contact with non-prescription drugs or their residue as was mentioned in the affidavits concerning the stub of a marijuana joint found in the child’s mouth.

Accordingly, the Court’s order, amongst other things will prohibit the presence of non-prescription drugs in either home where the child will be from time to time. [ 30 ] The Court makes the following Interim Order: 1) BES shall pay SRH $566.00 per month as child support commencing April 1 st , 2013 and continuing on the first day of each month thereafter based on BES’s imputed income of $61,000. 2) BES shall have parenting time with the child Monday through Friday inclusive from 4:00 p.m. to 7:00 p.m. and Saturday from 7: p.m. until Sunday at 7:00 p.m. commencing Saturday, June 8 th , 2013, unless otherwise agreed by the parties in writing, or varied by the Court. 3) The exchange of the child shall be at the residence of BES’s parents, with one of those parents being present unless otherwise agreed by the parties in writing, or varied by the Court. 4) Neither party will consume marijuana in the presence of the child, nor have non-prescription drugs in their home, nor will they permit anyone else to be in the presence of the child while under the influence of non-prescription drugs or alcohol. ___________________________________ W.

F. M. Jackson Provincial Court Judge