S.T.M. v. C.G.H., 2023 BCPC 182

Citation: S.T.M. v. C.G.H. 2023 BCPC 182 Date: 20230620 File No: 1853046 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.T.M. APPLICANT AND: C.G.H. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: G. Whidden Counsel for the Respondent: F. MacLean Counsel for B. G. Petrisor, K.C.

Place of Hearing: Prince George , B.C. Date of Hearing: June 20, 2023 Date of Judgment: June 20, 2023 [ 1 ] THE COURT: This is the decision on File Number 1853046, the matter of S.T.M. v. C.G.H. We are here today because C.G.H. has instructed Mr. MacLean, his counsel, to file an Application about Enforcement. I permitted that application to be filed today. That Application about Enforcement seeks many different heads of relief, but today, I am only going to deal with the issue of parenting time and parenting time enforcement.

The remainder of the relief sought I am going to adjourn generally because counsel may need to assess whether they want to go with that depending on what happens over the next short while. [ 2 ] The parties are before the court today arising from the Reasons for Judgment that I filed on May 18, 2023, which can be found at, 2023 BCPC 110 . [ 3 ] That trial decision encompassed over 260 pages including appendices and caselaw and resulting from 25 days of court time.

During that time, the parties and their witnesses gave evidence and I permitted the child, B., to be represented by counsel and her views were presented, as well. [ 4 ] During the trial and in prior applications, one of the main issues in dispute was B.'s parenting time with C.G.H. Both the historic situation concerning C.G.H. parenting time with B. and what should happen going forward was canvassed at length during the course of the trial.

Because of the evidence presented at trial concerning the allegation of denied parenting time to C.G.H., I concluded in the Reasons for Judgment that there was some denial of parenting time at certain occasions. Those denials, in large part, occurred prior to the decision I rendered on August 13, 2020. [ 5 ] In those Reasons for Judgment, I concluded that a police-assist clause was necessary in order to try to stem the events of wrongful denial of C.G.H.'s parenting time. That order was made pursuant to s. 231(5) of the Family Law Act .

In fact, that term of the order never had to be utilized because, immediately after the order was granted, the problems of C.G.H.'s missed parenting time almost completely stopped and did not pose a major problem for almost three years, from August of 2020 until my decision of May 18, 2023. In fact, from what I can gather from counsel's submissions, B. continued to have her parenting time with C.G.H. under the previous order until yesterday, June 29, 2023.

I say that because the order I granted on May 18, 2023, in my Reasons for Judgment did not specify C.G.H.'s parenting time going forward until June 29, 2023. [ 6 ] Despite the history of there being no recent denials of parenting time, C.G.H., through his counsel, applied to have the police- assist clause continue.

After hearing the evidence and submissions of the parties, I concluded at that time that a police-assist clause going into the future was not appropriate because, as I said, at paragraph 747 of the decision: There are no present allegations of non-compliance with the court's order regarding parenting time. Keeping in mind that police enforcement clauses should not become a longstanding court response when lesser penalties for future infractions are available. C.G.H. has not demonstrated that a police enforcement clause in perpetuity is the only available remedy for future allegations of non- compliance.

It is not appropriate to extend the police enforcement clause at this time. Then, in my actual

summary of decision I made the order at paragraph 889: Pursuant to s. 231(5) of the FLA , C.G.H.'s application for a police enforcement clause is dismissed. [ 7 ] Leading up to June 29, 2023, apparently, because I have not seen the text exchange between B. and her parents, she was raising concerns about having to spend, effectively, a little over three weeks in C.G.H.'s care as described in Appendix A of the Reasons for Judgment. She made complaints to both parties about this and there were some back-and-forth communications.

Near the end of June, C.G.H. commented to B. about her coming for the first part of the summer vacation and she said she was not coming but did not elaborate at all. Apparently, she has left S.T.M.'s home, doing so in the morning of June 29, leaving behind a note, and I will just read the note: Dear Mom, I can't do the month thing. Please don't worry about me. I'm 100 percent safe. I will come back once things cool down.

I love you, Mom, but please don't try to make me go. [ 8 ] I cannot tell from that note whether or not B. does not want to go to see C.G.H. at all or just that she does not want to go for a month, which, of course, is an incorrect assumption on her part. It is not a month, it is slightly less, but S.T.M. says that when she saw that note and saw that B. had left, she, first of all, informed C.G.H. and then took steps to try to find out from friends where B. may be. After a while, it was ascertained that B. was somewhere where C.G.H. does not know where she is, but allegedly S.T.M. may.

B. has had dealings with a member of the RCMP who has confirmed that she is safe and that she does not wish C.G.H. to have her location disclosed to him. [ 9 ] There was mention of some sort of a safety plan being put in place by some social agencies. I am not sure whether those social agencies engaged with B. prior to her departure or only since yesterday. There was mention that, Dr. Ambrose, her treating psychologist, has a duty to keep B.'s views confidential unless she makes statements that lead Dr. Ambrose to be concerned about her personal health and safety through self-harm. Dr.

Ambrose has made no such comment to the parties up to this point. [ 10 ] S.T.M. contends that C.G.H. has cancelled appointments for B. with Dr. Ambrose and that in itself would be a violation of the Court's order of May 18th, but I do not know the circumstances surrounding that and I do nothing more but make that comment at this point. [ 11 ] I do note that B. has counsel of her own, Mr. Petrisor. Mr. Petrisor has no instructions to, for example, bring an application to suspend the terms of my Reasons for Judgment of May the 18th, and that is where the parents and their counsel are left at this point in time.

[12] I asked counsel their views on whether or not I could suspend or vary a determination I made in my Reasons for Judgment ofMay 18, 2023, because the order has not yet been entered. Counsel seem to think that was a possibility, but they were not completelycertain. In the brief time I stood down to prepare these reasons, I reached out to my colleagues on the court and received someinformation about that situation. [13] Now, one case I was provided is Sidhu v.

Sidhu, 2010 BCSC 1603, in which Madam Justice Russell reviews the law on the areaof either providing supplemental reasons or changing a term of a Reasons for Judgment that has not yet been entered. She cites numerouscases. In her case, she does not permit the reconsideration or any sort of variation of the Reasons for Judgment, but she does commenton some cases where that occurred. [14] The foundational case with regard to this issue is Clayton v.

British American Securities Limited, cited at (1934), (BC CA), 49 B.C.R. 28, a decision of our Court of Appeal and also found at [1935] 1 D.L.R. 432 or [1934] 3 W.W.R. 257, and whatthe Court of Appeal says, and I am just going to quote: It is, I think, a salutary rule to leave unfettered discretion to the trial Judge. He would of course discourage unwarranted attempts to bringforward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effectof a judgment to re-establish a broken-down case with the aid of further proof.

If the power is not exercised sparingly and with thegreatest care fraud and abuse of the Court's processes would likely result. Without that power however injustice might occur. [15] Sidhu also quotes from the decision of Cheema v. Cheema, 2001 BCSC 298, where Madam Justice Bennett says at paragraph 25: A trial judge may properly elect to exercise his or her unfettered discretion to re-open a case before a judgment has been entered andwhere no fresh evidence application is made, where material evidence was overlooked or misconstrued, there was a misapplication of thelaw, or to clarify ambiguous language.

Additionally, non-entered judgments have been re-opened where there has been a change incircumstances such that the original order would not have been made had those circumstances been present. However, where theapplicant is merely advancing an alternative argument that could have been made at the time of the original trial, this is not a properbasis upon which to reopen. [16] So do these cases have application here? I think particularly Madam Justice Bennett's comments in Cheema have application.

There has been, in my view, a change in circumstances such that the original order would not have been made had those circumstancesbeen present. For example, if I had been aware during the course of the trial that B. was refusing either on her own or in consultationwith S.T.M. to have parenting time with C.G.H., there would be a very high probability I would have continued the police enforcementclause, perhaps not in perpetuity, but at least for a period of time. [17] That leads me to what I can or should do here today and what I will be doing here today.

I have concluded that I have theauthority to effectively suspend or vary the terms of the Reasons for Judgment as it applies to the police enforcement clause. [18] I am going to suspend my dismissal of C.G.H.'s application for a police enforcement clause as described in paragraph 889 untilfurther order of the court. What does that mean? Well, that means we return back to what was ordered in August of 2020 which was apolice enforcement clause. Why is it being done until further order of the court? Because I do not want to fetter counsel's ability to takefurther instructions, particularly in the case of Mr.

Petrisor, to set out in some cogent way, if possible, why things are not working outfrom B.'s perspective. [19] I keep in mind, having reviewed the May 18, 2023, Reasons for Judgment in a

summary fashion when I was advised that thismatter may be coming back before me this afternoon that by all reports from C.G.H. and Dr. Cook when B. goes on vacations with them,she generally has a good time. She has some problems from time to time. I refer back to the issue about the sunscreen and the allegedplaying of beer pong. Certainly, she does shut down as she gets closer to being returned to S.T.M.'s care, but there is nothing in anymaterial presented by Mr.

Petrisor to suggest that B. was having a terrible time each and every occasion she went on vacation withC.G.H. [20] So, effectively, paragraph 14 of the August 13, 2020, order will continue, but to tighten things up so we only have to give a policeofficer one document to look at, the terms of the order will be as follows. [21] First of all, we have to identify B. [22] The next term will read "The dismissal of [C.G.H.]'s application for a continuing police enforcement clause as described inparagraph 889 of the Reasons for Judgment granted May 18, 2023, are suspended until further order of the Court." [23] The next term will read; H21, Mr.

MacLean, just to help you follow along, "Upon being satisfied that [C.G.H.] has wrongfullybeen denied parenting time with a child," and we will put the child's name in, "This court orders under s. 231(4) of the Family Law Actthat a police officer apprehend the child," and put her name in again, "And take her to [C.G.H.] pursuant to the dates set out in AppendixA to this order". Mr.

MacLean, you are going to attach the Appendix A from the Reasons for Judgement so that the police officer canlook at it. [24] Then H23, "For the purposes of locating and apprehending the child in accordance with this order, under s. 231(6) of the FamilyLaw Act, a police officer may enter and search any place they have reasonable and probable grounds for believing the child to be." [25] That is the term of my order.

I have advised you of the lack of my availability with regard to matters outside of what I have dealtwith in the Reasons for Judgment, although I think to be fair if there is a possibility of getting back before me with regard to any furtherapplications concerning this issue, you should at least make the attempt. It might save another judge, if nothing else, a couple of hoursof reading my Reasons for Judgement and the previous reasons before that. [26] Mr. MacLean, I will have you draw the order. I want you to provide copies to your friends.

If neither of them objects within 24hours of receiving the copy you send them electronically, you can have the order entered without their signature. If they raise an

objection by email, then you have to sort it out with them about the wording, and I have made the order. [ 27 ] It is not up to me to decide how the RCMP are going to interpret the Order once it is put in their hands. I was somewhat surprised to hear the police's view of things, but perhaps there are other considerations they take into account given B.'s age as a middle teenager. [ 28 ] Mr. Petrisor, anything further? [ 29 ] CNSL G. PETRISOR: I am sorry, Your Honour. I don't think -- I don't think I can -- there's nothing I can add, Your Honour. [ 30 ] THE COURT: Mr. Whidden? [ 31 ] CNSL G.

WHIDDEN: No, thank you. [ 32 ] THE COURT: Mr. MacLean? [ 33 ] CNSL F. MACLEAN: No, Your Honour. I'll draft this up today and try to send it out before I head out for the long weekend. (REASONS CONCLUDED)