M.M.V. v. G.L.K., 2022 BCPC 258

Citation: M.M.V. v. G.L.K. 2022 BCPC 258 Date: 20221011 File No: 195466 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.M.V. APPLICANT AND: G.L.K. RESPONDENT REASONS FOR JUDGMENT RE WITHOUT NOTICE ORDER OF THE HONOURABLE JUDGE D. PATTERSON Appearing on their own behalf: M.M.V. Appearing on their own behalf: No Appearance Place of Hearing: Williams Lake , B.C. Date of Hearing: October 11, 2022 Date of Judgment: October 11, 2022 [ 1 ] THE COURT: This is my ruling in relation to an application about a protection order filed by M.M.V. in relation to [omitted for

publication] file 19-5466 on October 11, 2022. It is an application without notice to the other party, G.L.K., who is the biological father of the child, A.K., born [omitted for publication]. M.M.V. is the biological mother. The parents are joint guardians. There is a final order from November 30, 2020, which sets out a number of issues including parenting time. [ 2 ] Based on the information that I have received today from M.M.V., and I appreciate I have only received one side of the story, it is apparent that M.M.V. has a genuine concern for her son A.K.'s safety when he is with his father.

Furthermore, it is also obvious from the text message exchange that was included as Exhibit 2, the affidavit of M.M.V., dated October 11, 2022, and filed with the [omitted for publication] court registry on the same date, that G.L.K. has a different way of looking at their child, A.K., than M.M.K. does. [ 3 ] I am particularly concerned about a text message exchange that occurred on October the 2nd, 2022, at 3:22 in the afternoon, in which M.M.V. texted the following to G.L.K.: Did you hit [A.K.] on Friday night and pull his ear and tell him not to talk as part of his punishment?

The reply was as follows: I told him to sit down and think about what he did. I spanked him lightly, and no, I did not pull his ear. Why are you accusing me of abusing him? LOL. I am allowed to spank him, as I am his parent. So I am guessing he doesn't understand why he was in trouble. Maybe you could be kind enough to remind him that he shit his pants and that it is unacceptable for a boy of his age to shit his pants. Fourteen years and he still can't use the bathroom yet. He quad rides a bike and does big boy things.

If you don't explain that to him, he probably sees it as I punished him for no reason and it is acceptable to shit his pants. [ 4 ] M.M.V. has testified that G.L.K. is aware of their son A.K.'s medical issues, including the fact that he is under a doctor's care and occasionally loses control of his bowels. What is especially concerning to me is the admission in the text message that: I spanked him lightly, and no, I did not pull his ear. [ 5 ] In a decision of the Supreme Court of Canada known as Canadian Foundation for Children, Youth, and Law v.

Canada (Attorney General) , 2004 SCC 4 , the Supreme Court of Canada made a number of directions in upholding s. 43 of the Criminal Code . Part of what the Supreme Court of Canada decided is that parents can use corrective force or physical punishment that is minor or "transitory and trifling" in nature. What that means, from a practical point of view, is that if a parent spanks their child hard enough that it leaves a mark or a bruise that would not be transitory and trifling and would not be reasonable.

Pulling your child's ear also would not be reasonable. [ 6 ] Importantly, the Supreme Court ruled that physical punishment, such as slapping, cannot be used on children younger than two years of age or older than 12 years of age. Physical punishment also, according to our Supreme Court, cannot be used on a child in anger or in retaliation for something a child did. Objects such as belts or rulers can never be used on a child and a child must never be hit or slapped on the face or the head.

Any use of force on a child cannot be degrading, inhumane, or result in harm or the prospect of harm to that child. [ 7 ] Importantly, our Supreme Court said that physical punishment cannot be used on a child who is incapable of learning from the situation because of a disability or some other factor and the seriousness of the child's misbehaviour is not relevant to deciding whether the force used was reasonable. The force used must be minor no matter what the child did. In this particular case, the child is 14 years of age.

Therefore, with the greatest of respect to G.L.K., what he did is against the law in Canada. That concerns me greatly. [ 8 ] So here is what we are going to do. There will be a protection order in relation to the child A.K., born [omitted for publication]. [ 9 ] F1, Madam Clerk: Pursuant to s. 183(3)(

a) of the Family Law Act , G.L.K. must have no personal contact or communication directly with A.K., born [omitted for publication]. [ 10 ] F2-A, slightly modified: G.L.K. shall be allowed to have contact with A.K. through email, text message, telephone or other online mediums, for the purpose of exercising his parenting time as set out in Judge Thomas' order of November 30, 2020. [ 11 ] F3-1: Pursuant to s. 183(3)(

a) of the Family Law Act , G.L.K. must not go to or be within 100 metres of any place where M.M.V. and A.K. live, work, attend school, worship or happen to be, even if G.L.K. is an owner of any such place or otherwise has a right to possess or enter such a place. If G.L.K. sees M.M.V. or A.K., he must leave their presence immediately without words or gestures. [ 12 ] F12: Pursuant to s. 183(4) of the Family Law Act , this order will expire on December 31, 2022. [ 13 ] F13: G.L.K. may apply to set aside or vary this order by completing a form 12 application about a protection order with

schedule 2 or 3 attached, filing it with the registry and serving it on M.M.V. no later than five days prior to the hearing date. [ 14 ] That is the order I am making for you. (REASONS CONCLUDED)