K.T. v. M.Z., 2022 BCPC 70

Citation: K.T. v. M.Z. 2022 BCPC 70 Date: 20220412 File No: 2132318 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.T. APPLICANT AND: M.Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: J. Bomhof Counsel for the Respondent: R. Joubin Place of Hearing: Vancouver , B.C. Date of Hearing: March 18, 2022 Date of Judgment: April 12, 2022

Introduction [ 1 ] K.T. (“Ms. T.”) and M.Z. (“Mr. Z.”) are the parents of two children, currently aged 10 and 8. [ 2 ] On October 7, 2021, Ms. T. filed an Application About a Protection Order against Mr. Z. This matter was set for hearing March 18, 2022. [ 3 ] On January 6, 2022, Judge Phillips made an order allowing Mr. Z. parenting time with the two children on Saturdays and Sundays to occur at the Metrotown Mall in Burnaby, B.C. Judge Phillips directed that the question of whether Mr. Z.’s parenting time should occur in a public place also be heard on March 18, 2022. [ 4 ] On March 18, 2022, the Application About a Protection Order was adjourned generally for two reasons as follows:

(1) The Crown has applied pursuant to s. 810(1) (

a) of the Criminal Code for a recognizance against Mr. Z. seeking protective conditions involving Ms. T. and the children. This is more commonly referred to as a “peace bond.” On November 6, 2021 the court released Mr. Z. on conditions limiting his contact with Ms. T. and the children, but subject to any family court or child protection order.

(2) On November 1, 2021 Judge Stark made a conduct order preventing Mr. Z. from having any communication with Ms. T. except through legal counsel or in court proceedings. Mr. Z. was also ordered not to go to Ms. T.’s home or the children’s school, and not to have any direct or indirect contact with the children except through Facetime, Skype or other video communication. The order also provided that any in-person parenting time occur in a public place. [ 5 ] Given the adjournment of the protection order application, the only issue that should have remained was whether Mr.

Z.’s parenting time still had to occur in a public place. Rather than proceeding on that basis, Mr. Z. asked for an order to enforce the existing parenting time

schedule and for compensatory parenting time. At the conclusion of the hearing though, Mr. Z. asked to vary the January 6, 2022 order of Judge Phillips to seek parenting time from Friday at 3 p.m. to Tuesday at 9 a.m. [ 6 ] Mr. Z. did not file a formal application to seek compensatory parenting time, or for the enforcement or variation of the January 6, 2022 parenting time order. [ 7 ] In turn, Ms. T. asked for an order pursuant to s. 211 of the Family Law Act regarding the views of the child. There was also no filed application to seek this order, and counsel for Mr. Z. was not told about this request.

At the outset, I declined to consider this application. [ 8 ] During her testimony, Ms. T. asked that Mr. Z.’s parenting time be supervised. There is no application filed to seek this order. [ 9 ] The issue I must decide is whether to allow for a variation of the January 6, 2022 order of Judge Phillips on the terms sought by the parties. Court Proceedings [ 10 ] On October 7, 2021, Ms. T. filed an Application About a Protection Order, seeking various protective orders against Mr. Z. [ 11 ] On October 18, 2021, Judge Stark made two orders, both without notice to Mr. Z.

The first order was a protection order against Mr. Z., which would expire November 1, 2021. The second order was that Mr. Z. not remove the children from the Lower Mainland without the written consent of Ms. T. or further court order. [ 12 ] On November 1, 2021, Judge Stark made a conduct order as follows:

a) Mr. Z.’s communication with Ms. T. were limited;

b) Mr. Z. was prevented from going to Ms. T.’s home or the children’s school; and

c) Mr. Z. could only communicate with the children by Facetime, Skype or other video communication, and could only have in-person parenting time in a public place. [ 13 ] The October 18, 2021 protection order expired and a March 18, 2022 hearing date was set to decide if a new protection order should be made. [ 14 ] In November 2021, the Crown laid an Information against Mr. Z. to seek a recognizance pursuant to s. 810(1) (

a) of the Criminal Code . This peace bond application was based on the allegation Ms. T. had reasonable grounds to fear and does fear Mr. Z. will cause injury to her or the children. On November 6, 2021, the court made a Release Order limiting Mr. Z.’s contact with Ms. T. and the children, subject to any family court or child protection order. This matter is set for trial in July 2022. [ 15 ] On November 15, 2021, Mr. Z. filed an Application About a Family Law Matter to seek orders regarding parental responsibilities and parenting time. Ms. T. did not file a Reply to this application.

On March 18, 2022, I gave permission for Ms. T. to file a Reply and it was filed that day. [ 16 ] On November 16, 2021, Mr. Z. filed an Application About Priority Parenting Matter seeking the return of the children pursuant to the Convention on the Civil Aspect of International Child Abduction signed at The Hague on October 25, 1980. [ 17 ] On November 19, 2021, Judge Meyers made an order recognizing the November 6, 2021 Release Order and confirming that Mr. Z. would have parenting time as set out in the November 1, 2021 order of Judge Stark.

[ 18 ] On December 6, 2021, Judge Denhoff adjourned generally Mr. Z.’s application for the return of the children pursuant to the Hague Convention. [ 19 ] On January 6, 2022, Judge Phillips made an interim consent order that Mr. Z. have parenting time on Saturdays and Sundays from 12:00 p.m. to 2:00 p.m. at the Metrotown Mall, Burnaby, B.C. until further court order or as agreed to by the parties. Judge Phillips directed that the issue of whether Mr. Z.’s parenting time should occur in a public place be heard on March 18, 2022, at the same time as the protection order application.

Evidence [ 20 ] Both counsel asked to rely on affidavits previously filed with the court. [ 21 ] Under the Provincial Court (Family) Rules , which were repealed May 17, 2021, Rule 13(3) required the court’s permission before evidence could be given by way of an affidavit. The current Provincial Court Family Rules do not contain an equivalent provision to s. 13(3) of the old Rules. However, Rule 112(1)(i)(iii) does allow a judge at a trial preparation conference to permit affidavit evidence at a trial. Rule 62(

m) allows a judge to make a case management order as permitted under Rule 112(1). Rule 61 allows a judge to make a case management order at any time. It is therefore through this convoluted process that I am able to permit the use of affidavit evidence at trial. [ 22 ] The affidavits that I have reviewed and allowed into evidence are as follows:

a) Affidavit of K.T., filed October 7, 2021.

b) Affidavit of M.Z., filed October 29, 2021

c) Affidavit of K.M., filed December 17, 2021

d) Affidavit of M.Z., filed January 5, 2022

e) Affidavit of N.G.B., filed March 10, 2022

f) Affidavit of K.T., filed March 16, 2022 [ 23 ] The first four affidavits were filed prior to the January 6, 2022 appearance before Judge Phillips. The affidavit of N.G.B., filed March 10, 2022, attaches a transcript of that court appearance. The transcript confirms that Judge Phillips reviewed these four affidavits prior to the hearing. The most recent affidavit is from Ms. T. filed March 16, 2022. It attaches copies of text messages that were described in Ms.

T.’s affidavit filed October 7, 2021. [ 24 ] As a whole, the affidavit evidence does not provide me with any new information that was not already before Judge Phillips on January 6, 2022. [ 25 ] Both parties testified at trial before me. [ 26 ] Mr. Z. spoke of his relationship with the children and described the parenting time visits with the children pursuant to Judge Phillips’ order. Those visits started on January 8, 2022. The last visit with the children occurred February 26, 2022. On that day, Mr. Z. told the oldest child to call Ms. T. at the end of the parenting time.

There was no answer and so they remained at Metrotown Mall. Some time after, the police approached Mr. Z. The police told Mr. Z. he was late in returning the children. Mr. Z. was told that Ms. T. feared Mr. Z. had taken the children away. Mr. Z. felt he was being “set up” by Ms. T. Since this date, Ms. T. has denied Mr. Z. parenting time. [ 27 ] Ms. T. said Mr. Z. was 30 minutes late in returning the children on February 26, 2022. She said one of her sons had left her a message and was crying. Ms. T. feared Mr. Z. planned to take the children from her. She called the police and they found Mr.

Z. and the children in the mall some 1 ½ hours later. Because of this incident, Ms. T. is not willing to allow Mr. Z. any further parenting time unless it is supervised. She said this was necessary to prevent Mr. Z. from harming the children, although she never described the nature of the harm. Discussion [ 28 ] This hearing should only have dealt with whether Mr. Z.’s parenting time still had to be exercised in a public place.

It was never an opportunity to revisit the January 6, 2022 order since no party has filed an application to vary the order. [ 29 ] Family Law Act s. 216(3) allows a court to change, suspend or terminate an interim order if satisfied that at least one of two grounds exists. The first ground is a change in circumstances. The second ground is if evidence of a substantial nature becomes available, which evidence was not available when the court made the interim order. [ 30 ] I have not been told of any evidence that existed as of January 6, 2022 that has since become available.

The second ground has no application here. [ 31 ] As to the first ground requiring a change in circumstances, the change must be material and relate to the children’s best interests: L.L.N. v. K.N.L ., 2021 BCSC 1759 . [ 32 ] Mr. Z. has not presented any evidence to show a material change in circumstances to justify a variation of the interim parenting time order. Mr. Z. expressed his desire for increased parenting time but that is not a change in circumstances. [ 33 ] The failure of Ms. T. to comply with the parenting time order is a matter of enforcement, not a basis to vary the order.

[ 34 ] Regarding Ms. T.’s request for supervised parenting time, there is no evidence that Mr. Z. intended to flee with the children. At best, this is Ms. T.’s ongoing fear but that fear must be based on reasonable grounds. Ms. T.’s evidence was that the police went to the Metrotown Mall where they found Mr. Z. and the children some 1 ½ hours later. If Mr. Z. intended to leave with the children, he had ample time to do so.

The fact that he was still at the mall suggests to me that he had no such intention to leave with the children. [ 35 ] By their nature, interim orders are intended to preserve a status quo pending a final resolution of the issues: Kalafchi v. Yao , 2015 BCCA 524 at para. 14 . A series of hearings resulting in interim orders should only occur for good reason. This might be where there has been a material change of circumstances affecting the best interests of a child, and a change in the interim order cannot wait until the trial.

Where no such changes have occurred, the parties should proceed to a final hearing to achieve at least some degree of certainty. [ 36 ] For the reasons I have set out, the order of January 6, 2022 will remain in effect. There is no legal basis to vary it. The parties need to set a hearing for a final order. Unlike a variation of an interim order, the court can make a final order without the need to find a material change of circumstances. Hopefully, the trial will provide a definitive result and certainty for the parties: see Routkovskaia v.

Gibson , 2020 BCCA 189 at para. 19 . [ 37 ] I turn now to the failure of Ms. T. to comply with the January 6, 2022 parenting time order. [ 38 ] Family Law Act s. 61 deals with an application where there is a denial of parenting time. As I stated at the outset, Mr. Z. did not file an Application About Enforcement. In closing submissions, Mr. Z. abandoned his request to enforce the existing parenting time order or to seek compensatory parenting time, and asked to vary the parenting time order. In the circumstances, neither party gave submissions regarding enforcement of the order.

Since neither side has been given the opportunity to argue this issue, I will not make any order regarding enforcement of the parenting time order. [ 39 ] The January 6, 2022 parenting time order remains in effect. If either party fails to comply with the order, then the other party may file an Application About Enforcement to seek those orders set out at s. 61(2) of the Family Law Act . [ 40 ] For the ease of reference, ss. 61 and 62 of the Family Law Act states: Denial of parenting time or contact 61

(1) An application under this

section may be made only (

a) by a person entitled under an agreement or order to parenting time or contact with a child, and (

b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (

c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (

d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (

e) require that the transfer of the child from one party to another be supervised by another person named in the order; (

f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (

i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

g) require the guardian to pay (

i) an amount not exceeding $5,000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5,000.

(3) If the court makes an order under subsection (2) (a), (

b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer. When denial is not wrongful 62

(1) For the purposes of

section 61 [denial of parenting time or contact] , a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child. Other Issues [ 41 ] In closing submissions, counsel for Mr. Z. argued that Ms. T. was alienating the children from Mr. Z. There was no direct evidence of this other than Mr. Z.’s suspicions. Proof of parental alienation requires expert evidence, which has not been offered: Kwan v. Lai , 2016 BCSC 1626 at para. 40 , citing Williamson v.

Williamson , 2016 BCCA 87 . [ 42 ] Mr. Z. also suggests that Ms. T. has abducted the children and his counsel referred me to various criminal law cases in support. Since this is not a Criminal Code proceeding and Ms. T. has not been charged with an offence, I need not deal with this allegation. Further Steps [ 43 ] The court will

schedule an appearance date so that a hearing for a final order can be set. At this appearance, the parties will need to provide their time estimate for the trial and the number of their anticipated witnesses. As both parties require the use of a Farsi interpreter, I suspect the time estimate should be as much as 50% longer than a trial that does not require the use of interpreters. [ 44 ] Because Ms. T. now filed a Reply to the Application About a Family Law Matter, it might be that a Family Management Conference would assist the parties.

I give leave to either party to request directly from the judicial case manager a further Family Management Conference.

Orders [ 45 ] I make the following orders: 1) The applications of M.Z. and K.T. to vary the January 6, 2022 order of Judge Phillips are dismissed, and the January 6, 2022 order of Judge Phillips remains in effect. 2) The Application About a Family Law Matter filed by M.Z. on November 15, 2021, will be set down by the judicial case manager for a court appearance to set a date for trial. 3) Either party has leave to request a further Family Management Conference by directly contacting the judicial case manager to arrange such. [ 46 ] I direct Mr. Bomhof to prepare the order for Mr.

Joubin’s approval as to form and then to have the order filed with the Registry. [ 47 ] For the trial, I direct the court registry to arrange for a Farsi – English language interpreter for each of the parties. [ 48 ] I direct counsel to inform the court registry if their client requires an interpreter for the court appearance scheduled to set a date for hearing. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia