A.V.P. v. C.G.H., 2023 BCPC 27

Citation: A.V.P. v. C.G.H. 2023 BCPC 27 Date: 20230123 File No: 4943 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.V.P. APPLICANT AND: C.G.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. DOERKSEN Appearing on her own behalf: A.V.P. Appearing on his own behalf: C.G.H. Place of Hearing: [omitted for publication], B.C. Date of Hearing: January 11, 2023 Date of Judgment: January 23, 2023

Background [ 1 ] On November 23, 2022, this matter was set for a Family Management Conference (FMC). The matter was set to be heard by video, MS Teams. The issue then, as now, concerns the father’s parenting time with their daughter who is now eight years old. [ 2 ] The parties were given information on how to dial in to this conference. When the matter was called none of the parties appeared and the matter was adjourned by the court. About half an hour later, the father was able to contact the registry and it was learned that the father was having difficulty getting into the conference.

Either he was given the wrong dial in information or there were other technical difficulties. [ 3 ] The father stated to the court that the mother had not appeared before at other scheduled appearances and gave the impression that she was not interested in opposing his application for increased parenting time. The father’s parenting time was increased to include an overnight visit with their daughter every other week.

This was an interim order only with a hearing date set for January 11, 2023. [ 4 ] Unfortunately, the mother was very much interested in attending the FMC but was having the same difficulties as the father getting into the conference. As the conference was the last one in the court day the mother was not able to get the matter returned to the court to make her submissions. [ 5 ] The mother was understandably upset by this and the next day attempted to rectify the matter by making an application for a Protection Order before another judge.

Legally this was not the correct procedure to overturn a Family Law Act (FLA ) order and her application was dismissed. Throughout the recent appearances on this matter the parties have been representing themselves. This is most unfortunate as a lawyer is better equipped to ensure that this unfortunate result does not occur. [ 6 ] Hearing matters by video has been a great benefit for parties in remote locations to have improved access to justice (these parties being in [omitted for publication], British Columbia and [omitted for publication], Alberta and the court in [omitted for publication], British Columbia).

Unfortunately, occasional technological difficulties have meant that one party, or both, have sometimes been unable to attend a FMC or other court hearing. The unfortunate consequence is that the court, understandably but mistakenly, may conclude that a non-appearance by one party means a lack of interest by that party and an order is made without that party being heard. [ 7 ] It is particularly unfortunate in this case as the father did not bring to the attention of the court on November 23, 2022 that there was a s. 211 FLA report, commonly called “the Views of the Child” report.

Had a lawyer been involved that lawyer would have been ethically bound to alert the court to this report. This is not a criticism of the father; he is not a lawyer and would have no knowledge of a lawyer’s duties. However, it is highly doubtful that if the court had been made aware of this report that the order permitting over-night visits would have been made. In any event, the November 23, 2022 order is an interim order only and this hearing is meant to be a fulsome hearing allowing the parties plenty of opportunity to present evidence and make submissions and for this court to then make a final order.

The Hearing [ 8 ] This matter proceeded in open court on January 11, 2023 with the mother in attendance and the father appearing by phone. The mother testified and the father made submissions. In the father’s application to appear by phone, he indicated that the matter “has already been handled” at his last appearance on November 23, 2022. The father appears to be under the mistaken assumption that once something has been given to him that it cannot be taken away. [ 9 ] The parties have a long and acrimonious history that began before the child was born.

The father has been violent with the mother in the past and has faced criminal consequences for his behaviour. Thankfully, the father has not engaged in violent behaviour for quite some time, but his words towards the mother over the last few years have been hateful and derogatory. The mother provided a binder of material with copies of emails and texts that show the father’s disgusting and repulsive behaviour. [ 10 ] There have been 18 orders made in this matter in the eight years since this file commenced.

In 2020, after the father was absent from the child’s life for an extended period of time the father applied to have parenting time. The mother resisted this because of the father’s prior absence. However, the father appeared to show a genuine interest in being involved in his child’s life and his behaviour towards the mother appeared to have improved in that the violence had stopped. Thus, in October of 2020 a substantive order was made setting out parental responsibilities, parenting time, and child support among other things.

Parenting time by the father was initially supervised and, with positive visits, to eventually become unsupervised. [ 11 ] It is of some significance that this was the last time the parties had a lawyer to assist them. [ 12 ] Usually, at this stage the parties begin to develop an acceptable pattern of behaviour and things “settle down”. That did not occur in this case. A few months later, the parties were back in court, this time representing themselves. [ 13 ] A hearing was held March 11, 2021 with Reasons for Judgment filed on March 25, 2021.

This court found that the mother had been wrongfully withholding the child from the father. The mother did so for reasons of the father being in child support arrears and because of Covid restrictions. The court rejected the mother’s rationale and admonished the mother but took no further action other than to put the parties under a conduct order, which is set out in the next paragraph. [ 14 ] The March 11, 2021 order states: The parties shall:

a) put the best interests of [the child] before their own interests;

b) encourage [the child] to have a good relationship with the other parent and speak to [the child] about the other parent and that parent’s partner in a positive and respectful manner; and

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of [the child]. The parties shall not:

a) question [the child] about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with [the child] any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to [the child]. [ 15 ] On March 17, 2021, the mother applied to suspend the father’s parenting time and this application is now before this court. [ 16 ] Less than two months later, on May 8, 2021 the father sent a long text message to the mother. Excerpts of this message include: “Your [sic] so petty and pathetic” “Your [sic] white trash and always will be” “Just wait soon I’ll have her on weekends all alone and there won’t be anything you can do.

I’ll finally be able to explain to her what’s really happening.” [ 17 ] On July 3, 2021 the father sent the following message to the mother: “I lay in bed and laugh about all the things I did to you. Wish I would of done more, your [sic] so hung up in the past A.V.P. the only things your [sic] able to reminisce about are me almost running you over and causing you to have an abortion.

Sorry not sorry [with three laughing emojis] but time has moved on and nobody cares except for daddy issue A.V.P.” [ 18 ] On August 11, 2021 this court found that the mother had continued to deny the father parenting time and ordered a police enforcement clause. This appears to have emboldened the father as his communications with the mother became worse. [ 19 ] On Thursday June 30, 2022 the father sent the following text: “Fuck your [sic] a stupid bitch. Make sure y ohh answer my Facetime call.” And later, “I hate your guts A.V.P.

I’m going to be honest, everyday away from you is a Fuckin blessing” [ 20 ] Concerning the s. 211 report the father stated: “The judge won’t care your [sic] right just like doing your stupid fuckin 211 report ain’t going to do shit either, I hope your ready for a war between us, cause this just marked a new beginning, at least by the end of this year I’ll have half custody. Can’t wait for a review of the order coming soon.” And later, “Take care A.V.P., hope covid doesn’t kill you stupid bitch” And later the father sent the following text: “A.V.P.

I’m never going to agree with you on anything, because you are an evil unwilling to change human being, the moment you stop fighting me on this, that’s when everything will change.” [ 21 ] The father also brags about how he has made public social media posts about their court battle, including a picture he took of her in the courthouse, and that he does not care how this will affect the mother. [ 22 ] In another text exchange in late October 2022, it reveals that the father had parenting time when the child had a figure skating lesson.

The mother offered to the father that his parenting time could begin earlier if he could take the child to the skating rink. Instead of being grateful for the additional time he could spend with his daughter the father used it as an opportunity to berate the mother. [ 23 ] The father’s attitude was that he will do whatever he wants with the child when it is his parenting time – despite a prior order directing him to take the child to her scheduled activities when it is his parenting time. It is clear that the child’s skating lesson was not important to the father.

The father did not take the child to her skating lesson. [ 24 ] It is clear that what is in the “best interests of the child” is not forefront in the father’s mind, frustrating, harassing and demeaning the mother is. The mother throughout is respectful in her communications with the father. [ 25 ] A further example of the father’s behaviour is a voicemail the father left for the mother only two days before this hearing. The mother played the voicemail in court. The father states to the mother that “Karma is a bitch” and he hopes she is “ready for the hearing”.

The father had no good explanation for this action. The only rational explanation is the father’s hatred for the mother. His message was meant to demean and harass the mother. [ 26 ] The father tried to explain his prior derogatory emails and texts as being taken out of context and that the mother was doing or saying some things to him. As noted earlier, the mother was found by this court to have been deliberately withholding the child from the father in August of 2021. The mother was using the Covid pandemic as an excuse to limit his parenting time.

The mother was admonished by the court and a police enforcement clause was put in place. The mother has abided by this order ever since. The father has not abided by the court’s orders, including conduct orders, and has shown complete disregard for the mother and for this court’s orders. [ 27 ] The father stated that he did not grow up with a father figure in his life but has been working to improve himself and has taken various courses to improve himself. He did not provide any proof of this but it is noted that he recently completed the Parenting after Separation course.

When asked by the court if he was sorry for any of these past derogatory communications he said that he was, but his “apology” was hesitant, conditional and only after the prompting of this court. The father felt he had to say sorry but he has no genuine remorse. [ 28 ] The mother also provided a calendar of the father’s visits with the child. The father is inconsistent, to say the least. The father’s explanation is that his work sometimes conflicts with the parenting time.

In any event, the father is not considerate of the mother’s time and does not provide proper notice to the mother when he cannot make his parenting time. Indeed, why would he give her any notice when he thinks so little of her? The

Section 211 Report and the Social Worker’s Letter [ 29 ] Because of the acrimony between the parties, it has been difficult for the court to find that either party is, at times, credible.

The court stated in the March 25, 2021 Reasons for Judgment at paragraph 8: I view the credibility of both parents with significant caution and wherever their evidence differs, I look for independent supportive evidence. [ 30 ] Thus, this court ordered a s. 211 report to provide third party information to assist in determining what is best for this child and what the father’s parenting time should be. [ 31 ] The s. 211 report was completed by a Family Justice Counsellor and filed with the court on August 10, 2022.

The mother expressed concerns about the father’s disrespectful attitude to the mother and her family and that the father is doing this in front of the child. The father expressed his desire to have more parenting time with the child and hoped one day to have 50-50 parenting time. [ 32 ] The report goes through the history of the parties’ relationship and their current circumstances. The reporter has no doubt seen some of the same communications that were presented to this court and describes these communications as “disrespectful and demeaning”.

Further, the reporter saw email streams that “should be about C.G.H.’s parenting time with [the child], and they disintegrate into C.G.H. berating A.V.P. and denigrating her and her family”. [ 33 ] The s. 211 report concludes: [The child] expressed she does not want to spend more time with C.G.H. C.G.H. could benefit from being aware of his anger levels and find a way to refrain from yelling when he is frustrated and choose not to denigrate A.V.P., or her parents in [the child’s] presence.

When C.G.H. creates a relationship that encourages [the child] to want to spend more time with him and she requests more time the parties may want to revisit the current order. [ 34 ] After the Order was made on November 23, 2022 giving the father overnight parenting time, a complaint was made to the Ministry of Child and Family Development (MCFD) expressing concerns about the child being in the father’s care. A social worker investigated and provided a letter to the father about her findings.

The father filed this letter with the court in an affidavit on January 10, 2023 in support of his case. [ 35 ] Although MCFD found no protection concerns the social worker goes on to note that in speaking with the child she learned that the child is not comfortable staying overnight with the father and that the father withholds toys if she does not give him a hug. Further, the child stated that the father has been mean to her in the past and at one time called her a “dumb kid”.

The child stated that she does not want to have extended or overnight visits with the father although the child thought the father was trying to do better recently. The child noticed that the mother and father had been making efforts to get along recently. [ 36 ] The social worker also had this to say: You [the father] expressed believing that [the child] was confused as to the feelings she should have towards you. It was recommended that you adjust your expectations to meet [the child] where she is at, and patiently build a trusting relationship with her and respect her limits and feelings .

The child needs her parents to set their differences aside, treat each other with respect, and put her needs first. We discussed how a parent cannot harm the other parent without also harming the child .

The 211 report recommends that you access counselling to address your anger and focus on the impact of your communication on your child; for you to not denigrate the mother; and that when you create a relationship that encourages [the child] to want to spend more time with you and when she requests more time with you, the parties should only then revisit the extended parenting time. (emphasis added) [ 37 ] The father’s earlier email about the s. 211 report shows the father’s disdain of the report and by implication for the court process.

The father tried to persuade this court that anything that reflects negatively on him in the s. 211 report or the social worker’s letter should

be simply disregarded without any plausible explanation as to why. [ 38 ] As stated earlier, this has been a difficult matter to determine when the court has only the testimony of the parties themselves. This court gives considerable weight to the independent third party observations and recommendations of the social worker and the family justice counsellor. Analysis [ 39 ] I am guided by s. 37 of the FLA that mandates what I must consider in determining what is in the best interests of the child. That

section states: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

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

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

h) 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; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [ 40 ] Family violence is defined in the FLA as: "family violence" includes, with or without an intent to harm a family member, (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, … (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment , coercion or threats, including threats respecting other persons, pets or property, (emphasis added) [ 41 ] The child’s emotional health is being harmed by the father’s attitude and treatment of this child’s mother. I have no doubt that the father has already made his views of the mother known to the child, indeed he has stated clearly that he will do so in a text to the mother.

If the father is so openly abusive to the mother how can I trust that he won’t be emotionally abusive with the child; especially if the child says anything in defence of her mother. [ 42 ] I am convinced that the father is unable to restrain himself around the child and has exposed his hatred for the mother to the child. This is detrimental to the child and her emotional development. [ 43 ] The child’s views are clear: she wants limited contact with the father and certainly no overnight visits with him. The father does not even acknowledge this fact.

The father should be asking himself how he can improve his relationship so that she wants to spend more time with him instead of ignoring her clearly stated wishes. [ 44 ] The child clearly has a strong bond with her mother and her mother has had the primary responsibility of caring for the child. The

father does not support the mother and is actively trying to destroy the mother emotionally, and the child’s bond with her. The father’s bond with the child is tenuous at best. [ 45 ] Family violence is and has been perpetrated by the father to the mother. The texts are a clear attempt by the father to harass and demean the mother. Unfortunately, the father’s hatred for the mother is so ingrained that he has no insight into his behaviour, or how his behaviour is damaging the child. The father has no ability to co-parent with the mother.

The father’s attitude is that the mother should just give in to what he wants. [ 46 ] Unless and until the father gains some insight into how his actions and words towards the child’s mother is damaging the child, this father should have no contact with her. I have considered whether the father should have supervised visits with the child, but this requires some co-parenting and the father is incapable of it. [ 47 ] This abuse has gone on too long. It is not useful to grant the father supervised visits in the hope that he will improve his behaviour.

The father has had plenty of time and opportunity to improve himself and he has shown no regard for the mother or this court’s orders. The conduct orders clearly mean nothing to him. [ 48 ] This court notes that the more time the father has spent with the child the more abusive he has become.

That the father would leave an abusive voicemail with the mother only two days before the start of this hearing shows how incapable the father is of controlling himself. [ 49 ] A further example of the father’s lack of insight is that after the conclusion of this hearing and having told the parties that the court will take some time to consider its decision the father filed an application for more parenting time with the child (Document #104). Not only does the father show a lack of insight but again disregards this court’s order of August 11, 2021 not to file anything without leave of this court.

The father’s most recent application filed on January 16, 2023 is dismissed, the mother is not required to file a Reply.

Section 7 Expenses [ 50 ] The mother provided evidence of unpaid s.7 expenses. It is clear in the texts that she has requested of the father that he pay his share (75% as previously ordered). The father ignores her requests. [ 51 ] In the texts put in evidence the father brags about how he is in a good financial situation as he has no debt, his investments are doing well and he recently got a promotion. A review of the court file reveals that the father has never filed a Financial Statement. The father was previously ordered to provide to the mother his Notice of Assessments on an annual basis.

It is unknown if he has complied with this order, it did not arise as an issue in this hearing. In any event, I am satisfied that the father can and should pay the s. 7 expenses that the mother has incurred so far. [ 52 ] The father is ordered to pay 75% of $7,292, which is $5,469. Protection Order [ 53 ] This court is very concerned about the father’s reaction upon hearing of this order. The father should also face more significant consequences for his behaviour should the abuse to the mother continue. Therefore, a protection order will be put in place.

The Order [ 54 ] Where this Order conflicts with a prior order this order has precedence.

The following Order is made: 1) The father’s parenting time is cancelled. 2) The police enforcement clause against the mother is cancelled. 3) The child will live primarily with the mother. 4) The mother will have all parental responsibilities for the child pursuant to s. 41 of the FLA . 5) The mother does not require the consent of the father to apply for a passport for the child. 6) The mother does not require the consent of the father to take the child on a vacation outside of the country. 7) The father will continue to pay child support in the amount of $629 per month. 8) The father will pay $5,469 for past s. 7 expenses to be paid at a rate of $500 per month until such arrears are paid off. 9) The father will file a Financial Statement in Form 4 no later than February 24, 2023. 10) Unless he has already done so, the father will provide to the mother his Notice of Assessment from Revenue Canada for the tax years 2021, 2020 and 2019 by February 24, 2023. 11) The father will provide his Notice of Assessment to the mother for the tax year 2022 by June 1 st of this year, and his Notice of Assessment every year thereafter on June 1 st . 12) The father’s application of January 16, 2023 did not have leave of this court and is dismissed without the requirement of the mother filing a reply. 13) The father is not permitted to make any further application to this court without leave of this court first being obtained and complying

with the following conditions: i. Pursuant to s. 227(

a) to assist in ensuring the father’s good conduct, a cash deposit in the amount of $2,500 will be paid into court; and, ii. A current Financial Statement has been filed; and, iii. The father has completed a family violence prevention course or program of not less than forty hours; and, iv. The application is filed by a lawyer. The Protection Order [ 55 ] Given the father’s past abuses, I find it necessary to make a protection order for the mother and child. 1) Pursuant to s. 183(3)(

a) of the Family Law Act, the father must have no contact or communication directly or indirectly with the mother or the child. 2) The only exception will be through or in the immediate presence of a lawyer who has been given a copy of this protection order. 3) Pursuant to s. 183(3)(

a) of the Family Law Act , the father must not go to any place where the mother lives, works, attends school, or worships, or happens to be, even if the father is an owner of any such place or otherwise has a right to possess or enter such a place. If the father sees the mother or the child, the father must leave their presence immediately without any words or gestures. ______________________________ The Honourable Judge L. Doerksen Provincial Court of British Columbia