Bradley v. Bradley, 2015 BCSC 1587

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bradley v. Bradley, 2015 BCSC 1587 Date: 20150702 Docket: D34170 Registry: Kamloops Between: Christine Ann Bradley Claimant And Mark Steven Bradley Respondent Before: The Honourable Mr. Justice Voith Oral Reasons for Judgment In Chambers Counsel for the Claimant: S.M. Soll Counsel for the Respondent: C.D. Kane Place and Date of Trial/Hearing: Kamloops, B.C. June 29, 2015 Place and Date of Judgment: Kamloops, B.C. July 2, 2015 [ 1 ] THE COURT: The parties have cross-applied for various forms of relief. The central issue is whether the respondent, Mr.

Bradley's, ongoing and more recent behaviour towards his son, Landen, warrants a change in the terms of access orders made by Mr. Justice Powers on June 28, 2011 (the “Consent Order”), and by Mr. Justice Brown on October 17, 2012 (the “Access Order”). That change would deny Mr. Bradley any access to his son until his son was prepared to resume having contact with him. [ 2 ] Though the precise chronology that pertains is not clear from the materials before me, the following central facts are relevant. [ 3 ] The parties married on April 20, 2000, separated on December 12, 2002, and were divorced in April 2004.

They had one child, Landen, who was born on May 7, 2002, and who is now 13 years old. [ 4 ] Pursuant to the Consent Order, Mr. Justice Powers ordered that the claimant, Ms. Bradley, have sole custody and guardianship of Landen. The Consent Order was made following the receipt of a comprehensive custody and access report prepared by Dr. England, and it varied the terms of an earlier order made by Blair J. on September 23, 2003. The Consent Order contained various terms that addressed, inter alia, Mr. Bradley's access to his son.

Those terms were further varied by the Access Order of Brown J. with the result that Mr. Bradley was to have access to Landen on three of his four-day-off work cycle. [ 5 ] It is common ground that various concerns of the Ministry of Children and Family Development (the “MCFD”), gave rise to child protection proceedings in mid-2013 and caused Mr. Bradley's access throughout 2014 to be inconsistent. I understand that there were extended periods in 2014 when Mr. Bradley had no access to Landen.

The MCFD proceedings also gave rise to Landen's formal removal from his mother, an interim custody order in favour of the Director in proceedings in February 2014, and a supervision order dated April 1, 2015, that was also made in the child protection proceedings. [ 6 ] Aspects of a report to the Provincial Court, dated September 17, 2013, and prepared on behalf of the Director under the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46, in the child protection proceedings, are relevant. By way of explanation, Heather, who is referred to in this report, is Mr. Bradley's common-law partner.

I have quoted from the report at greater length than is usual because the report reflects the breadth of the concerns that relate to Mr. Bradley and the relative intransigence of his conduct. Landen is in need of protection as described in Section 13(1)(

a) and (

e) of the CFCSA and the particulars are as follows: The Ministry has received 10 reports of Mark and Christine Bradley since November 2002. Initial two reports include domestic violence between Mark and Christine and unsubstantiated physical abuse of Landen by Christine. The remainder of the reports pertain to Mark which include: Mark neglecting Landen, abusing Landen, concerns Mark exposing Landen to pornography and Mark consuming large

quantities of alcohol while caring for Landen. There were also substantiated concerns of RCMP confiscating loaded weapons and 18 pounds of marijuana from Mark's home. Mark was hospitalized for suicidal ideation after he separated from Christine. During MCFD involvement in 2009 Mark threatened violence toward MCFD.

Mark has accessed a wide variety of services in Kamloops in 2002 including: NOVA/Anger Management, drug and alcohol counselling, counselling from multiple counsellors, a Parenting Coach, multiple times through Parenting After Separation, Hospitalization on 1 South, and STEP - Systemic Training for Effective Parenting Program. Further, in regards to the substantiation of the Mark physically abusing Landen, there have been two Supervision Orders requiring Mark to be supervised during his visits.

On June 11, 2013 MCFD was informed that the children in the care of Mark and Heather were being exposed to violence and physical abuse by Mark. Through subsequent school visits, home visits, and interviews of the children and adults, these child protection concerns were substantiated. The children disclosed numerous incidents of either being afraid of Mark's violence or being the victims of Mark's violence. A safety plan was enacted that Heather would not allow Mark around her children when Heather accessed her parenting time while the investigation was ongoing.

Another safety plan was enacted for Mark that he would not have parenting time with Landen over the June 15-16 weekend until he could meet with MCFD on June 19. On June 19, 2013, Mark stated that because Landen was making disclosure about Mark's abuse that Landen was "throwing Mark under the bus" and Mark refused to have the parenting time with Landen that was court ordered. Mark stated he would rather not see his son for 6 months until MCFD closed the file than work with MCFD to address the abuse allegations. On July 17, 2013, Mark reiterated his plan to walk away from Landen until SW Lippmann closed the file.

Mark was asked by TL Davis to support Landen by doing supervised visits but Mark refused, seeing his refusal to see his son as "taking the high road." Mark and Heather have admitted to several child protection concerns. Heather admitted that Mark twists Heather's fingers and arms, while Mark and Heather minimize this as a game, collateral interviews cite anger and/or alcohol as factors and resulting wounds which last for days.

Mark admitted he threw a phone into Landen's chest, held Landen against a wall by his throat yelling at Landen, and further roughed Landen up physically, Landen says in this instance he was elbowed and kicked by Mark. Mark has described his desire to hold a high standard in his blended family, but to do so he "uses a heavy hand" to protect these standards. Mark has talked about putting his hands on his children in some circumstances to get them to do the tasks he is demanding they accomplish for him.

On August 28, 2013, SW Lippmann was present with Mark and Heather at their counsellor's office to share child protection concerns from the perspective of MCFD. Mark and Heather were asked to access a counsellor to address the concerns that were substantiated. Mark and Heather were offered a counsellor who is contracted with MCFD and provides reports on a family, however, Mark and Heather refused to use this service.

At this August 28th meeting SW Lippmann also asked for a safety plan to be developed in conjunction with their choice of counsellor to mitigate the child protection concerns so that Mark could resume parenting time with Landen, although at a slower pace than the existing court order specifies. On September 9, 2013, Mark demanded he have resumption of his parenting time as ordered by the courts by September 11, 2013. On September 10, 2013, a letter from Mark's lawyer was received by MCFD and Christine.

Mark stated his intent to resume his parenting time as per the court order of up to four consecutive, unsupervised days. SW Lippmann this day met with Christine and Jamie and discussed the options for Landen's safety. If Christine was not able to go to Family Law Act court to protect Landen from Mark's upcoming visit that the direction for SW Lippmann was to remove Landen under the Child, Family, and Community Services Act. On September 11, 2013, Christine called SW Lippmann to say she was unable to go to court to stop Mark's parenting time.

On September 11, 2013, SW Lippmann met with Landen who confirmed the risk Mark posed to Landen if Landen was alone for lengthy periods of time with Mark. Landen stated that when he had a phone conversation with Mark on September 01, 2013 that Heather arrived at Mark's home, Heather brought her daughter Kaylee with her and Landen spoke to both Heather and Kaylee over the phone. This was in contradiction of the signed safety plan that Mark would not be around Heather's children. Despite the work done with his counsellor, Mark has continually denied he is responsible for harm to the children.

In addition to Mark's earlier statements that he would walk away from Landen rather than work with MCFD to mitigate the child protection concerns, combined with the denial of responsibility suggests the likelihood of harm of Landen is high during unsupervised and continuous parenting time for several days. As of the date of removal, SW Lippmann has not [been] provided a proposed safety plan from Mark, Heather, or their counsellor to assess further risk to Landen during Mark's parenting time. Nevertheless and without a safety plan, Mark has insisted he resume his parenting time with Landen.

MCFD had proposed parenting time for Mark to see Landen in a healthy, monitored, therapeutic environment to ensure Landen's safety, yet Mark does not see this as sufficient. Landen stated on September 11, 2013 that he does want to see Mark but wants to be in a safe environment to see Mark.

As Landen disclosed significant concerns regarding physical and emotional harm and in consultation with Team Leader Davis, it was determined that Landen would need to be removed. [ 7 ] It is relevant that on February 17, 2015, in the child protection proceedings, the Honourable Judge Marchand made the following distinct orders: THIS COURT ORDERS that: 1. The Interim Custody Order granted February 26, 2014 is varied such that Mark Bradley will have reasonable access to Landen, supervised at the discretion of the Director; 2. Mark Bradley's access is to include, but not be limited to the following: (

a) February 22, 2015 from 9:00 a.m. to 7:00 p.m.;

(

b) February 23, 2015, March, 2, 2015 and March 3, 2015 after school until 7:00 p.m.; (

c) March 10, 2015 from after school until March 11, 2015 at 7:00 p.m.; (

d) March 18, 2015 at 9:00 a.m. until March 19, 2015 at 7:00 p.m.; and (

e) March 24, 2015 at 1:00 p.m. (Mountain Time) at Roger's Pass to March 29, 2015 7:00 p.m. (Pacific Time); 3. When exercising access to the child, Mark Bradley will abstain from the consumption of alcohol and non-prescription drugs; 4. Any firearms owned or possessed by Mark Bradley will be safety stored in accordance with prevailing regulations; 5. Mark Bradley's access is subject to Landen's wishes; 6. Mark Bradley is not to communicate with Landen regarding any court proceedings; 7. Mark Bradley is not to make disparaging remarks regarding the other parties in the presence of Landen; 8.

Mark Bradley is to refrain from any physical or verbal abuse of Landen; 9. Mark Bradley is to continue counselling with David Darwin, including joint sessions with Landen, with costs shared equally by Mark Bradley and the Director; [ 8 ] Mr. Bradley had access to Landen in accordance with para. 2 of the foregoing order and, in particular, went skiing with Landen to Panorama Mountain Resort from March 24, 2015 to March 29, 2015. Landen alleges that on the first day of the ski trip, his father grabbed his arms, pinned them behind his back, and threw him on the bed.

He says his father then repeatedly thrust his groin against Landen's buttocks and simultaneously used coarse language to describe this behaviour. Both Landen and his father were wearing their boxer shorts during the incident. Landen says his father drank throughout the trip. Landen further said that his father "bad-mouthed" his mother and used various obscene expressions when doing so. Mr. Bradley ascribes these allegations to Ms. Bradley and denies them, at least in part.

This attribution is neither fair nor accurate. [ 9 ] Among the application materials are various reports that were prepared under s. 211 of the Family Law Act , S.B.C. 2011, c. 25. The reports were prepared by Mr. Stevens, a counsellor, who has met with Landen several times over the last 15 months or so. These reports are important and I will return to them. [ 10 ] The description I have provided of what transpired during Mr. Bradley and Landen's ski trip is, however, based on Landen's account to Mr. Stevens and not on Ms. Bradley's affidavit materials. Furthermore, though Mr.

Bradley denies he passed out from alcohol, he admits to having consumed alcohol in Landen's presence during the ski trip. This would have been in direct contravention of the order of Judge Marchand that I referred to. He also denies aspects of Landen's description of how he was held and then assaulted in a sexually suggestive manner, and describes this activity as being in the nature of wrestling and tickling between father and son. [ 11 ] I have referred to the s. 211 reports that were prepared by Mr. Stevens as important and believe they are so for several reasons.

The first such report was prepared in February 2014. In this report, Landon reported aspects of his father's behaviour that he found troubling and that Mr. Stevens concluded gave rise to concerns for Landen's safety. These concerns included various forms of physical abuse such as punching and kicking. It included emotional abuse, particularly when his father has been drinking. On such occasions, Landen said that his father "put him down" using words that Landen did not want to repeat. He also recounted an earlier incident when Mr. Bradley was sexually intrusive with him, and where Mr.

Bradley made him take a shower with him and placed his penis on Landen's shoulder. This particular incident is also referred to in a separate letter report prepared by Mr. Schwartz, a counsellor that Mr. Bradley saw, in which Mr. Schwartz reported that Mr.

Bradley admitted the event I have described, but denied that it was in the nature of sexual abuse. [ 12 ] Notwithstanding such events, in this first s. 211 report, Landen professed that he loved his father and that he was prepared to continue to see him, albeit on a reduced basis until he saw his father begin to make positive changes and until he felt safe around him. This view or position, on the part of Landen, belies any assertion from Mr. Bradley that the difficulties between him and Landen are the product of a "constant inflammation of alleged incidents" by others.

This first s. 211 report was prepared, I note, almost a full decade after Mr. and Mrs. Bradley separated. In the second s. 211 report, Landen reported he felt safer with his father and talked about being with his father overnight. [ 13 ] In the most recent s. 211 report prepared on May 28, 2015, and after the events that took place on the ski trip, Landen no longer wishes to see his father. He also no longer wishes to go to counselling with his father, which is something they did together in 2014 with a counsellor called Mr. Darwin.

Landen views the events during the ski trip as a sexual assault, expresses that he has come to realize how often his father has hit him, and has determined that his father has not changed his behaviour in any appreciable way. Mr. Stevens, in his third report, recommends that Landen's wishes, in respect of allocating parenting time, be respected at this time. [ 14 ] Most family cases do not involve absolutes. Black and white behaviours are not common. Nevertheless, in this case, Mr.

Bradley's behaviour in multiple respects gives rise to clear concerns about his judgment, his well-being and, concurrently, to Landen's physical and emotional safety. One aspect to Mr. Bradley's response to the application is a proposal that he continue to go to counselling with Landen so that they can work through their difficulties. The difficulties that exist between Mr. Bradley and his son do not, however, appear to be problems in communicating with or in understanding each other. Instead, they are problems that arise from the unacceptability of Mr.

Bradley's ongoing conduct. [ 15 ] Similarly, the problem is not with Ms. Bradley or with the Ministry's delegate, Mr. Lippman, on this matter or with any other third party. The third-party reports from Mr. Stevens, Mr. Lippman and Mr. Schwartz are all consistent in their views and in the concerns they express. In saying this, I recognize that Mr. Bradley's counsellor, in 2014, took a more positive view of Mr. Bradley's progress.

[16] Still further, the issue is not one of different perceptions of acceptable discipline or of judgment. Instead, Mr. Stevens, in hisvarious s. 211 reports, describes events and behaviours, on the part of Mr. Bradley, that are simply not appropriate by any objectivestandard. [17] It is necessary for Mr. Bradley to look inward in an honest way. He has been involved in multiple forms of treatment andcounselling for many years. The MCFD has been concerned with his behaviour for many years. He has been subject to variousprotection and other court orders.

The various court orders I have reviewed reflect concerns with alcohol, drugs, pornography, physicaland emotional violence, and weapons. [18] There are further third-party reports that indicate that Mr. Bradley has sought to contact Landen outside of supervisionparameters and that he has sought to persuade Landen to meet him outside of court-ordered access. Mr. Bradley has apparentlyapproached neighbours near to Landen's home seeking information about him. There is a report of Mr. Bradley approaching Landen'sschool on May 5, 2015, and creating a scene at the school.

This allegation is not denied or explained by Mr. Bradley. [19] There is an assertion, albeit on hearsay, that in October 2014 Mr. Bradley called 911 threatening suicide. The R.C.M.P. attendedat his home and he was thereafter charged and pled guilty to the improper storage of a firearm. While Mr. Bradley denies any suicidalideation, he does not deny that he pled guilty to the offence. [20] All of these matters give rise to an acute level of concern for Landen's safety and well-being. Aspects of these issues areaddressed in the child-protection proceedings I have described.

I consider it necessary and appropriate, however, to vary the October 17,2012 Access Order that was made by Justice Brown. [21] A material change of circumstances is necessary, under both s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and s. 47 ofthe Family Law Act, for any change to an access order. In this case, it is not clear what legislation either Blair J., Powers J., or Brown J.made their respective orders under, though in practical terms, little turns on this. [22] Thus, in J.D.C. v.

K.L.M.F.C., 2014 BCSC 2182, the court said: [262] There are sufficient parallels between the Divorce Act and the test as developed in Gordon v. Goertz, (SCC),[1996] 2 S.C.R. 27 [Gordon] to satisfy s. 47 of the FLA that I should follow the prescription in Gordon. [263] In Gordon at para. 13 the Court described the analytical process to be used when considering variation of an order concerningchildren under the Divorce Act. The test is whether there has been a material change in the child's circumstances that affects the child andwhether the circumstances have changed since the time of the last order.

It is also necessary to determine whether the new circumstancescould reasonably have been anticipated when the original order was made. [264] The Court said at para. 18: To put it another way, the material change places the original order in question; all factors relevant to that order fall to be considered inlight of the new circumstances. [23] In D.J.S. v. J.M.D., 2013 BCSC 2302, the court said: [5] The present order does not say whether it was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), or the FamilyRelations Act, R.S.B.C. 1996, c. 128 (now replaced by the Family Law Act, S.B.C. 2011, c. 25).

The parties originally applied forcustody under both statutes. In the circumstances, however, it is not necessary to conclusively determine which statute underpins thepresent order, because the test for varying an order is the same under both (see Boychuck v. Singleton, 2008 BCCA 355, at para. 14).

Theparty applying to vary a custody or access order must establish that there has been a material change in circumstances affecting thechildren since the order was made: Divorce Act, s. 17(5); Family Law Act, ss. 47, 60. [24] The heightened level of MCFD concern in 2013, the various child-protection proceedings and orders from 2013 to 2015, and theevents of March 24-29, 2015, when Landen went skiing with his father, are all events or circumstances, without more, that give rise toconcerns that were not before Brown J. at the time that he made his Access Order.

These events and matters constitute a material changein circumstances. I am satisfied that they are events and circumstances that would have given rise to a different result had they beenbefore Brown J. [25] The requirements of the FLA are also relevant. Section 37(2) requires that this Court, in determining what order is in the bestinterests of a child, consider any impact of family violence on the child's safety, security, or well-being.

Section 1 of the FLA defineswhat constitutes "family violence" and does so broadly. Here, there is no question, but that the various forms of physical, psychologicaland sexual abuse and/or impropriety on the part of Mr. Bradley constitute forms of "family violence." [26] Section 37(3) of the FLA states that an “order is not in the best interests of a child unless it protects, to the greatest extentpossible, the child's physical, psychological and emotional safety, security and well-being”. Still further, the various behaviours ofMr.

Bradley that I have described have caused Landen to conclude that he does not wish to see his father. At 13, Landen is of an age anda level of maturity that I consider his wishes should be respected. I observe that Mr. Stevens, in his report, comments that Landen "is abright boy with keen insight into his family situation." I also observe that the February 17, 2015 child-protection order of JudgeMarchand already made Mr. Bradley's then access subject to Landen's wishes. [27] Finally, I wish to make clear that I recognize that an order denying Mr.

Bradley access to his son until such time as Landenwishes to see him is a serious matter. It is not an order that is to be made lightly. It is, nevertheless, an order that courts will make inappropriate circumstances; see e.g. B. v. H., 2012 ONCJ 458 at paras. 80-82; D.N.L. v. C.N.S., 2014 BCSC 1417 at paras. 73-77. [28] At the same time, it is important to recognize that Mr. Bradley is Landen's father and leaving some possible door open betweenthem remains important. Furthermore, Mr. Bradley will wish to be kept apprised of certain matters that relate to Landen.

[ 29 ] Mr. Bradley, as I have said, filed his own application in which he sought various forms of relief including access to Landen on the terms contained in the Access Order made by Brown J. For self-evident reasons, these various applications are dismissed. [ 30 ] Accordingly, I make the following specific orders: 1. The order of Brown J. dated October 17, 2012 is to be varied so that Mr. Bradley's access to Landon shall be subject to Landon's wishes. 2. The various applications of Mr. Bradley are dismissed. 3. Mr. Bradley can communicate briefly with Landon by email once every two weeks.

Whether Landon responds will be at his discretion. Mr. Bradley is not to otherwise communicate, directly or indirectly, with Landon. 4. Mr. Bradley can, on Landon's birthday or for Christmas, and for any similar important event, write to Landon and send him a gift. 5. Ms. Bradley shall send to Mr. Bradley Landon's report cards, information relating to any medical issues of significance, and other information of a like nature. 6.

Any new visitation plan that may be developed in the future shall be based on appropriate professional input and is to be based on Landon's needs and safety. [ 31 ] Finally, a term, in an earlier protection order, prevented Mr. Bradley from attending at Landen's school or near his residence. Though it is not entirely clear, it appears that this term has expired or been vacated. Accordingly, I am also making the following order: 7. Mr. Bradley is not to attend within a kilometre of Landen's residence or school unless travelling on the TransCanada Highway through Kamloops.

This order substantially mirrors the terms of an earlier protection order made September 18, 2014. 8. Mr. Bradley is to pay the costs of this application. [ 32 ] Did anything arise from this, counsel? [ 33 ] MR. SOLL: Seven is a protection order, and I believe it has to be framed as a separate stand-alone order and, normally, it will expire in a year unless — [ 34 ] THE COURT: It will. [ 35 ] MR. SOLL: Okay, thank you. [ 36 ] THE COURT: I understand that. We talked about that when we were together last. “Voith J.”