C.Y.M. v. J.C.R. Date:, 2015 BCPC 426

Citation: C.Y.M. v. J.C.R. Date: 20151210 2015 BCPC 0426 File No: 9488 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.Y.M. APPLICANT AND: J.C.R. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Applicant: J. Pratt

Appearing in person: J.C.R., Respondent Place of Hearing: Abbotsford , B.C. Dates of Hearing: December 7, 8, 9, 2015 Date of Judgment: December 10, 2015 [ 1 ] THE COURT : The father, J.C.R., applies for supervised access to the child. She is presently 13 years old, born [omitted for publication]. The application was filed on November 21, 2012. The mother opposes the application.

The mother also applies to cancel previous orders allowing access or parenting time to the child as per s. 47 of the Family Law Act due to a change in circumstances, the change in circumstances being the father's conviction for possession of child pornography and the child's wishes to have no contact with her father. The mother also applies for a protection order for her and her family. The protection order sought includes a no-contact provision and a no-go provision. [ 2 ] On March 6th, 2014, the father was sentenced for the offence of possessing child pornography, contrary to provisions of the Criminal Code .

The offence date is March 30, 2012. He received a 90-day jail sentence and a three-year term of probation.

On March 30, 2012 the RCMP executed a search warrant at the father's residence and seized his computer. [ 3 ] The BC Mental Health and Addiction Services report dated December 6th, 2013 and filed as Exhibit 5, and also as confirmed by the evidence of the father, states that the grounds set out in the Information to Obtain the Search Warrant included that someone using a computer registered to the father's computer's IP address was engaging in conversations with an undercover police officer where the exchange of child pornography images were located.

The father denies engaging in such conversations and says that if it was his IP address it was either hacked by someone else using his Wi-Fi, or done by friends who were visiting his residence, unbeknownst to him. This response was not very convincing and, coupled with other parts of his evidence, suggests that the father has not accepted full responsibility for his conduct and has not effectively dealt with the underlying issues. [ 4 ] The

Section 211 report expressing the views of the child was prepared by Dr. Goldsmith. Dr. Goldsmith met with the child on July 4, 2014. The report is found as Exhibit O to the affidavit of the father, sworn March 30, 2015 and filed April 1, 2015, and is marked as Exhibit 3 on this proceeding. [ 5 ] The child was born in [omitted for publication], and was therefore nine years old on the date her father was arrested at his house on March 30, 2012. Unfortunately, she was present at his house at the time of the police entry and her mother had to be called to come collect her.

For the previous five years the father had regular access to the child pursuant to court orders, and I do find that access was generally positive for the child and her extended family. [ 6 ] I have been told that there were previous allegations of inappropriate sexual touching by the father on the child as alleged by the mother, and that these matters were canvassed in a nine-day hearing in 2007. I further understand that the court was unable to make a determination as to whether inappropriate conduct had been made out, and access to the father was resumed. That access continued unabated until March 30, 2012.

I have not encouraged the re-litigation of those allegations on this hearing. [ 7 ] The mother has had primary care and custody of the child since the separation of the parties shortly after her birth. As at the date of the Dr. Goldsmith report, the child had not seen her father for over two years. She lives with her mother, stepfather and other siblings, and one grandparent. [ 8 ] The child told Dr. Goldsmith that she had not seen her father since approximately the age of nine or ten years old. She recalled that her visits were not positive and she often felt scared.

She recalled that she didn't like when, at the age of nine, her father still insisted on drying her off after showers and having her take off her top for him to rub sunscreen on her chest. I pause to note that these allegations were likely canvassed in the nine-day hearing in 2007 and it is possible that the child is confused as to the timing of these events and she might even be mistaken as to the significance of them. [ 9 ] The child told Dr. Goldsmith about attending AA meetings with her father.

I pause to note that the father has testified to drug addiction issues that he dealt with in 2006 by attending a treatment centre in Calgary, and since then has attended regular AA meetings and has become a devout Christian to keep him on track. The child says that she did not like attending these meetings and was scared by the people who she met there. [ 10 ] The child told Dr. Goldsmith that she was quite frightened by the police attending at her father's house when she was present, and they asked her questions about if there were weapons in the home.

Later, the child found out that the police investigation concerned her father's possession of child pornography. In her mind, this explained why she was not allowed near his computer and why he moved around a lot. The child advised that her mother told her about these things. [ 11 ] The child states that she does not trust her father, and said he is a criminal. She asked her mother to give her information about what occurred.

She explained that her life is much easier without her father in the picture and she does not feel scared anymore. [ 12 ] The child remembered last seeing her father one year ago on her tenth birthday when he popped out of the bushes with flowers and a hundred dollars. She felt scared by that surprise and did not want to walk home from school alone for a long time after that. [ 13 ] The child said she sees a counsellor by the name of Peggy. She remembers her father yelling at her when he was angry and being physically intimidating towards her.

The child denied hearing her mother or stepfather speak negatively about her father. The child said she is happy with her life as it is now. She is going into Grade 7 and has good grades. She is in the swim club and takes piano lessons.

[ 14 ] The child is a cancer survivor, having been through leukaemia and treatment at the Children's Hospital. The child does not want to have her father in her life, believing that her life is better without him in it. She does not want to feel scared, worried or uncomfortable because he is back in her life. [ 15 ] There were three reports filed in this proceeding dealing with the father's conviction; one report of December 6, 2013 from the BC Mental Health and Addiction Services, Forensic Psychiatric Services Commission. It is marked as Exhibit 5.

At page 2 of the report the father is quoted as saying, when asked about the material found on this computer, "I was not collecting. I had accessed it and downloaded it." When asked as to when he started to download illegal material, he stated that, "There were a few times that I had done it; first in September 2011 and the last on the 29th or 30th of March, 2012." I pause to note that the father was adamant in his evidence that there were only two times that he downloaded child pornography; once in September 2011 intentionally, and once in March 2012 that was accidental.

He added that on both occasions he wiped his computer clean of these images. [ 16 ] The next paragraph of this report at page 2 states: When asked about the choice of material downloaded he indicated that, “Initially I know that I have been into regular pornography for a long time. I knew that it was wrong due to my faith. That kind of went along." He then indicated that he had alcohol issues and that at one point he lost his AA sponsor when the same died. He then mentioned that the drinking "influenced me", and he began to frequent chat rooms (open). He then named "Motherless" which he said to be a legal site.

He mentioned that these sites have "stuff in there that is questionable." He then did admit to the issues that, "There were images of girls that may be 14 and I found that attractive." He indicated that he also used eMule and LImewire for music, and that he always knew that it (child porn) was there. He added that "I was drinking, I don't remember a whole lot of it, but somewhere in there I crossed it (into child porn)." When asked directly, he did admit to accessing and downloading pre-pubescent (younger than the stated 14-year-old) female images.

When clarified, he mentioned that all material downloaded was heterosexual in nature. When he was asked directly about the suspicion that he may have taken pictures of his daughter he stated that, "I never took pictures of my daughter, no, not ever." [ 17 ] The father's evidence at this hearing was somewhat different than reported in the report of December 6, 2013.

The father no longer blames alcohol for causing him to cross that line, but says that he has made personal inroads and has a better understanding of what led to his behaviour. [ 18 ] I do not find, based on the evidence I have heard and considering all the materials, that alcohol was a factor in the offence for which he was convicted, and that the father misled the writer of the report on this point. This finding is confirmed by the father's witnesses who were adamant that there was no substance abuse by the father after his rehab in 2006.

The father's brother, J.V., testified that he finds it impossible that his brother might have been using alcohol or drugs again, and his brother did not mention this to him. J.V. also testified that his brother confided in him that he had been looking at child porn off and on through the course of his life. The father says that his brother must be mistaken and must be confused, and that it is only adult porn that he has been looking at through his life and he was addicted to.

It should be noted that there is no allegation whatsoever that the father ever took photos of a sexual nature involving his daughter, or that she was included in any of these downloaded images. [ 19 ] At page 7 of the report, the fifth paragraph down, it is stated: When asked, he indicated that he would not call the child porn an addiction, but does think that he has an addiction to pornography in general (in a reference to legal pornography). He indicated using legal porn since his charges, but "not presently".

He mentioned that he has cancelled cable so that he cannot access adult movies, and does not have a computer. He feels that these external barriers have helped him. He added that it is likely that child porn could have turned into an addiction. As of the date of this hearing, those external barriers are now gone. The father has re-installed Shaw Cable and indicated that he has watched adult pornography films through Shaw Cable, but has not done so for almost two years. It is not clear to me when he cut his cable access and when he reinstalled it.

He did not explain why he would take the risk of doing so, considering his addiction to porn and that it led to his interest in child pornography. [ 20 ] The other external barrier that is now gone is that the terms of his probation have been amended allowing the father to have a computer in his house and, once again, access to the internet. He says he needs internet access for the purpose of employment and furthering his education.

Again, internet access at home puts the father at greater risk for relapse and might not have been thought through sufficiently. [ 21 ] The report writer, Evan Lopez (phonetic), opines that many of the father's responses seemed to be designed for impression management and was not showing much insight into his behaviour around pornography.

The report writer recommended a sex offender treatment program - I will get to that shortly - and it is clear that the father completed that program satisfactorily and successfully. [ 22 ] The next report in time is from January 9, 2014 and it is a pre-sentence report prepared by Corrections Branch, and it is Exhibit 6 in this proceeding. At page 4 at the bottom the writer states: Although J.C.R. stated to this writer he knew that accessing child pornography was illegal, he did not take responsibility for his actions and expressed limited insight into his behaviour.

He denied being aroused by the paedophilic images and stated he is unable to explain why he accessed them. He feels he is not a risk to children or a risk for any future offending. He blamed his excessive alcohol use and being highly intoxicated as the contributing factors for accessing the pornographic sites and images. Further, he claimed that he "would never have accessed the sites if he was sober". He claimed he accessed the child pornography sites "a few times.

I can count on one hand how many times." He further revealed he would often consume alcohol before accessing the child pornographic sites, and eventually pass out, awakening to feelings of shame and regret for viewing the images. With respect to the index offence, J.C.R. acknowledged that he knows accessing or viewing child pornographic materials is not a victimless crime because in order to create images, real children had to be used. [ 23 ] Once again, it is clear that the father is blaming excessive alcohol consumption as a significant factor in his offending when it is apparent that that is not true.

According to his evidence at this hearing, the father's addiction issue was with respect to cocaine and never

alcohol. His evidence is that he never drank to excess and would not be drinking every day. That evidence is also confirmed by his supporting witnesses. It is difficult to reconcile the information provided to the report writers and the evidence that the father gave under oath at this hearing regarding the circumstances surrounding the criminal offence and the circumstances leading to it. [ 24 ] At page 5 of the report the writer states: J.C.R. has admitted to being addicted to child pornography; however, he denied that he is aroused by the child pornography images.

He minimized his intention to seek out images of child pornography, claiming that he initially only accessed this out of curiosity and boredom. He does not accept responsibility for his actions regarding the index offence, citing that alcohol and drug abuse were contributing factors to his behaviour. J.C.R. did express that he is willing to accept any counselling or treatment recommended by the courts. [ 25 ] The final report is from BC Mental Health and Addiction Services and it is found at Exhibit P to the affidavit of J.C.R. dated March 30, 2015 and filed in this proceeding as Exhibit 3. This is a Discharge

Summary Report dated December 14, 2014. There are earlier reports referred to, but unfortunately not attached. This report confirms that the father was in a sex offender treatment program from September 16th, 2014 to December 9, 2014. The father was noted to be an active participant in these sessions. He participated in both individual and group treatment sessions. The report is generally positive with respect to progress in thinking errors that were underlying the criminal offence.

The father was noted to complete all his homework and was able to identify consequences to victims of sexual offences. [ 26 ] At page 4 of the report the following is stated: J.C.R.'s self-management plan was very good. He displayed an understanding of his risk factors. He presented a reasonable self- management plan. He would enhance his plan by being more specific in regards to how he'll meet the goals identified in his self- management plan, particularly in regards to his sexual behaviour. It is notable that J.C.R. does continue to occasionally use adult pornography.

J.C.R. has struggled to discuss his use of adult pornography, given his faith and expectations that he remain completely abstinent from pornography use, masturbation and pre-marital sex. J.C.R. would benefit from including more specific ways to manage the conflict between his personal values and sexual needs.

J.C.R. is encouraged to continue his efforts to adapt his self-management plan to his changing life circumstances. [ 27 ] After hearing J.C.R. give his evidence, and hearing from his witnesses, including his parents, brother, friend and new girlfriend, there can be no doubt at all that J.C.R. loves his daughter very dearly.

He is in extreme personal pain as a result of the repercussions of his actions in downloading pornography and viewing hundreds, if not thousands of images of adults sexually abusing children. [ 28 ] Since March 30, 2012 the father has seen his daughter on only two occasions, both of which were ill-advised and reflect poor judgment. In October 2012, on her birthday, the father appeared on the street while the child was walking home from school. He had a bouquet of flowers and a gift. The mother was there with her younger son, and some friends of her daughter were also there.

It was a very shocking moment as it was unexpected. The father says he believed at the time the Ministry investigation had been completed and there was no order in place saying that he could not have contact with his daughter. That is true. Nonetheless in the circumstances, further access should have been arranged through a court application. [ 29 ] Subsequent to this incident, a court application was filed and is presently before the court.

It has taken a long time to get to a hearing for a variety of reasons, including that the father had to deal with the outstanding charges, have an assessment of risk completed, and treatment completed before any consideration of access could be made by the court. [ 30 ] There was another incident recently in October 2015 where the father and his new girlfriend, M.C., who also testified at this hearing, attended at the mother's house to drop off a birthday present for the daughter, and to also try to talk to the mother to arrange access and avoid a five-day court hearing.

Unfortunately, this unannounced attendance at the residence did not go well. The daughter happened to be the one who answered the door, saw her father, and became upset. She slammed the door and ran upstairs to her room, crying. [ 31 ] As a result of these actions, the mother is seeking a protection order so that her daughter and the rest of the family do not have to be concerned or worried about uninvited and unexpected attendances by the father at the residence.

I do note that there was no order in place that prohibited such attendance or such attempts to create or start a dialogue between the parties. [ 32 ] The father and his girlfriend testified regarding that incident, and indicate that this was an honest attempt at trying to resolve conflict by communication. I have no doubt that the father would have liked to try to resolve this matter by communication and without having to come to court to apply for supervised access.

However, in all the circumstances, the approach of attending at the door without an invitation and already having viewed the Views of the Child Report shows extremely poor judgment. [ 33 ] The father's main argument at this hearing is that the Views of the Child Report is tainted and should not be accepted. He says that the mother hates him and has done everything she can to poison his relationship with his daughter.

He says that this attitude goes back to their separation many years ago, and this is just a continuation of the same conduct. [ 34 ] The father also says that it is in his daughter's best interests to have contact with him and his extended family. Prior to March 30, 2012, he and his daughter enjoyed a very successful relationship and she also enjoyed spending as much time as possible with her grandparents and her uncles, aunts and cousins.

He says that this has all been severed due to the mother's hate for him and creating unnecessary barriers for him and his family to be reintegrated into the child's life. [ 35 ] I should note that the father also accepts that he is the author of his own misfortune by his criminal conduct and has not come to court to blame anyone except himself. He has taken full responsibility for his actions and he knows he is paying the price for those actions.

He also testifies that if his daughter truly did not want to see him at this time, he would accept that; however, he does not believe that to be true due to the past good times they had together, and that in her heart of hearts she must miss him and her extended family.

[ 36 ] The father called several supporting witnesses, including the child's grandparents, a friend of his, his brother and girlfriend, M.C. All these witnesses attest to the changes the father has made in his life over the years, and that they are confident he has turned the corner and is fully capable of being an excellent parent like he had been in the past. He is described as a doting father, and I have no doubt that he was.

He is emotionally distraught over the breakdown of the relationship he had with his daughter who was such an important part of his life. [ 37 ] The grandparents, who are also distraught over these events, have had some further contact with the grandchild in 2013 and 2014, but very limited contact since then. They attended at the mother's residence for short Christmas visits in 2012 and 2013 which the mother describes as stressful for the family.

In 2014, the child spoke to her grandparents on the phone and explained that she did not want to see them this Christmas because they always talk about her father and she does not want to have anything further to do with her father at this time in her life. This is consistent with the report of Dr. Goldsmith and the subsequent evidence that the mother gave on this hearing. [ 38 ] The mother did testify, as indicated above, and I approach her evidence with caution. She readily admits that she hates the father and believes that he had sexually molested the child when she was younger.

She opposed his application for access in 2007 and 2008; however, the court did order access. From 2007 to 2012 she testified that she did not interfere with that access, although the child was not happy about always going to her father.

She very reluctantly admitted that there were some positive occasions where the daughter was happy with time spent with her father and extended family. [ 39 ] From the cross-examination of the mother, it appears that she has made very little effort to continue the bond the child might have had with the grandparents or cousins, and has certainly made no positive suggestions regarding resuming the relationship with her father.

The mother believes that the child and her entire family are better off with the father not being in their lives. [ 40 ] In the particular circumstances of this case, none of the above is particularly surprising. It must have been a horrendous shock to learn that the father was downloading and viewing hundreds of images of child pornography where children were being sexually abused by adults. This news would only confirm her worst suspicions of what she believed occurred in the past.

I am not sure what can be expected of a mother in these particular circumstances. [ 41 ] Near the end of the father's cross-examination of the mother he put to her his Counselling Discharge Report and asked if she had told their daughter about how he had been taking counselling and is trying to become a better person.

The mother said she had not, and they speak very little of him in their house due to the upset that it causes to their daughter. [ 42 ] There is no psychological report before me dealing with the impact to the daughter of having her father convicted of possession of child pornography, and the revulsion and confusion that must cause to a child of tender age between ten and 13 years old. The child turned 13 on [omitted for publication]. [ 43 ] I have updated information from the mother expressing the views of the child.

The child has asked the mother to tell the court that she does not want to see her father at this time. I accept that this is the view of the child, and the principal reason for that view is the arrest of her father for child pornography and his conviction for possession of same in 2014. [ 44 ] In the case of T.T. v. J.M.H. 2014 BCSC 451 , at paragraphs 54 and 55 the court held as follows: I agree that N.’s wishes and views are not determinative.

However it is a well-established principle that the court should give considerable weight to the views of an older child, proportionate to their age and level of maturity: [citation given] In O’Connell the Court of Appeal set aside the trial judge’s order granting custody to the mother of a 14 year old boy against his wishes. The trial judge had found the father had turned the boy against his mother.

While not disagreeing with the lower court’s view of the family dynamics, the Court of Appeal held that for custody orders relating to children in their teens to be practical, they must reasonably conform to the wishes of the child. Ultimately the court made no order on custody and access. In all of the circumstances of this case, I do not regard it as in N.’s best interests to make an order that is contrary to her stated views.

Any attempt to force her into a shared parenting schedule, in my view, would be contrary to her emotional wellbeing and may undermine the opportunity for the successful repair of her relationship with the claimant. I note s. 37(3) of the FLA provides that an 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.

I sympathize whole heartedly with the claimant’s sense of loss arising from her difficult relationships with both girls and their relative absence from her life after so many years of intensive parenting. The way forward however lies in making every effort to heal those relationships rather than imposing an unwanted

schedule on N. [ 45 ] The legal test I must address is what is in the best interests of this child. Is it in the best interests of the child to have supervised visits with her father against her wishes at this time? To determine what is in the best interests of the child, I must look to the factors set out under s. 37(2) of the Family Law Act . [ 46 ] The first factor is the child's health and emotional wellbeing.

Based on all of the circumstances as outlined above, and most importantly the views of the child on this issue, in my view it is not in the child's health and emotional wellbeing to have supervised visits with her father at this time. I am of the view that forcing the child to attend supervised visits with her father would cause significant emotional upset. There might be a time in her life that she might be able to deal with the situation and wish to have some contact with her father; however, the timetable for that will be up to her. [ 47 ] The second factor to consider is the child's views.

I have considered the child's views and accept her views. Her views are clear as expressed in the Views of the Child Report of Dr. Goldsmith and from the evidence of the mother who testified, and the grandmother who testified. Her view is that she does not wish contact with her father at this time as it causes her significant upset. In these circumstances, it is not in the best interests of the child to impose an order on her contrary to her views as per the T.T. decision quoted above. [ 48 ] The nature and strength of the relationship between the child and significant persons in the child's life.

Prior to March 30, 2012

the child had a consistent relationship with her father and extended family. The events of March 30, 2012 have been extremely difficult for all involved; not only the child, but also the child's grandparents and extended family on the father's side. Those relationships have now been severed. Whether they are permanently severed is unknown.

Perhaps as the child matures and the mother reflects further on the importance of extended family and importance of resolving conflict, the child will be ready to initiate contact with the father and other family members, but this will be up to the child. [ 49 ] The next factor is the history of the child's care. The child has had significant contact with the father for several years prior to March 30, 2012, and I accept his evidence and the evidence of his family that the majority of this contact was positive in nature. The last scheduled access was March 30, 2012.

It has now been three-and-a-half years since that time. The child has gone from the age of nine to the age of 13 in that time and has likely undergone significant personal changes as all children do in that period of their lives. I have taken into consideration the history of the child's care and extensive contact the child had with her father since her birth, and the extensive contact she had with her extended family. [ 50 ] The next factor is the child's need for stability, given the child's age and stage of development. The child has a very stable household with her mother, stepfather and siblings.

The home is safe and secure, and she is thriving at school. She is an "A" student and has extracurricular activities that she participates in. In my view, directing and forcing the child to attend supervised visits with her father would disrupt that stability for her and her entire family at this point in time. [ 51 ] The next factor is the ability of each person who is a guardian and seeking parenting time to exercise his or her responsibilities. It appears that the father has the ability to exercise parenting time, especially if it is supervised.

However, as indicated above, I have significant concern as to the state of the father's rehabilitation and the steps taken to prevent any re-offending. As also indicated above, the father has now unlimited access to pornography through Shaw Cable and the internet. I accept that he needs the internet access for work-related learning; however, it seems to me that there are other ways that this could be accomplished, such as attending at public libraries without the need to have a computer in his house.

The father admits that he has an addictive personality and that is why he set up barriers earlier, and it is unfortunate that he has now taken down those barriers and could impact negatively on his future. [ 52 ] The next two factors concern the impact of family violence, and in this case I find there are no family violence issues to address. [ 53 ] The next factor concerns the appropriateness of an arrangement that requires the child's guardians to cooperate on issues affecting this child.

In this case we are only addressing the issue of supervised access and the appropriateness of the arrangement is not in issue. However, I do note, due to the significant acrimony between the parties, arrangements would be very difficult. [ 54 ] The last factor to consider is any civil or criminal proceeding relevant to the child's safety, security and wellbeing. In this case we have a criminal proceeding that was concluded and the father remains on probation with respect to that proceeding.

In my view, it is a highly relevant criminal proceeding as it concerns possession of child pornography, and as I indicated above, I have significant concerns about the father's rehabilitation and whether he has taken all the steps necessary to prevent re-offending. I also find that he has minimized the extent of his involvement in child pornography, and as indicated above, the elimination of the barriers of cable and internet pose a real concern. [ 55 ] Accordingly, I make the following orders:

a) The father's application for access is dismissed.

b) The mother's applications pursuant to s. 47 FLA to cancel all previous orders giving access or parenting time to the father are granted. Accordingly, all previous access orders are cancelled.

c) The mother shall have all parenting responsibilities and parenting time.

d) The father shall have no contact with the child, mother or her family members except if initiated by the child or mother.

e) The father shall not attend at the following addresses, or within 100 metres of those addresses or locations.

f) The cost of the report for the Views of the Child Report shall be split two-thirds to the father and one-third to the mother. [ 56 ] I am declining to make protection orders as I do not find that a s. 183 protection order has been made out on the facts of this case. I believe the father will obey the no contact, no go terms and conditions of this order. There is no evidence before me that he will not obey court orders. J. SOLOMON Provincial Court Judge