B.A.J. v. D.S.D Date:, 2016 BCPC 154

Citation: B.A.J. v. D.S.D Date: 20160223 2016 BCPC 0154 File No: F14398 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.A.J. APPLICANT AND: D.S.D. RESPONDENT ORDER OF THE HONOURABLE JUDGE J.I. SOLOMON Counsel for the Applicant: D. Petri

Counsel for the Respondent: A. Florescu Place of Hearing: Abbotsford , B.C. Dates of Hearing: November 12, 13, 2015, February 23, 2016 Date of Order: February 23, 2016 [ 1 ] THE COURT : This is the matter of B.A.J. and D.S.D., court file F14398. [ 2 ] D.A.S., the mother, and B.A.J., the father, are the parents of B.R.J. born on [omitted for publication], and C.A.J., born on [omitted for publication].

I will refer to the parents as the "mother" and "father", and the two children as "the children". [ 3 ] Both parents, as became evident in their lengthy evidence, love their two children and want to be full participants in their lives. They have both applied to this court for a determination of guardianship, parenting responsibilities and parenting time.

Both parties are seeking a final order on these issues and have been given an opportunity to call any relevant evidence. [ 4 ] My difficult task in this case is to determine the best interests of the children in a situation where both parents are prepared and able to assume parenting responsibilities and parenting time. [ 5 ] Unfortunately, the parents have been in significant personal conflict with each other and this has likely been quite detrimental to the well-being of the children.

I do not intend to assign blame to one parent or the other for the conflict. [ 6 ] The only witness for the mother was the mother. On behalf of the father there was the father, the school principal, Gordon Revel, the social worker, Peter Buitendyk and a friend by the name of J.B. [ 7 ] The parents have been in an on-and-off-again relationship for approximately ten years. They lived together for only short periods of time. They lived together first in Fort Nelson, then Courtenay and then in Abbotsford. The mother is also the mother of five other children who moved with her to Courtenay, British Columbia.

The mother was the primary caregiver of the children until May 2004 when her daughter, D.D., came forward to disclose that her mother had physically assaulted B.R.J. and other siblings. [ 8 ] In her affidavit of May 1, 2014, D.D. states that on April 28, 2014 she witnessed her mother physically assaulting B.R.J. On that day B.R.J. was getting ready for school and her mother became upset over a matter. Then, without warning, her mother began hitting B.R.J. She grabbed B.R.J. by the hair and began calling her awful names. B.R.J. became very scared and ran for her bedroom.

Subsequently, her mother became angry with B.R.J. again. She called B.R.J. "a stupid bitch" and was also calling her "retarded". She then began shaking B.R.J. violently. [ 9 ] After this incident, B.R.J. looked terrified. D.D. then left the residence and went directly to the father's residence to advise him as to what occurred. When I say "the father", I am referring to B.A.J., not to B.R.J.'s biological father whose name has not been made known in this proceeding.

As a result, the father called a social worker who has been involved with the family. [ 10 ] D.D. adds in her affidavit that she is very concerned about her two younger siblings as her mother has done this type of thing before. She says that her mother has previously used belts and has left marks on her and her brother M. She believes that the siblings are safer in her father's care. [ 11 ] There is a history of court orders in this matter.

On May 30, 2013 this court made an interim order at a family case conference that included the following: The parties are the guardians of the children; the parties shall share all the parenting responsibilities under the Family Law Act ; the primary residence of the children shall be with the mother; the father shall have reasonable and generous parenting time and further parenting time on Tuesdays, Fridays and Saturdays. [ 12 ] On May 2, 2014 this court made a further interim order that included the following: The primary residence of the children shall now be moved to the father; the mother shall have parenting time on Mondays, Wednesdays, Fridays and Saturdays; the mother shall not use physical discipline on the children when exercising her parenting time. [ 13 ] On October 16, 2014 this court made a further interim order that dealt with the parenting time issue and added that neither party shall remove the children from the Lower Mainland of British Columbia without the written consent of the other party or further court order. [ 14 ] On June 30, 2015 this court made a further interim order to address parenting time.

Then again on September 9, 2015 this court made an ex parte order that included the mother shall immediately return the children to the father; the mother's parenting time shall be suspended until further court order; the mother shall be restrained from attending within a hundred metres of the children's elementary school, and an enforcement order allowing the RCMP to apprehend the children to return them to the care of the father. [ 15 ] Then on October 16, 2015 this court made a further interim order that allowed the mother to resume parenting time with the children and put into place conduct orders to attempt to address the ongoing conflict between the parties. [ 16 ] There is a further order from November 13, 2015 that I made subsequent to hearing evidence, knowing this matter had to be adjourned for final submissions.

So as indicated, there are several interim orders that have been made over the last three years regarding these parties and these children. [ 17 ] In the course of the evidence heard at this trial and supported by the affidavit evidence on file, the history of Ministry involvement with the mother and her children and other incidents of excessive discipline came to light. Peter Buitendyk, a social worker with the Fraser Valley Aboriginal Children and Family Services Society, prepared an affidavit sworn November 12, 2013 and gave

evidence at the trial here. He became involved with the parents and their children on November 20, 2012 as a result of an allegation that the eldest child had been hit on her chest and that the mother often gets angry and hits the four children. [ 18 ] He conducted a prior contact check and found that there were a total of 33 of prior intakes between 1997 and 2010. Some of these intakes concerned allegations that the mother was physically assaulting her children; some of these incidents led to supervision orders.

Also some of the incidents led to support services being offered to the mother. [ 19 ] The evidence of the social worker included that the mother would hit her children when she was angry, that is while living in Fort Nelson. Also while in Abbotsford there were indications that she disciplined the children when angry and yelled and hit them. The social worker indicated that he discussed these matters with the mother on January 21, 2013 and she indicated that she will only hit the children because the children push her buttons. She indicated that she will hit them only in the shoulder and only one hit at a time.

She will hit them on the shoulder, back or bum, and all the kids will get this. In her view, she is trying to keep the children safe. [ 20 ] The social worker states that on April 11, 2013 further new reports of physical hitting of one of the children was reported to the Director. On April 12, 2013 one of the children was having an argument with his mother; the mother hit the child in his room. More particularly, the mother got upset and pushed the child to the ground, picked up the child and pushed the child down again and stormed out of the room.

She hit the child on the legs and left arm and the child's Xbox was destroyed by her. This was in incident involving her son M. [ 21 ] As a result of that April 2013 incident the children were taken out of the mother's care and placed with the father for a two- week period. The children were then returned to the mother. [ 22 ] I also note that in paragraph 16 of the affidavit of the social worker that he had been in contact on April 22, 2013 with the representative of the Fort Nelson First Nation.

This person indicated that in her view the father was "extremely abusive" towards the mother and prior to starting the relationship with him she was doing well and had started to go downhill after this new relationship. That provides some interesting background, but of course I have not heard directly from that representative of Fort Nelson First Nation and I have not been privy to the basis for those views.

In any case, I point it out because often in situations like this, both parties bear some responsibility for each other's conduct, whether intentionally or unintentionally. [ 23 ] In any case, the affidavit of the social worker also discussed an issue between the mother and her son M. In July 2013 the mother allegedly punched M. in the back and pulled C.A.J.'s hair because he was playing instead of cleaning his room.

When the mother was told she should not be doing that, she said to the child, "Shut the fuck up and do the chore." [ 24 ] The evidence of the parties also included a review of an incident on July 18, 2014 at the residence of the father during exchange of the children. During this incident the mother grabbed C.A.J. and dragged him back to her car. The day of this incident was the father's parenting day and eventually the child was returned to the father's house. [ 25 ] The parties also gave evidence regarding the children's education and school.

The mother had concerns that the children were not doing as well as they should have been in school, both academically and socially, and that she wanted them to change schools. Accordingly, on the second day of school in September 2015, she attended their primary school while the children were lining up to go into their classrooms and arbitrarily removed them. She then took them and registered them in an elementary school closer to her residence. [ 26 ] The evidence from the school records and the school principal who gave evidence, Mr.

Gordon Revel, does not support the mother's position regarding her concerns over their education. The report cards that have been marked as exhibits and the evidence indicate that both children are doing fairly well in school, both socially and academically at this time. [ 27 ] I note that the mother did not lead any evidence to suggest the alternative elementary school had any advantage over their present school. [ 28 ] The mother's actions in taking the children out of school on the second day of class and then taking them to a new school was highly insensitive as to how the children might feel.

This was also very disruptive and probably embarrassing to them. This was done without consulting the father who became quite concerned when he learned of the situation. [ 29 ] There is also concern about the mother's sense of boundaries in terms of repeated attendances at the children's school to watch what was happening. I heard that she would actually go into the classroom while the classes were being conducted. According to the principal, Mr.

Revel, this made the teachers very uncomfortable and he blamed himself for letting it get out of hand. [ 30 ] Evidence was led by both parties regarding telephone calls and text messages from the children to the father while the mother was exercising parenting time, asking him to allow further parenting time with the mother.

This put the father in a very difficult situation, having to decide on the spot whether to allow the request even though he felt that it was being generated by the mother as opposed to the children. [ 31 ] After considering all of the evidence and the supporting documents, it appears to me that the mother was likely manipulative in having her children seek further time with her by texting the father. [ 32 ] Over the last year, with the children having their primary residence with the father, they appear to have been doing very well in school.

As indicated, this is supported by the evidence of the school principal who came to court. The principal also indicated that C.A.J., who had some challenges over the last two years, had all the necessary support he needed and is overcoming those challenges. [ 33 ] The mother, in her evidence, denied hitting the children and does not know why her older daughter D.D. raised the alarm about the issue. She testified that D.D. has drug-addiction issues and, subsequent to her complaint, entered into a residential treatment program.

The mother advised that D.D. is now living at home with her once again after a one-and-a-half year absence. In my view, if the mother was disputing the allegations made by her daughter D.D. it was incumbent upon her to call D.D. as a witness to have her

explain what occurred. In her cross-examination, the mother stated that she was not a violent person but has hit her older children with a stick for discipline purposes and not out of anger. [ 34 ] Regarding the April 2013 incident with her son M. where she destroyed his Xbox, she testified she hit him on the legs and arms, and then advised she cannot really recall what happened.

Regarding the July 2, 2013 incident where she is alleged to have punched M. in the back of the head, she testified that she did not recall that incident, but then added, "If written down it must be true." When asked if she ever pulled C.A.J. by his hair, at first she testified that she did not; however, she later added that it might have occurred while they were play fighting. [ 35 ] When I consider the evidence as a whole I find that the mother does have an ongoing anger issue and there is a concern that the pattern of excessive discipline or assaults might continue in the future.

I am concerned that the mother has attempted to minimize the harm to her children by her use of excessive discipline to address normal behavioural issues that are seen with young children. [ 36 ] As is evident from these reasons, all of this is of great concern to me. However, it is noted that there is a strong bond with the children and their mother; however, that could be partly out of fear of her. I have no doubt as to the sincerity of the mother's love for her children and her desire for them to succeed both socially and academically.

The evidence indicates that the mother has been significantly involved in the academic success of her children by having them attend library sessions and by always being involved in their homework, and obviously this is to her credit and is something that should be continued. [ 37 ] There is a preliminary issue. In my view the competing applications come before me as a trial, not as an application to vary previous orders. All previous orders are interim orders and the parties came before me seeking final orders. I have heard two days of evidence and submissions.

Accordingly, the test to apply in this case is the best interests of the children pursuant to s. 37 of the Family Law Act. [ 38 ] The first thing that should be ordered is that the court is satisfied that both parents are the guardians of the children under s. 39(1) of the Family Law Act. I am also, by consent of the parties, and due to their relationship issues, going to make conduct orders. The first one is the parties will:

a) Put the best interest of the children before their own interests;

b) Encourage the children to have a good relationship with the other parent and speak to the children about the other parent and the parent's partner in a positive and respectful manner; and

c) Make a real effort to maintain polite, respectful communication with each other, refraining from any negative or hostile criticism, communication or argument in front of the children. [ 39 ] The parties will not:

a) question the children about the other parent or time spent with the other parent beyond simple, conversational questions.

b) discuss with the children any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to the children. [ 40 ] The parties will encourage their respective families to refrain from any negative comment about the parent and his or her extended family, and from discussions in front of their children concerning family issues or litigation. [ 41 ] The factors under s. 37 that I must consider determining the best interests of the children, in my view, mostly favour the father: 1. The children's health and emotional well-being . In my view, things have stabilized for the children since changing primary residence to the father since May 2014.

They are doing well in school and no further allegations of abuse have come forward regarding the mother's actions with the children. 2. The child's views . In my view, the children are too young to express their views, and in any case, I have not heard their views on the matter 3. The strength of the relationship with both parties . Both parents have a strong relationship with the children. However, I do have a concern, as mentioned above, that part of the concern is the possible fear the children have of their mother due to past actions and the nature of the discipline she takes on them. 4.

The history of the child's care . The children have been primarily in the care of the mother since their birth. However, for the last 18 months they have been with the father and seem to be doing well. However, since the children have been primarily in the care of the mother since their birth, this factor favours the mother in a general sense. 5. The children's need for stability . In my view stability is essential, and in my view the father offers the greater stability for them. As we have seen over the last 18 months, the children have been doing well. There are no further incidents.

There is no evidence before me regarding inappropriate decisions being made by the father with respect to the care of these children. 6. The capability of each parent in exercising parenting time . In my view the father is better able to exercise parenting responsibilities due to his past appropriate actions. The mother's action in removing the children from their school in September 2015 showed very poor judgment and causes the court concern about her possible exercise of parenting responsibilities in the future.

However, both parties are clearly capable of exercising parenting time in the best interest of the children. [ 42 ] (

g) and (

h) concern the impact of family violence. In this case we do have a history of family violence that causes the court concern, and I think those concerns can be addressed through an order that considers where the parenting responsibilities should be

allocated. In any case, family violence is a factor. I believe it has an impact on these children and these children must be protected from any future family violence, if at all possible. [ 43 ] The second to last factor is the cooperation of the parents. In this case the parents do not cooperate very well. Hopefully once this final order is made that will lead to reconsideration of their relationship and can move forward, but at this time I have to base my decision on the present situation.

Like I said earlier, I do not intend to assign blame to one parent more than the other; it takes two in these types of relationships to cause disharmony and there is likely blame to be assigned to both parents. [ 44 ] In any case, the last factor is whether there is any civil or criminal proceeding that is relevant, and at this time there is none. [ 45 ] In considering all of the above factors and considering submissions today, in my view the interim order that was made in November 13, 2015 strikes the right balance and is in the best interests of the children. [ 46 ] Accordingly, I make the following further orders. [ 47 ] The primary residence of the children shall be with the father, B.A.J.

B.A.J. shall have all the parenting responsibilities under s. 41 of the Family Law Act. [ 48 ] D.A.S., the mother, shall have the parenting responsibilities under s. 41(

i) and (

j) of the Family Law Act, and that is receiving and responding to any notice that a parent or guardian is entitled they are required by law to receive, requesting and receiving from third parties health, education or other information respecting the child. [ 49 ] The parenting time will be the same

schedule as set out in number 4 of the order. I am not sure where we are in terms of that

schedule at this point, but the nature of this order is that it shall continue as is. Accordingly, I am not sure if I need to say more, hopefully the parties can come to terms as to what that is. If not, they could come back before me to settle that. [ 50 ] Perhaps I can just ask you right now, where are we in the cycle? [ 51 ] B.A.J.: Monday to Wednesday I have the children, and then D.A.S. has Thursday and then I have them this weekend, Friday, Saturday, Sunday, and then it goes back over to -- [ 52 ] THE COURT: Okay. So this Thursday D.A.S. has the -- [ 53 ] B.A.J.: I have them today. [ 54 ] THE COURT: Okay.

So, but it is this Thursday D.A.S. has the children? [ 55 ] B.A.J.: Yes, Your Honour. [ 56 ] THE COURT: Until Friday morning? [ 57 ] B.A.J.: Yes. [ 58 ] THE COURT: All right.

Commencing then Thursday, February 25, so this is the mother's parenting time shall be commencing Thursday, February 25, 2015 from Thursday after school to -- sorry, from February 25 to Friday, February 26, morning, at the beginning of the school day, and then commencing Monday, February 29th from Monday after school until Wednesday morning, at the beginning of the school day, and then from Friday, March 4th, 2016, after school to Monday, March 7th, 2016 at the beginning of the school day. Is that consistent with the previous order? Does that make sense?

That is my goal to make it consistent, and I will stand down to give you a chance to look at that, but I just want the same cycle to continue. [ 59 ] MR. PETRI: That's what I kind of thought, Your Honour. [ 60 ] THE COURT: And I think that works, but you can let me know. [ 61 ] MR. PETRI: So in terms of the number of days it stays the same? [ 62 ] THE COURT: Yes. [ 63 ] MR.

PETRI: Thank you. [ 64 ] THE COURT: On a non-school day the pick-up and drop-off time shall be at 10:00 a.m. [ 65 ] When the children are to go to the parenting time of the father, B.A.J., he will pick them up from D.A.S.’s house, and vice versa. [ 66 ] The lengthy school holidays, the spring break, Christmas holiday and summer holiday shall be split equally between the parties.

Regarding spring break 2016, the father shall have his parenting time the first half and the mother the second half, and that will rotate each subsequent year. [ 67 ] For summer break the parties will share parenting time on a one-week-on and one-week-off basis starting on the first day school ends. On that day the mother shall have the first week and that will rotate each subsequent year.

I am not sure that was so eloquently stated, but the goal is that this year the mother picks up the child from school at the end of the school day, the last day of school, she will have the child the first week and it will rotate from that day on. The following year the father will have the child the first day and it will rotate on that basis.

[ 68 ] For Christmas holidays 2016, the father shall have the first half up to Christmas Day at noon, and the mother shall have parenting time from that day to the start of the school year in January, and this will rotate each subsequent year. [ 69 ] There are some further orders. The mother shall not use physical discipline on the children when exercising parenting time. [ 70 ] The last order is the mother shall not remove the children from the Lower Mainland of British Columbia without written consent of the father or further court order, and the father's consent shall not be unreasonably withheld.

That last order has to do with the concern over the situation in Fort Nelson that I heard about, wherein the grandfather has sexually assaulted one of her children. [ 71 ] Any further orders that I need to address? [ 72 ] MR. PETRI: Just with respect to B.R.J., my understanding is that she has a cell phone and there's a concern that she's not permitted to text or call her father when she wants to. I think that that's out of safety concern. [ 73 ] THE COURT: I think he's standing up right now. [ 74 ] B.A.J.: Your Honour, also, or Mr. Petri, also an ID issue, and -- [ 75 ] MR.

PETRI: Yeah, no, I'm getting there. [ 76 ] B.A.J.: Okay. I'm sorry. [ 77 ] MR. PETRI: It was that status card issue. [ 78 ] THE COURT: Yes. There shall be an order that the father shall -- the mother shall -- sorry, who has it right now? [ 79 ] B.A.J.: Mom has all their ID, Your Honour. [ 80 ] THE COURT: Okay. [ 81 ] B.A.J.: I have no ID. [ 82 ] MR. PETRI: So what we're looking for, Your Honour, is the status card, the birth certificate and the CareCard. [ 83 ] THE COURT: Yes. [ 84 ] MR. PETRI: He has no difficulty giving them to her when she needs them. It's just the other way around. [ 85 ] THE COURT: Yes.

In considering the father having the primary residence and the parenting responsibilities, the mother shall provide the father with all identification documents including CareCard and birth certificate and the status card, and the father shall provide those to the mother upon reasonable request. [ 86 ] Sorry, so that was the ID issue, and what was the other issue? [ 87 ] MR. PETRI: There was an order that was made by Judge Rounthwaite, number 7; neither party shall prevent B.R.J. from using her cell phone to contact the other parent. So it works both ways. [ 88 ] THE COURT: I will make that order as well.

Neither party shall -- what is it -- prevent B.R.J. from using her cell phone to contact the other party? [ 89 ] MR. PETRI: That's right. [ 90 ] THE COURT: And I signed this other interim order. I did cross off the first interim and I have signed the order, so this could be filed Madam Clerk. [ 91 ] MR. PETRI: Thank you, Your Honour. [ 92 ] THE COURT: And who is going to draft the order, and when? [ 93 ] MR. PETRI: I can draft the order, Your Honour. [ 94 ] THE COURT: And when are you going to draft it? [ 95 ] MR. PETRI: Soon as I get the clerk's notes. [ 96 ] THE COURT: All right.

I would like this order prepared and drafted as soon as possible. [ 97 ] MR. FLORESCU: One -- just one outstanding issue, Your Honour, contact with the school. [ 98 ] MR. PETRI: Yes. [ 99 ] MR. FLORESCU: I believe that's still part of the court order, that she's not to -- [ 100 ] THE COURT: That is cancelled. All previous interim orders are cancelled unless something specific is needed. [ 101 ] MR. PETRI: The only concern, as I say my client would have, and I think the school would have is just if she's disruptive or

disrespectful. [ 102 ] THE COURT: Well, we are going to have to deal with it. If it is disrupted in the future, but I think all previous interim orders are now cancelled, now that we have a final order. There is nothing in those orders that I have not addressed, is there? [ 103 ] MR. PETRI: No. Very good, thank you. [ 104 ] THE COURT: All right. No, I am hoping that those types of problems will not continue. The mother is involved in the children's education. She obviously cares sincerely about it.

She should have access to the teachers and be able to attend interviews and pick up the children in a normal fashion. Hopefully nothing will go awry because that would not be in the best interest of the children, but if they do, I am here and I will deal with it. [ 105 ] MR. PETRI: Thank you, Your Honour. [ 106 ] THE CLERK: Your Honour, is this a final order? [ 107 ] THE COURT: Yes, it is. But I will be seized of all further applications by the parties for the foreseeable future. [ 108 ] MR. PETRI: And that will be a term, yes, Your Honour? Of the order? [ 109 ] THE COURT: I do not think it -- [ 110 ] MR.

PETRI: I think it should be. [ 111 ] THE COURT: -- if you want to, I do not think it needs to be a term of the order. It will just be on the file that I am. Because there might be emergencies where I am not available for some reason. [ 112 ] MR. FLORESCU: But counselling or previous interim order should be [indiscernible] [ 113 ] THE COURT: Yes. J.I. SOLOMON Provincial Court Judge