T.P. v. J.G.W. Date:, 2012 BCPC 96

Citation: T.P. v. J.G.W. Date: 20120112 2012 BCPC 0096 File No: F28128 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: T. P. APPLICANT AND: J. G. W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ROBERT N. HAMILTON Counsel for the Applicant: John C. Fiddes Counsel for the Respondent: Philip W. Cote Place of Hearing: Surrey , B.C. Dates of Hearing: October 24, 28, November 4, 25, 2011 Date of Judgment: January 12, 2012 Introduction [ 1 ] T.P. and J.G.W. are the parents of seven year old A.W., born [DOB].

A.W. lives with Ms. T.P. and her partner M.C. Mr. J.G.W. applies for an order that he have access to A.W. He has not seen A.W. since November 20, 2010. Ms. T.P. opposes the application and seeks a final order terminating access between Mr. J.G.W. and A.W. [ 2 ] In considering whether to grant the relief sought by either party, I am to be guided only by what I determine to be in A.W.’s best interests. To that end, I must consider the evidence adduced only in so far as it relates to A.W.’s best interests, and I must consider that evidence in relation to

section 24 of the Family Relations Act R.S.B.C. 1996, c. 128 (“ F.R.A. ”). Background [ 3 ] This is the second multi-day access hearing between these parties. On September 10 and 22, 2010, these parties appeared before Judge Lytwyn of this court for an access hearing. Judge Lytwyn delivered reasons for judgment on October 12, 2010, and ordered weekly supervised visits between Mr. J.G.W. and A.W.

She also ordered the parties to reappear before her on November 24, 2010, so that she could consider a transition to unsupervised visits. [ 4 ] When the parties reappeared before Judge Lytwyn on November 24, 2010, she suspended Mr. J.G.W.’s access but ordered that he could continue to have contact with A.W. by email, and he could send A.W. presents. Judge Lytwyn directed the parties to

schedule an access trial within the following six months and ordered that a custody and access report be prepared pursuant to

section 15 of the F.R.A. The

section 15 Report was submitted by Family Justice Counsellor, Karen Fenton, on May 19, 2011. The access trial

commenced before me on October 24, 2011. [ 5 ] Ms. T.P. is 35 years old and Mr. J.G.W. is 36 years old. [ 6 ] The parties met over the internet in 2002 and commenced living together in 2003. A.W. was born [DOB]. [ 7 ] The parties never married and in October, 2006, they separated. A.W. remained living with Ms. T.P. [ 8 ] Ms. T.P. described her relationship with Mr. J.G.W. as fraught with problems. She said Mr. J.G.W. had a gambling problem and smoked marijuana. She objected to both. She also described Mr. J.G.W. as verbally, emotionally, and physically abusive to Ms. T.P. and A.W. Mr.

J.G.W. denied most of these allegations although when pressed in cross-examination he resorted to repeating that he did not remember such incidents occurring. [ 9 ] On Christmas Day in 2007, Mr. J.G.W. had an access visit with A.W. at his parents’ home. The visit did not go well. Mr. J.G.W. had an argument with his father. The parties disagree as to what specifically occurred during this argument, but what is not in dispute is the fact that the visit ended early, after about four and a half hours. [ 10 ] The parties reconciled in early 2008 and resumed living together in January, 2008. Ms.

T.P. testified that within a very short time of their reconciliation Mr. Whitley resumed what she had described as verbal and physical abuse directed towards her. Despite her evidence to that effect, she also testified that she became pregnant with their second child, but regrettably she miscarried. As well, despite her evidence of a very dysfunctional relationship with Mr. J.G.W., the parties got engaged to be married. [ 11 ] On June 24, 2008, five months after their reconciliation, the parties separated permanently. On that day, Ms. T.P. found some marijuana in Mr. J.G.W.’s clothes. Ms.

T.P. was angry as she had understood that Mr. J.G.W. was no longer using marijuana. She placed the marijuana on a dresser and when she returned from work the marijuana was gone. [ 12 ] Ms. T.P. confronted Mr. J.G.W. about the missing marijuana and he responded swearing at Ms. T.P. and stated that he smoked the drug because Ms. T.P. made him so miserable. A.W. was present during this argument and was crying. Ms. T.P. demanded that Mr. J.G.W. leave the home and Mr. J.G.W. obliged. A.W. remained with Ms.

T.P. [ 13 ] On August 24, 2008, the parties appeared in court before Judge Dohm and entered into a consent order giving Mr. J.G.W. access to A.W. at times agreed to by the parties, provided the access occurred in the presence of Mr. J.G.W.’s father, J. W. [ 14 ] Ms. T.P. next appeared in court on November 21, 2008, before Judge Raven. Mr. J.G.W. did not appear in court that date. Judge Raven imputed income to Mr. J.G.W. of $65,000 annually, set monthly child support at $608, and ordered Mr. J.G.W. to pay Ms. T.P. $105 each month for A.W.’s daycare expenses. [ 15 ] In addition, Judge Raven awarded Ms.

T.P. sole custody of A.W., ordered that Ms. T.P. and Mr. J.G.W. share joint guardianship of A.W., and ordered that Mr. J.G.W. have access to A.W. as agreed upon between the parties or as further ordered by the court. Judge Raven did not order that Mr. J.G.W.’s access be supervised. [ 16 ] Mr. J.G.W.’s first visit following the parties’ separation and these two court orders I have mentioned was on Christmas Day in 2008. There was no evidence before me of failed efforts by Mr.

J.G.W. to arrange visits with A.W. prior to December 25, 2008. [ 17 ] Similar to the Christmas Day visit in 2007, the visit occurred at the home of Mr. J.G.W.’s parents. The outcome of the 2008 Christmas Day visit was identical to the visit the prior year. A fight erupted between Mr. J.G.W. and his father and the visit ended early. [ 18 ] A.W. was supposed to spend Christmas Day with Mr. J.G.W. and his family, stay overnight, and spend Boxing Day with her father. However, at 10:15 p.m. Ms. T.P. received a phone call from A.W. who was crying. Again, Mr.

J.G.W. disputes some of the details concerning what is alleged to have happened, but what is not in dispute is that Ms. T.P. drove with her uncle to pick up A.W. and when she arrived Mr. J.G.W. had left his parents’ home. [ 19 ] A.W. told Ms. T.P. that Mr. J.G.W. had become very upset and was calling Ms. T.P. names. She said Mr. J.G.W. had ripped up a picture A.W. had drawn of herself and Ms. T.P. which she gave to her dad. A.W. told her mom that Mr. J.G.W. got into an argument with his father and had tried to push, hit and kick her grandfather. A.W. said that Mr.

J.G.W. called his stepmother (A.W. calls her “Grandma”) a “fat bitch.” [ 20 ] As I have indicated, Mr. J.G.W. denies that some of these things happened. However, given the kinds of things Mr. J.G.W. has communicated to Ms. T.P. when he has been angry, I have no doubt that much, if not all, of what A.W. reported to Ms. T.P. actually occurred. [ 21 ] No visits occurred between Mr. J.G.W. and A.W. for the next seven months. Then, on July 22, 2009, and July 30, 2009, Mr.

J.G.W. had visits supervised by an access supervision organization called TIN Harbour. [ 22 ] On August 10, 2009, the parties appeared in court before Judge Lemiski and entered into a further consent order. Mr. J.G.W. was to have at least four supervised access visits at TIN Harbour between August 10, 2009, and September 18, 2009. If there was no report of misconduct, Mr. J.G.W. was to then have unsupervised access with A.W. on alternating weekends from Friday after school until Sunday at 7:00 p.m. [ 23 ] While Mr. J.G.W. was of the view the four visits at TIN Harbour went well; Ms. T.P. felt they did not.

In the result, Ms. T.P. would not allow the unsupervised alternating weekend access visits as ordered by Judge Lemiski. [ 24 ] The TIN Harbour access reports from these visits in 2009 were not placed in evidence before me so I am unable to determine which view of those supervised visits is most accurate. However, those reports were tendered in evidence before Judge Lytwyn in the

September, 2010, access hearing and she concluded at paragraph 19 that, “there is nothing in the access reports that a court would likely construe as reports of misconduct.” [ 25 ] With this impasse between the parties, Mr. J.G.W. filed a Notice of Motion on December 21, 2009, seeking an order for access visits. Judge Cohen dismissed that application on April 9, 2010, when Mr. J.G.W. failed to appear in court. In addition, Judge Cohen ordered Mr. J.G.W. to pay Ms.

T.P. $2,500 for his failure to comply with an earlier court order to produce a fully completed Form 4 Financial Statement with all the necessary attachments. Mr. J.G.W. has not paid those funds to Ms. T.P. [ 26 ] In June, 2010, Mr. J.G.W. initiated contact with TIN Harbour again to arrange a supervised visit with A.W. [ 27 ] On July 10, 2010, some ten months after his last visit with A.W., Mr. J.G.W. had a supervised access visit at TIN Harbour. [ 28 ] No further visits occurred prior to the access hearing before Judge Lytwyn on September 10 and 22, 2010.

In her decision rendered on October 12, 2010, Judge Lytwyn determined at paragraph 34 that, “The Father and A.W. have a relationship and, on the evidence before me, it would not be in her best interests to sever it.” Accordingly she ordered weekly supervised visits for A.W. and Mr. J.G.W. at TIN Harbour. Judge Lytwyn also ordered the parties to appear back before her on November 24, 2010, so that she could review the supervised access reports and consider whether or not Mr.

J.G.W. should transition to unsupervised access visits with A.W. [ 29 ] On November 24, 2010, Judge Lytwyn reviewed the supervised access reports and after a brief hearing lasting about thirty minutes she suspended all further access between Mr. J.G.W. and A.W. Judge Lytwyn also directed the parties to

schedule a one day trial within the following six months, and ordered that Mr. J.G.W. could continue to communicate with A.W. by email and could send A.W. presents. Judge Lytwyn’s order of November 24, 2010, has not been entered at the Registry. [ 30 ] The access trial commenced before me on October 24, 2011. One day was insufficient to conclude the hearing and the parties returned for continuation dates on October 28, 2011, and November 4 and 25, 2011. [ 31 ] Despite the order that he may do so, Mr.

J.G.W. did not contact A.W. by email, nor is there any evidence before me that he sent her presents over the intervening year while his access with A.W. has been suspended. Mr. J.G.W. last saw A.W. on November 20, 2010, and last contacted her by email on November 22, 2010. [ 32 ] To summarize, over the three and a half years since the parties permanently separated ,Mr. J.G.W. has had thirteen supervised visits with A.W. as follows: 1. December 25, 2008; 2. Seven months later, July 22, 2009; 3. July 30, 2009; 4. Visits 4-7 occur between August 10 and September 18, 2009; 5. Ten months later, July 10, 2010; 6.

Two months later, October 23, 2010; 7. October 30, 2010; 8. November 6, 2010; 9. November 13, 2010; and 10. November 20, 2010. [ 33 ] Of the thirteen visits, five occurred over two months between July 22, 2009, and September 18, 2009, and another five occurred over one month between October 23, 2010, and November 20, 2010. In other words, of the thirteen visits that occurred over the past three and a half years, ten of those visits occurred during a span of three months. Analysis [ 34 ] I am to base my decision in this case solely on what I determine to be in A.W.’s best interests. In my analysis, I must consider

section 24 of the FRA which states: 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional well-being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and

duties adequately.

(1.1) The references to "other persons" in subsection (1)(

c) and to "each person" in subsection (1)(

e) include parents, grandparents,other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well-being of thechild.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider thatconduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to theextent that the conduct affects a factor set out in subsection (1) or (2). [35] I will review and consider the evidence led before me under each of the factors set out in section 24(1) of the Act. S. 24(1)(a): The health and emotional well-being of the child including any special needs for care and treatment [36] Neither party led evidence of any health problems A.W. has that would be relevant to the access issue I must decide.

However,A.W.’s emotional well-being has played a central role in this case. [37] A.W. clearly does not want to visit her father. [38] Ms. T.P. testified that prior to each of the weekly visits ordered by Judge Lytwyn in October and November, 2010, A.W. wouldstate she did not want to go to the visit. At times she would get very emotionally upset, crying and clinging to Ms. T.P. A.W.,nonetheless, went into the visits and on some occasions would tell Mr. J.G.W. that she did not want to be there. [39] Ms.

T.P. testified that A.W. would have a significant behavioural reaction after each visit – A.W. would be argumentative anddefiant both at home and at school. [40] Ms. T.P. testified that she has been told that A.W. has insecure attachment, and that there is a high possibility that she suffersfrom Attention Deficit Hyperactivity Disorder. [41] Ms. T.P. testified that between October, 2010, and March, 2011, A.W.’s school personnel observed A.W.’s behaviour in aprocess to try and assist with A.W.’s difficulties. [42] In March, 2011, A.W. received a Student Support Services Referral because of her difficult behaviour.

A copy of this Referralwas filed as Exhibit 6 before me. [43] A.W.’s Special Education Designation is H/333 – “Intensive Behaviour Intervention or Serious Mental Illness.” Under theheading “Social/Emotional Development” is the following comment: Constant attention-seeking, oppositional behaviour, calls out, argues with adults and peers, points out other’s mistakes, physically andverbally aggressive, disorganized. [44] The SBT Notes in Exhibit 6 (I was unable to determine what SBT refers to) state that A.W. is: Animated, polite, verbal, creative, acts remorseful.

Disobedient, unorganized, negative peer interactions, passive aggressive, impulsive, doesn’t follow directions, tries to negotiate if thingsaren’t to her liking. [45] It is clear that, at the time of the Referral, A.W. had significant emotional/behavioural difficulties. However, Ms. T.P. testifiedthat over the summer of 2011 A.W.’s behaviours improved. By the second week of school, A.W.’s principal advised Ms. T.P. that A.W.no longer needed her Special Education Designation. [46] Ms. T.P. testified that A.W.’s behavioural problems began at the end of October, 2010, at the same time A.W. recommencedvisits with Mr.

J.G.W. Ms. T.P. said that A.W.’s behavioural problems are now gone and the only difference now than when theproblems began is the absence of visits with Mr. J.G.W. While it is possible that this could just be a coincidence, I find that it is morelikely than not that A.W.’s emotional and behavioural problems were caused by her negative emotional reaction to having to attendaccess visits with Mr.

J.G.W. [47] The last point to consider under this factor is A.W.’s emotional well-being in the future if I decline to order access visits becauseshe will not have her biological father playing an active, or any, role in her life. While in most cases it is a given that children will benefitsignificantly from having both biological parents playing an active role in the children’s lives, we have been admonished on manyoccasions by our superior courts that as judges we must not approach cases involving children with any preconceived notions orpresumptions in favour of certain outcomes.

In other words, I cannot approach my analysis in this case with the presumption thatongoing access with a biological parent is in the child’s best interests. In Young v. Young, (SCC), [1993] 4 S.C.R. 3Madam Justice L’Heureux-Dubé said: As set out in the Act, maximum contact between the child and the non-custodial parent is a worthwhile goal which should be pursued tothe extent that it is in the best interests of the child. Generous and unrestricted access, which is the norm, should be favoured exceptwhen such access would not be in the best interests of the child.

However, ongoing conflict between parents which adversely affects the

child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children uponseparation or divorce. (Unfortunately the paragraphs are not numbered.) The right to access is limited in scope and is conditioned and governed by the best interests of the child. The legislation makes it quiteexplicit that only the best interests of the child as it is comprehensively understood should be considered in custody and access orders. The role of the access parent is that of a very interested observer, giving love and support to the child in the background.

He or she hasthe right to know but not the right to be consulted. Access rights recognize that the best interests of the child normally require that therelationship developed with both parents prior to the divorce or separation be continued and fostered. The right to access and thecircumstances in which it takes place must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodial parent conflicts with the best interests of the child, the furtherance and protection of the child's best interests must take priorityover the desires and interests of the parent (from the headnote). [48] Later, Justice McLachlin (as she then was) in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 stated clearly thereare to be no presumptions in favour of an outcome or in favour of a parent when courts decide matters of custody and access.

Atparagraph 44 she said: Fifthly and most importantly, a presumption in favour of the custodial parent has the potential to impair the inquiry into the best interestsof the child. This inquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion tothe contrary. It may be that in most cases the opinion of the custodial parent will reflect the best interests of the child. In such cases, thepresumption might do no harm.

But Parliament did not entrust the court with the best interests of most children; it entrusted the courtwith the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is itsrelationship with parents, siblings, friends and community.

Any rule of law which diminishes the capacity of the court to safeguard thebest interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs,means, condition and other circumstances of "the child" whose best interests the court is charged with determining. "[G]eneral rules thatdo not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can presentthemselves": per Morden A.J.C.O. in Carter v. Brooks, supra, at p. 62. The inquiry is an individual one.

Every child is entitled to thejudge's decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine thisinquiry, they should be rejected: "No matter what test or axiom one adopts from the many and varied reported decisions on this subject,each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests ofthe children met". (Appleby v. Appleby, supra, at p. 315). [49] Accordingly, I cannot decide this case with a presumption that ongoing contact between A.W. and Mr.

J.G.W. is, or at somepoint in the future will be, in A.W.’s best interests. Rather, I must decide this case on the evidence that is before the court and enquirespecifically into A.W.’s best interests without presuming that access with her father is in her best interests. S. 24(1)(b): If appropriate, the views of the child [50] The views of a seven-year old child over whether or not they want contact with a parent will rarely be given much weight.

Thereason for that is obvious; seven-year olds do not likely have the maturity to understand the nature or consequences of making such adecision. [51] As I have already indicated, A.W. does not want to see her father. I give little weight to her views on this subject. [52] However, I will address Mr. J.G.W.’s concern about A.W.’s views. [53] Mr. J.G.W. has formed the opinion that A.W. has been influenced by Ms. T.P. into expressing the view that she does not want tosee Mr. J.G.W.

There is no evidence of such influence before me. [54] On the contrary, there is a body of evidence before me of actions taken, or statements made, by Mr. J.G.W. that would influenceA.W. to no longer wish to see her father. [55] For two consecutive Christmases, Mr. J.G.W. got into an argument with his father and stepmother such that A.W.’s Christmasvisit with her father was terminated. [56] On one of those Christmas visits A.W. drew a picture of herself and Ms. T.P. and gave it to Mr. J.G.W. Mr.

J.G.W. decided totear up the picture in front of A.W., throw it at her, and ask A.W. if he was “chopped liver.” [57] For A.W.’s birthday in 2009, Mr. J.G.W. phoned A.W. and during what should have been a happy phone call Mr. J.G.W. toldA.W. that he wished her mother was dead. Mr. J.G.W. denies making any such comment. [58] Two things convince me that Mr. J.G.W. told A.W. he wished Ms. T.P. was dead.

First, he sent a series of text messages to Ms.T.P. on the same day as the birthday phone call in the following terms: - u rotten piece of shit hope God makes one of your many illnesses take care of u your karma from this says it will I hate u. - Its obvious u will never allow me 2 c her so cros [sic] my fingers 4 cancer. Can’t believe wat [sic] u r doing u deserve the cancer. Hope u go quik [sic]. - Hope it hurts. [59] Second, to accept Mr.

J.G.W.’s denial requires me to accept that after an otherwise benign telephone call A.W. would make up astory and lie to her mother that her father said he wished her mother was dead. I do not accept that A.W. would do such a thing and I findthat Mr. J.G.W. told his daughter during the birthday phone call that he wished Ms. T.P. dead.

[ 60 ] In addition, Ms. T.P. gave evidence of ongoing verbal abuse by Mr. J.G.W. directed at her in front of A.W. when the parties were together. Among the more shocking statements to A.W. is this, coming from Mr. J.G.W. during a confrontation over his marijuana use: Mommy was going to break up out [sic] family again because she was a conservative stiff cunt, which he couldn’t live with this shit anymore and he’s sorry she’ll be left living with such a fat disgusting tub of shit. [ 61 ] Against this evidence of Mr.

J.G.W.’s conduct, which I find likely has played a significant role in forming A.W.’s view that she does not want to see her father, is evidence of Ms. T.P.’s efforts to continue a relationship between A.W. and Mr. J.G.W. This evidence addresses Mr. J.G.W.’s concerns that Ms. T.P. is influencing A.W. to say she does not want to see Mr. J.G.W. [ 62 ] In addition to her oral evidence to that effect, some text messages from Ms. T.P. to Mr. J.G.W. corroborate what she said.

The text messages include the following: January 3, 2009 I need you to prove that you’ve taken anger management and gotten come [sic] counselling before you can take her. Do you have someone in mind that could supervise visits? If not there’s a place called tin harbour that does that. I’m sorry but you commit to helping yourself, its not healthy for her. January 7, 2009 A.W. did see and hear. I don’t want to keep you out of her life I want you to get help and deal with your issues.

She is afraid to be with you...you said and did things to and in front of her that any rational adult would know is not right or healthy for her. Its abusive. For yourself and for her just get help. [ 63 ] In addition, Ms. T.P. persevered in taking A.W. to the access visits as ordered by Judge Lytwyn on October 12, 2010, despite what must have been very difficult emotional circumstances. [ 64 ] I find that Ms. T.P. did so, not only because of Judge Lytwyn’s order for access, but because she was prepared to attempt, one last time, to try and forge a relationship between Mr.

J.G.W. and A.W. [ 65 ] Accordingly, while I will give A.W.’s views about access with Mr. J.G.W. only their due weight, those views, I find, have been forged by Mr. J.G.W., and Mr. J.G.W. alone. S. 24(1)(

c) The love, affection, and similar ties that exist between the child and other persons [ 66 ] As I have already indicated, the relationship between A.W. and Mr. J.G.W. is fractured, if not completely disintegrated. While the supervised access reports from October and November, 2010, indicate some kind of a relationship between A.W. and Mr. J.G.W., the observations in those reports must be viewed with all the surrounding circumstances. [ 67 ] The starting point is a seven-year old child who does not want to be at the visit, but is told she has no choice and must attend.

The access supervisors observed a seven-year old child who made up stories and lied to her father in an effort to avoid the visit or end the visit early, but those stories and lies did not achieve their purpose. [ 68 ] The access supervisors observed a seven-year old child who was given gifts at the start of some of the visits, which would make her happy. [ 69 ] In light of those facts, it is not surprising that A.W. sat beside Mr. J.G.W. and watched movies or read books, or gave Mr. J.G.W. a hug at the end of the visit.

But I do not believe that those observations lead inexorably to the conclusion that there is a close or affectionate relationship between A.W. and Mr. J.G.W. [ 70 ] I note the following observations of the access supervisors from the visits in October and November, 2010: October 30, 2010 visit A.W. told Mr. J.G.W. that she didn’t want to come to the visit today because she was supposed to go to an aunt’s house. (There was no visit with an aunt planned for that day.) An hour before the two hour visit was to end A.W. told Mr. J.G.W. she wanted to go home. Mr.

J.G.W. told A.W. that is was important that she spend time with him. A.W. asked why. Mr. J.G.W. said because I’m your Dad. Mr. J.G.W. asked if she missed him. A.W. didn’t respond and lay on the couch. Mr. J.G.W. joked and called A.W. a poor thing for having to hang out with him. A.W. told him that she didn’t have a choice. When there were five minutes remaining in the visit, A.W. asked if it was time to go yet. Mr. J.G.W. told A.W. that she had endured enough. November 6, 2010 visit

An hour before the end of the visit A.W. asks the supervisor if she can go home. The supervisor replies that there is still an hour left andasks A.W. if she wants to finish watching the movie. A.W. says no. Mr. J.G.W. returns from the bathroom. A.W. says bye. Mr.J.G.W. says that it’s not time to go yet. A.W. says that she wants to go home. November 13, 2010 visit An hour before the end of the visit A.W. asked to leave so that she could ice some cupcakes with Ms. T.P. and mentioned that she wasgoing to a birthday. Mr. J.G.W. told A.W. that he likes hanging out with her and wanted her to stay. Mr.

J.G.W. asked A.W. what she isgoing to do when she comes to his house, “ask to leave.” November 20, 2010 visit Mr. J.G.W. asked A.W. what was up with her emails. Mr. J.G.W. said they weren’t very nice. A.W. didn’t respond. Mr. J.G.W. askedif she had written them. A.W. turned her head and looked away from her dad. A.W. turned back and looked at him and said my momforced me to write to you. [71] While it is true that throughout these supervised visits, Mr.

J.G.W. and A.W. watch movies, read books, play board games, workwith arts and crafts, and talk together, I am not satisfied that participating in those activities establishes that A.W. and Mr. J.G.W. have arelationship based upon love, affection, and similar ties. [72] In fact I find that the relationship between Mr. J.G.W. and A.W. is not forged with love, affection, or similar ties. While Mr.J.G.W. tried hard during the supervised visits to display love and affection, aside from a hug at the end of the visit, A.W. did notreciprocate. To be clear, at times during the visits A.W. laughed and sat close to Mr.

J.G.W., but taking the evidence as a whole, I findthat there is not a mutual relationship between Mr. J.G.W. and A.W. based upon love, affection, and similar ties. [73] I must also mention here that I have considered the fact that Mr. J.G.W. shares joint guardianship of A.W. with Ms. T.P. Whileordinarily a joint guardian would have a close relationship with the child in question in order to fulfil their duties as guardian, in this caseno such close relationship exists. [74] Mr. J.G.W. has joint guardianship in an order granted in his absence. There is no evidence that Mr.

J.G.W. has contributed toany guardianship decisions for A.W. since the parties permanently separated. Indeed the evidence is that there have been very longperiods of time when there has been no access or contact between A.W. and Mr. J.G.W. Mr. J.G.W. has absented himself from A.W.’slife for months at a time. [75] Accordingly, the fact that Mr. J.G.W. is a joint guardian does not lead me to conclude that there is a relationship of love,affection and similar ties between A.W. and Mr. J.G.W. [76] Lastly on this point, the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v.

L. (M.), (SCC), [1998] 2 S.C.R. 534 considered an order for access to biological parents in a case where the trial court hadordered the children permanently into government care. In the course of his analysis on the issue of access to non-custodial biologicalparents, Justice Gonthier stated at paragraphs 47-49: [47] ...This Court has also held on numerous occasions that pursuing and protecting the best interests of the child must takeprecedence over the wishes and interests of the parent (King v. Low, (SCC), [1985] 1 S.C.R. 87; Young v. Young, (SCC), [1993] 4 S.C.R. 3).

In Catholic Children’s Aid Society of Metropolitan Toronto, supra, at p.191, L’Heureux-Dubé J.stated: “Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for theparent.

In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost.” [48] I conclude that while preserving emotional ties is one of the elements of the definition of the best interests of the child (s.1(d)), itwill only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors. [49] Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to theother interests of the child such as security or psychological health (New Brunswick (Minister of Health and Community Services) v.

B.D.reflex, (1994), (NB KB), 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attachedto each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health andCommunity Services) v. S.G. reflex, (1997), (NB KB), 193 N.B.R. (2d) 274 (Q.B.)). S. 24(1)(

d) Education and training for the child [77] The only comment I make in relation to this factor is that once the supervised visits recommenced in October and November,2010, A.W.’s behaviour deteriorated significantly to the point that she received the Special Education Designation noted earlier in thesereasons. As of September, 2011, and in the absence of visits with Mr. J.G.W., A.W.’s behaviour has improved such that she no longerhas her Special Education Designation. [78] Under the circumstances, I find that A.W.’s education was adversely affected by her reaction to the supervised access visits withMr. J.G.W. S. 24(1)(

e) The capacity of each person to whom guardianship, custody, or access rights and duties may be granted to

exercise those rights and duties adequately [ 79 ] What I must consider under this factor is Mr. J.G.W.’s capacity to exercise access rights and duties that would come if I decide to make an order for access between him and A.W. [ 80 ] I have some serious reservations about Mr. J.G.W.’s judgment when it comes to making decisions that will affect A.W. Mr. J.G.W.’s lack of judgment affects his capacity to exercise access rights and duties. [ 81 ] I have already mentioned the failed Christmas visits due to arguments and a physical confrontation with Mr. J.G.W.’s father and stepmother in front of A.W.

As well, I have already mentioned Mr. J.G.W.’s comment to A.W. on her birthday telephone call that he wished Ms. T.P. was dead. [ 82 ] Judge Lytwyn, in her decision dated October 12, 2010, made the following comments about Mr. J.G.W.’s anger at paragraphs 32 and 33: [32] The anger remains as the Father’s comments in court make very clear. He remains very distressed about how the Mother has treated his requests for unsupervised access. This manifests itself as anger – an anger that he is not able to contain. Sadly, even when cautioned, the Father could not control his anger toward the Mother.

He has little, if any, insight into how this anger upsets the Mother and all those who witness it. He, therefore, cannot have any insight into how this anger could negatively impact A.W., who is vulnerable and should not be exposed to this anger. Regrettably, the anger does “peek through” in his access visits. The Father is able to contain his extreme anger and has not had any outbursts but his emotions emerge from time to time. [33] The Father is also unable to limit his conversations with A.W. and has entered into inappropriate inquiries from time to time.

Although the Mother has been too sensitive in construing some comments as inappropriate criticism of her, an access supervisor did have to intervene during the last access visit. A review of the access reports does show that the Father has difficulty restraining himself from questioning A.W. about the Mother’s circumstances, thereby, bringing A.W. into the conflict. [ 83 ] Mr. J.G.W. did not demonstrate in the hearing before me his out of control anger problem. The supervised access reports from the visits in October and November, 2010, do not contain inappropriate inquires of A.W. concerning Mr.

T.P.’s circumstances. [ 84 ] Whether Mr. J.G.W.’s uncontrolled anger is now under control is an open question. Mr. J.G.W. in some of his text messages stated that he was either going to take or had completed anger management counselling. No evidence was tendered before me from the counsellor indicating that Mr. J.G.W. had successfully completed the program. However, if he did complete anger management counselling it did him very little good because all of that counselling predates Judge Lytwyn’s decision by more than one year. [ 85 ] Mr.

J.G.W. gave evidence that he sees a counsellor, Danielle Duplessi, and has been seeing her for several years. [ 86 ] Mr. J.G.W. did not indicate the nature of that counselling, and he chose not to tender any evidence from Ms. Duplessi. [ 87 ] In light of Judge Lytwyn’s finding as set out above, I would have thought that Mr. J.G.W. would consider it of some import to tender evidence addressing those concerns given that those are very serious findings which would adversely affect an application for unsupervised access. [ 88 ] Lastly on this point about my concerns for Mr.

J.G.W.’s judgment, I point out that he instructed his counsel to advocate for alternating weekend unsupervised access as a starting point in the resumption of his visits with A.W. [ 89 ] Mr. J.G.W. sought to advocate for that access despite the suspension of all access for the preceding year. He also sought unsupervised weekend access in the face of A.W.’s consistent protestations over any access at all. [ 90 ] A.W. has never spent the night with Mr. J.G.W. on an access visit. Mr.

J.G.W. gave no evidence of what sleeping arrangements he would have available to A.W. were she to come to stay with him for a weekend. [ 91 ] During the evening of the Christmas visit in 2008, A.W. called Ms. T.P. in tears. A.W. told her mother that Mr. J.G.W. had refused to allow A.W. to call and say goodnight to her mom. Ms. T.P. states in her affidavit sworn July 22, 2010, and filed as part of Mr. J.G.W.’s case, that during this phone call with A.W., Ms. T.P. could hear Mr.

J.G.W. in the background shouting at A.W., “What, I’m not good enough for you”, “What’s your problem, your mom must have brainwashed you against me.” [ 92 ] During final submissions, I pressed Mr. J.G.W.’s counsel that I thought Mr. J.G.W.’s position seeking immediate unsupervised and overnight weekend access was unreasonable. Mr. J.G.W.’s counsel conceded that a very brief period of shorter and possibly supervised access might be considered in order to re-introduce Mr. J.G.W. to A.W. [ 93 ] I am not satisfied that Mr.

J.G.W. has the capacity to exercise access rights in a manner that are in A.W.’s best interests. I find that Mr. Whitley’s interests are focused on what is best for himself rather than his daughter. In addition to the foregoing, I advert to a few more of Mr. J.G.W.’s text messages to Ms. T.P.. [ 94 ] While the text messages tendered in evidence are not extensive, and I was told there were significantly more text messages that I did not see, one theme that emerges from Mr. J.G.W. is that he refuses to pay his court ordered child support because he is not getting access with A.W. In other words, Mr.

J.G.W. will not provide the financial support that A.W. is entitled to receive and that Mr. J.G.W. has been ordered to pay, but rather, he keeps that money for himself because he does not get to see A.W. [ 95 ] On January 28, 2009, he wrote: “If u didn’t use A.W. as a weapon I would suffer but y would I pay when u cut my access off.” [ 96 ] On February 8, 2009, he wrote: “Enough 4 u. As usual. No money until I c her period. u r abusing your powers. I’m changing support anyways way too much. c u in court.”

[ 97 ] Despite his stated intentions to take steps in court to address child support, as at the date of hearing this application, Mr. J.G.W. had not changed the child support order, had paid virtually no child support for A.W., had not paid the $2,500 fine assessed against him for disobeying another court order, and had accumulated child support arrears in excess of $27,000. [ 98 ] Lastly with respect to this factor, in what can only be described as a malicious attack, Mr. J.G.W. reported to the police that Ms.

T.P. was once dating a drug dealer whose father was a member of the Hells Angels and that a woman died from a drug overdose in the bathroom of the house where Ms. T.P. was living at the time. He further reported to the police that Ms. T.P. and her boyfriend disposed of the dead body. Mr. J.G.W. said that he knew this as Ms. T.P. had told him about it when they were together. Mr. J.G.W. said that he did not report this to the police earlier because he was afraid for his safety since a gang member was involved. [ 99 ] In his evidence before me, Mr.

J.G.W. said that he and his brother have been looking for information regarding the dead woman and that about a year ago he went to the police. When asked why he went to the police, he stated that he felt he needed to fight back against Ms. T.P. and that he had taken the “high road” in this dispute with Ms. T.P. [ 100 ] Ms. T.P. denied all of these allegations. [ 101 ] Mr. J.G.W.’s evidence on this point reveals that he is an individual who will resort to just about anything in his fight against Ms. T.P.

His judgment is so impaired that he somehow thinks that his conduct in this case places him on a moral high ground. I find that little could be further from the truth. His conduct throughout, as detailed in these reasons, is not the conduct of an individual motivated by what is morally right. It is conduct of an individual so self-centred and so determined to get what he wants that he has lost sight of his duties and responsibilities as A.W.’s father. I find he does not have the capacity to exercise the rights and duties attendant upon access with A.W. Decision [ 102 ] The relationship between A.W. and Mr.

J.G.W. is obviously and profoundly fractured. Is it the role of judges to try and craft a plan that will hopefully repair the fractured relationship? The answer is No. [ 103 ] First, judges do not know the parties. We see the litigants in an environment that is often foreign to them. There are limits on what the parties can tell us. They can only give evidence relevant to the matter before the court. There are limits on the manner of questioning witnesses. The courtroom atmosphere is an unnatural setting.

On cross-examination the parties are often challenged or under attack. [ 104 ] Second, and of greater significance, as judges we do not know the child who is the subject of the case. We virtually never see the child. We are told things about the child by the parents and often Family Justice Counsellors, but we do not meet or hear from the child.

There are good reasons for that, but we cannot craft a rehabilitative plan for a relationship where we do not know the parties to that relationship and never meet the most important party to the relationship – the child. [ 105 ] Lastly, we are not trained to develop a rehabilitative plan for fractured relationships and we do not have the skills to do so. That task falls to the expertise of counsellors, therapists, and social workers. [ 106 ] Mr. J.G.W.’s application, if granted, would require this court to cross its fingers and hope that the access will work this time.

I am not prepared to take that risk with A.W. Also, for the reasons stated, I am not equipped to develop some kind of rehabilitative plan that might hopefully solve this problem. [ 107 ] I have considered the

section 15 Report prepared by Karen Fenton and I reject her recommendation. In her paragraph under the heading

Summary and Recommendations Ms. Fenton says: It is difficult to determine if the child is resistant to access due to lack of consistent contact in an engaging environment or genuine discomfort in being alone with her father. Regardless, it is evident the child needs to be supported at the present time through continued supervised access. [ 108 ] I do not believe that Ms. Fenton has had the benefit of the comprehensive evidence that was tendered at this hearing. Also, her conclusion is based upon the reason for A.W.’s resistance to access which is but one of the factors to consider under

section 24 of the F.R.A. Her last sentence quoted above appears to me to come from a presumption that access is in A.W.’s best interests. As I have tried to point out in these reasons, such presumptions have no place in deciding cases involving children. [ 109 ] Based upon my analysis of

section 24 of the F.R.A. , I find that ordering access between A.W. and Mr. J.G.W. would not be in A.W.’s best interests. [ 110 ] A.W. is doing well in the care of Ms. T.P. and Mr. M.C. Going back to forcing A.W. to attend supervised access visits with Mr. J.G.W. would cause A.W. harm. [ 111 ] A.W. maintains some contact with her paternal grandparents and Judge Lytwyn ordered that Mr. J.G.W. could communicate with A.W. by email, but he chose not to do so. I was not asked to permit email contact between Mr. J.G.W. and A.W. and I did not hear submissions from counsel on that point. [ 112 ] If Mr.

J.G.W. wishes an order that he have email contact with A.W., he can apply in the normal course and I will be seized of that application. I will dispense with the requirement that the parties comply with Rule 5 for that application as that will simply delay the process. [ 113 ] Accordingly, I dismiss Mr. J.G.W.’s application and order that there be no access between Mr. J.G.W. and A.W. [ 114 ] This has been a very difficult decision. I thank counsel for their courteous manner during the hearing, and for their helpful

presentation of their clients’ respective cases. __________________________________ The Honourable Judge R.N. Hamilton Provincial Court of British Columbia