J.D.G. v. H.M.L.M. Date:, 2014 BCPC 390

Citation: J.D.G. v. H.M.L.M. Date: 20140902 2014 BCPC 0390 File No: F32489 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J. D. G. APPLICANT AND: H. M. L. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. M. BOND Appearing in person: J. D. G.

Counsel for the Respondent: D. Karkairan (except September 2) Place of Hearing: Surrey , B.C. Dates of Hearing: March 11, 20, May 6, June 12 July 26, 2014 Date of Judgment: September 2, 2014 [ 1 ] The parties are before the court to deal with Ms. HMLM ’s non-compliance with an order for Mr. JDG to have parenting time with the child, C, who is now six years old. History [ 2 ] There has been a history of Ms. HMLM denying Mr. JDG parenting time. Ms. HMLM was ordered to provide Mr. JDG with regular time with C after a trial before Judge Gulbransen, who gave his reasons for judgment in April, 2013. At that point, Mr.

JDG had been denied parenting time with C for some nine months; his last visit had been on July 7, 2012. [ 3 ] Following Judge Gulbransen’s trial decision, Mr. JDG brought on an application to specify his access, which was heard in July, 2013, as Ms. HMLM continued to deny him parenting time. Judge Gulbransen made an order for increasing parenting time leading up to overnights. Ms. HMLM did not comply with the order and the matter came before me on November 1, 2013. By that time, Mr. JDG had not seen his son for over 15 months. [ 4 ] On November 8, 2013, I ordered that Mr.

JDG should have his parenting time reinstated. The order included the provision that Ms. HMLM was to appear before the court following any weekend that she did not provide the parenting time. Ms. HMLM complied with the order until December 21, 2013, but thereafter provided no further parenting time. [ 5 ] Mr. JDG brought a further application for compliance with the order which came before me on February 14, 2014, and an order was made that Ms. HMLM provide Mr. JDG time with the child from February 15 th to 17 th , or come before the court on the 17 th and explain why she should not go to jail. Ms.

HMLM did not provide the parenting time and appeared before Judge Gulbransen on February 17, 2014, at which time he ordered that Mr. JDG have make up time from February 18 th to 20 th . Ms. HMLM complied with that order, but gave him no further access to C. [ 6 ] The hearing commenced on March 11 th . It did not conclude. On March 20 th , I again made an order that if Ms. HMLM did not comply with the parenting time order, she must appear before me at 9:30 a.m. on the following Monday to explain herself. She came before me on April 28 th to explain that she was again not providing Mr. JDG with parenting time.

I ordered that Mr. JDG have the child from Thursday, April 29, until Saturday, April 31, at 8 p.m., and thereafter pursuant to the previous access order. [ 7 ] The matter resumed on June 12, 2014, and continued on July 26 th . [ 8 ] The issues are as follows: 1. Has Ms. HMLM wrongfully denied Mr. JDG parenting time with C? 2. If she has done so, should Ms. HMLM be punished by imposing a fine or imprisonment? 3.

Has there been a material change in circumstances since the order of Judge Gulbransen such that I should consider varying the order for parenting time and/or parenting responsibilities with respect to C? 4. If so, what arrangement is in C’s best interests? 1. Wrongful Denial of Parenting Time [ 9 ] Ms. HMLM advised Mr. JDG and the court that she has withheld C from Mr. JDG for a vast array of reasons, including, but not limited to: • Illness of C and/or herself; • C needed a rest; • Injury to her back and/or neck; • There is a flu going around; • Ms.

HMLM’s anxiety caused her to be ill; • An assortment of car problems.

[ 10 ] The above list is not exhaustive of the reasons Ms. HMLM has given for refusing Mr. JDG his parenting time. In addition, the evidence confirms that Ms. HMLM has been up to five and eight hours late for Mr. JDG’s visits with C, and has on several occasions communicated to Mr. JDG that she is coming, or is on her way, only to advise him hours later that she will not make it, after all. [ 11 ] Despite these difficulties showing up for Mr. JDG’s parenting time, Ms. HMLM has demonstrated a remarkable ability to show up on time, every time, to pick up the child at the conclusion of Mr. JDG’s parenting time.

I have to conclude from this that it is not Ms. HMLM or C’s poor health, her car issues or her injuries that are impeding her ability to meet her obligations under the order. [ 12 ] Ms. HMLM testified that she believes that Mr. JDG is abusing C. She has reported this alleged abuse to various social workers with the Ministry of Child, Family and Community Services, a number of police detachments, her doctor, as well as doctors in a variety of clinics and hospitals.

The Ministry and the RCMP have investigated, including interviewing the child on a number of occasions, both prior to and since the order of Judge Gulbransen. Apparently C has been examined at the HEAL Clinic twice. In addition, the Ministry and RCMP have interviewed Ms. HMLM, Mr. JDG, his mother, Ms. HMLM’s friend, Ms. R, various doctors and social workers but have not concluded that Mr. JDG has abused the child despite the large number of reports and extensive and repeated investigations. In fact after reviewing the police and Ministry files, it appears that the investigators have concerns about Ms.

HMLM, and particularly about her refusal to follow through on the suggestion that she have the child assessed. [ 13 ] Ms. HMLM did not call any professionals to testify in support of her allegations of abuse. Instead, she simply asserted that she believes the abuse is occurring because, for example: • C told her he once called the help line while he was in the care of his father. • On December 2 nd , 2013, C told a doctor that the Defendant had been “flicking” him. The doctor apparently recommended that C be assessed by a psychiatrist. • C said on return from a visit in November that his Dad said Ms.

HMLM was dead, which she took as a threat. • In November and December, “C came back (from his time with his Dad) with death threats”. • Sometime before December 9 th , 2013, C allegedly had a bruise on his cheek, which Ms. HMLM asserts was from his father “tapping” him. • On December 9 th , 2013, there was one tiny red mark on his finger tip that Ms. HMLM thinks is from Mr.

JDG poking C. • On December 21 st , 2013, C had parallel scratches on his thumb and a bruise on his forehead. • On December 26 th , 2013, C was playing with his cousin when C was discovered exploring his cousin’s bum. • On February 21 st , 2014, C disclosed that his Dad was making him jump over stinky boxes and was watching “sexual videos” with him. • On March 18 th , 2014, C reported to her that a “pin prick on his ear” was from a poke from his father, his grandmother or the dog. • On March 25 th , 2014, C disclosed that his father took a piece of skin from his anus using a hot burning knife. • On April 12 th , 2014, C said that his Dad wiggles his teeth; made a sandwich with his skin, and tried to take his skin off. • On May 18 th , 2014, C said that his Dad hit him in the face with a balloon. • On June 20 th , 2014, C disclosed that he was poked in his bum by a knitting needle that his father bought at the dollar store 10 times.

Police records indicate that he ultimately admitted he made this up to make his mother laugh. [ 14 ] Again, this is not a complete list of Ms. HMLM’s allegations. While I do not doubt that Ms. HMLM believes that Mr. JDG is harming C, I find that I cannot rely on C’s reports to Ms. HMLM for the following reasons: 1. During the relevant period, C was only five years old. 2. Ms. HMLM, Mr. JDG and Mr. JDG’s mother all report that C has a vivid imagination. He apparently has a number of imaginary friends, including an imaginary wife, Stacy, and a large number of children. 3. Even Ms.

HMLM agrees that we cannot rely on things that C has said that are negative about her. 4. C has made so many fanciful allegations that are clearly not true, that it is impossible to separate the allegations Ms. HMLM wishes to rely on from those that are clearly based on fantasy. 5. According to the police and Ministry files, C has not made allegations that his father has abused him to the police or Ministry in the structured interviews they have conducted, and exhibits no fear or concerns with respect to his father. 5.

Although some of the professionals that have dealt with C have recommended he be seen by a psychiatrist and assessed, and although Ms. HMLM has taken him to see Dr. Wand, she has not submitted the psychiatrist’s report or any assessments to the court. [ 15 ] Furthermore, I find that I cannot rely on Ms. HMLM’s evidence for the following reasons:

1. Ms. HMLM has testified that she is so anxious about these issues that she has become physically ill and cannot deliver C on time, or at all for his access visits, yet she has been able to pick him up promptly after every visit that has occurred. 2. At one end of the spectrum, the allegations and excuses that Ms. HMLM has raised to support her non-compliance with the order are so insignificant that they could not reasonably be accepted as a basis to deny access, yet Ms. HMLM appears to be utterly convinced they are evidence of child abuse. 3.

On the other hand, the allegations at the other end of the spectrum are of such a nature that the injuries alleged or the impact of the abuse on C could be easily corroborated by the professionals who have investigated these complaints, including the Ministry, various doctors, the psychiatrist that has examined C, the Heal Clinic, counselors who have worked with the child and the RCMP, yet there has been no corroboration of the alleged abuse. In fact, it is clear from the evidence that has been provided that the Ministry and police are satisfied that Mr. JDG is not abusing the child. 4. Ms.

HMLM has established a pattern of blaming and accusing Mr. JDG to such an extent that she will not consider any other cause for C’s behaviours, even in the face of concerns raised by others for his mental health. [ 16 ] I cannot ignore the fact that Ms. HMLM’s commitment to blaming Mr. JDG will most likely have had an impact on C, as it has had on her friend who testified on her behalf, and I wonder if this perhaps accounts for the large number of allegations raised by C against Mr. JDG. [ 17 ] The evidence as a whole suggests that Ms. HMLM’s concerted efforts to demonstrate that Mr.

JDG is abusive to C is founded on an obsession on her part that is unsubstantiated. As there is no evidence to corroborate the alleged abuse even though some of the allegations are of such a nature that there would have been physical evidence, I have to conclude Ms. HMLM’s allegations are not well founded. In the result, I find that she has wrongfully denied Mr. JDG parenting time with C. 2. Consequences for Denial of Parenting Time [ 18 ] Mr. JDG wishes the court to impose consequences for Ms. HMLM’s non-compliance with court orders.

He suggests that I impose a prison term, or in the alternative require a “mental health workup”. While there are many cases where a prison term might be appropriate, I cannot see that this is one of them. I say that because I believe that Ms. HMLM honestly holds her conviction that Mr. JDG is abusing the child. Sending her to jail is not going to change her mind about that, and so will not assist the child by reforming her behaviour. [ 19 ] Counsel for Ms. HMLM points out that section 61(2) provides the court with options when a parent has wrongfully denied parenting time, not including a change of guardianship.

I note that of those options: • I have already imposed an order requiring Ms. HMLM to seek counseling. Although she alleges she has done so, I have no evidence before me corroborating that or supporting that she has benefited from such counseling. • Mr. Karkairan did not have any specific suggestions as to family counseling for the parties and child. • It is not reasonable at this stage to presume these parties would benefit by alternative family dispute resolution. • I have already made orders specifying the period of time the applicant can exercise parenting time and requiring Ms.

HMLM to report to the court should she deny such parenting time, and Ms. HMLM continues to have great difficulty complying with those orders. Furthermore, she has continued in her campaign to have Mr. JDG charged with sexually abusing the child by reporting incidents to the police before and/or after virtually every time Mr. JDG sees the child, including during the period of this trial. [ 20 ] Mr. Karkairan notes that s. 62 provides for when denial is not wrongful; for instance, when a guardian reasonably believes a child suffers from family violence.

He points out that his client genuinely believes the allegations she is making. While I accept that Ms. HMLM does genuinely believe her allegations, as noted above, I do not accept that her belief is reasonably held. [ 21 ] Counsel further argues that Ms. HMLM’s compliance has increased. In light of that, he suggests that jail time would be an extraordinary and inappropriate remedy. He submits that a police enforcement order would be more appropriate than jail or a fine. I cannot agree because it would not be preferable to subject C to police intervention on the level required to maintain Ms.

HMLM’s compliance with the court orders. [ 22 ] Unfortunately, I do not have the benefit of a psychological assessment of Ms. HMLM to assist me in understanding the depth of the impediment to meeting her obligations. What I do have is a long history of non-compliance with orders of this court which convincingly demonstrates Ms. HMLM’s inability to comply with orders for Mr. JDG’s parenting time. I find that in the result, it is more important to deal with that issue than to focus on punishing Ms. HMLM. 3. Material Change in Circumstances [ 23 ] Mr.

JDG seeks an order that he provide the primary residence for C, and essentially that he be given the parental responsibilities under

section 41 necessary to ensure compliance with that order. Before considering that application, I must determine whether there has been a material change in circumstances of the child. [ 24 ] In this case, after having determined that Ms. HMLM’s concerns regarding Mr. JDG’s parenting time with the child were without merit in April, 2013, Judge Gulbransen made an order that Mr. JDG’s parenting time with the child be reinstated. Ms. HMLM did not comply and it was necessary for Judge Gulbransen to make a further order in July, 2013, specifying Mr. JDG’s parenting time.

I can assume that Judge Gulbransen anticipated that Ms. HMLM would comply with the order being that the issue of abuse had been determined. Ms. HMLM was unable to do so.

[ 25 ] The matter came back before me in November, 2013, and again I found that Mr. JDG was not abusing the child and ordered that Mr. JDG’s parenting time proceed. Again, Ms. HMLM has demonstrated that she is unable to accept the decision of the court and comply with the order. In the result, it has been necessary for Mr. JDG to return to court on a regular basis to pursue compliance with the orders for his parenting time, or seek police assistance to force compliance. He has elected the former, rather than subject the child to police intervention. [ 26 ] I find that Ms.

HMLM’s ongoing demonstration of her inability to comply with the orders for Mr. JDG’s parenting time absent a reasonable basis for her non-compliance, despite having the issue fully canvassed by the court, amounts to a change of circumstances sufficient to warrant a re-examination of what arrangement for parenting time is in C’s best interests. 4. Review of Primary Residence and/or Parenting Responsibilities of the Parties? [ 27 ] As counsel for Ms. HMLM acknowledges, C has undergone behavioral changes in last year or two. Indeed, I have a number of concerns about C: 1. Mr.

JDG’s mother reported that C approached a neighbor, who testified in the previous trial, and asked her “her last name”, “her apartment number” and “how is her vision”. These are disturbing questions coming from such a young child because they suggest he has a familiarity with issues arising in the litigation which he should not be aware of. 2. The police file records that C said he had to see his father on the weekend or his mother would go to jail. This report raises the same concern. 3. Ms. Langlois reported that during access exchanges when Ms.

HMLM has become extremely upset, C sits quietly in his car seat ignoring his mother’s very evident emotional outburst. I accept, as suggested by Ms. Langlois, that it is not normal for a five year old to ignore his mother when she is terribly upset. 4. Mr. JDG reported that at the conclusion of the February 19 th visit, C said, “you know I won’t be coming, but you will always be in my heart”, and that Ms. HMLM cancelled all the visits after that day. 5. Ms.

HMLM says C is having tantrums; oppositional, hitting her; kicking her, throwing things, interfering with her ability to get to court; interfering with her ability to get to access exchanges; and she was unable to get him to go to school after the first week. [ 28 ] While counsel suggests there is not enough evidence to say what is causing the change in C, I can certainly conclude that Ms. HMLM has not taken appropriate steps to have C assessed, other than with the object of blaming Mr. JDG for abusing C.

She has not called any of the treating professionals even though C was assessed at the Heal Clinic and by a psychiatrist, and she has not engaged a counselor for C on an ongoing basis. The absence of clear steps to seek assistance for this young child is most concerning. [ 29 ] I have a number of concerns about Ms. HMLM’s conduct as C’s primary parent. For instance, when Mr. JDG’s parenting time resumed after 15 months without seeing C, Ms. HMLM did not provide a change of clothing or toothbrush, let alone instructions regarding C’s preferences, routine, allergies or diet.

This is an appalling lapse on her part which suggests an inability to focus on C’s best interests in the circumstances. Likewise when overnight visits resumed, Ms. HMLM did not provide information about C’s routine to assist Mr. JDG. [ 30 ] I am also concerned about the impact on C of the myriad of emergency department visits, medical appointments and interviews C has been subjected to after almost every visit with his father, including Ms.

HMLM questioning him, which appears to have habituated C to reporting that his father is to blame for any conceivable harm or damage that comes to him, real or imaginary, no matter how minor. [ 31 ] Given the strength of Ms. HMLM’s conviction that Mr. JDG is abusing the child, I cannot believe that she is capable of complying with any court order for Mr. JDG’s parenting time without subjecting the child to further medical examinations and investigations by various police forces and the Ministry of Child Family and Community Services.

It is not in the child’s best interest to continue to be subjected to these processes. Rather, it appears energy should be spent on investigating the child’s health issues, and normalizing his development, including his exposure to other children. The only way I can see this will be possible is by having Mr. JDG take over as the primary parent for the child. I have no confidence that Ms. HMLM can cooperate or condone such an arrangement, as she could not even manage to comply with Mr. JDG’s more limited parenting time orders. [ 32 ] By contrast, Mr. JDG has arranged telephone contact between C and Ms.

HMLM when C is in his care. He has kept Ms. HMLM informed about C’s health and issues that have arisen when he has C. For the most part, he has been able to deal with the frustrations arising from the delays and interruptions to his parenting time with relative patience and calm, although he has been sorely tested at times. He has returned C promptly to Ms. HMLM at the conclusion of his time with the child. [ 33 ] Mr. JDG is not employed other than in a volunteer capacity with his mother because of his diagnoses of rheumatoid arthritis.

He takes Celebrex, Serequel and uses medically prescribed marijuana, but not when he has C with him. He says instead he takes a hot shower to get himself moving in the morning. It has not been established that Mr. JDG’s medical condition or medications inhibit his ability to manage C. [ 34 ] Mr. JDG acknowledged past difficulties with alcohol, particularly during the relationship with Ms. HMLM. He testified that he continued to drink occasionally until his birthday in March, 2014, but that he has not had alcohol since then.

Nonetheless, it is generally accepted that individuals that have had past difficulties with alcohol consumption are more likely to have ongoing difficulties with it. This is something I must take into consideration in making this decision, particularly when I see in the police records that the police noted the smell of alcohol on Mr. JDG’s breath in August, 2013, although there is no suggestion he was impaired at the time. Nonetheless, Mr.

JDG’s capacity to care for C has not been effectively challenged in the course of this or the preceding trial and I have no reason to believe he is not capable of managing C’s care. [ 35 ] In the result, I am going to order that C commence living with Mr. JDG as of today’s date. Because I cannot rely on Ms.

HMLM to return C to Mr. JDG after her parenting time with C, Ms. HMLM shall have supervised parenting time only. The supervisors shall be associated with a professional agency and shall review these reasons for judgment in advance of supervising any visits. [ 36 ] In order to give effect to this order, it will be necessary to clearly define the parenting responsibilities of Ms. HMLM and Mr. JDG. Mr. JDG will have all the parenting responsibilities set out in s. 41 of the Family Law Act . Because of my concerns about Ms. HMLM’s inability to accept the findings of this court that Mr.

JDG is not abusing C, and because she has subjected C to such a large number of examinations in an effort to support her allegations against Mr. JDG, I am going to limit Ms. HMLM’s parenting responsibilities to the right to obtain information from Mr. JDG about the health and well-being of C, until further order of this court. Mr. JDG, that will impose an obligation on you to keep Ms. HMLM informed about how C is doing medically, academically and socially. [ 37 ] In

summary, I am making the following orders: 1. C will reside with Mr. JDG commencing today. To be clear, C shall attend the school Mr. JDG registered him in. 2. Mr. JDG will have all of the parenting responsibilities pursuant to

section 41 of the Family Law Act. 3. Mr. JDG will not consume alcohol when C is with him. If he does, there must be another capable adult present to manage C’s care during any period that Mr. JDG is impaired by alcohol. 4. Ms. HMLM will have limited parenting rights and responsibilities. Specifically, she will have the right to information about C’s education, activities, health and well-being from Mr. JDG. She will not be entitled to obtain information from third parties about C. The parties will communicate by email to exchange information about C. 5. Ms.

HMLM will have professionally supervised parenting time with C, at her expense, until further order of the court, commencing with one visit of up to three hours per week. The supervisor will provide copies of the supervision reports to Mr. JDG. 6. Mr. JDG and Ms. HMLM shall

schedule Ms. HMLM’s supervised parenting time through the office of the professional supervisor until further order of this court. 7. Ms. HMLM is not to remove C from the jurisdiction of this court without further court order. 8. Pursuant to s. 231(4), there will be an order requiring a police officer to apprehend the child and return him to Mr. JDG should Ms. HMLM fail to comply with this order. 9. For the purpose of locating and apprehending C, a police officer may enter and search any place he or she has reasonable and probable grounds for believing the child to be. 10. Ms.

HMLM will not make further applications without leave of the court. 11. I will be seized of further applications in this matter until further order of the court. [ 38 ] Hereafter, any review of Ms. HMLM’s parenting time will take into consideration her progress in counseling, a necessary component of which will be addressing the issues which have interfered with her capacity to respect Mr. JDG’s parenting time with the child. Ms. HMLM shall not apply for such a review for a minimum of six months. Mr.

JDG, I hope that you will think twice before considering taking the risk of losing C by breaching the term relating to alcohol consumption. It would be a crying shame if this child was to lose his right to be brought up by either parent when you both clearly love him so much. The Honourable Judge P. M. Bond Provincial Court of British Columbia