S.G. v. M.G. Date:, 2014 BCPC 6

Citation: S.G. v. M.G. Date: 20140109 2014 BCPC 0006 File No: F55408 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.G. APPLICANT AND: M.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: M. Screech

Counsel for the Respondent: K. Rongve Place of Hearing: Nanaimo , B.C. Dates of Hearing: May 28, 29, 30, Oct.16, 18, Nov.12, 2013 and January 2, 2014 Date of Judgment: January 9, 2014 [ 1 ] Mr. and Ms. G married in August, 2004 and separated in 2008. They are the parents of two daughters, B. (age 8) and H. (age 6). The children’s primary residence since the separation has been with Ms. G. Each parent now resides with a new intimate partner. Mr. G’s new partner is K. M. Ms. G’s new partner is J. G. Ms. G lives in a house on her parents’ farm. Mr. G lives in Nanaimo, about 45 minutes’ drive from Ms. G’s home.

Residence, Parenting Time & Parental Responsibilities [ 2 ] Ms. G seeks an order that the children continue to have their primary residence with her, and that she be appointed as the guardian with primary authority to exercise the parental responsibilities set out in

section 41 of the Family Law Act SBC 2011, c. 25. She acknowledges that Mr. G should be entitled to significant parenting time with the children. [ 3 ] Mr. G seeks an order providing for a more equal division of parental responsibilities, for the children to reside primarily with him, and for an approximately equal division of parenting time. [ 4 ] If a custody and access dispute were about the rights of the parents, one would incline intuitively toward the result sought by Mr. G, on the principle that equality is (often) equity.

However, a custody and access dispute is not about the rights of parents, but rather about the interests of children. The issue in this case is not whether either parent has good grounds for complaint about the behaviour of the other (as each clearly does), but rather what disposition would best serve the emotional health of B and H. The open hostility between Mr. and Ms. G matters, not because one of them is more at fault than the other, but rather because of the effect of that hostility, and the behaviour which it engenders, upon B and H.

For that reason, I will refer to the evidence of inappropriate behaviour only as it has affected B and H and only to explain how it has influenced my assessment of the disposition which will best serve their emotional needs. I will not express an opinion as to whether Mr. or Ms. G is more at fault for the profoundly dysfunctional nature of their relationship. [ 5 ] On September 10, 2009, Mr. and Ms. G entered into an agreement, the material terms of which were: a. Mr. and Ms. G would be joint guardians of the children, and would make important decisions about them jointly. b.

The children’s primary residence would be with Ms. G. c. Mr. G would have access visits on Thursdays from 4:30 p.m. to 7:30 p.m., and on Sundays from 9:00 a.m. to 6:30 p.m. [ 6 ] A custody and access assessment was prepared by Dr. McCreight in August, 2011. The following passages are taken from her report: The children present as healthy and have not had any serious health concerns. The emotional well being of the children is important to both parents and both are concerned about how their adult conflict is affecting the children.

B and H appear to be developing some concerning behaviours, such as occasional non-compliance and clinging, that may be related to their stress from the parental conflict. For example, the children have difficulty transitioning from one parent to another and they have witnessed overt parental conflict, including yelling, at times of transition. * * * The children present as being happy in both family environments and comfortable and secure with both parents. * * * [The children] ... have strong ties with their maternal grandmother [B.F.] who has provided a great deal of childcare for them over the years.

The children regard this grandmother as an important source of comfort and security. * * * The children are bright and articulate and B’s report card indicated that she is a good student who is meeting academic expectations. * * * Both parents provide and maintain home environments that are suitable for B and H .... * * * K.M. is in the home daily while B and H are visiting and she has an extensive background as a child and youth worker as well as daycare provider so she has child oriented skills which she has used to develop a positive relationship with B and H but she does not act as a parent toward them. * * *

The children are well-bonded with both parents and appear to be comfortable and secure in both homes and with both parents. [Mr. G] presented as a calm and emotionally supportive parent and [Ms. G] presented as well able to provide structure and to meet the children’s daily needs. At this time, the children have adapted to the

schedule of weekdays with their mother and weekends with their father. As will be apparent from the narrative below, the “concerning behaviours” of the children have become more serious since the date of Dr. McCreight’s report, and the connection between parental conflict and distressed child behaviour during transitions from one parent to the other is now manifest and unchallengeable. [ 7 ] Dr. McCreight recommended that Mr. G have parenting time in alternating weeks as follows: a. Week 1: from 4:30 p.m. Friday to 4:30 p.m. Sunday; b. Week 2: from 4:30 p.m. Wednesday to 4:30 p.m.

Friday. [ 8 ] Those recommendations were not accepted by the Honourable Judge MacCarthy of this court. On October 27, 2011, he ordered a 3-month transition into the following access regime for Mr. G: a. Week 1: from 4:30 p.m. to 7:30 p.m. on Wednesday; b. Week 2: from 4:30 p.m. Friday to 4:30 p.m. Sunday. [ 9 ] There have been many difficulties in relation to the exchange of children at the beginning and end of Mr. G’s access visits. The following are some of significance: a. The rule in Mr.

G’s house is that children are expected to eat the food which is put before them, and will not be served any other food or drink (except water) until they have eaten the food first served to them. So, if a child declines to eat a meal, the food is stored until the next meal-time, reheated and reserved. Ms. G’s approach to dietary issues is much less strict. Ms. G complains that, on occasion, the children have eaten nothing for a day or more when Mr. G returns them to her. Mr. G complains that Ms.

G often feeds them in the car en route to the exchange, with the result that they are not hungry when they arrive at his house shortly before dinner-time. He acknowledges that he confiscates and discards any food in the possession of the children at the time of the exchange. b. When the children arrive at Mr. G’s home, they are instructed to remove their clothes and surrender any possessions which they have with them. These are placed in a box until it is time to return the children to Ms. G’s care.

The children are then instructed to shower, and new clothes are issued to them, which they wear until it is time for them to return to Ms. G’s care. Mr. G explains that he adopted this regimen because of Ms. G’s complaint that clothes and other items were lost or damaged while the children were in his care, and because the children don’t bathe often enough while in Ms. G’s care. When cross-examined by Mr. Screech, K.M. accepted his characterization of the practice as a “ritual cleansing”. c. Ms. G acknowledges that she has a volatile temper.

Unfortunately, her temper tends to manifest itself in grossly inappropriate language, in the presence of the children, at exchanges. For example, the following words were used, in the presence of the children, at an exchange on October 28, 2011. Ms. G (addressing Mr. G): Don’t fucking look at me. B.F. [Ms. G’s mother]: Hey Ms. G: Don’t fucking look at me. I’ll slap that look right off your face, you fucking jerk. Get out of here. Mr. G (to the children): Come on, girls Ms. G: Fuck you B.F. (to the children): Do not listen to what mommy is saying. She’s just upset. Ms.

G has also used abusive, profane and highly inappropriate language when addressing K.M., in the presence of the children, at exchanges. d. J.G. has employed threatening, abusive and inappropriate language when addressing Mr. G, in the presence of the children, at exchanges. e. An exchange was scheduled to take place in September, 2013, in a parking lot. Mr. and Ms. G were present. Mr. G was to pick up

the children for an access visit. H got out of Ms. G’s car and walked to Mr. G’s car. B refused to get out of Ms. G’s car. Ms. G sought to reason with her, but to no avail. B physically resisted Ms. G’s efforts to get her out of the car, saying that she did not want to go with Mr. G. A few minutes later, B.F. drove by, observed the incident, and paused to offer assistance. B ran to B.F.’s car and locked herself in. The police were called. The officer negotiated a resolution, under which B agreed to visit Mr. G on the following day. The whole incident lasted about 30 minutes. f.

Shortly thereafter, at a similar exchange, H refused to go with Mr. G for an access visit. She sat in Ms. G’s car, in tears, banging on the window and shouting “Mommy, don’t make me go”. Mr. G picked her up and carried her to his car. g. On Thursday, September 19, 2013, Mr. G was scheduled to pick up the children from a lacrosse game after school for an access visit. Ms. G was at the school, helping to prepare a meal for a parent-teacher event, at which students would have the opportunity to present their art work. Mr.

G attended, and explained to B that they would not attend the parent-teacher event because he had other plans. B was upset because she wanted to display her art work. She ran off and locked herself in a bathroom, from which she was eventually extracted by a janitor. Mr. G left the school without her. Many other examples appear in the evidence. Such incidents are very stressful for children. [ 10 ] Mr. and Ms. G have failed abjectly in their minimal attempts to parent cooperatively.

For example, to suit their individual convenience, each enrolled the children, without consulting the other, in a different Brownie troup. For a period of time, the children attended meetings of both troups. Eventually, the Brownie organization put down its foot, and insisted that they choose one troup or another. There was no constructive dialogue between Mr. and Ms. G on this subject. [ 11 ] Most of the evidence and submissions were directed to the questions whether Mr. or Ms.

G behaved most badly in the course of this sad narrative, and which of them may be said to be most at fault for the dysfunctionality of their relationship. I think it more important to consider how the events described have affected the children, and how the children can be protected from further harm resulting from similar future behaviour. [ 12 ] I have no doubt that the behaviour of Mr. and Ms. G has adversely affected the emotional health and development of their children. Ms.

G’s naked hostility and abusive language at exchanges, accompanied on some occasions by aggressive and hostile behaviours on the part of J.G., can only be frightening and confusing for the children. Mr. G’s cleansing ritual at the inception of each visit can only lead the children to think that they are somehow unclean. Whether one parenting practice or the other, in relation to food, is good parenting, the stark contrast between the parenting practices in the homes of the two parents can only be confusing and stressful for the children. Mr.

G’s practice of confiscating food in the possession of the children on arrival at his home must be inexplicable to the children. Given the prevalence of eating disorders among young women in our society, and the fact that B and H are in the early stages of adolescence, good parenting demands that their parents foster healthy attitudes toward food. The inability of Mr. and Ms. G to agree upon and implement a consistent set of parenting practices in relation to food places their children at risk. My concern about this issue is reinforced by the evidence of Ms.

Lewis, one of two counsellors who have been assisting the children during 2003. Ms. Lewis described some unusual behaviours on the part of B in relation to food, and thinks it appropriate that B receive some counselling in relation to healthy eating. Unfortunately, that suggestion has not been followed up. [ 13 ] Children face the challenging task of making sense of a complex universe. Good parents can offer useful guidance in that intellectual journey of exploration.

However, where two parents deliver starkly contrasting messages, in hostile terms, the children’s sense of security and self-confidence about the journey is undermined. That is what Mr. and Ms. G have done to their children. [ 14 ] Shortly put, both Mr. and Ms. G have devoted themselves to the power struggle between themselves, without any consideration for the collateral damage which their power struggle has inflicted on their children. Either parental home would be an adequate, if flawed, home for the children.

The conflicts and transitions between the two homes are too difficult for the children to cope with. [ 15 ] Neither Mr. nor Ms. G displayed any willingness to put aside their differences in the interests of the children. Both of them are resolved to continue the fight. It is manifest that they cannot parent cooperatively. As a result, it is my duty to craft a resolution which will provide greater consistency and stability in the children’s lives, minimize the opportunities for conflict between the parents, and so minimize the resulting harm to the children.

In my judgment, the appropriate solution is an order that the children reside primarily with one parent, and that the other have extended, but infrequent, periods of parenting time. [ 16 ] In November, 2013, I directed that a views of the child report be prepared. Counsel agreed that Ms. Cotie should be retained to conduct the requisite interviews and prepare the report. Ms. Cotie summarized the children’s views in the following terms: B and H were very clear that they wish to continue to spend time with their Dad at his home, but have requested less time than they are presently spending with their Dad.

Because they are relatively young, I regard the views of the children as worthy of consideration, but not determinative. [ 17 ] Ms. G offers a number of advantages as a custodial parent: a. Continuity and consistency are important for young children. Ms. G’s house has been home for the children throughout their lives. b. As Dr. McCreight observed, B.F. is a strong attachment figure for the children. B.F. gave evidence, and impressed me as a person of sound character, patience and self-discipline.

She had many years of experience as a foster parent under contract to the Ministry of Children & Families (“MCFD”), and so is well-trained and experienced in the care of children who have suffered from family traumas. c. Linda Burns is a social worker employed by MCFD, who was charged with the responsibility to investigate certain allegations made against Mr. G and K.M. by Ms. G and B.F. No action was taken by MCFD or by the RCMP as a result of those allegations, and I

proceed on the assumption that they were unfounded. However, during the course of Ms. Burns’ investigation, she spoke at length with Mr. and Ms. G, K.M., B.F., and the children. I asked Ms. Burns whether, as a result of her investigation, she had any present concerns (as at May, 2013) about the parenting practices of either parent. She said that she had no such concerns about Ms. G’s parenting practices, but some concerns about those of Mr. G. She said that her primary concerns arise from the hostile relationship between the parents and about Mr. G’s rules about meals. [ 18 ] Ms.

G’s major disadvantage as a custodial parent is the presence of J.G. in her home. J.G’s conduct in relation to Mr. G has been highly inappropriate, both when the children were present and when they were not. That behaviour, and Ms. G’s inability to keep her temper during exchanges, are reasons to be concerned about their parenting capacity. However, as in many cases, there is no perfect solution in this case, and I must choose among a number of clearly unsatisfactory options. Overall, the advantages discussed in paragraph 17 militate in favour of an order that Ms.

G be the custodial parent. [ 19 ] I agree with Ms. Rongve’s submission that exchanges of the children for access visits should be designed to minimize the opportunities for confrontation between Mr. and Ms. G. Ms. Rongve suggests that Mr. G should pick up the children from school at the inception of each visit and return them to school at the end of each visit. I would have been inclined to that suggestion were it not for the following passage from Ms. Cotie’s report: B made it very clear she does not like her Dad to take her to school. I have not heard B’s reason for that aversion.

I am aware that, for adolescent girls, pick-up and drop-off at school are stressful times. I am of the view that B’s wishes should be respected on this issue. Unfortunately, the only apparent alternative is for exchanges to take place at the Petro-Canada station in Nanoose Bay, and I so order. It would be preferable, in the interest of all parties, if a mutually- acceptable intermediary could be found to take the children to the exchange. That idea was explored during the evidence, but no suitable candidate was identified. I encourage Mr. and Ms. G to continue to explore that idea. [ 20 ] Mr.

G seeks an order that, in the event of the death of either Mr. or Ms. G, the survivor shall be the sole guardian of the children. I think that any order on that subject would be premature - such an order should be made only when the relevant circumstances are known. [ 21 ] Mr. G seeks an order imposing prospective sanctions under

section 61 of the Family Law Act SBC 2012, c 25 , against the contingency that Ms. G may fail to comply with the order which I am about to make. In my view,

section 61 does not authorize such a prospective order. I say that because: a. section 61(1)(

b) provides that such an application may be made only “... within 12 months after the person was wrongly denied parenting time ...”; b. section 61(2) provides that the court may make the order “... if satisfied that an applicant has been wrongfully denied parenting time ...”. In any event, I would think it unwise to prescribe the consequences of future misconduct until all of the relevant circumstances are known. [ 22 ] In the result, I make the following orders: a. Mr. and Ms. G are declared to be guardians of the children. b. The children’s primary place of residence will be Ms. G’s home. c. Ms. G will exercise the parental responsibilities defined by

section 41 of the Family Law Act while the children are in her care. Mr. G will exercise those responsibilities while the children are in his care. d. Each parent will have the right to receive information directly from any medical or educational professional who provides professional services to either B or H, and each parent will provide the other, promptly by e-mail, with a copy of any written communication in relation to either B or H received from such a professional. e. Mr. and Ms. G will communicate with each other only by text message or e-mail.

Except for exchanges of the children, neither shall approach within 30 metres of the other, nor within 100 metres of the home of the other. f. Mr. G will have parenting time with the children each year, as follows: i. from 9:30 a.m. on Good Friday to 3:00 p.m. on Easter Sunday; ii. from 9:30 a.m. on the last Saturday in June to noon on the third Saturday in July; iii. from 9:30 a.m. on the Saturday before Labour Day to noon on Labour Day; iv. from 9:30 a.m. on the Saturday before Thanksgiving to noon on Thanksgiving Day; v. from noon on Christmas Day to noon on December 30. g. Ms.

G will cause the children to telephone Mr. G, at his home telephone number, at 4:00 p.m. on each Sunday when the children are not in Mr. G’s care.

h. Mr. G will cause the children to telephone Ms. G, at her home telephone number, at 4:00 p.m. on each Sunday when the children arein Mr. G’s care. Child Maintenance [23] The agreement dated September 10, 2009 contains the following provision: Each parent has the right and responsibility to contribute financially to the raising of the children. ... Both parents will keep a record ofpayments and make full disclosure of their earnings to ascertain the fair amount paid to ensure the best opportunity for each to providefor their children. [24] Mr.

G made child support payments of $5769 in 2011, $4029 in 2012 and $3600 in 2013. [25] Counsel are agreed that Mr. G’s income-earning capacity is, and has been since 2011, of the order of $33,000 per year. Theguideline figure for child maintenance would be $510 per month, or $6120 per year. [26] Ms. G seeks an order for retroactive maintenance, equal to the difference between $6120 and the amount paid by Mr. G in eachof 2011, 2012 and 2013. Mr.

G opposes the application for retroactive maintenance. [27] The governing principle was stated in D.B.S. vs S.R.G. 2006 SCC 37 , [2006] 2 SCR 231 @ paragraph 5: ... an award [of child maintenance] should generally be retroactive to the date when the recipient parent gave the payor parent effectivenotice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. The court file contains a notice of application, filed by Ms. G on January 16, 2009, in which she referred to the existing agreementrespecting child maintenance, alleged that Mr.

G earned an income of $34,500 per year, and applied for an order for ongoing childmaintenance calculated under the child support guidelines by reference to that income. I conclude that Mr. G has been on notice of Ms.G’s claim since January, 2009. [28] I assess arrears of maintenance at $351 for 2011, $2091 for 2012 and $2990 for 2013, for total arrears of $5432. [29] There will be an order that Mr.

G pay: a. ongoing child maintenance at the rate of $510 per month, payable on the 15th day of each month, commencing January 15, 2014 andcontinuing until further order of the court; b. an additional sum, on account of arrears of maintenance, of $100 on the 15th day of each month, commencing February 15, 2014 andcontinuing until the arrears of maintenance have been paid in full. January 9, 2014 ________________________________ T. Gouge, PCJ