V.E.A. v. A.R.G. Date:, 2013 BCPC 325

Citation: V.E.A. v. A.R.G. Date: 20131126 2013 BCPC 0325 File No: F60273 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.E.A. APPLICANT AND: A.R.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: Ms. A.

Counsel for the Respondent: S. Gosh Place of Hearing: Nanaimo , B.C. Dates of Hearing: November 5, 26, 2013 Date of Judgment: November 26, 2013 1 Background [ 1 ] Ms. A. and Mr. G. are the parents of E., who was born on [DOB]. E. spent the first year of his life in the custody of Ms. A.. Court proceedings between the parties over issues of custody, guardianship and access began in August, 2010. The following is an abbreviated history of those proceedings.

I have omitted from the narrative a very large number of brief court appearances at which no substantive issues were resolved. [ 2 ] In early September, 2010, E. was on an access visit with Mr. G.. Mr. G. observed that E. was suffering from a medical problem, and formed the conclusion that Ms. A. had allowed it to go untreated. For that reason, he did not return E. to Ms. A’s care as scheduled at the end of the visit. [ 3 ] On September 13, 2010, Ms. A. applied ex parte for an order for sole interim custody, an order that Mr. G. return E. to her forthwith, and a police enforcement clause.

The Honourable Judge Gould granted the order sought. [ 4 ] On September 17, 2010, Mr. G. applied ex parte for an order setting aside the order of September 13, 2010, an order that Mr. G. have sole interim custody of E., an order that Ms. A. return E. to him forthwith, and a police enforcement clause. Judge Gould granted the order sought. [ 5 ] E. has remained in the care of Mr. G. since September 17, 2010. [ 6 ] On September 22, 2010, Ms. A. applied to set aside the order of September 17, 2010. That application was heard on October 28, 2010, at which time the Honourable Judge Dohm ordered that Mr.

G. have sole interim custody and guardianship of E., and that Ms. A. have reasonable and generous access to E., to be supervised at the discretion of Mr. G.. [ 7 ] In the autumn of 2010, Ms. A. entered into an intimate relationship with Mr. W., and later had a child by him. Mr. W’s criminal record spans the period from 1992 to 2012, and includes convictions for impaired driving, dangerous driving, possession of narcotics, trafficking in narcotics, possession of prohibited weapons and obstruction of police officers.

It also includes a number of convictions for breaches of undertakings, probation orders and the like. [ 8 ] A custody and access report was ordered under the authority of

section 15 of the (former) Family Relations Act , and was delivered on March 15, 2011. The author commented favourably on the parenting skills of both parents, expressed regret and concern at the obviously dysfunctional relationship between the parents, and made the following recommendations: a. that Mr. G. be E’s primary caregiver; b. that Mr. G. and Ms. A. be joint guardians of E.; c. that Ms. A. have specified, unsupervised access to E. As a result, Ms. A. applied to vary the order of October 28, 2010. That application was heard on May 5, 2011, but was unsuccessful.

On May 5, 2011, Judge Gould ordered that the order of October 28, 2010 remain in force pending a trial of the issues. [ 9 ] The trial took place on January 12 – 13 and February 20, 2012 before the Honourable Judge Saunders. Mr. G. and Ms. A. were each represented by counsel. Judge Saunders rendered judgment on April 16, 2012. The following are pertinent extracts from her reasons for judgment: E. is flourishing in his father’s care.

I accept the evidence that he is doing well in relation to his health and emotional well-being and that his father is dedicated to ensuring that his positive progress continues. * * * By contrast, Ms. A’s focus is on herself and not on E. The

section 15 report supports the court’s findings that she has had considerably less interaction with him. She has on occasion placed E. at risk in her home .... Her behaviour towards E. during access visits suggests that she is using him as a pawn in her battle with Mr. G. .... * * * Mr. G. has shown himself to be a fully competent parent. His parenting ability is confirmed by the

section 15 report. He has attempted to facilitate access and supervised access was put in place pursuant to a court order due to Ms. A’s behaviour and lack of candour in her dealings with the court and with Mr. G. Of note, as stated in the report, MCFD found that Ms. A. was not being honest with the social worker and there were discrepancies in what she reported to the social worker and others. * * *

On the issue of access and whether it should continue to be supervised, Ms. A. has shown a scant disregard for court orders and has honoured them in the breach. That makes it difficult for the court to be persuaded that E. will be safe in her care during access visits without supervision due to the presence of Mr. W. in her life and his serious criminal record which places E. at risk. * * * The evidence reveals that both Ms. A. and Mr. W. have been less than candid with this court .... * * * Ms. A. has been unreasonable in giving permission for Mr.

G. to travel to see family and he has had to come to court for such permission. There is no evidence that Mr. G. will remove E. permanently from Nanaimo where he has his home .... In the result, Judge Saunders made a final order that Mr. G. have sole custody and sole guardianship of E., and that Ms. A. have supervised, scheduled access to E., followed by unsupervised access after a period of 6 months. [ 10 ] Issues arose between Ms. A. and Mr. G. in the latter part of 2012 over the question whether Ms. A’s access should continue to be supervised.

Those issues were the subject of an application heard by the Honourable Judge Dohm on October 17, 2012. He ordered that those issues be the subject of a trial, and that Ms. A’s access continue to be supervised pending that trial.

The following are pertinent extracts from his reasons for judgment: In the reasons for judgment, after a multi-day hearing only about six months ago, another judge of this court expressed very grave concerns about the safety of your child should the access not be supervised, and she expressed grave concerns about the possibility that, and I think the judges’ view was the probability, of steps taken to undermine the relationship of your son with his father should the access not be supervised. These are very strong warning signs, Ms. A., and I am not going to simply ignore them.

They were based upon the evidence that a judge heard over several days. So, I am satisfied that there has to be a further examination of the need for supervision on your visits, and I am satisfied that the risk to your child, in the event that there has not been a satisfactory modification of the behaviours that Judge Saunders found, is far out of proportion to the risks that the child would be subject to in extending the period [of supervised access].

In the result, Judge Dohm ordered a further trial on the question of access, and directed that access be supervised pending that hearing. [ 11 ] The further trial ordered on October 17, 2012 was held on November 26, 2012 before the Honourable Judge MacCarthy. The following are pertinent extracts from his reasons for judgment: The evidence before me, because he is at present time incarcerated and not likely to be back outside of incarceration until May, 2013, is that [Mr. W.] is not an immediate threat to the safety and well-being of the child. However, I have also heard that Mr.

W. is the father of another child of Ms. A., and that child ... is at the present time not subject to any court order with respect to custody or access. I have to draw the inference that at some point based on the evidence I have heard from Ms. A. that she welcomes and would be encouraging contact by Mr. W. with her child. While that would be a natural response on her behalf, I agree with the concerns expressed by counsel for Mr. G. that it shows perhaps a lack of insight into some of the issues .... I am of the view that the supervision must continue for a reasonable period of time in order for Ms.

A. to do some other things: first of all, to show, as she has, based on the reports I have before me from the professional supervisor, that the visits continue to proceed positively and without incident. The other two issues that have got to be addressed are as follows. The first is how matters are going to be managed by her once Mr. W. potentially is back in contact with her concerning their child and how that will relate to ... E.

The second issue is that both of the parties are going to have to deal with is life after separation. * * * I am not suggesting that there be an extended period of long-term supervision. However, I consider the progress that has been made to date quite fragile, and it is going to require a further indication to this court that Ms. A. has continued to be able to exercise access without incident. In the result, Judge MacCarthy extended the period of supervised access by two months. [ 12 ] Mr. W. was released from custody in May, 2013. [ 13 ] On July 3, 2013, Mr. G., represented by Mr. Gosh, and Ms.

A., unrepresented, appeared before me. Ms. A. asked me to order a new trial because the issues raised on the two ex parte applications in September, 2010 had not, in her view, been adequately considered at the two trials held in January – February and November, 2012. I declined that request. She informed me that Mr. W. was living with her, and asked me to rescind the provision of the access existing order which prohibits Mr. W. from being present during access visits with E. She pointed out that Mr.

W. was not accused of committing any new offence during the period between his release from custody in May, 2013 and the hearing date on July 3, 2013, and urged me to infer that his rehabilitation was demonstrably complete. I declined to draw that inference. [ 14 ] On November 5, 2013, Mr. G., represented by Mr. Gosh, and Ms. A., unrepresented, appeared before me. [ 15 ] The first issue on November 5, 2013 was Mr. G’s application for child maintenance. I concluded that it was premature to address that issue because Ms.

A’s income-earning capacity cannot be assessed with confidence until she graduates from college, which

she expects to do in June, 2014. I made an order that Ms. A. provide disclosure of her efforts, between January and June, 2014, to find a suitable career placement, and adjourned the maintenance application to a date to be fixed. [ 16 ] The second issue on November 5, 2013 was Mr. G’s application for an order to compel Ms. A. to sign E’s passport application, so as to enable Mr. G. to take him for holidays outside Canada. Ms. A. opposed the application, alleging that Mr. G. is a flight risk. However, she declined to cross-examine Mr.

G., or to give evidence herself, on that issue, on the ground that she felt unable so to do without the assistance of counsel. I did my best to elicit from her an indication of the basis upon which she made the allegation, but received no meaningful response to my enquiries. Rather than respond, in any way, to the issue before the court, Ms. A. sought to repeat and re-argue the two requests which she made, and I dismissed, on July 3, 2014. I declined to reconsider those matters. Ms. A. asked for an adjournment of the passport issue to enable her to consult counsel.

I granted that adjournment, to November 26, 2013, and advised her that the only issue which I would consider on November 26 would be the passport issue. [ 17 ] The third issue addressed on November 5, 2013 was Ms. A’s complaint that she has been unable to exercise her rights of access since August, 2013 because she and Mr. G. have been unable to agree on a suitable supervisor. She has proposed one candidate, rejected by Mr. G., and Mr. G. has proposed four candidates, all rejected by her.

I told her that I would not then make an order for unsupervised access, and that she could resume her access visits in either of two ways: a. by reaching agreement with Mr. G. on a suitable supervisor; or b. by filing an application for the court to name a supervisor, and arranging a date for hearing of that application with the Judicial Case Manager. [ 18 ] Mr. Gosh, Mr. G. and Ms. A. appeared before me again on November 26, 2013. Ms. A. told me that she had received legal advice and had decided to proceed without counsel. I invited her to cross-examine Mr. G. on the issue of flight risk.

She embarked on a cross-examination directed to the events of September, 2010. When I asked how those events relate to the issue of flight risk, she replied that Mr. G. had fabricated his concern about E’s health in order to gain custody, and that this demonstrated him to be a flight risk. She also said that she proposed to cross-examine Mr. G. in an attempt to establish that he had disobeyed a number of orders of this court during the interval between September, 2010 and November, 2013, in order to show that he has attempted to alienate E. from her.

This, she submits, would also demonstrate the existence of a flight risk. I asked whether she had any new information to bring forward; i.e. any information not already found in the court file. She replied in the negative. I told her that I would not allow her to revisit the issues previously considered on earlier court applications, and that I would not reconsider the previous adjudications of those issues. I asked her for a response to the following observations. Mr. G. has had custody of E. for more than 3 years. If Mr. G. were disposed to flight, he has had ample opportunity and has not availed himself of it.

It seems reasonable to infer that he will not do so in future. Ms. A. made no substantive response to that enquiry. 2 The Passport Issue a. Jurisdiction [ 19 ] The passport office of the government of Canada has declined to issue a passport for E. unless Ms. A. signs the passport application. I was surprised to hear that because Mr. G. has been appointed by this court as E’s sole guardian. The passport officials have explained to Mr. G. that it is their policy to require the signatures of both parents where, as in this case, the non-custodial parent has an order for access. [ 20 ] Mr.

G. seeks an order dispensing with the requirement for Ms. A.’s signature on the passport application. Such an order was granted in Paulo vs Yousif 2011 ONCJ 841 ; [2011] OJ # 6296. With all proper respect, I do not think that a provincial court has jurisdiction to make such an order. The order, if made, would be, in effect, a direction to the passport office that it is not to apply its normal policies and procedures to a particular passport application. The jurisdiction to make such an order is reserved to the Federal Court by

section 18 of the Federal Courts Act RSC 1985, c F-7. [ 21 ] In the alternative, Mr. G. seeks an order directing Ms. A. to sign the passport application. Such orders were made by the Ontario Superior Court of Justice in Weaver vs Simonics 2013 ONSC 4577 ; [2013] OJ #3133, and by the Provincial Court of British Columbia in M.S. vs B.W. 2012 BCPC 464 ; [2012] BCJ # 2783. In neither case did the court refer to any statutory authority for the making of the order. The provincial superior courts possess, as an aspect of their general inherent jurisdiction, the parens patriae jurisdiction to make such an order.

However, the Provincial Court of British Columbia lacks such inherent jurisdiction, and may act only as authorized by statute: S.(E.G.) vs Spallumcheen Band Council [1998] BCJ #3268; [1999] 2 CNLR 306 . [ 22 ] I cannot rely on M.S. vs B.W. as a binding precedent authorizing me to make the order in this case because M.S. vs B.W. was decided at a time when the governing statute was the Family Relations Act RSBC 1996, c 128. That statute was repealed and replaced, by the Family Law Act SBC 2012, c 25 , in July, 2012. The question is whether any provision of the Family Law Act empowers me to make the order. [ 23 ]

Section 227 of the Family Law Act empowers the Provincial Court to: ... make an order requiring any party to ... do or not do anything ... in relation to a purpose referred to in

section 222 .... The purposes referred to in

section 222 are: a. to facilitate the settlement of a family law dispute ... b. to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order; c. to prevent misuse of the court process;

d. to facilitate arrangements pending final determination of a family law dispute. I observe that the word “settlement” is used in subsection “a”, the word “resolution” in subsection “b”, and the word “arrangements” in subsection “c”. None of those words is defined, either by the Family Law Act or by the

Interpretation Act RSBC 1996, c 238. Because of the unusual context, dictionary

definitions are not helpful. [ 24 ] It is unnecessary, and would be unwise, for me to attempt an exhaustive definition of the terms used in

section 222 of the Family Law Act . It is sufficient for me to opine that, in the context of

section 222(b), “resolution” means the imposition by the court of a set of rights and obligations which will govern the parties’ future conduct in relation to one or more of the issues in the proceeding. [ 25 ] With that definition in mind, I conclude that an order to compel Ms. A. to sign E’s passport application may be made for the purpose of managing a behaviour on the part of Ms. A. which would be likely to frustrate the resolution of an issue between Ms. A. and Mr. G. which is in issue in this proceeding. The “behaviour” in question is Ms. A’s refusal to sign the passport application. The issue is Mr.

G’s mobility rights as a custodial parent. The “resolution” might be an order of this court, under

section 69 of the Family Law Act , authorizing Mr. G. to remove E., temporarily or permanently, from Canada. Accordingly, this court is empowered by sections 222 and 227 of the Family Law Act to order Ms. A. to modify her behaviour to avoid a frustration of the court’s authority to adjudicate disputes about E’s mobility. b. Merits of the Application [ 26 ] Mr. G. was born in Canada, and is a Canadian citizen. His parents were Austrian citizens. As a result, he continues to hold Austrian citizenship, and is entitled to live and work anywhere in the European Union.

His parents have surrendered their Austrian citizenship and are now Canadian citizens resident in Toronto. Mr. G. has extended family, but no close contacts, in Europe. He owns a house in Nanaimo, and no real estate anywhere else. He works as a brewer on Vancouver Island. He says that he has no plans to live or work anywhere else. [ 27 ] Mr. G’s dual citizenship, with its attendant right to live and work in Europe, would make it possible for him to take E. to Europe permanently. However, there is no reason to think that he might do so. [ 28 ] Ms. A. alleges that Mr.

G’s behaviour in September, 2010, referred to in paragraph 2 , above, was an “abduction” of E., and demonstrates that Mr. G. is a flight risk. I do not think that the word “abduction” is appropriate. Mr. G. declined to return E. to Ms. A’s care at the end of a scheduled access visit because he was concerned, rightly or wrongly, about a health issue. He made no attempt to flee with E., but rather remained at his home in Nanaimo. The issue was brought promptly before the court. As a result, it was ordered that E. remain in Mr. G’s care. If Mr.

G. were a flight risk, he would have been more likely to flee then, when he did not have an order for custody, than he is now, when he does. [ 29 ] While I think it appropriate that Mr. G. and E. have the opportunity to travel outside Canada, I think that it should be on terms that Mr. G. not remove E. from Canada permanently without leave of the court. As noted below, it is to be hoped that E. can develop a healthy long-term relationship with his mother. Given her limited financial means, that can occur only if he has his permanent residence close to her. c.

Disposition of the Application [ 30 ] There will be an order that Ms. A. sign E’s passport application and deliver the completed application, bearing her signature, to Mr. Gosh (as counsel for Mr. G.) no later than 4:00 p.m. on Monday, December 2, 2013. That order will also include the following terms: a. Mr. G. will procure from his family doctor a letter stating: i. what vaccines have been administered to E., and on what dates; ii. what further vaccinations the doctor recommends, and on what schedule, and will provide a copy of that letter to Ms. A. no later than December 15, 2013. b. Mr. G. will provide to Ms.

A. a detailed itinerary for any trip which he proposes for E.: i. outside Canada, of any duration; and ii. off Vancouver Island, but within Canada, of a duration of more than 72 hours, not less than 30 days before the scheduled departure. In relation to proposed trips outside Canada, Mr. G. will deliver with the itinerary a copy of a letter from his family doctor, identifying the vaccinations which the doctor considers to be necessary for the trip and confirming that E. has received those vaccinations. Ms. A. will provide Mr.

G., not less than 72 hours before the scheduled departure, with a telephone number at which Ms. A. can be reached on Saturdays. c. If E. is off Vancouver Island on any Saturday, Mr. G. will facilitate a telephone call from E. to Ms. A. at noon local time (i.e. local time in the location where E. is). d. Each of Ms. A. and Mr. G. is to provide the other with a current telephone number and e-mail address, and to notify the other promptly of any change in that contact information. e. Mr. G. is not to remove E. from Canada for more than 30 days in any calendar year without leave of the court. f. If Ms.

A. fails to sign and deliver the passport application by December 2, 2013, the Registrar of the court will sign the application

on behalf of Ms. A., under the authority of

section 38 of the Law & Equity Act RSBC 1996, c 253 , and deliver it to Mr. Gosh. 3. Moving Forward [ 31 ] Ms. A. has expressed deep dissatisfaction with the judgments previously rendered in this case. She insists that the issue of “abduction” arising from the events of September, 2010 has never been adjudicated, and that she wishes a new trial to consider it. I have twice refused that request, and will not consider it again. Ms. A’s fixation on that issue is deeply troubling. She appears not to have considered the situation from E’s point of view. [ 32 ] E. is now 4 years old.

For the past 3 years, he has been in the full-time care of his father, with only brief and infrequent visits from his mother. From E’s point of view, Mr. G’s house is home. Mr. G. is his attachment figure. It would be extremely stressful for E. to change either of those factors now. If there were reason to think that Mr. G. is not a skilled and caring parent, who takes good care of E., it might be necessary to make a change, but there is no such suggestion in the evidence. On the contrary, Mr. G. is said to be a skilled and caring parent, who cares well for E.

Even if all of the orders made by this court over the past 3 years were a series of judicial errors (which I do not believe), I could not now justify a change in the custodial arrangements because of the adverse effect which such a change would have on E. Absent some very material change in circumstance, Mr. G. will be E’s custodial parent until E. is ready to leave home. That is a reality which Ms. A. must accept if she is to play a constructive role in E’s life. [ 33 ] Ms. A. has displayed no willingness or ability to accept that reality.

On the contrary, she has persisted in her attempts to litigate (at oppressive length) a variety of issues which have little or nothing to do with E’s well-being. For example, she persisted until August of this year in her attempts to reverse the ruling of this court, to the effect that Mr. W. should not be permitted to take an active role in E’s life. That gives rise to two difficulties. First, it prolongs and exacerbates the climate of hostility and distrust between Ms. A. and Mr. G. As the custodial parent, Mr. G., correctly, feels a responsibility to exert control over the choice of adult companions for E.

In light of Mr. W’s criminal record, Mr. G’s objection to Mr. W. is perfectly reasonable. A series of judges of this court, of whom I am one, agree with him. Ms. A’s insistence that Mr. W. is a suitable companion for E. can only serve to cause Mr. G. grave concern about her parental judgment and about E’s safety while in her care. Second, the cost of this litigation is crippling for Mr. G., who is not a wealthy man. The money which he is spending on litigation costs would be much better spent on E’s needs. [ 34 ] There is an important and valuable role for Ms. A. to play, as the non-custodial parent, in E’s life.

However, she is unable to perform that role today because she has chosen confrontation over cooperation in her interactions with Mr. G. Her opportunity to be a meaningful participant in E’s childhood depends entirely upon her willingness and ability to substitute cooperation for confrontation. [ 35 ] The critical issue at this stage of the proceedings is how to facilitate Ms. A’s reconnection with E., so as to enable her to contribute to his personal development, in a way which respects Mr. G’s legitimate concerns about Ms. A’s lifestyle, and particularly her relationship with Mr. W.

Those are issues which are not amenable to simple resolution, and which will evolve over time. Ms. A. needs to understand, and reconcile herself to, three basic propositions: a. The battle over custody is over - Mr. G. is, and will remain, the custodial parent. b. Everyone, including Mr. G. and me, believes that Ms. A. can play a valuable role in E’s childhood, and we are all resolved to do what we can to facilitate that. c. The extent to which we can facilitate that depends critically upon Ms.

A’s willingness to work constructively in pursuit of that objective. [ 36 ] For those reasons, I make the following orders under sections 222, 223 and 227 of the Family Law Act : a. Except in emergencies, I will be seized of all future proceedings in this case. An “emergency” is defined as an application to the court, made on a date when I am not available to hear it, in relation to which another judge of this court is of the opinion that, in the circumstances pertaining, it would be unwise to adjourn the application until I am available to hear it. b. If Ms.

A. wishes to bring an application to the court, she may file it in the Registry and effect service of it on Mr. G. by delivering a copy to Mr. Gosh’ office. However, except in emergencies, Mr. G. will not be required to file a response, and the application must not be set for hearing, until I have given leave for the application to proceed. If I am available, I will review the application and advise the parties, through the Registry, whether the application will be allowed to proceed. If I direct that the application proceed, Mr. G. may file a response and a date will be set for hearing. c.

If I am not available to review an application by Ms. A., she may ask the Registry to refer it to another judge, who will decide whether a sufficient emergency exists to justify allowing the application to proceed in my absence. I direct that, in such circumstances, the judge to whom the application is referred be provided with a copy of these reasons for judgment. [ 37 ] Mr. G. has expressed a sincere and constructive desire to facilitate a healthy relationship between E. and his mother. Because of the litigious history and the presence of Mr. W., Mr. G. has reasonable concerns about unsupervised access.

The impediment to access visits over the past 4 months has been the inability of the parties to agree on a supervisor. That issue should be resolved as soon as possible. If the parties were able to agree on a supervisor, it would give me cause for hope that they may be able to cooperate on other issues in the future. E. needs them to do that, and is entitled to expect that they will. If the parties are unable to agree on a supervisor, I would expect one or the other of them to apply to me to appoint one. If supervised visits can be arranged, and if they go well, one would hope that Ms.

A. could progress to unsupervised visits in the future. That would be in E’s interest, but only if Mr. G. can be given some measure of confidence about E’s safety while in the care of Ms. A. November 26, 2013

________________________ T Gouge, PCJ