J.N. v. G.G. Date:, 2016 BCPC 412

Citation: J.N. v. G.G. Date: 20161212 2016 BCPC 412 File No: F74259 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.N. APPLICANT AND: G.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Appearing on their own behalf: J.N.

Counsel for the Respondent: P. Seeger Place of Hearing: Kelowna , B.C. Dates of Hearing: 24, 25, 28 November, 2016 Date of Judgment: December 12, 2016 I. Introduction [ 1 ] The mother “J.N.” and the father “G.G.” had shared parenting of their son “M.G.” since shortly after his birth. M.G. is age ten. For years, this shared parenting has given each parent the primary care of M.G. on alternate weeks. In November 2014, the parents started dating again and in May 2015 they married. On August 18, 2015, they separated.

A few days later, the father obtained an ex parte protection order, restraining the mother from contacting him or their son, claiming he had been assaulted by his wife while he was sleeping. This protection order resulted in the father having all of the primary care of M.G. until November 2015 when the court set aside the protection order and directed that each parent again have the primary care of M.G. on alternate weeks. [ 2 ] The mother restarted her parenting time for a week in late November 2015.

When the time came for her next scheduled week of parenting in December, M.G. refused to be with his mother, choosing to run away to avoid her. J.N. had almost no contact with M.G. since November 2015 in spite of multiple court appearances where parenting time was ordered. A “Views of the Child” report confirmed the son’s refusal to see his mother is deeply entrenched. [ 3 ] The mother believes the cause of the alienation is the father. The father believes the cause of the alienation is the mother’s conduct. Regardless of the cause, the alienation is clear, significant and on-going.

The son states to anyone who will listen that he will not live with his mother or even visit with his mother in a supervised setting and he will run away if forced to be with her. Having run in the past, his words are not just idle threats. [ 4 ] The father, on December 21, 2014 in Edmonton, was caught with a significant amount of illegal drugs in his vehicle and was charged with multiple counts of possession for the purpose of trafficking.

The charges were waived to Kelowna with a joint submission and as recently as on December 2, 2016, he received a two year federal jail sentence. [ 5 ] In the past fourteen months, the matter has been in family list court more than twenty times.

As a result, I was assigned in February 2016 to be the sole judge hearing all future applications and hearings. [ 6 ] After multiple attempts by the court at setting up supervised parenting time for the mother, I ordered on June 28, 2016, on an interim without prejudice basis, that the father have the sole parental responsibility and the primary care of the child and the mother have supervised parenting time one day a week. The hope was that if his residency was more settled, M.G. might be more willing to participate in supervised visits with his mother.

June 30, 2016 was the only supervised visit where M.G. willingly participated. [ 7 ] At issue is where the child will reside while the father is in jail. His mother wants the primary care returned to her in spite of the alienation. The father wants to maintain the primary parental responsibilities and have M.G. living with the paternal grandmother until his release from prison. Our federal jail system is such that he could potentially be out on day parole as soon as in four months. A potential third option is removal by the child protection agency.

A social worker attended much of this hearing, is actively involved and is waiting for the outcome of this hearing and is open to direction from the court. II. The Facts [ 8 ] Many years ago, J.N. experienced the trauma of having her father commit suicide. This happened at a time when J.N. was pregnant with her third daughter, making it an even more difficult time emotionally for J.N.

A couple of years later, in 2004, J.N., as a single parent, moved her family to Kelowna, where J.N. bought a house with her divorce settlement proceeds and attended post- secondary school. [ 9 ] G.G. also had a daughter in his care from a prior relationship. In 2005, G.G. and J.N. started dating. On (omitted for publication) M.G. was born. The parents were not living together when M.G. was born. The mother was the primary care giver of M.G. [ 10 ] A few months later, in mid-2007, all four of J.N.’s children were removed by a child protection social worker.

For a few months J.N. had supervised access to her children. M.G., as a new-born, was far too young to have any recall of that removal. G.G. became much more involved with parenting M.G. during those months M.G. was in Ministry care. By 2008, J.N. had all of her children returned to her primary care, with the exception of M.G., who was in the shared care of J.N. and G.G. This was made official by a consent order on August 26, 2008, giving J.N. and G.G. joint custody and equal parenting time.

The scheduling of that shared parenting time changed from time to time, but by August 10, 2011 the consent order equally divided the primary care of M.G. on alternate weeks. This arrangement continued for many years. [ 11 ] In (omitted for posting) J.N. gave birth to her fifth child, making a total of four daughters and one son. I haven’t heard any particulars regarding the father of that fifth child other than that he is no longer in a relationship with J.N. [ 12 ] Around (omitted for posting) J.N.’s second oldest daughter, at age fifteen, chose to move out of J.N.’s home.

That child claims it was because of the dysfunctional parenting of J.N., but J.N. claims it was because her daughter would not abide by the home rules. In the past three years, that daughter continues being estranged and alienated from her mother. [ 13 ] In November 2014, J.N. and G.G. again started dating, while living in separate homes some distance apart in the central Okanagan.

[ 14 ] On December 21, 2014, G.G. was arrested in his vehicle in Edmonton, possessing over 100 pounds of marihuana and 10 pounds of magic mushrooms for the purpose of trafficking. (He was charged criminally, and the matter was waived to Kelowna Provincial Court for sentencing on Friday, December 2, 2016, when he received two years jail to be served in a federal institution.) [ 15 ] In May 2015, after a five day engagement, and with the criminal charges outstanding, J.N. and G.G. married. They continued residing in their own separate homes until July 2015.

This was because each had parental responsibilities with their children and neither wanted to move until the school year ended for their children. [ 16 ] In July 2015 the blended family took an extended summer trip to Saskatchewan. While there, on August 18, 2015, some critical incident happened where G.G. claims J.N. assaulted him while he was sleeping. J.N. denies any such assault. Whatever happened, it resulted in the ending of the romantic relationship between G.G. and J.N. They have never been together since that time.

J.N. is charged in Saskatchewan with that alleged assault, but that charge wasn’t laid until November 13, 2016 which is fifteen months after the alleged assault. J.N. believes, with some good reason, this delayed laying of the Information is consistent with G.G. attempting to use the criminal court process to influence the outcome of the parental responsibility case with their son M.G. [ 17 ] After the August 18, 2015 incident in Saskatchewan, J.N. and her daughters drove back to Kelowna. G.G. and M.G. flew back to Kelowna. G.G. arrived in Kelowna first.

He went to J.N.’s home and removed all of his personal effects. He attended at a lawyer’s office to apply to the courts for a protection order against J.N. On August 21, 2015, that ex parte application was filed and on that same date Judge Chapman made an ex-parte interim protection order prohibiting J.N. from having contact with both G.G. and M.G. With the ex-parte order in place, J.N. had no contact with M.G. [ 18 ] J.N. took immediate steps to get a lawyer to apply to set aside the ex-parte order. On September 18, 2015 her application was filed with the courts.

On November 18, 2015 Judge Chapman heard the contested application and set aside the ex parte protection order, replacing it with a conduct order restricting the conduct of both parties. Judge Chapman further ordered that the parties return to the shared parenting arrangement they had before their marriage, namely each having the primary care of M.G. on alternate weeks. [ 19 ] M.G. was in his mother’s primary care for a week in late November 2015. During that time, on November 27, 2015, J.N. applied for sole guardianship of M.G. and she asked that G.G.’s contact with M.G. be supervised.

The child knew more about this application than he ought and he reacted very negatively towards his mother. [ 20 ] With J.N.’s next scheduled parenting week commencing December 8, 2015, M.G. refused to be with his mother. His twenty- two year old sister was to pick M.G. up at his school, but M.G. ran from the school, later saying he would not go to see J.N. He never references his mother by any name other than his mother’s first name. [ 21 ] On December 9, 2015 the matter was for a court review by Judge Chapman. G.G. applied to have the J.N.’s parenting time suspended.

On that date, Judge Chapman denied J.N.’s ex-parte application (to have M.G. returned to her immediately with police assistance), but ordered a “Views of the Child” report and reminded the parents that the shared parenting order still governed. [ 22 ] In December 2016, the child protection ministry also did another investigation on J.N. but made no finding of need of protection. M.G. was regularly seeing a counsellor named Mr. Portwood. M.G. made it clear to Mr.

Portwood that he did not want to see his mother, and he would run if forced to see her. [ 23 ] On December 15, 2015 the matter was before Judge Burdett for review. G.G. claimed M.G. had again fled when being forced to be with his mother. J.N. agreed that M.G. was not willingly going with her, but she believed the cause was alienation caused by the father. M.G. told her it was because she smoked pot and drank. Such comments seemed strange in light of the fact that it is the father that had the medicinal marihuana growing operation and was awaiting sentencing for the possession of over 100 pounds of marihuana.

Judge Burdett clarified that it was the responsibility of the father to tell his son, “You’re going to go spend the next week with your mom. It’s going to be great. It’s going to be fun and you don’t get to have a choice in the matter. You’re going.” [ 24 ] On December 22, 2015, M.G. was at the public location for the exchange, but M.G. wouldn’t go with his mother. An employee at that location was sufficiently concerned that they called RCMP to attend. Cst.

Hunt attended, was clear M.G. was refusing to go with his mother, called a child protection social worker for advice, and then came to the conclusion that he could not force M.G to go with his mother given his extreme resistance. [ 25 ] On December 24, 2015, the “Views of the Child” report was completed by social worker Charla Schofield. M.G. told Ms. Schofield that “J.N. lies a lot and she kicked my Dad with her steel toed shoes and I heard some of it but my father also told me about it.” M.G. said, “If I have to go back to J.N.’s, I will run away again. I want to stay with my Dad. I know what happened.

I don’t want J.N. to win.” [ 26 ] On February 8, 2016, Judge Hogan reviewed the matter, and he suggested that one judge manage the file, given it seemed to have spiralled somewhat out of control.

Shortly thereafter, I was assigned to hear all future applications and hearings with this matter and it was first before me on March 8, 2016 when I adjourned it for a one hour case management review hearing, giving me time to first read the banker’s box of documents. [ 27 ] On May 11, 2016 the child counsellor Andrew Portwood also attended court and I approved him supervising the mother’s parenting time, at the cost of the father. On my May 30, 2016 review of the matter, I was told the mother still hadn’t seen M.G. yet. Mr.

Portwood became frustrated with trying to arrange this with the mother and he was no longer willing to supervise visits, believing it would now interfere with his therapeutic relationship with M.G. An educated lady from the mother’s church named (omitted for posting) volunteered to supervise future visits. I approved her as supervisor. [ 28 ] On June 28, 2016 I again reviewed the matter and learned no visit had happened yet.

I knew the existing order of alternating weeks of primary residency had not happened since November 2015, so I ordered, on a without prejudice basis, that the father have all of the parental responsibilities and the mother have supervised parenting time once a week starting with a visit on June 30, 2016 and on July 12, 2016. I again approved of (omitted for posting) supervising, and the agreement was the visits would happen at City Park.

[ 29 ] The June 30, 2016 visit is the one and only visit that actually happened since November 2015. M.G. was initially reluctant to engage with his mother and he claimed to mostly be there to see one of his sisters. However, the sister did not attend. The father encouraged M.G. to visit his mother. M.G. understood that if he participated, then with the next visit, his sister would also attend. This visit lasted nearly an hour and the supervisor believed it went as well as could be expected in all of the circumstances. [ 30 ] With the July 12, 2016 visit M.G. attended and insisted on seeing his sister alone.

That older sister and J.N. insisted on the sister only seeing M.G. in the presence of J.N. This resulted in M.G. refusing to visit with his mother in spite of encouragement from his father. M.G. said he would run away again if forced to see J.N. The visit ended up not happening. [ 31 ] I next reviewed it on July 26, 2016 and learned the results of the June 30, 2016 and July 12, 2016 scheduled visits. I ordered two more visits in City Park; one on August 1, 2016 and the other on August 2, 2016.

On August 1, 2016, M.G. was taken by his paternal grand-mother to the park for the visit, but according to (omitted for posting), M.G. refused to participate. Given the failure on the August 1, 2016 visit, the August 2, 2016 visit didn’t happen. [ 32 ] On October 11, 2016 I again reviewed the matter. Counsel for the mother got off record. The father was also unrepresented. He advised that his criminal case sentencing was scheduled for December 2, 2016 and he believed there would be a two year jail joint submission.

He wanted to keep all parental responsibilities, but rely on his mother for providing the primary care in his absence during his jail time. This was in circumstances where M.G. was already spending significant time daily with his grandmother, given her home was very close to M.G.’s school and M.G. went daily after school to his grandmother’s home. J.N. requested I immediately return the primary care of M.G. to her, notwithstanding the alienation between J.N. and M.G. (Since August 2015, the mother only had the primary care of M.G. a week in late November 2015.

Since then, M.G. has only participated in one supervised parenting time visit which happened June 30, 2016.) I adjourned the matter for a two day interim hearing to address where M.G. would reside once his father went to jail on December 2, 2016. [ 33 ] The hearing occurred November 24-25, 28, 2016. The mother was unrepresented. The father had a new lawyer, Ms. Seeger. In spite of attempting to complete the hearing on November 28, another half a day was needed.

J.N. stated she was unwilling to attend on another date to allow the completion of her being cross-examined and she insisted on my making an immediate decision based on the evidence before the court. J.N. then walked out of the courtroom before I could get the continuation date arranged. In her absence, I adjourned the matter to November 29, 2016 at 1:30 and I directed that counsel for G.G. notify J.N. of this continuation date by way of text, e-mail or phone.

I advised that if J.N. chose to not attend on November 29, 2016, then I would not adjourn it any further for the three hour continuation including the cross-examination of J.N., but would reserve for a written decision. [ 34 ] On November 29, 2016, I was advised that counsel had notified J.N. in accordance with my direction. J.N. did not attend court that date.

I told G.G. that he should not further delay his criminal sentencing, that I was reserving my decision so as to provide written reasons, and that in the interim, the governing order gave him sole parental responsibilities such that even if he ended up in jail on December 2, 2016, he could choose the primary care arrangements pending my written decision, which wouldn’t be available until later in December. [ 35 ] In November 2016, J.N. hired Leora A. Splett to prepare a report evaluating G.G. as a parent. The report was not evaluating J.N. as a parent. The report was completed on November 16, 2016. Ms.

Splett testified on November 25, 2016. Strangely, Ms. Splett completed her assessment of the father without ever interviewing either G.G. or M.G. The only person interviewed was J.N. Ms. Splett is not registered as a psychologist in British Columbia. She is registered in Alberta. Ms. Splett testified that in spite of the first page of the report referencing her as a psychologist, she had just prepared this report as a clinical counsellor. I found that comment unsettling, given she had done no clinical counselling with the father, whom she was assessing. When I asked Ms.

Splett why she didn’t do a parental capacity assessment of the mother whom she was interviewing and recommending having all parental responsibilities, I was told Ms. Splett simply didn’t have time to do so. I was further told she already knew J.N. well because she had a therapeutic relationship with J.N. over an eleven year window. This caused further concerns regarding the objectivity of the assessment. For multiple obvious reasons, I refused to accept Ms. Splett as an expert. In the report, Ms. Splett had concluded that G.G. was at extreme risk to harm M.G. due to aggressive-hostile parenting.

She recommended in her report that M.G. now be placed with the mother and that the father preferably have no contact. [ 36 ] On November 28, 2016, J.N. testified that she now had worked out a new plan with the assistance of Ms. Splett. The new plan was that J.N. would move out of her family residence and M.G. would be placed in that family residence under the primary care of his twenty-two year old half-sister. J.N. hoped that in a few days M.G. would settle in and J.N. would then be able to move back into her home and take over the primary care of M.G.

On November 28, 2016, I told J.N. that if this is her plan, I would need to hear from her oldest daughter, given that was the sister from whom J.N. had ran in the past when that sister was facilitating a parenting time exchange. J.N. then left the courtroom before it completed on November 28, 2016 and didn’t return to court on the 29 after being advised of my request that she attend. III. The Law [ 37 ]

Section 37 of the Family Law Act declares the court “must consider the best interests of the child only” and in s.37 states:

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following: (

a) the child’s health and emotional well-being; (

b) the child’s views, unless it would be inappropriate to consider them (

c) the nature and strength of the relationships between the child and significant persons in the child’s life; (

d) the history of the child’s care;

(

e) the child’s need for stability, given the child’s age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; (

i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child’s safety security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [ 38 ]

Section 38 also sets out the factors to consider in assessing family violence and the court has considered that

section as well. IV. Analysis [ 39 ] Today I am unable to determine whether the estrangement between the child and mother is caused by the conduct of the father, the conduct of the mother, the conduct of the paternal grandmother, the irrational thoughts of the son, or some combination of some or all of these potential causes.

I do know the alienation is deep, such that a lot of professional help will likely be required to reverse the alienation. [ 40 ] Courts generally have clear consequences for when parties don’t follow family court orders or when one parent intentionally alienates a child from the other parent. The most serious of such consequences can at times be the reversing of primary care.

However, judges understand that there are rare cases when continuing litigation and efforts to enforce contact with a parent may do more harm than good for the child involved. [ 41 ] This is a case that cries out for therapeutic interventions. Such interventions are limited in many communities due to the specialized training needed with alienation cases. The position of J.N. is that nobody is sufficiently qualified in Kelowna, other than Ms. Splett, to deal with a therapeutic intervention for this alienation. I do not share this view. Ms.

Splett has demonstrated with this court a total lack of understanding regarding alienation, choosing to advocate for one parent, rather than focusing on the best interests of the child. There are child psychologists associated with therapeutic interventions in Kelowna. One such group is called “Stepping Stones”. The child protection ministry social worker who attended this hearing advised that the ministry is prepared to pay for multiple sessions through Stepping Stones, in hopes of moving beyond the current impasse where M.G. refuses to have any contact with J.N.

The father and the paternal grandmother are prepared to work cooperatively with the ministry in this regard. For reasons which I am unable to understand, the mother refuses to use this Stepping Stones resource, and if she has the primary care of the child she will not use them. The mother seems to hold herself out as more learned in parental alienation than the people at Stepping Stones. I do not share that view. [ 42 ] I now turn to the

section 37 factors to be considered. The child’s emotional well-being looms large in this analysis. The boy’s school report cards indicate he is an average student who is doing relatively well at school and getting along with others. This is so notwithstanding his alienation from his mother. The emotional well-being of M.G. is even all the more fragile given his father, as primary care giver, has recently been sent to jail for several months. Since December 2, 2016, M.G. is residing with his paternal grandmother, whose home is just across the street from his school.

He has spent a great deal of time at his grandmother’s home over the past one and a half years, so it is a home where he is very familiar. The grandmother is a retired psychiatric nurse who J.N. believes, with good reason, does not think highly of J.N., thus potentially being complicit in any alienation. As I stated earlier, I am making no finding today of the cause of the alienation, but I am stating that the grandmother needs to make certain she is in no way contributing. [ 43 ] The child’s views could not be clearer.

He tells anyone willing to listen to him that he does not want contact with his mother and that he will run away if anyone makes him see his mother. He tells this to both parents, to all supervisors and to the person preparing the “Views of the Child” report. On one occasion he did run, climbing over a six foot fence to get away. [ 44 ] Currently M.G. has no relationship with his mother, a close relationship with his father who a week ago received the two year jail sentence, and also a close relationship with his paternal grandmother.

He has five half-siblings, but given his fractured relationship with his mother, he is suffering from being unable to see some of those siblings. [ 45 ] M.G. needs stability in the worst way. If his parents don’t find a way to increase that stability, the child protection ministry may need to become more actively involved. [ 46 ] The mother is alienated from her son, so she currently has very little capacity to look after the best interests of the child.

The father, now being in jail, has only a limited capacity to care for his son by exercising his parental responsibilities to have his mother provide the primary care. [ 47 ] I believe the interim order that will best meet the child’s psychological and emotional safety, security and well-being is an order that will facilitate M.G. meeting with and obtaining clinical counselling from someone at Stepping Stones. J.N. states she is unwilling to support such involvement by Stepping Stones, even though it is the child protection ministry that is willing to pay for it. The father and

the paternal grandmother both state they are ready willing and able to involve Stepping Stones in the life of M.G. V. Decision [ 48 ] Both parents continue as guardians of M.G. Each guardian, or their agent, will advise the other guardian by text or email of any matters of a significant nature affecting M.G. [ 49 ] G.G. continues having all of the parental responsibilities for M.G.

The court acknowledges that G.G. will likely exercise those parental responsibilities while he is in jail, by having the paternal grandmother provide the primary care of M.G. [ 50 ] The mother is to have parenting time, supervised by someone approved of by the local child protection ministry.

Such parenting time will only happen if the child is a willing participant, or alternatively, if it is in the presence of a counsellor from Stepping Stones and that counsellor believes it will be therapeutic for M.G. to see his mother notwithstanding his stating he is unwilling to participate. [ 51 ] This matter will be reviewed by the court on a date to be determined by the Judicial Case Manager sometime in the month of February 2017. Counsel for the father will arrange this February review with the JCM and then advise J.N. of the date by text or email.

Counsel for G.G. will need to arrange a spring order for G.G. to be able to attend by video or phone. [ 52 ] Judge Smith continues being seized of this matter. The Honourable Judge R.R. Smith Provincial Court of British Columbia