K.G.C. v. G.A.C. Date:, 2017 BCPC 199

Citation: K.G.C. v. G.A.C. Date: 20170627 2017 BCPC 199 File No: F74620 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.G.C. APPLICANT AND: G.A.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. LAMPERSON Appearing in person: K.G.C.

Counsel for the Respondent: C. Rivers Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 22, 23 and 26, 2017 Date of Judgment: June 27, 2017 [ 1 ] G.A.C. and K.G.C. were formerly in a common law relationship. They have one child together, K.C., born [omitted for publication]. [ 2 ] G.A.C., who presently has supervised parenting time with K.C., has brought an application for an order that he have joint guardianship, equal parental responsibilities and a specified

schedule of parenting time. [ 3 ] K.G.C. asks that G.A.C.’s overnight parenting time be reduced and says that any parenting time which G.A.C. has in the evening or overnight should continue to be supervised. [ 4 ] K.G.C. has an older child from a previous relationship named R. R. was born on [omitted for publication]. [ 5 ] G.A.C. has an older child from a previous relationship named C. C. was born on [omitted for publication]. [ 6 ] The parties separated in May of 2014 when K.C. was not quite three years old. [ 7 ] Following their separation, the parties had an informal shared parenting arrangement. They followed a

schedule whereby in week one G.A.C. would have parenting time with K.C. from Thursday afternoon until early Sunday evening and in week two he would have parenting time with K.C. from Thursday afternoon until Friday at 7:00 p.m. and during the day on Sunday. [ 8 ] On March 23, 2015 an order was made by consent which requires G.A.C. to pay child support to K.G.C. for K.C. and which provides that the parties have “a shared parenting arrangement”. [ 9 ] Although the parenting

schedule was not set out in a court order or written agreement, the parties followed the parenting arrangement consistently until May 2016. Both K.G.C. and G.A.C. testified that they were able to successfully co-parent. [ 10 ] The shared parenting arrangement ended on Thursday, May 26, 2016. [ 11 ] K.G.C. testified that during the evening of May 25, 2016 her daughter R made a disclosure to her. She testified that R told her that G.A.C., her step father, “touched me down there”.

She said that R told her that it happened about seven times and that some of those times she, R, “put his hand there herself.” [ 12 ] The next day, Thursday May 26, 2016, K.G.C. advised G.A.C. by text message at 7:59 a.m. that she would be keeping K.C. over the weekend. [ 13 ] Just after texting G.A.C., K.G.C. spoke with an intake worker at the Ministry of Family and Child Development (MCFD). She then went to the Oceanside RCMP detachment. She gave a statement to Cst. Caram, beginning at about noon. [ 14 ] That day K.G.C. exchanged several further text messages with G.A.C.

The message exchange shows that K.G.C. would not tell G.A.C. her reason for keeping K.C. from him and that G.A.C. became upset. [ 15 ] In the end, K.G.C. agreed by text message to meet G.A.C. outside her residence at 2:00 p.m. that day. G.A.C. expected that he would be able get K.C. at that time. G.A.C. arrived at the drive way of the residence shortly before 2:00 p.m. Soon thereafter, K.G.C. and a friend arrived. [ 16 ] At that time K.G.C. told G.A.C. that she would not allow him to take K.C. because she had reason to believe that he had touched her daughter R in a sexual way.

G.A.C. testified that he was shocked and became upset and angry. [ 17 ] The parties had a heated argument during which there was shouting, G.A.C. invaded K.G.C.’s space and K.G.C. pushed G.A.C. The friend of K.G.C. called the police, who had already been told about the allegation against G.A.C. and that the parties would be meeting at K.G.C.’s residence. [ 18 ] Police officers attended to keep the peace. G.A.C. left the property and K.C. remained with her mother. A police officer told G.A.C. not to come back to the property while the police conduct an investigation.

He agreed and did not do so. [ 19 ] K.G.C. testified that on May 28, 2016, when she and K.C. were riding in the car, K.C. said some things to her which she thought might amount to a disclosure of sexual abuse. [ 20 ] During the evening of May 28, 2016, K.G.C. returned to the RCMP and provided a statement to Cst. Regush. She told the officer that when driving past the Errington Store earlier that day K.C. said to her that her dad takes her there.

She told the officer, that, among other things, K.C. said that her dad’s friends come over, that boys have long things they pee from, that some are longer than others and that she has seen her dad’s when he was going to the bathroom. K.G.C. told Cst. Regush that K.C. also spoke of a secret and said she could not tell her. [ 21 ] MCFD became involved. On May 30, 2016, a social worker requested that G.A.C. sign a MCFD Safety Plan stating that he would not have any direct or indirect access with R or K.C. until MCFD could further assess the matter.

[ 22 ] G.A.C. signed the Safety Plan without having obtained any prior legal advice. The social worker gave G.A.C. no additional information as to the allegations against him. [ 23 ] On May 31, 2016, Cst. Gueulette took a statement from R at the Oceanside RCMP detachment. Her statement was recorded.

The audio recording was played in court during the hearing and a transcript of the recording was tendered in evidence. [ 24 ] During her police interview, R stated, among other things, the following: • her stepfather G.A.C.; • had touched her private parts; • she does not really remember what happened; • she is not sure, but she thinks it was around when she was 8 or 9 years old; • it happened 7-8 times; • she does not know how it started, she has “a really bad memory”; • she does not know why but she “put his hand there”, but she “only did it like three out of seven times”; • she put her hand on his and got him to scratch her there; • “I thought he was asleep all the time”; • she thought he was sleeping “cause he would snore”; • “I don’t really know but I think it was when my mom was always at work”; • his hand was under her clothes “one time”; • “I think many times he tried to go under, but um. only one time did it, that happen so that’s all I remember of it”; [ 25 ] In the course of giving her statement, R said “I don’t remember” and “I don’t know” many, many times.

She said “I have a really bad memory” at least three times. [ 26 ] The RCMP submitted a Report to Crown Counsel for the purpose of Crown deciding if charges against G.A.C. would be approved in respect of the allegations made by R. [ 27 ] The matter was reviewed by senior Crown Counsel who decided that he was unable to approve charges of sexual touching/sexual interference against G.A.C. [ 28 ] A memo written by the prosecutor is contained in the police file which is in evidence before me.

In the memo, the prosecutor writes, in part, as follows: There are issues arising during the course of this investigation involving the credibility and reliability of the complainant. Other than the disclosure to the mother in May 2016, there is no other corroborative evidence of these incidents which occurred approximately 3 years prior to the complaint. Throughout the course of her interview, R continued to confirm that she “has a really bad memory” and “did not know” and “does not remember”. There is also an issue as to the mens rea of the accused.

This arises from R’s statement and her repeated confirmation that (in her mind) the accused was asleep (snoring?) during many of the incidents. There is no substantial likelihood of conviction based upon the problematic testimony of R. [ 29 ] On June 13, 2016, Cst. Regush of the Oceanside RCMP requested the assistance of the Island District General Investigation

Section (ID-GIS) to obtain a statement from K.C., who was four years old. Cst. Bonnet, a member of ID-GIS, was assigned to conduct a “Step-Wise interview”. [ 30 ] After having some difficulty contacting K.G.C., Cst Bonnet was able to interview K.C. on June 14, 2016. [ 31 ] Despite considerable effort during the interview, Cst. Bonnet obtained no disclosure from K.C. [ 32 ] That was the end of that investigation. Understandably, the RCMP did not propose any charges against G.A.C. in respect of K.C. [ 33 ] Clearly it was very difficult for G.A.C. not to get K.C. on May 26, 2016 as scheduled.

G.A.C. sent text messages to K.G.C. on May 27 and 29, 2016 asking to be able to see K.C. At this time there were no restrictions precluding him from sending these requests. [ 34 ] On June 10, 2016, G.A.C. sent a text message to K.G.C. asking her to tell K.C. that he loves her and asking if he can give her a birthday present. This request for indirect contact with K.C. was in violation of the MCFD Safety Plan. He sent another message on June 14, 2016 again asking if he could give a birthday present to K.C.

[35] G.A.C. retained a lawyer, Mr. Rivers. On June 10, 2016, Mr. Rivers sent the first of several letters to MCFD. In the first letterhe advised that G.A.C. had retained him to assist in resolving matters respecting his parenting time with K.C. He also asked whatMCFD’s position was and what the reasons were for denying G.A.C. his parenting time. [36] Mr. Rivers received no response to his several letters to MCFD. On September 1, 2016, Mr. Rivers wrote yet another letter toMCFD.

In that letter he stated that MCFD must be aware of Crown Counsel’s decision not approve charges against G.A.C. and askedagain to be advised of the status of MCFD’s file. He advised that if he did not receive a response by September 7, 2016, G.A.C. wouldwithdraw his consent to the Safety Plan. [37] On September 21, 2016, Mr.

Rivers wrote again to MCFD confirming that he had still received no response from anyone atMCFD at any time. [38] Up until this time, G.A.C. had not seen K.C. or received any information as to how she was doing since before the sharedparenting arrangement ended in May, 2016. [39] On September 27, 2016, four months after he had last had parenting time with K.C., G.A.C. obtained an Interim Court Orderfrom Judge Saunders. The Order provided that he would have parenting time with K.C. the coming weekend from Friday at 5:00 p.m.until Sunday at 5:00 pm. The parenting time was to be supervised by G.A.C.’s grand-parents.

The matter was adjourned to MondayOctober 3, 2016. [40] Despite the fact that K.G.C. was in court with her former lawyer when the Order was made on September 27, 2016, she deniedG.A.C.’s weekend parenting time. [41] On October 3, 2016, the parties and their respective lawyers appeared in court before Judge Saunders again. Judge Saundersordered make up parenting time on the next weekend from Friday at 5:00 p.m. until Monday at 5:00 p.m. as well as parenting time fromFriday, October 15, 2016 at 5:00 p.m. until Sunday, October 16, at 5:00 p.m.

Judge Saunders also ordered that K.G.C. give security bypaying the sum of $200.00 to the Provincial Court, in trust, respecting any future breach of Court Order. The matter was adjourned tothe Judicial Case Manager to fix a date for continuation. [42] The matter was next in court before Judge Saunders on November 14, 2016. At that time Judge Saunders ordered that G.A.C.was to have supervised parenting time with K.C. every other week from Friday at 5:00 p.m. until Monday at 5:00 p.m. The parentingtime was to be supervised by any of G.A.C.’s mother, grandfather or grandmother.

The Order also provided, as did the two earlierOrders, that G.A.C. was not to bathe K.C. or sleep in the same bed as her. [43] On one occasion shortly after the Order was made, G.A.C. bathed K.C. He did so with his mother present. It seems that at thetime he did not clearly understand that he was contravening the Order. This has not happened again. [44] A further Order was made by Judge Gouge on November 25, 2016. That Order, which was by consent, simply shifted G.A.C.’sparenting weekend

schedule by one week to accommodate G.A.C.’s work

schedule and provided that he would have K.C. from 3:00 p.m.on December 24 to 11:00 a.m. on December 25, 2016. [45] G.A.C.’s mother, who lives in Saskatchewan, stayed on Vancouver Island for several months to allow G.A.C. to exercise hisparenting time as ordered. [46] In or about April 2017, G.A.C.’s mother returned to Saskatchewan. By that time his grand-parents were not physically capableof acting as supervisors. Consequently, the Order was then changed to allow G.A.C.’s girlfriend, B.B., to act as his parenting supervisor.

Unfortunately, B.B.’s employment only allows her one weekend in four to be available to supervise. Accordingly, as of recently,G.A.C.’s parenting time has been reduced to one weekend in four. [47] On April 6, 2017, G.A.C. received a letter dated March 31, 2017 from a social worker with MCFD advising that she hadcompleted her assessment as required by the Child, Family and Community Service Act regarding concerns that his child may be in needof protection.

She states that based on the results of her assessment K.C. is not in need of protection as reported. [48] I will now consider the law as to the approach the Court is to take in cases, such as the one before me, where allegations ofsexual abuse are made. The law is clear, that, as set out in the case of Leveque v.

Leveque (1983), (BC CA), 54B.C.L.R. 164 and confirmed in more recent British Columbia decisions, in cases involving the welfare of children, the question is notwhether the specific allegations of abuse by a parent or other person are proven, but whether on the whole of the evidence there arises areal risk of harm to the child if access is given without protection against the risk. [49] In M.H. v. A.M. 2016 BCSC 1694, Mr.

Justice Skolrood follows the Leveque decision and, at paragraph 73, writes as follows: As can be seen from these cases it is not necessary for the court to come to a definitive conclusion about whether the alleged abuse did ordid not occur, and in many cases, given the nature of the evidence, it may not be possible to do so. Rather, the court must assess whetherthere is a real risk of harm to a child if unsupervised contact or parenting time is ordered.

The test, as it is in all matters of guardianshipand parenting time, is the best interests of the child. [50] In the case before me, the parties take no issue with the threshold admissibility of the evidence contained in the police reportand in the testimony of K.G.C. as to statements made by R and K.C. The question is the reliability of their statements. [51] In the case of S.F.R v. E.C.R. (BCSC), Madam Justice Dillon sets out the indicia of reliability of a child’sevidence as established by R. v. Kahn (1990) (SCC), 59 C.C.C. (3d) 92.

At paragraph 43 she writes as follows: The indicia of reliability have been established in R v. Kahn, supra and in the cases that have applied R. v. Kahn. They include: timingof the statement; demeanor of the child; personality of the child; intelligence and understanding of the child; absence of motive of child

to fabricate; absence of motive or bias of the person who reports the child’s statement; spontaneity; statement in response to non-leading questions; absence of suggestion, manipulation, coaching, undue influence or improper influence; corroboration by real evidence; consistency over time; and statement not equally consistent with another hypothesis or alternative explanation. [ 52 ] Upon considering R’s statement with these indicia in mind, I have significant concerns about its reliability. I note the following: • She repeatedly says “I don’t know” and “I don’t remember”.

As also noted, she says “I have a really bad memory” a few times. • Several of her statements are made in answer to leading questions asked by Cst.

Gueulette. • Her statement that on three of seven instances she placed G.A.C.’s hand on her genitals and believed that he was asleep raises the possibility that she did so in all instances and that G.A.C. had no knowledge of them. • It is not possible from reading her statement as a whole to ascertain when or where or in what circumstances the alleged incidents occurred. • There is no other evidence to corroborate her allegations. [ 53 ] According to K.G.C., on May 28, 2016, just three days after R’s disclosure, K.C. said some things to her which caused her to wonder if K.C. had been sexually abused.

I find the timing of this to be somewhat suspicious. [ 54 ] If, as may well be the case, K.C. indeed said what her mother indicates she said, the fact is that K.C. made no allegation that G.A.C., or anybody else, did anything inappropriate to her, sexually or otherwise. [ 55 ] I find that the statements reportedly made by K.C. could be explained by observations she made of C and her father while urinating. [ 56 ] I believe that it is unlikely that K.G.C. would think, based on K.C.’s statements, that K.C. had been sexually abused if not for disclosure made by R three days before. [ 57 ] In assessing the testimony of K.G.C. and the evidence contained in the police reports, I must consider the testimony of G.A.C. [ 58 ] I found G.A.C. to be an excellent witness.

He consistently gave his evidence in a very responsive, clear and forthright manner. He answered questions carefully and presented as being very honest. [ 59 ] At no time did I feel that he was either exaggerating or minimizing. I found him to be open and candid. In cross examination by K.G.C. he readily admitted things that may be seen as being against his best interests. [ 60 ] I have no reason to doubt the truth or accuracy of what G.A.C. said in court.

I accept his evidence. [ 61 ] On all of the evidence, I am not satisfied on a balance of probabilities that G.A.C. touched either R or K.C. in a sexual manner. [ 62 ] The law is clear that it is not necessary that I, as the judge, come to a definitive conclusion as to whether any of the alleged abuse occurred. Rather, I must assess whether there would be a real risk of harm to K.C. if I am to allow G.A.C. unsupervised parenting time with her. In the course of her submissions I asked K.G.C. if she thought that allowing G.A.C. unsupervised parenting time with K.C. would result in a real risk of harm to her.

After some hesitation, K.G.C. candidly said that any risk may not amount to a real risk. [ 63 ] Without any hesitation, I find that allowing G.A.C. to have unsupervised parenting time with K.C. will not cause her a real risk of harm. [ 64 ] Accordingly, I find that there is no reason to place any restrictions or conditions on G.A.C.’s parenting time. [ 65 ] Going forward, his parenting time with K.C. will not be supervised in any way. [ 66 ] I declare that both K.G.C. and G.A.C. are guardians of K.C. [ 67 ] I order that K.G.C. and G.A.C. are to share equally the parental responsibilities set out in

section 41 of the Family Law Act . In doing so, I am mindful of the fact that prior to the allegations being made in May of 2016 they were able to co-parent successfully. [ 68 ] Finally, I must decide on the appropriate parenting schedule. That is, a parenting

schedule which will be in the best interests of K.C. [ 69 ] K.G.C. advised the Court that her preference would be for K.C. to spend fewer overnights with her father than she has in the past. She also said that she would be okay with the informal parenting

schedule followed by the parties after separation and before the allegations were made. [ 70 ] G.A.C. asks for a

schedule which is similar to the former informal

schedule but which provides him with some extra parenting time to make up for the time he has lost in the last year. [ 71 ] The informal

schedule previously followed by the parties was based upon G.A.C.’s work

schedule and on the parenting

schedule which he had with his son C. I understand that neither G.A.C.’s work

schedule nor his

schedule with C has changed. [ 72 ] After careful consideration, I have decided to order a parenting

schedule which provides G.A.C. with some more parenting time than he had in the past but not quite as much as what he now requests.

[ 73 ] The parenting

schedule with respect to K.C. will be as follows: Week one G.A.C. will have K.C. from Thursday after school (or 3:00 p.m. if there is no school) until 5:30 p.m. Monday. Week two G.A.C. will have K.C. from Thursday after school (or 3:00 p.m. if there is no school) until Friday at 7:00 p.m. and then on Monday from after school (or 3:00 p.m. if there is no school) until 7:00 p.m. Christmas Vacation [ 74 ] The parties are to make best efforts to agree on a

schedule which allows K.C. to spend significant time with each parent over her Christmas vacations and some time with each parent over the Christmas Eve, Christmas Day and Boxing Day period. [ 75 ] In the event that, despite their best efforts, the parties are not able to agree on a Christmas parenting schedule. either of them may apply to the Court for directions. BY THE COURT The Honourable Judge R. Lamperson Provincial Court of British Columbia