2003 MBQB 62, 2003 MBQB 62

Date: 20030324 Docket: FD 01-02-00580 Indexed as: B.E.M. v. B.J.D. Cited as: 2003 MBQB 62 (Brandon Centre) COURT OF QUEEN’S BENCH OF MANITOBA FAMILY DIVISION B E T W E E N: B.E.M., ) John W. Burgess, Q.C. ) for the petitioner (husband) petitioner (husband), ) ) - and - ) ) Gwen B. Hatch B.J.D., ) for the respondent (wife) ) respondent (wife). ) ) JUDGMENT DELIVERED: ) MARCH 24, 2003 KENNEDY, J. [ 1 ] This is a matter involving a petition for divorce, child custody and/or access, child support and spousal support.

Matters relating to marital property have been resolved between the parties. [ 2 ] A conflict between the parties culminated with a severe argument on New Year’s Day 2001. When the respondent, B.J.D. (the “mother”), returned to her home after her liturgical duties on New Year’s Day, she found her kitchen in a far greater mess than she had left it earlier that morning. She no doubt angrily called to the petitioner, B.E.M. (the “father”), to have him come and clean up the mess in the kitchen, which was met with what she described as a frightening rage by him.

The rage lasted for some time, with his using and repeating over and over obscenities to her. She said that she observed terror in his eyes similar to an earlier occasion when he had struck her across the face.

From the corner of her eye she could see her young five-year old son at the corner of the stairs, and the expression on his face contained a look of complete terror at seeing his father’s anger towards his mother. [ 3 ] The father, in evidence, admitted to his anger and regretted the use of the obscenities, and more particularly, in the young boy’s presence. [ 4 ] The incident was the culmination of a relatively short period of build-up over the past several months and what the mother described as a dramatic change in the disposition of the father.

In the aftermath of the separation and the discovery of his escapades, the mother testified that this was not the man she married and was at a loss for an understanding of what had come over him. [ 5 ] Both the father and the mother are clerics in the church, having similar levels of theological training and experience both prior to and since their marriage in 1993. [ 6 ] To say that this family exhibited dysfunction in their relationship and in their relationship with their child in the several months preceding separation is an understatement. [ 7 ] The mother has admitted to excessive stress which, in conjunction with caring for her young son and maintaining employment, periodically became too much for her to handle and was required to take stress leave from her employment. [ 8 ] There are identifiable events in her life which have contributed to her fragile ability to cope, yet despite this mental turmoil, she has made somewhat determined efforts to receive counselling in order to handle her stress level and anxiety. [ 9 ] The father, on the other hand, is portrayed by her and by his own evidence as having admitted to drinking to excess, and whether or not he is a full blown alcoholic is a matter of assessment, but there clearly has been instances where he has drank to excess which has affected their relationship.

In addition, he also has undergone periods of depression. Some of the commentary and actions during his depressed moments may lead one to believe that he might also have been suicidal. One example referred to by the mother

was an instance where he, while driving on the highway with his wife and child, pulled out to pass a motor vehicle and faced an oncoming vehicle. He commented to his wife, which was overheard by the son, that this may be a way of ending it all. He obviously avoided the collision, but it greatly distressed the mother as well as the son. [ 10 ] Following the break-up on New Year’s Day, the wife ordered him to leave the premises and by his own admission later on, in the presence of his wife, he confessed that he had been to a strip bar and had propositioned a woman for sex.

While he testified that this was his one and only visit to a strip bar, he further ventured that he had had frequent chats on sexual chat lines. The buildup of tension and the anger-filled event on New Year’s Day resulted in the parties separating, which separation turned out to be permanent. [ 11 ] The observation of the final event by the child on New Year’s Day 2001 and the tension in the family leading up to it resulted in the mother taking her son for counselling.

The son began seeing a psychiatric nurse who had some 20 years’ experience in counselling and dealing with children who were exposed to family break-ups and/or who had been sexually or physically abused. [ 12 ] The mother first brought an application for separation and the associated corollary relief for custody of the child and requested supervised access for the father. The reason for the supervised access was based upon her fear due to his previous hostilities and the anxiety it caused to her son.

Her motives for claiming this relief were seriously challenged on the basis of her acknowledgement that the son loved his father and he loved his son, and the access ought not to be limited by supervision. [ 13 ] Her request was seen to be a form of retaliation against the father, however, when an access order was granted, she nevertheless provided additional access voluntarily. [ 14 ] It was while the child was undergoing therapy for the family tensions one and a half years later that he made a disclosure of a sexual nature to the therapist, which set this matter into motion. [ 15 ] The police were informed by Child and Family Services, both of whom conducted questioning or investigation of the child resulting in inconclusive results. [ 16 ] The mother’s evidence was that she heard from the therapist that the child said there was a secret between him and his father, which led to the disclosure that he and his father played a game called “bum bum”, the description of which was always sidestepped by the child saying “you know” and not revealing any details.

From the repeated answers about what it entailed, the child appeared to expect that adults would know what the words meant. [ 17 ] In continued therapy over time, the son disclosed that his father had touched him on his private parts several times.

Disclosures of sleeping in the same bed as his father and at times being naked and touched from behind, raised the anxiety levels of the mother to the point where she deliberately disregarded the court order of unsupervised access. [ 18 ] In the investigation of the matter, the child was interviewed by the police, as indicated earlier, and the child’s comments to the police were “I just want you to make him stop”, language which could only be construed as the incident being disagreeable to the child. [ 19 ] Both the police and Child and Family Services, however, on their own investigation found that the commission of a sexual assault was inconclusive and there were accordingly no charges laid. [ 20 ] The father denies any sexual abuse and thinks the instance of “bum bum” was when the son was patted on his behind to the rhythm or tapping of “bum diddy bum diddy bum bum bum”. [ 21 ] This jingle did not describe the child’s description of playing the patting game because the father came from behind and was touching the son from behind.

It would hardly be offensive to any child if one were only tapped on the behind in a playful gesture, yet ceasing the game seemed to be the child’s preoccupation, causing him to not want to see his father and on occasion throwing tantrums and crying for what both parties indicate was the better part of an hour with the father on one occasion having to remove the son, while he was crying and screaming, from the mother’s home.

The evidence of the mother regarding this incident was that the father sat and told the child that he could outwait the child, but ultimately removed him as mentioned. [ 22 ] There were further observations made by the mother of dysfunctional sexual behavior by the son in subsequent observations by him.

The mother was advised on one occasion, when the son was asked about the father’s behavior, that the father came up behind him and he was touched with something soft and a smelly fluid. [ 23 ] A further abhorrent sexual instant was when the mother was purchasing a bathing suit and while the grandmother and the store clerk were present, the child touched his mother inappropriately with the mother quickly reacting to the touches and telling her son they were inappropriate. [ 24 ] A further incident occurred when the mother came from the basement to find her son singing a jingle about being naked and being touched, which could only have been a learned jingle about inappropriate sexual behavior.

On yet another occasion, the son kissed his mother inappropriately in a way that would also have to have been mimicking of either porn films or computer porn web sites. [ 25 ] This first-hand observation by the mother are what gave rise to her persistent belief that her son should be only able to visit his father under supervised conditions. [ 26 ] The primary evidence respecting the issue came from two experts. Dr. E.H.

Ellis’ comprehensive report is contrasted with the report of Melody Foster (Registered Psychiatric Nurse). [ 27 ] The report from Ms Foster was admitted after she was qualified as an expert, given her credentials as a psychiatric nurse and some 20 years of experience in assessing children that are from separated families, or have been physically or sexually abused. [ 28 ] There was an initial objection to her expertise and it is quite apparent that she does not have the added extension of the

expertise of a psychologist, who of course is qualified to administer various testing tools and to interpret the results, which Dr. Ellis was qualified to do. [ 29 ] In this case, however, the reports were written after observing the child and speaking to the child, the big difference being that Dr. Ellis saw the child in the presence of his mother, then by himself, followed by the child and his father together. The actual amount of time that Dr.

Ellis spent with the child himself was in the range of one-half hour to 40 minutes. [ 30 ] Ms Foster on he other hand has had the child in therapy for 1 1/2 years and it was only nearing the end of the therapy sessions that the child disclosed the “bum bum” game and then advised of other incidents of touching that occurred. [ 31 ] Both parties were engaged in observation of the child in coming to the conclusions they did in their respective reports.

Criticism was directed at the therapist with the observation by the psychologist that therapy over a prolonged period of time may produce inaccurate results and, indeed, in either reinforcing the nature of the complaints or giving rise to longer-term difficulties for the child. [ 32 ] The criticism of Dr. Ellis’ report is that his observations were made in a far shorter period of time and he was delinquent in doing a complete assessment of the parties.

The report was viewed as a “snapshot” of the child, whereas Ms Foster’s report was based upon observations when the child had become confident and relaxed with the therapist. [ 33 ] Dr. Ellis’ report concludes in making comment about a single trauma which may have been either the anger expressed by the father to the mother commencing the separation, or his single disclosure relative to the “bum bum” game. [ 34 ] Dr.

Ellis dismissed the mother’s observations as being invalid and was unwilling to give credence to the child’s complaints to the therapist. [ 35 ] A further criticism of the therapist was that she was in effect special pleading and that she was not a neutral expert, thereby attracting less weight than the psychologist’s report. [ 36 ] Ms Foster made no apologies for her apparent advocacy for the child’s concern.

As with the mother, the focus of their respective positions was the protection of the boy from repeated instances of sexual abuse, but not that the child should not see the father. [ 37 ] A great deal of discussion centred on the fact that Dr. Ellis’ observation of the mother, in the brief time that she was with the child, seemed to engender in the child anxiety that Dr. Ellis attributed to the anxiousness of his mother. An examination of this scenario does indicate that Dr.

Ellis had never met the child previously and, when the child and his mother entered the room, the child immediately went to the play area and seemingly acted in a way that demonstrated some anxiety between him and his mother. His mother, however, testified that she did involve herself in playing with the child during the course of the observations by Dr.

Ellis, and that she was even prepared to admit that the child may have been anxious because of the strange location and the presence of someone whom he had thus far never spoken to. [ 38 ] The child was then brought in with his father, who at this time he had not seen for approximately three or four months based upon the mother’s refusal to permit visiting without being supervised, which was largely accomplished by her having moved to Winnipeg from Brandon. The child greeted his father readily and both of them joined into family play in a somewhat relaxed expression. Dr.

Ellis concludes that the mother had more of a deleterious effect upon the child than the father did in which the doctor referred to as the same circumstances.

It was quickly pointed out that the circumstances were not the same inasmuch as the son had not seen his father (whom everyone agrees he loved), whereas his ability to function apart from his mother may well have been due to the fact that she was more involved with him than the father at the time, and that the child had no fear being in effectively a supervised location. [ 39 ] While the doctor draws adverse findings in respect to the position of the mother that the child was abused by the father based upon these observations, to the layman’s reasoning the behavior between the two parties with the child, if indeed there was a marked difference, might easily be explained based upon common sense.

The child in seeing the father was now in a more relaxed frame of mind, having been with his mother for some time and the joy of seeing his father accounted for his behavior. [ 40 ] Furthermore, Dr. Ellis had very little background on the father or the mother to fully appreciate their role in the child’s behavior. To his credit, Dr. Ellis indicated that he had not been instructed to conduct an interview with the parents to make an assessment, although that may have been the preferred way to deal with this particular assessment.

He would have been unaware of the history of the father’s deficits as I referred to them above, or the mother’s.

He would also not have had the benefit of knowing the response to their particular stresses or mental deficits taken by each of the parties, where particularly the mother was far more engaged in seeking counselling in coping with the difficulties than was the father. [ 41 ] One does not need to be an expert to realize that the child is troubled, and part of his trouble is manifested by his expressions, which might legitimately lead a mother or a therapist to the conclusion that sexual interference in some way has entered this child’s life. [ 42 ] I do not conclude that there was any action on the part of the mother to infiltrate the boy’s thinking about the sexual conduct he described. [ 43 ] The therapist herself testified that she was extremely careful and, based upon her years of experience, approached this kind of subject matter so as not to make any untoward suggestion to the child.

Furthermore, the observation about there being secrets and this resulting in fuller disclosure of sexual behavior between the son and his father was unsolicited. Ms Foster indicated that from the moment the disclosures were made, they remained consistent and the child did not change or withdraw from the position that they occurred. [ 44 ] Dr. Ellis concluded that based upon the information he had obtained from this one session of observing the parties, that the likelihood of abuse was low to minimal. It cannot be overlooked that the police did not press charges and that the Child and Family

Services said that the information they had was inconclusive. In determining this issue, however, one cannot ignore the extensive association and opportunity to observe the child that both the mother and the therapists have had, the weight of their observations and information points dramatically at sexual interference by the father with his son. [ 45 ] There were repeated comments made to the therapist and the mother that the boy did not wish to see his father.

I do not conclude that the mother was in any way exaggerating the reaction of the son to seeing his father under some circumstances. [ 46 ] The son was identified as being extremely bright and some of the responses that he gave to the therapist and to his mother would seem to bear that out. According to the evidence, he knew what was going on in respect to the report from Dr. Ellis to the extent that it recommended unsupervised access.

The mother disavowed any attempt to influence him other than to persuade the child he had to visit his father in an unsupervised manner because of the report, and that she did not indicate any of the details of the report. [ 47 ] The child was reported to have said to the therapist “Dr. Ellis got it wrong.

You and mum got it right”, which if unsolicited I believe are telling remarks. [ 48 ] This case involved a fair bit of irrelevant details in the conflict between the child and his mother, but some of the father’s actions warrant consideration because to some extent it may be viewed as underhanded. [ 49 ] Following the separation, which on the face of it appears to be based on a legitimate reason for separating, the father sent out numerous e-mails to all members of his wife’s family, which could only be regarded as e-mails designed to discredit her to her family regarding this conflict.

There were serious examples of behavioral dysfunction referred to in the context of the father’s sexual dysfunction following the separation. His occasional drinking to excess may well have taken its toll.

His joking about ending things while driving in his vehicle and a further letter in which he wrote to family members indicating that their death may be a means of solving the matter, are all indicators to my mind of the husband’s aberrant behavior. [ 50 ] Both experts indicated in their testimony that concluding absolutely that certain behavior took place was impossible, and both leave it open that they may have reached the incorrect conclusions. [ 51 ] Looking at the entirety of the evidence, I would arrive at a different conclusion than Dr.

Ellis and conclude that the evidence supports the notion that the child is in need of supervision when visiting the father. [ 52 ] It follows necessarily that the application for sole custody by the father would be dismissed and that a resumption of weekend access should be resumed with supervision. [ 53 ] I make one change, which undoubtedly will be regarded as significant. The supervision need not be carried out by a “professional”.

There is no need to incur added expense in visiting with his son in the presence of a stranger; hence, I would order that there even be overnight access provided that all visits are supervised by family members, particularly the grandparents whom it is my understanding the child gets along with very well and loves.

I would not necessarily limit the visitation supervision to the grandparents, and I would also permit any family members that are agreed to by the parties with it being understood that there would be an entitlement to overnight access, perhaps at the grandparents’ home or at the father’s home with the grandparents present, provided they are willing to provide real supervision to ensure that no inappropriate contact is made by the father. [ 54 ] Providing a party with whom the child is comfortable lessens the artificiality of the visits. [ 55 ] The parties may clarify this issue by teleconference if there is conflict on who the supervisors might be. [ 56 ] The matter before the court also includes the issue of spousal and child support.

Counsel will recall that the matter was argued hurriedly at the end of th day and, in my view, did not receive enough attention. Furthermore, counsel for the respondent subsequently, at the court’s invitation, provided a statement of what the respondent believes should be paid for spousal support along with child support and extraordinary costs for the child’s hockey activities. [ 57 ] Mr.

Burgess has not had an opportunity to respond to the formalized position of the mother and, accordingly, the existing interim order of support will continue and the parties can arrange for a teleconference to address the support issues on Mr. Burgess’ return. J.