S.A.M. v. M.R.Y., 2023 BCPC 185

Citation: S.A.M. v. M.R.Y. 2023 BCPC 185 Date: 20230621 File No: FON-F-3572 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.A.M. APPLICANT AND: M.R.Y RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE O. FLECK Counsel for the Applicant: I. Henderson (by videoconference) Counsel for the Respondent: S. Sihota (by videoconference) Place of Hearing: Fort St. John , B.C.

Date of Hearing: June 16, 2023 Date of Judgment: June 21, 2023 [ 1 ] THE COURT: This is my decision on the two opposing protection order applications that are before me. The two protection order applications are one filed by S.A.M. on February 23, 2023, and a second filed by M.R.Y. on April 11, 2023. Ms. M.'s seeks a protection order for herself and her children, who are E.C.M., [omitted for publication] ; E.A.M., [omitted for publication] ; and B., [omitted for publication]. Mr.

Y.'s application seeks a protection order for himself and E.C.M. and E.A.M. [ 2 ] Relevant to the background of these applications is that there is ongoing family litigation between the parties involving parental arrangements, child support, and spousal support. As part of that ongoing litigation, an interim parental arrangement order was made with respect to E.C.M. and E.A.M. on January 24, 2023, and which was then amended on March 23, 2023, which gives interim primary care of the two children to Mr.

Y. [ 3 ] In their protection order applications, each party alleges family violence by the other party and each party subsequently has denied the allegations of the other party. [ 4 ] Given the evidence that I heard at the hearing and given the positions taken by the parties, I do find it is worth stating what this proceeding is not about. It is not a proceeding to determine parental responsibilities or child support. That is not what we are doing today. It is not a proceeding to enforce prior court orders. That is also not what we are doing today.

It is not a proceeding to allow or prohibit a relocation, and it is also not a hearing in the nature of a child protection proceeding such as what might happen under the Child, Family and Community Service Act , R.S.B.C., c. 46. That is also obviously not what we are doing here today. Those are very different types of proceedings and it would not be appropriate to make a protection order as a proxy for those other types of applications. [ 5 ] Instead, what I have before me here is a rather narrow issue, and that is whether a protection order is needed under the Family Law Act , S.B.C. 2011, c. 25 .

Under the Family Law Act , a protection order has a very specific purpose and that is that it creates a police enforceable protection order after a court has deemed it necessary, as a result of a likelihood of family violence. [ 6 ] Family violence is a term that is defined in

section 1 of the Family Law Act , as follows: "family violence" includes, with or without an intent to harm a family member, (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect, exposure to family violence. [ 7 ] That is the statutory definition of family violence in the Family Law Act .

There is also case law that has interpreted that statutory definition and, in particular, much of the case law has interpreted that definition of family violence very broadly, especially with respect to what constitutes psychological or emotional abuse. [ 8 ] Keeping that in mind, my task here today is to determine whether either party has established, through the evidence that I heard last Friday, that he or she or the children are in need of a protection order due to a likelihood of family violence being perpetrated by the other party. [ 9 ] Since I am deciding two competing protection order applications where the parties make mutual allegations and then each party denies the allegations of the other party, credibility and reliability of the two applicants are key issues for me to decide.

Therefore, I will start by assessing the credibility and reliability of both Ms. M. and Mr. Y., beginning with Ms. M. [ 10 ] I find significant difficulties with Ms. M.'s credibility. First, she has shown a very large degree of disrespect for court orders. As I mentioned, parental arrangements for E.A.M. and E.C.M. are currently governed by an interim order that was made on January 24, 2023, and was then amended on March 23rd, and that order grants primary care of the children to Mr. Y. Since that order was made, Ms. M. has steadfastly refused to respect the order and has withheld the children from Mr. Y.

She has not applied to amend or terminate the interim parental arrangements order nor has she pushed for a trial so that a final determination of these issues can be made. Instead, she has simply chosen to disregard the interim parental arrangements order. She has filed her protection order application that I am hearing today but, as I noted earlier, a protection order application cannot be used as a proxy for a parental arrangements application. [ 11 ] Furthermore, there are other court orders that Ms. M. also refuses to comply with, including a DNA order and an order that she

pay a fine for refusing to comply with the DNA order. [ 12 ] Second, Ms. M. displayed hostility to the Court by refusing a direction from the Court to answer certain questions put to her on cross-examination during the hearing on Friday. She answered questions she wanted to answer but she refused to answer questions she did not want to answer. By refusing to fully submit to cross-examination, she substantially undermined any evidence she gave in support of her application and in opposition to Mr.

Y.'s application. [ 13 ] Third, she attempted to employ what I am going to characterize as pseudo-legal arguments as justification for not answering those questions on cross-examination. [ 14 ] This Court is a neutral decision-making body that is charged with applying the law to the facts as they are supported by the evidence.

Invoking pseudo-legal arguments as a justification for not answering questions and, thereby, making it more difficult for the court to make appropriate factual findings, especially where the well-being of children is concerned, is an affront to the court's role. [ 15 ] As a result of the foregoing, I have substantial concerns about Ms. M.'s forthrightness in the face of the court.

Her determination to undermine the court orders that she does not agree with has been concerted and leads me to conclude that there is a substantial possibility that she has tailored the sum of her evidence to support her idiosyncratic justifications for disobeying the court orders, rather than being forthright with the court. [ 16 ] I will also note that Ms. M. led no evidence to corroborate any of her own evidence. [ 17 ] For these reasons, I place no weight on evidence given by Ms. M., especially to the extent that it contains allegations against Mr. Y. that Mr.

Y. denies. [ 18 ] Even if I was inclined to accept any of Ms. M.'s evidence that alleges violence by Mr. Y., the evidence details allegations that are several years old. The evidence of each party is that they separated in September 2020 and have had no in-person contact since then. Mr. Y. moved back to the [omitted for publication] right after the separation and Ms. M. stayed in [omitted for publication] and they have not been in direct in-person contact or in geographic proximity since then.

Evidence that is dated by several years is of limited utility in deciding the likelihood of present behaviour and, hence, the present need for a protection order. [ 19 ] I will next turn to Mr. Y.'s evidence and his credibility and reliability. Mr. Y.'s evidence suffers from some of the same problems with respect to the age of the events that he recounted for the Court and the lack of corroboration for his evidence. [ 20 ] Furthermore, there is some third-party evidence that tends to contradict some of Mr. Y.'s assertions.

Specifically, what I am referring to is the hearsay evidence that was led, in part, by each party respecting observations made by a S.W., who is apparently an official within the [omitted for publication]. Ms. W. was not a witness in this proceeding but the evidence of A.M., who was called as a witness by Mr. Y., is that she communicated directly with Ms. W., who told her that the children were doing well on the [omitted for publication] , with no child welfare concerns. Ms. M., for her part, then gave similar evidence; namely, that Ms.

W. had told her that she considers the children to be doing well, with no child welfare concerns. [ 21 ] Although Ms. W.’s observations are clearly hearsay evidence, since each party led substantially the same hearsay evidence, I will accept the evidence as it relates to the welfare of the children on the reserve, in contradiction to Mr. Y.'s allegation that the children's health and education are not being tended to on reserve by Ms. M. [ 22 ] Therefore, while I do not find the same large, overarching credibility issues with Mr. Y.'s evidence that I find with Ms.

M.'s evidence, overall the evidence of each party with respect to past family violence by the other party leaves me unsatisfied. This is because I cannot give much, if any, weight to the evidence of either party, especially Ms.

M., for the reasons that I have stated, and, furthermore, the allegations of family violence that have been recounted by each party are in relation to events from several years ago, so any inferences, as I have said, that could be drawn from that behaviour is limited, even if I was to give weight to the evidence of either party about past family violence. [ 23 ] In making this particular finding, I am also taking into consideration the timing of the protection order applications. Ms. M.'s application came in February 2023, about two and a half years after she separated from and last interacted in-person with Mr.

Y. and about a month after the interim parental arrangements order was made. Mr. Y.'s protection order application then came about six weeks after Ms. M.'s application and also about two and a half years after the two of them had separated.

I am also noting that there is no evidence that either party ever complained to the police or MCFD about alleged violent conduct by the other party. [ 24 ] As a result, I am left with a strong apprehension that the mutual allegations of past family violence that I heard from the two parties are, in fact, strategic allegations to gain advantage in the ongoing family litigation between the parties. This does not mean that there was never any incident of family violence in the past. Most likely, there were some past events that could be characterized as violent.

However, the timing of the allegations of past family violence with respect to the overall litigation process and the lack of evidence of prior reporting or other corroborating evidence mean that I do not trust that either party's allegations about past family violence are not now being presented in a piecemeal, out-of-context, or perhaps even exaggerated manner to gain litigation advantage. [ 25 ] As a result, I do not find that either party has established, on a balance of probabilities, that the other party is likely to commit future family violence, either against each other or against the children, as a result of past family violence . [ 26 ] I also find that there is no evidence to substantiate Mr.

Y.'s allegations that the children are suffering from a lack of the necessities of life while in Ms. M.'s care. [ 27 ] Therefore, I find that Ms. M. has not substantiated that there are grounds to make a protection order against Mr. Y., either with respect to her or to the children, and I find that her protection order application ought to be dismissed. [ 28 ] Similarly, I find that Mr. Y. has not substantiated that a protection order should be made against Ms. M. as a result of allegations

of past family violence or because she is currently depriving, or in the past has deprived, the children of the necessaries of life. [ 29 ] However, there is one further aspect to Mr. Y.'s application that I must consider and that is the issue of Ms. M.'s ongoing withholding of E.A.M. and E.C.M. from Mr. Y., in contravention of the interim parental arrangements order. [ 30 ] Mr. Y. submits that the actions of Ms. M., contrary to court order, should be found to constitute a form of family violence, justifying a protection order. In support of this position, Mr. Y. cites M.W.B. v. A.R.B. , 2013 BCSC 885 .

In M.W.B. , Justice Brown found that one party's litigation conduct constituted a form of emotional abuse and harassment that constituted a form of family violence. M.W.B. was not a protection order application. Instead, it involved protracted litigation over financial matters stemming from a family- owned commercial property, as well as parental arrangements.

Justice Brown found that, in the circumstances of that case, the party's pattern of forcing unnecessary litigation affected the other party's health and financial stability, thus constituting emotional abuse and harassment. [ 31 ] However, M.W.B. can be distinguished from Mr.

Y.'s situation in several respects, including the length of the litigation; the varied forms of unnecessary applications by the other party; the significant financial, emotional, and physical effects on the other party; as well as other factors that were present in the M.W.B. case. [ 32 ] Nonetheless, I do find that M.W.B. does stand for the proposition that litigation conduct can, in some circumstances, constitute a form of family violence, if it can be found to amount to emotional abuse or harassment. [ 33 ] In considering Mr.

Y.'s position, I have also referred myself to two other B.C. cases which I find more instructive in this particular case. The first of those two cases is J.C.P. v. J.B. , 2013 BCPC 297 and the second is L.S. v. G.S. , 2014 BCSC 187 . [ 34 ] In J.C.P , Judge Merrick found that a failure to respect court orders contributed to a form of family violence.

However, the context of J.C.P. was quite different from the case I am deciding today because the type of court order that was being disobeyed was a child support order and there was a finding of a deliberate intention to inflict emotional abuse through the intentional creation of financial stress by not paying the child support. [ 35 ] As well, in J.C.P. there were other factors that also contributed to a finding of family violence, not just the non-compliance with the child support order. [ 36 ] Additionally, Judge Merrick was applying family violence in the context of Family Law Act ss. 37 and 38 .

It was not a protection order application. [ 37 ] Nonetheless, I do find J.C.P. instructive because I find it supports the contention that, in some circumstances, deliberately defying court orders can constitute or contribute to a form of family violence, if it undermines the psychological or emotional well-being of a family member. [ 38 ] The second case I have referred myself to is L.S. In L.S. , Justice Smith had earlier found one of the parties in contempt of court for failing to return the children from Israel to B.C., in contravention of an order of the B.C.

Court of Appeal. [ 39 ] Subsequent to that, the opposing party made an application in B.C. Supreme Court for a finding that the contemptuous behaviour amounted to a form of family violence under the Family Law Act .

In that case, Justice Smith declined to find that family violence had occurred because, while the children had been withheld in Israel instead of returned to B.C. as per the court order, Justice Smith found that the applicant parent was also present in Israel at the time and there was no evidence that the applicant parent could not still have exercised his parenting time in Israel, in accordance with the court-ordered parenting time, despite the children not having been returned to B.C.

Ultimately, L.S. turned on the fact that Justice Smith was unable to find that the children had suffered emotional or physical harm as a result of the withholding in Israel, in large part because the other parent still had access to the children in Israel to exercise parenting time. [ 40 ] The principle that flows from L.S. is that an assessment of whether a child has likely or actually suffered harm due to a withholding and contravention of a court order is a critical consideration in whether contravention of the court order amounts to or contributes to family violence. [ 41 ] Thus, I will apply the principles stemming from J.C.P. and L.S. to the situation of Ms.

M. and Mr. Y. [ 42 ] First, I will note that it is not disputed that E.A.M. and E.C.M. continue to reside with Ms. M. and not Mr. Y., as should be the case under the terms of the interim parental arrangements order. [ 43 ] Ms. M. admits that she is aware of the order but she is adamant that she will not turn over the children to Mr. Y. As I mentioned earlier, there are also other orders that Ms. M. has outright refused to comply with; namely, an order that she submit to a DNA test and that she pay a fine for not complying with the DNA order. [ 44 ] Mr.

Y. has not seen the children since quite some time prior to the first interim parental arrangements order being made on January 24, 2023, despite the order containing police enforcement clauses. [ 45 ] There was no evidence led during the hearing about the actual present-day psychological well-being of the children, expect for the small amount of hearsay evidence that S.W. has not observed any issues with their well-being, as well as some evidence from Ms. M. that the children are doing well. However, I place no weight on the evidence of Ms.

M. in this respect, given her refusal on cross- examination to answer certain questions about the children's welfare, such as when they last had medical checkups. As a result, I have virtually no credible and reliable evidence about the current welfare situation of the children. [ 46 ] However, as a general proposition, it is commonly accepted that children benefit psychologically and emotionally from the love, support and guidance of both of their parents whenever possible, unless there is evidence to the contrary in a particular case. In this case,

there is no evidence to the contrary, at least not that I accept. [ 47 ] Therefore, I infer that Ms. M.'s actions are necessarily depriving the children of the love, support and guidance of Mr. Y. because they have had no contact with him for months. [ 48 ] Furthermore, Ms. M.'s actions fly in the face of the Court's interim finding that the best interests of E.A.M. and E.C.M. are that they reside with Mr. Y. [ 49 ] Given this situation, I infer that there is a likelihood that E.A.M. and E.C.M. are suffering psychologically and emotionally from the loss of Mr. Y.'s love, support and guidance.

I also find that this situation has persisted since at least January 2023, when the interim parental arrangements order was made, and that the situation will be ongoing due to Ms. M.'s intransigence in not obeying the interim parental arrangements order. [ 50 ] Although this situation is unique and different factually from the situations in J.C.P. and L.S. , I use the principles flowing from those two cases to find that, in the context of the facts of this case, Ms. M.'s actions of withholding E.A.M. and E.C.M. from Mr.

Y. amount to a reckless disregard for the psychological and emotional well-being of E.A.M. and E.C.M. that amounts to psychological and emotional abuse of E.A.M. and E.C.M.. This is, no doubt, not the intention of Ms. M. but it is, nonetheless, the likely consequence of her reckless actions. [ 51 ] As part of my analysis, I have considered whether there are mechanisms available to Mr. Y. in the Family Law Act to enforce the interim parental arrangements order because, as I said at the outset, a protection order application should not be used as a proxy for other available orders.

The answer is, yes, the Family Law Act provides for enforcement mechanisms, including fines, costs and incarceration, if necessary, and I note that Mr. Y. has made an enforcement application that is due to be heard on September 27, 2023. [ 52 ] However, in this case, I find that any regular enforcement orders under the Family Law Act are likely to be ineffective, short of jailing Ms. M., because of Ms. M.'s demonstrated and persistent refusal to respect court orders if she does not agree with them.

Therefore, although I noted at the outset that this is not a proceeding to enforce prior court orders, I find that it is appropriate for me to consider the effectiveness or likely future effectiveness of regular Family Law Act enforcement mechanisms in protecting the best interests of the children in determining whether the refusal to comply with any court order is a form of family violence in this case. [ 53 ] It is not often that non-compliance with a Family Law Act order will amount to family violence.

This point is made in both J.C.P and L.S. and, especially, it is not often that non-compliance with Family Law Act orders will justify a protection order. However, in this case, I find that Ms. M.'s actions are concerted, blatant and unyielding and that she is actively and openly defying the court. [ 54 ] Contempt of court is not a remedy that is available in Provincial Court for failure to comply with an order, unless it is specifically authorized by statute. However, that does not change the fact that Ms. M.'s actions, by their very nature, are entirely contemptuous of this Court.

This behaviour is relevant to an analysis of whether she is committing family violence. [ 55 ] As a result, I find that she is recklessly committing a form of family violence against E.A.M. and E.C.M. by persistently and defiantly denying them their court-ordered parenting time with their father, Mr. Y., and that this behaviour is likely to continue, no matter what other order the court makes, short of jailing Ms. M. under the enforcement mechanisms of the Family Law Act . [ 56 ] As a result, I find that a protection order is warranted to protect E.A.M. and E.C.M. from this ongoing form of family violence.

Consequently, I make the following order. [ 57 ] Term 1, pursuant to s. 183(3) (

a) of the Family Law Act , S.A.M. must have no contact or communication -- [ 58 ] CNSL S. SIHOTA: Your Honour -- Your Honour, my apologies. I don't mean to interrupt. There's a child with Ms. M. [ 59 ] THE COURT: That is fine. I am carrying on. We are pronouncing the order. [ 60 ] CNSL S. SIHOTA: Thank you. [ 61 ] THE COURT: Pursuant to s. 183(3) (

a) of the Family Law Act , S.A.M. must have no contact or communication, directly or indirectly, with E.A.M., born [omitted for publication] and E.C.M., born [omitted for publication] -- [ 62 ] S.A.M.: [Indiscernible/remote audio] -- [ 63 ] THE COURT: -- except as allowed by the Family Law Act order dated -- [ 64 ] S.A.M.: [Indiscernible/remote audio] -- [ 65 ] THE COURT: -- January 24, 2023, as varied on March 23, 2023, or as further varied. [ 66 ] Term 2 -- [ 67 ] S.A.M.: [Indiscernible/remote audio]. [ 68 ] THE COURT: Pursuant to -- [ 69 ] S.A.M.: [Indiscernible/remote audio]. [ 70 ] THE COURT: -- Section 183(3) (

a) of the Family Law Act , S.A.M. must not go to any place where E.A.M., born [omitted for publication] and E.C.M., born [omitted for publication] lives, works, attends school, or worships, or happens to be, even if S.A.M. is an owner of any such place or otherwise has a right to possess or enter such a place, except as allowed by the Family Law Act order dated

January 24, 2023, as varied on March 23, 2023, or as further varied. [ 71 ] S.A.M.: [Indiscernible/remote audio]. [ 72 ] THE COURT: If S.A.M. sees E.A.M. and E.C.M., she must leave her -- [ 73 ] S.A.M.: And there's no [indiscernible/remote audio] -- [ 74 ] THE COURT: -- or his presence immediately without any words or gestures, except as allowed by the Family Law Act order dated January 24, 2023, as varied on March 23rd -- [ 75 ] S.A.M.: [Indiscernible/remote audio] -- [ 76 ] THE COURT: -- 2023, or as further varied. [ 77 ] S.A.M.: [Indiscernible/remote audio]. [ 78 ] THE COURT: That is the end of the protection order. (REASONS CONCLUDED)