IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           D. V. and C. F. were married in March 2012 and separated April 28, 2014.  Ms. V. has a child from a previous marriage and the parties are parents of another child.  Ms. V. (“D.”) has applied for child support and for parenting time and responsibilities, as well as a protection order.  Mr. F. (“C.”) opposes paying child support and is of the view that the parenting arrangements should remain as they are pursuant to the Interim Orders under which he has “primary” parenting time and responsibility.  He also opposes the protection order.  The trial of this matter was heard over five days in January and February 2015.

[2]           The parties met in June 2011 in Sechelt, B.C., where C. had lived for several years.  D. is a British citizen and has a son named M. V., born [omitted for publication], from her previous marriage.  M.’s father, M. F., is a Japanese citizen who resides in Japan.  In the summer of 2011, D. met C. when she was visiting her friend E. H., who lived in Sechelt.  They began seeing one another, moved in together briefly, and then D. moved back to England.  In December 2011, D. and C. met again in Japan, where D. was working, and they were married on March 3, 2012, in Sechelt.  Thereafter, D. applied for permanent residency in Canada, sponsored by C.  Until she meets the immigration requirements, she is not permitted to work in this country.

[3]           The parties moved to Prince George in the summer of 2012 and moved into the basement of the home owned by C.’s parents, Mr. and Mrs. F.  D. and C. became the parents of a baby girl, S., on [omitted for publication].  They separated on April 28, 2014.  D. and the children went to Sechelt shortly after the separation. C. obtained an Ex Parte Order on May 1, 2014 restricting both parents from removing S. from the province of B.C., and requiring each parent to inform the other as to S.’s residential address.

[4]           On May 30, 2014, Judge Callan made an Interim, without prejudice Order, that D. return S. from Sechelt.  Of note, Judge Callan made an Order that C. have “primary parenting time and responsibilities” for S. and that D. have parenting time as agreed between the parties.  On July 18, 2014, Judge Weatherly made an Order, by consent, that D. have parenting time Monday through Friday 7:30 AM to 5:30 PM, alternating weekends from 5:30 Friday evening until 5:30 Sunday evening, and alternating Tuesdays, overnight.  I note that Order created a shared parenting regime under which D. had parenting time with S. 48%, almost entirely daytime, and C. had parenting time with S. 52%, almost entirely at night.

[5]           D. takes the position that C. has misused his designation as “Primary Parent” in order to deprive her of parenting time and to make parenting decisions for S. in a high handed way, and has used that designation to claim Child Tax Benefits which she desperately needs, knowing she is destitute.  She submits that behaviour is part of a pattern of abusive, controlling, and violent behaviour he exhibited during the marriage and after their separation which constitutes family violence.  She therefore seeks joint parental responsibilities and a protection order.  She also seeks a change to the parenting time regime which would have C. exercise parenting time alternating weekends and Wednesday overnight, on the basis that getting the baby up early every morning for transport to D.’s home and her return again to C. for only a few hours before she sleeps for the night is disruptive and impractical.  D. also seeks child support for M. and S.  She had also sought spousal support on the mistaken assumption that the court documents before me included such a claim, but they do not.  I am therefore unable to make any order in that regard.

[6]           C. takes the position that things should remain as they are; that is, that he should remain designated as “primary parent with primary parenting responsibilities” as ordered by Judge Callan, the parenting time regime should remain as it is, and he should pay child support for neither S. nor M.  He takes the position that if there was any family violence, it was perpetrated by D., on the basis that her jealousy controlled him and prevented him from upgrading his education or from quitting his marijuana use, and that the episodes of violence and the final quarrel which caused the separation of the parties were all instigated and/or perpetrated by her.

[7]           He takes the position that D. is advancing her claims of family violence and seeking a protection order as a tactic to gain advantage in this litigation.  He also takes the position that D. has severed his relationship with M., such that he has no obligation, or a reduced obligation to pay child support for him, and in any event, he takes the position that M.’s biological father has the primary obligation to pay child support for M.  He also stated that although he was required to undertake, as her sponsor, to provide for all the basic requirements (including food, shelter, clothing, fuel, household supplies, personal requirements and health care) for D. and M., he believes that if D. left of her own accord, then he has no obligation to honour the undertaking.  Since the separation, he has utterly failed to honour that undertaking.

[8]           With respect to the question of who should have parenting time and responsibility with respect to S., I am governed by S. S. 37 of the Family Law Act.  For ease of reference, I have reproduced the relevant sections as follows:

[9]           In making a decision about what parenting regime is best for S., I am required to consider whether there has been any family violence and if so, who perpetrated it and whether that has an impact on the person’s abilities as a parent,  Pursuant to S.37(g) , (h) and (i) of the Family Law Act (“FLA”). 

[10]        With respect to the family violence issue, I am directed by the FLA as follows:

[11]        Under s. 1 of the FLA, family violence is defined as follows:

[12]        I note that the courts have taken a liberal view of what sort of conduct would constitute family violence.  For instance, engaging in obstructive conduct or unnecessary litigation is a form of emotional abuse and harassment that can constitute family violence: M.W.B. v. A.R.B., 2013 BCSC 885.  Demeaning remarks made by one parent about the other have also been found to constitute family violence: D.N.L. v. C.N.S., 2013 BCSC 809, 2014 BCSC 1417.  Similarly, threats to cause financial hardship and sending repetitive demanding emails qualify as family violence:  Hokhold v. Gerbrandt 2014 BCSC 1875. [132]  I also note the remarks of Judge MacCarthy in S.N. v. E.C., 2014 BCPC 82 (CanLII) with respect to the infliction of financial hardship, in particular a deliberate failure to pay child support:

[13]        The parties gave evidence about a number of incidents which constitute, or may constitute, family violence.  I will deal first with C.’s complaints regarding D.’s behaviour.

[14]        C. complains that D. exhibited a pattern of controlling behaviour right from the start of their relationship in 2011.  He says she was excessively jealous and that impeded his desire and ability to upgrade his education, and that her jealousy, threats of suicide, and controlling behaviour also caused him to continue his heavy use of marijuana.

[15]        C. testified that D. threatened suicide repeatedly in the months prior to their marriage, which was why, paradoxically, he says he married her.  C. says the first time was after they quarrelled and the police were called in October 2011.  He says she called him and was hyperventilating and said she didn’t want to live anymore and sent him a text asking him to take care of M.  He admitted in cross-examination that he did not speak to his friend, and D.’s life-long friend E. H., about this “suicide threat.”  Ms. H. testified that C. (not D.) had a “melt down” that night and spoiled her birthday party.  C. admitted in cross-examination that he assumed D. was threatening suicide when she asked him if he would take care of M. if anything happened to her.  She denies both the call and the text.  To put the kindest interpretation on C.’s evidence about this event, it appears that C. may have misinterpreted her remarks and jumped to an erroneous conclusion.  I find that there was no suicide threat.

[16]        Next he said she called him, very depressed, from England in November 2011 saying that on her next gig in Japan, she was going to leave M. in Japan and go to the place in Japan where people take their lives.  He said this was a suicide threat.  He said he discussed this suicide threat with her friend, E. H., and together they came up with the plan for him to go to Japan in late December.  Ms. H. says that C. did come to talk to her about his relationship with D., but denied that he said anything to her about D. threatening suicide, and that, on the basis of her close friendship with D. for over 20 years, D. is a very strong person who would never commit suicide nor threaten it.  C. testified that he told his mother about the suicide threats; however, Mrs. F. testified that C. said nothing about any suicide threats, but just sounded urgent and said he needed to have a flight that would get to Japan at the same time as D. 

[17]        D., of course, denies that she had any intention of committing suicide, nor did she threaten it.  She explains that she invited C. to visit her in Japan because they spoke on the telephone and he told her he missed M. and wanted to see her.  She explained that when she was in a gig, all of her expenses were paid, and as a result, C. could visit her all expenses paid.  She said that she left M. with his biological father while they were in Japan and she and C. went sightseeing; C. confirmed that was in fact what happened.  C. admits that when he went to Japan he had no money, only $500.00, and that D. paid for everything.

[18]        I do not accept C.’s evidence that his trip to Japan had anything to do with a suicide threat.  C.’s claim that he told both E. H. and his mother about the suicide threat is contradicted by each of them; his behaviour in waiting several weeks to embark on his rescue mission is not consistent with an actual concern of immanent suicide.  It is consistent with wanting an “all expenses paid” vacation in Japan with a woman in whom he was romantically interested.  I find there was no suicide threat and C.’s claims to that effect are a fabrication.  

[19]        Similarly, C. says that D. swallowed a bottle of pills one night in after a quarrel and then took off outside in her pajamas.  He says he went looking for her and found her retching in a ditch.  He admitted that he did not call the police, nor did he call an ambulance, nor did he take D. to the hospital.  D. says she had a headache after they quarrelled and that she took some Tylenol and went for a walk.  She said the bottle spilled when she put it down.  She went to look out over Davis Bay and when C. came by in his car about 40 minutes later, she went home with him.

[20]        In my view it is highly unlikely that a woman in her late 30’s who has taken care of herself and raised her son on her own for many years would suddenly start threatening suicide and swallowing a bottle of pills over a quarrel in a new relationship.  I do not accept C.’s account of the “pill bottle” incident either - in my view, any reasonable person holding the beliefs he says he had would immediately have taken D. to the hospital to have her stomach pumped.  If he didn’t do that, that is because what he says isn’t true. 

[21]        As noted earlier, C. said that when he was trying to get a job on “the rigs”; his mother was willing to pay for him to upgrade; Mrs. F. testified that she understood that C. was going to upgrade his education by taking “H2S” so she was surprised when he said he was going to use the money to go to Japan instead.  C. therefore blames his failure to upgrade his education and his failure to quit using marijuana (abstinence was required for a job on “the rigs”) at that time, on the trip to Japan he said he was obliged to take in order to prevent D. from committing suicide.  As noted earlier, I find that the claim of a “suicide threat” is a fabrication, and so, I find, is this explanation for his failure to upgrade his education.

[22]        C. asserts that D.’s jealousy of other women was so controlling that it prevented him from upgrading his education by taking an apprenticeship program in Vancouver and from taking a train conductor’s course after the move to Prince George.  D. admits that she was jealous at times, but there were reasons for her to feel so, and she denies that she discouraged C. from upgrading his education.

[23]        It appears to me that C. went no further than to make inquiries about upgrading his education before choosing not to pursue it, or, as with the trip to Japan, choosing to take a vacation instead.  With respect to employment, he admits that pursuing the train conductor application was contingent on his quitting marijuana - which he claims he did not quit because he “gave up” on the application due to D.’s jealousy.  I note that C. had been out of high school for approximately ten years before meeting D. and had never upgraded his education in all that time.  There is no reason for me to believe that in the eight years that C. lived on the sunshine coast, it was only after he met D. in the fall of 2011 that apprenticeship programs were offered in Vancouver, or math upgrades were offered, or H2S courses were offered, or that “jobs on rigs” or jobs as train conductors sprang into existence, such that it was D.’s jealousy, as opposed to his long standing disinclination, that prevented him from upgrading his employment or education.

[24]        I am afraid that I find this contention by C. to be patently absurd.  It is obvious that C. had a very heavy marijuana habit since his high school days and it is likely, in my view, that this addiction had a great deal more to do with C.’s choices than D.’s jealousy.  I am not persuaded that C. was prevented or dissuaded in any way from upgrading his education by D.  In my view, C. is the sole author of his own underachievement.

[25]        As another example of D.’s controlling jealousy, C. says that D. attended all of his hockey games with the baby, regardless of how late it was and wouldn’t let him hang out with the guys drinking beer.  With respect, I am unable to understand how it is unreasonably controlling for a wife and new mother to attend her husband’s hockey games (considering other team members wives did so occasion) and to expect him to come home afterward instead of hanging out with his friends drinking beer.  The fact that C., as a new father, thought that his desire to hang out with his friends and drink beer should take precedence over returning home with his wife and new baby (and that he continued to maintain this view almost a year later in court), suggests to me that he lacks the most basic notions of his responsibility as a father.

[26]        C. admits that he has smoked a gram or two per day of marijuana every day since high school.  He smoked heavily the entire time he lived in Sechelt and continued smoking marijuana until after it became an issue in this litigation.  He said that when he was trying to get a job on “the rigs”, his mum was willing to pay for him to upgrade, but he had to quit marijuana; instead, he chose to use the funds she set aside to go to Japan to see D., and he continued to smoke marijuana.  He said he quit smoking pot in order to get the train conductor job with CN rail, but he “gave up” and went back to smoking pot.  Thus his continued marijuana use must be laid at D.’s door, because, he says, her jealousy caused him to give up efforts to quit. 

[27]        He said after S. was born, he smoked pot after work, and more on weekends, and that carried on until D. “made such a big deal” about his pot smoking vis a vis his care of S., in this litigation.  Thus it would appear, ironically, that in addition asserting that D. is to blame for C.’s continued use of marijuana, she is also to blame for his decision to quit smoking marijuana.  Again, I find that C.’s marijuana habit was well entrenched long before he met D. and his attempt to make her responsible for its continuation is absurd.

[28]        C. also accused D. of smoking marijuana, and apparently not satisfied with that accusation, he went to great lengths to assert that she worked in a marijuana grow operation, and that her brother had a grow op in her mother’s home, and that her friend (and his friend too, at one time) E. H. used Cocaine.

[29]        D. denied smoking pot or using any drugs and vehemently denied working at a grow op and denied that her brother has a grow op.  She said her brother used to smoke pot, before he developed cancer several years ago.  She explained that she had smoked hash many years ago before M.’s birth and has never done so since.  She said she had friends who died of overdoses and she is strongly against drug use.  Her mother, M. V., also vehemently denied that there was a grow op in her home.  E. H., who, unlike C., has actually visited Mrs. V.’s home in England, denied that there is a grow op there.  Even Mrs. F. gave evidence that although she knew her son smoked pot, during all the time that D. lived in her home, she had never seen her do so.

[30]        I am not satisfied that there is any substance to C.’s allegations of drug use against D. and her relatives and her friends.  These assertions were not connected to any issue in this trial.  He did not suggest that the drug use he attributes to D. affected their relationship or her care of the children in any way.  Certainly a person with C.’s history of marijuana addiction is in no position to throw stones at anyone.  However, he has done so and in my view his purpose for doing so is, manifest: to use the words of his counsel, Mr. Smith, C. seeks to “demonize” D. while attempting to normalize his own marijuana use.  

[31]        C. said they fought at least every week over housing and financial issues because he was not working, commenting that D. was not covered by health insurance, so he had to pay her medical bills.  He testified that he had to pay $2,000.00 - $3,000.00 for the birth, although in cross-examination he asserted that the cost was around $3,000.00 and that the bill “may have been” to both of them.  D. says the medical bills were approximately $2,000.00 in total, and she contributed to those bills from the cash she earned doing housekeeping for people.  While I accept that C. contributed to the cost of Ms. V.’s doctor’s office visits prior to the birth, it is plain that he didn’t pay $3,000.00 in medical bills resulting from the birth.  The bill for the hospital stay was $1,366.00 and was directed to D., as Exhibit 18 clearly shows.  Only two payments, totalling $370.00, were made on that account before the parties separated.  C. testified he has paid nothing towards the medical expenses since the separation.  The balance owing is, in fact, being paid in instalments, by D.

[32]        The medical bills were for the medical care of D. during her pregnancy and delivery of their child while they were a married couple.  This was a necessary expense and it is certainly one which C., as the only person in the relationship with the legal ability to work, should have paid - yet he says they had problems in their relationship due to quarrelling because of the fact that those bills remained outstanding.  Apparently C. was willing to expend their resources on his hockey and his marijuana habit, but resented his obligation to pay the medical bills, despite the fact that his parents covered their food and shelter.  I find that C. has grossly exaggerating his contribution to the payment of this family debt while simultaneously attempting to mislead this court by falsely presenting himself as having shouldered the responsibility for it, when in fact D. has been obliged to pay it. 

[33]        As a result of this evidence and the incredibility of C.’s other assertions as described above, I give C.’s evidence little weight and where it differs from that of D.  I accept her evidence.

[34]        C. says that while the parties lived in Sechelt and on one occasion after the parties moved to Prince George, D. assaulted him by pushing him (in Sechelt) and by hitting him a few times on the face and body (in Prince George) when a former girlfriend of his contacted him on Facebook.  D. denies assaulting C., although she admits pushing C. in Sechelt after she says he pushed her first.  There is no independent evidence from anyone about these particular complaints.  However, in my view C. is not a reliable historian and I am not satisfied that these incidents occurred in the way that he says, to the extent that they occurred at all.

[35]        I find that D. is not a perpetrator of family violence.  I find that C.’s claims in support of that contention are not persuasive and for the most part are plainly absurd.

[36]        D. complained that C. had a temper and behaved violently on occasion. According to her, there were a number of incidents that led to the final separation of the parties.  The parties agree that these incidents occurred, but they differ as to details and their perspective on who was at fault.

[37]        D. says that C. had quite a temper, and that, when angry, he broke things - cell phones, the windshield of the car by throwing keys at it, broke an indicator light (while M. was present), broke the car door handle (when S. was present), and broke a glass coffee table with his fist.  She said that although she had not had a problem with him smoking marijuana, it became a problem when he insisted on stinking up the bedroom with his stash and particularly when he lost his temper because his supply ran low.

[38]        C. admitted that he has broken many cell phones.  He said he hated getting texts from D. and refused to respond to phone calls from her so he “usually just smashed his phone”; he also admitted that she was there when he did that.  He admitted smashing numerous phones.  He admitted that he broke car door handles, noting in particular that he did so when S. was sleeping in the car and he went to pick up M. at a friend’s place and found that M. wasn’t ready.  He admits when he is angry, he has wrecked stuff, including that he broke her phone, damaged property and wrecked his own stuff.  Yet, he says he cannot think of any reason for D. to fear him, since he never slapped, hit, or choked her.

[39]        C. says that D. typically looked after S. at night because he slept like a rock at night but that he helped to look after S. during the day.  It should be noted that during much of the time after S.’s birth, C. was not working.  He also explained that he did not look after S. during the day because he was busy with M. (which, I find, could not have been particularly onerous because M. was at school during the day).  He says that on one occasion in March 2014, after S.’s birth, he was sleeping on the couch and D. awakened him during the night because S. was crying.  He says he picked up S. and as he came around the bed (now apparently in the bedroom) D. was complaining that he was not a good father and pushed him into the nightstand.  He says he got upset and that D. would not let him out of the bedroom.  He says that D. asked him to hit her, saying “you know you want to hit me”.  He says he put S. down on the bed and hit a framed picture that was on the wall, causing it to break, noting “that backed her up”; then he said he put S. on the floor in the bedroom and tried to leave the house.  He said D. was screaming at the door, and so he went back into the house, and continued arguing with her.  He says that she said she would call the police, so he took her cell phone from her and broke it.  He says she then grabbed the house phone and called the police, and retreated to the bathroom while on the phone with the police, slamming the door.  C. said he put his foot in the door to prevent her from closing the door and that after D. tried to slam the door on his foot three or four times, so it popped off its hinges.  Then he went upstairs and spoke to the police on the phone until they arrived and he went, at the suggestion of the police, to his brother’s for the night.

[40]        D. said that she had been ill that week with migraines.  She said she asked C. for help with S., who was crying, while she got her bottle ready.  According to D., C. responded with “’fuck me’ you are constantly nagging me, why can’t you just deal with it”.  She said he picked S. up off the bed and called D. a “Fucking bitch” and then went to push past her; when she asked him why he was being so aggressive and told him not to be so mad, he smashed the picture on the wall.  She told him if he didn’t calm down she would call the police and he grabbed her cell phone out of her hand and smashed it several times on the coffee table.  She said she got S. from him, grabbed the cordless phone, and retreated to the bathroom, closing the door.  She said he kicked the door, and on the third kick his foot went through the door and the door popped off its hinges.  She said she spoke to the RCMP dispatcher who told her to put C. on the phone, and she did so and he took the phone and went outside to speak to the police.

[41]        Even on C.’s account of events, no behaviour that he attributes to D. could possibly explain or justify what he admits he did: smash the picture on the wall, smash D.’s cell phone, and interposing his foot into the bathroom door while D. was inside, all because she asked him for help with the baby.  I do not accept that it was D.’s action that caused the bathroom door to break.  Whether it broke as a result of her attempting to close it from within, or it broke as the result of him kicking it, the undisputed fact was that D. had retreated to the bathroom, away from C., when he tried to force his way inward to stop her talking to the police.  This behaviour on his part is not consistent with D. being the aggressor.  Further, on either account of events, he perpetrated this violent behaviour in S.’s immediate presence.  I find that C. was the perpetrator of the family violence that occurred on the March incident.

[42]        I find that this was not an isolated incident.  C. admits that he resorted to smashing things on multiple occasions when he was angry, and that he did so in the presence of the persons he was angry at - whether D. and S. (in the case of her phone, his phone, the picture and the door) or M. (in the case of the car door handle).  Such behaviour will inevitably cause discomfort, alarm and fear in those it is directed at and I find that C. behaved that way for that purpose.  These incidents of violent and destructive behaviour constitute family violence perpetrated by C.

[43]        D. testified that C. became angry on other occasions also, in particular after M.V., D.’s mother, came to visit in April 2014.  Oddly, he denied that Mrs. V. had made the visit to see her new granddaughter, instead insisting that her visit was the result of the incident in March to which the police were called (essentially, she came to visit not to see her new granddaughter, but to in order to criticise C.).  C. testified that he felt that M. V. always took D.’s part in any disagreement between them and undermined his authority with respect to his discipline of M.  One incident he complained of occurred when he returned home from work while the family was house-sitting at the home of D.’s friend, A. W.  He said that he discovered that M. had left the lights on in the TV room downstairs and he was angry at M. for that and chastised him.  He complained that D. and her mother seemed to think it was no big thing, explaining that they had called M. up from playing in order to eat dinner and that he would soon be returning to continue playing. C. said he felt undermined.  He was angry.  He said D. gave him dinner but he was unhappy.  He took his keys and drove to his brothers and then spent the night at his parents. 

[44]        The account of events from D. and her mother is slightly different.  D. said that C. exclaimed “What the fuck, why are the lights on?” when he arrived home and that he complained she was undermining him when she explained that she had just asked M. to come upstairs.  M. V. said that C. was angry and shouting at M. for leaving the lights on, then yelled at D. when she gave him his supper, saying “What is this” and carried on being angry and then left for the night.

[45]        It appears to me that C.’s angry reaction to M.’s failure to turn off the lights in the TV room was out of all proportion to the gravity of this minor error by a child.  He interpreted the efforts of D. and her mother to protect the child from his unreasonable anger as somehow undermining his authority.  In my view, it was this sort of bullying behaviour by C., which fuelled the events that led to the separation of the parties on April 28, 2014.

[46]        C. says that M. ordinarily left the family newspaper on the kitchen table and then went out to deliver the rest of the papers on his route each morning.  That morning he did not leave a paper for the family and indicated that there had not been enough newspapers delivered, something that often happened.  C. called the newspaper to order another one, but then found a newspaper in the garbage.  He asked M. why it was there and M. responded that he didn’t know.  He asked M. again after school receiving the same response.  Then Mrs. F., in C.’s presence, asked M. about it, and receiving the same response, she accused him of lying and demanded to know the reasons he put the newspaper there.  The boy continued to assert that he had not done so.  It appears that neither Mrs. F. nor C. thought to enquire as to whether anyone else in the household had put the newspaper in the garbage.

[47]        D. came upstairs when she heard the commotion to find M. crying in front of his dinner at the table.  She said to them that if M. said he didn’t do it, then he didn’t, and took M. downstairs; C. followed.  He said he wasn’t shouting, but he was very firm, adamant, and that he was “explaining with his hands,” whereas Mrs. V. described him as shouting and jumping up and down.  He said M. V. jumped up and said “take it out on me” whereupon he said he told her to leave his parents’ house and then went upstairs exclaiming that he was “tired of women asking him to hit them.”  He says he then went to a bedroom and did not return, although he heard his parents go downstairs.

[48]        Mrs. F. says that she heard C. exclaiming he was tired of women telling him to hit them and that she and her husband went downstairs after that and engaged in arguing with M. V. and D. as well, but said she and her husband did not tell anyone to leave.  D.’s unchallenged evidence was that during this conversation, Mr. F. Sr. said he put the newspaper in the garbage can, but told M. if he ever did it he would be in trouble.

[49]        In cross-examination, C. admitted that he said “get out of MY house” and asserted that he had assumed that D. and the children were going to stay - that he was only kicking out M. V.  However, I note that when he and his mother left the house while D. was making preparations to leave, they left the baby’s car seat sitting outside in the driveway.  That action is clearly at odds with Mr. F.’s suggestion that he thought his wife and children were remaining in the house.

[50]        Much evidence and argument was presented on the question of whether C. said “get out of my house” to D. and the children, as well as M. V., or just M. V.  To my mind, it does not matter.  The treatment of M. by C. and Mrs. F. was intolerable and clearly not going to end.  Aside from C.’s angry demands, Mr. and Mrs. F. also engaged in the argument downstairs with D. and M. V.  As far as I am concerned, remaining in that hostile place at the mercy of C. and his parents was not an option for D. and the children. 

[51]        I find that C.’s words and actions that night caused D. to believe that she and the children must leave with her mother, and that not only did C. know that, he left the car seat out with that expectation.  Thus, I conclude that C. did, in fact, cast his wife and children out of their home, not because of any family violence committed against himself by any of them, but because he was determined to make M., a child, confess to something he said he didn’t do (and which, I find, he didn’t do) and would not tolerate any opposition from his wife or mother-in-law.  I find that behaviour to be abusive, coercive and controlling behaviour directed at his family members.

[52]        C. testified that the day after D. left the family home he drained the family bank account of all $2,000.00 it contained.  He did so, he testified, in order to prevent D. from leaving the country and to “protect his credit.”  Much was made of the fact that D. was in possession of S.’s passport later, after they went to Sechelt.  However, D. testified that she collected the passports along with many other papers, including C.’s passport, several days after they separated when she attended the F. residence to pick up their belongings.  When she arrived there she found S.’s belongings already packed and ready to go.  C. confirms that was when all of the belongings were picked up.  Thus, the passports (without which D. could not have left the country) were not in D.’s possession at the time that C. drained the bank account and left his wife, child and step-child penniless and homeless; the passports were in the same drawer they were always kept in, at his residence.

[53]        On the basis of that evidence I find that C. was not, when he drained the bank account, seeking to prevent D. from leaving the country; rather, he was depriving her, his step-child, and his child of the necessities of life by rendering them penniless and homeless the morning after his behaviour left them no real choice but to leave the family home.  C. knew D. was not legally permitted to work in Canada and that she and the children had no other means of support.  Nevertheless he deliberately refused to provide support for them in any way and removed the only funds to which D. had lawful access.  I find that this was a deliberate deprivation of the necessities of life, an unreasonable restriction or prevention of D.’s financial autonomy.  It was a calculated and deliberate decision to inflict desperate poverty on D. and the children in order to control their behaviour and inflict emotional distress. Thus, I find that action constituted family violence as defined in s. 1 of the FLA. 

[54]        Additionally, C. also admitted that despite the fact that the Order of Judge Weatherly created a shared parenting regime giving D. 48% of the parenting time with S., including almost all of her daytime hours (when she would have been consuming food and diapers), he claimed the Canada Child Tax Benefit retroactively resulting in D. receiving a demand from the federal government requiring her to repay the benefits she had received.  He testified that he saw no reason to tell the authorities that D. had any parenting time when he made the application on the grounds that he was the “primary parent”.  In my view, this behaviour by C. was Dickensian; not satisfied with inflicting poverty and homelessness on his estranged family, he also sought to worsen their condition by crushing D. with debt.  It should be remembered that C. was fully employed at the time and fully supported by his parents and absolutely not in need of the government supplement.  I find this was another part of a pattern of abusive, controlling, coercive and vindictive behaviour on the part of C. against D., M. and S. and is another example of the infliction of family violence by C. on his family members.

[55]        C. testified that he offered to support S. by purchasing diapers and formula, but refused to provide D. with the funds to purchase the same, insisting upon “in kind” delivery only - even when D. was residing, to his knowledge, in Sechelt, approximately 1000 KM from Prince George.  After her return to Prince George, C. still refused to provide any support for S. unless D. provided him with her address to deliver such items to, even though he met with her personally every day at the pickup and drop off point.  It would have been a simple matter for him to provide a bag of diapers or a case of formula at that time, but he refused to do so.  In my view this “offer” was just another effort by C. to exert control over D. by depriving their child of the necessities of life unless D. complied with his demands.

[56]        I also heard evidence from D. and Ms. W., which I accept, that C. followed them in his vehicle, presumably to find out where they were going.  I do not accept that C.’s behaviour on this regard or his demands for D.’s address had anything to do with a legitimate need to know where S. was staying during D.’s parenting time.  As his mother, Mrs. F. said in her evidence, she knew where D.’s Elizabeth Fry residence was because she had attended there with D. to drop off donations before the parties separated.  There is no reason to believe that Mrs. F. would not, or did not, share that information with C., unless of course, she, like D., was concerned about D.’s security.  In my view this behaviour is yet another example of C. perpetrating family violence on D. by stalking her.

[57]        The behaviour exhibited by C. at the exchanges of S. causes me grave concern.  C. denies shouting at D. and instead attributes that behaviour to her.  For the reasons earlier given, where C.’s account differs from D.’s, I prefer D.’s version of events.  I accept that C. shouted and denigrated D. in front of S. and M. when she refused to sign his firearms application at the exchange of S., and his behaviour caused S. to cry.  It seems obvious that C. continues to lack basic self-control and will give in to angry outbursts in the presence of the children regardless of the distress and harm he causes them.

[58]        In short, I find that C. has perpetrated family violence as defined in the FLA, both before and after the parties separated.

[59]        The Application before me regarding parenting time is for S. only.  C. has not applied for contact time with M.  In considering what parenting regime is in S.’s best interest, I am obliged to consider all of the applicable factors in s. 37 of the FLA.

[60]        S. has been raised by both parents, although it would appear from the evidence that until the parties separated D. provided the bulk of the care for S.  C. admitted that he slept like a rock at night and explained that he had less to do with S. during the day because he was busy with M.; by the time that the parties separated, C. was working during the day.  When the parties separated, S. remained with her mother until D. returned with her to Prince George, at which point C. retained S. for a period of time.  Since the Order of Judge Weatherly on July 18, 2014, S. has spent all weekdays with her mother, plus alternate weekends and Tuesdays overnights.  It is apparent from the email correspondence that S. has spent additional consecutive overnights on other occasions (such as June 17 - 24, September 19 - 21, September 22 - 29, 2014) when C. had other plans, such as hunting and out of town work. 

[61]        C. also withheld D.’s parenting time with S. on S.’s first birthday, claiming that D. had moved away from her Elizabeth Fry housing, contrary to the Court Order.  I find this claim to be disingenuous.  C. said that because D. commented in an email on October 9, 2014 (in response to jibes from C.) that S. had her own bedroom, bed and belongings at D.’s home, that D. had therefore moved away from Elizabeth Fry Housing contrary to Court Order.  It is apparent form the foregoing emails between them that C. had refused to comply with the court ordered drop off time on October 8 and was seeking to change the drop off time on October 13, S.’s birthday, in order to suit his travel plans for a visit to his grandmother out of town.  He was aware that D. had a birthday party planned for S. which included M., other friends, and that it was very important that S. be dropped off in time for that party.  D. had already offered a compromise: to pick up S. at 2 PM instead of 7:30 AM as the Court Order provided.  Instead, C. withheld S. from her mother and brother on her birthday, and worse, sent D. no word whatsoever until the following evening, leaving her to attend repeatedly at the pickup location and to spend more than 24 hours wondering whether some tragic motor vehicle accident may have occurred preventing any communication from C..

[62]        I find this action on the part of C. to be high handed and vindictive in the extreme.  Although S. was too young to remember her first birthday party (or the complete loss of it), her mother and brother certainly will.  The disappointment and growing terror they felt that night and the following day will not be forgotten.  The absence of photos of the party will, in later years, be the subject of awkward questions from S. and it will be difficult for D. to invent answers which will support a positive image of her father without being completely false.

[63]        The email correspondence does reveal that at times, the parties seem to be able to work together to co-parent S., but my review of the emails also satisfies me that C. regularly communicates in a small minded, vindictive way to denigrate and criticize D.  D.’s emails to him do not invite or justify his behaviour.  My review of the voluminous emails between the parties reveals that, in addition to denying D.’s parenting time on S.’s first birthday, C. often changed the pickup and drop off times without seeking D.’s agreement and unilaterally placed S. into daycare when D.’s parenting time coincided with court appearances.  C. justified ignoring the Court Order of Judge Weatherly on the basis that the Order of Judge Callan gave him primary parenting responsibilities.

[64]        Both parents profess to love S. and I am satisfied that she is strongly bonded with both of them.  Both are capable of meeting her physical needs.  Unfortunately, C. is apparently willing to put his desire to denigrate D. ahead of his daughter’s needs: oblivious to his hypocrisy, he sent an email criticizing D. at length for the fact that S. had a wet diaper when he picked her up one evening, while he chose to leave her in that condition all evening and overnight rather than change her to a dry one.  This is but a small example of C.’s unwillingness, as a parent, to put the best interest of the child ahead of his convenience or his desire to denigrate her mother.

[65]        Sadly, I have before me a cogent, bitter example of C.’s absolute unwillingness to set his anger and self-righteousness aside for the sake of a child: the breakdown of his relationship with M.

[66]        There is no dispute that C. treated M. as his own child during the relationship, both before the parties were married and afterward.  C. testified at great length about his attachment to M. and M.’s attachment to him.  He produced handwritten notes and birthday cards from M. to him which attest to M.’s love for him.  One particularly poignant note was written by M. before the parties were married, thanking C. for taking him skating and camping and letting him sit on the bench at hockey - and apologizing for asking C. to be his step-dad.  In court, C. extolled his virtues as a parent to M., by taking him hiking, fishing and helping him with his homework and attending his school as a parent.  My notes of his evidence on this point were:

[67]        Indeed, it appeared to me that the import of C.’s self-congratulatory evidence in this regard was that he persevered in the relationship with D., as difficult as it was for him, mostly for M.’s benefit, in order to give him a stable home and upbringing.

[68]        Much time was spent during the trial on the events of April 28, 2014, which led to D. leaving F. home with her mother and the children.  But it is not to be forgotten that the spark for this entire event was the accusation, by C. and his mother, that M. had placed a newspaper in the garbage can.  I note that the evidence of D. that C.’s father eventually admitted to having placed the newspaper there was not contested.  Why is this important?  Because C. and his mother mistakenly accused M. of wrongdoing, and their insistence that he was lying when he protested his innocence led directly to the expulsion of M., his mother, sister, and grandmother from the F. home.  I note C. has never apologized to M. for that wrongful accusation, and continued at trial to place the blame for the whole debacle on D., her mother, and most significantly, on M.  Despite his supposed love and devotion to M., C. completely cut him off and refused to speak to him for months on end.  It is with that context in mind that I must assess the depth of C.’s professed love for S.  If C. is prepared to betray the love of one child whom he professes to love, how can I, or anyone else, be confident that love he professes for another child will be constant?

[69]        C.’s apparent willingness to flout Court Orders makes it clear to me that he cannot be trusted to abide by orders imposed by the court and cannot be trusted not to abuse the “primary parenting responsibilities” given to him by Judge Callan.  It appears to me that he is willing to behave in a high handed, controlling way with no regard for S.’s best interest whenever the fancy strikes him.  Additionally, C.’s evidence at trial reveals his absolute unwillingness to accept responsibility for any of his life choices, whether that be to upgrade his education, deal with his addiction to marijuana, or even to marry and support a family.  His evidence causes me to be concerned that C. lacks the basic maturity necessary to exercise primary parenting responsibilities for S. 

[70]        C. has asserted that he should retain primary parenting responsibilities because he is the more stable and financially responsible of the parents.  He suggests that D. is financially irresponsible and irresponsible as a parent to M. because her employment as an international DJ has been (unsurprisingly) international.  (I do not find an international upbringing to be irresponsible; in my view exposure to other cultures, languages and people is invaluable, and by all accounts M. has suffered no harm and has benefited by his international experiences).  D. has had periods of unemployment and has accepted social assistance from time to time over the years.  It is also suggested that she should be considered a less capable parent because she has often been supported by her mother.  Yet, she managed to raise M. on her own and by all accounts did a good job of it.

[71]        However, it is clear from the evidence I heard that C.’s employment has similarly been sporadic.  He too moved in with his parents, supposedly so that he could, with their assistance, upgrade his education.  However in the two years that he was living with his parents prior to the separation of the parties, he had failed to upgrade himself at all and spent much of his time unemployed, supported by his parents.  

[72]        As far as willingness to meet expenses as they become due, the evidence before me is that D. has made arrangements to pay by installments, from her meager income, the outstanding medical bills arising from her pregnancy and S.’s birth, whereas C., though employed, has failed or refused to do so.  C. has also failed to support his wife and M. as he undertook to do as their sponsor.  As between them, I am not satisfied that C. has demonstrated any greater financial responsibility.

[73]        C. has pointed out that D. has moved several times since their separation.  While that is true, those moves were necessary because of her extreme poverty brought on by C.’s decision to render her homeless, provide her with no support whatsoever, and abscond with all the family funds.  When D. went to Sechelt after the separation that was part of a planned visit of which C. was fully aware and to which he had consented.  He knew that D. had nowhere else to go and he assisted her in leaving by packing up all of S.’s belongings.  To the extent that he later claimed, on the basis of her move to Sechelt, that she had changed the child’s residence without his consent or knowledge, I find that that claim to be false.

[74]        Despite the challenges resulting from the poverty imposed on her by C., D. has managed to establish a stable residence for herself and the children, and to raise them on her own through the charity of strangers, and the generosity of friends and relatives.  It is not lost on me that D. could have left the country and returned to England at any time, to the safety and comfort of her mother’s home, instead of remaining in a strange land to struggle in poverty and uncertainty.  That she did not do so is a testament to her devotion to her daughter and her commitment to remaining in this country.

[75]        It is true that D.’s immigration status is uncertain.  Thanks to the refusal of C. to honour his undertaking to support D. and M., D. has been forced to rely on social assistance and that reliance places her permanent residency application in jeopardy.  She believes that if C. continues to have primary parenting responsibility then she could be deported without S. 

[76]        The evidence is clear that C. made inquiries, in the company of his mother, as to the immigration consequences of their separation and his testimony made it clear that he knew the adverse consequence that would result from any reliance by D. on public assistance.  I am satisfied that C. knew his refusal to honour his undertaking to support D. and M. would necessarily result in her reliance on social assistance, thereby ensuring her deportation.  C. and his mother testified as to the arrangements they would make for the care of S. if D. were deported.  I find this situation was deliberately engineered by C. in an effort to permanently sever S.’s relationship with her mother.  I find that it is contrary to the best interest of S. to have her relationship with her mother severed, and given that C. has intentionally fostered the situation that has made D.’s deportation more likely, C. has deliberately proceeded to harm his daughter’s interests.

[77]        Taking all of the foregoing into account, I find that C. has demonstrated a significant impairment in his ability to exercise parenting responsibility for S.  C. has consistently placed his own desire for control and vindictiveness above S.’s needs for a safe, nurturing environment, and has risked harm to her physical, psychological and emotional safety, security and well-being by his infliction of family violence, including his angry outbursts and destruction of property in her presence, by depriving her and her mother and brother of the necessities of life and financial security, and by seeking to sever her bond with her mother by engineering a situation under which D. may be deported.  I also find that he has abused the “primary parenting responsibility” that was granted to him by Judge Callan when he flouted court ordered parenting time by withholding S. from her parenting time with her mother on her birthday in 2014 and on other occasions and by claiming the Child Tax Benefit in its entirety without revealing to the authorities that he shared parenting time with D., thereby removing yet another source of income from D. and the children.

[78]        D. has sought an entirely shared regime of parenting responsibilities with a provision for mediation in case of disagreement.  I have considered whether the parties cooperate well enough to have an entirely shared parenting regime and it seems to me that they are capable of cooperating over things like doctor’s appointments etc.  It is to be hoped that they can improve generally.

[79]        It seems to me that the problems with decision making thus far have stemmed from the abuse by C. of his designation as “primary parent.”  C. will no longer have that designation.  The parties will have shared parenting responsibilities as set out in the draft Order prepared by Ms. Reed, Counsel for D., except that in the event of a disagreement regarding major decision, if a resolution is not arrived at through mediation, as provided in the draft Order, then D. will make the final decision unless a court orders otherwise.  Either party will be at liberty to apply to the court to seek such a determination no later than 30 days after the decision is made.

[80]        It seems to me that S. is accustomed to seeing both of her parents and her brother multiple times per week and I am of the view that should continue.  I am of the view that S. will be more comfortable without so many daily transitions from household to household and it would be better for her bond with her brother that she have more time to spend with him in the evenings.  Further, for the reasons set out earlier, I am of the view that Mr. F.’s ability to parent S. is impaired.  I recognize that he has taken anger management counselling (as a result of the March incident) but I note that after he did so he continued to behave in the same angry, vindictive, coercive and controlling manner that he exhibited before taking it.  The more time he spends with S., the greater the opportunity for him to become angry and to expose her to family violence.  That is contrary to her interest.   Accordingly the  parenting time will be as follows:

[81]        I order that the balance of the relief sought, including Skype and telephone access, residency, holiday parenting time, make up time, pickup and drop off, notice, written communication, and illegal drug use, and previous Orders, will be as set out in the draft Order prepared by Ms. Reed.  I make no order with respect alcohol consumption.

[82]        D. seeks child support for S. retroactive to May 1, 2014.  D. had sole parenting time with S. for the month of May 2014, shared time for the month of June 2014 and by July 18, 2014, under the Order of Judge Weatherly, D. had court ordered parenting time for 48% of the time while C. had the balance.  In practice, D. had additional parenting time when C. found it convenient.  Since D. had parenting time with S. greater than 40% of the time, S. 9 of the Federal Child Support Guidelines applies, as follows:

[83]        C. argued that no party should be ordered to pay support for S. because both parties have comparable standards of living.  He pointed out that he lives modestly with the support of his parents and D. lives modestly with the support of social assistance and charity.  Certainly, D.’s income is so low as to be negligible.  That is manifestly not the case for C.  C.’s financial statement indicates that he earned $39,310.00 in 2013, $27,490.00 in 2012 and $50,925.00 in 2011.  That is an average income of $39,241.00 annually, almost four times D.s’ income.

[84]        Given a shared parenting arrangement, and considering support only for S., C.’s obligation based on his Guideline Income would be to pay $316.00, taking into account the $41.00 D. would notionally have had to pay him.  However, C. testified that he had been accepted to a training program that would cause his income to be reduced while he attended.  On the other hand it might produce a higher income if completed.  In any event, he continues to be supported by his parents and contributes only to groceries.  Thus I find that his disposable income is significantly greater than that of most wage earners who must pay for their own shelter.  There is no basis whatsoever, therefore, reduce the child support payable by C. to D. below that provided under the Federal Child Support Guidelines as suggested by his counsel.

[85]        On the other hand, given D.’s extremely limited means, and greater needs since she has had S. throughout her daylight hours, unlike C., it seems to me the child support payable to her should be greater than the Guideline amount in a shared parenting regime.  There are a variety of ways the child support payable could be adjusted to take into account the conditions, means, needs and circumstances of the parties, but I am of the view that the simplest way is to treat the situation, retroactive to May 1, 2014, as if D. had parenting time with S. greater than 60% and the regime was not shared.  I find that C. should pay child support for S. on the basis of an income of $39,241.00 annually, commencing May 1, 2014.

[86]        C. agreed to sponsor M., as well as his mother, as immigrants to Canada and undertook to support them both to the Government of Canada.  As I noted earlier, C. testified that he was very close to M. and that the child loved him as a father.  He agreed that it was his intention to adopt M. and in it was in furtherance of this intention that M.’s father provided written, notarized consent for C. to do so, as evidenced by Exhibit 17.  D.’s testimony, which was not disputed on this point, was that although she had never restricted M.’s Skype access to his father before, she did so in the fall of 2013 because C. felt that M.’s continued relationship with his biological father interfered with his role as M.’s step-father and was confusing for M.  Specifically, C. told M. he couldn’t have contact with his father.  Further, although C. testified that M. was a good boy who did not require discipline, he also complained that D. interfered with his attempts to discipline M.  Thus, C. clearly was of the view that it was his right to discipline M., whether the child actually needed it or not.  All of this behaviour clearly places C. in the place of a parent.

[87]        After the separation, C. utterly ignored M.; he did not speak to him despite the fact that M. was present every day at the pickup and drop off of S.  C. claims that the severance of his relationship with M. was the fault of D., or of M.  However, in my view the fault for the severance of the loving trusting relationship M. had with C. lays entirely at the feet of C.  It was C. who caused the commotion that led to M., his mother, grandmother and sister leaving their home and it was up to C. to apologize and make that right.  It was up to C., as the adult, to reach out to M. and to seek to mend fences.  There was certainly nothing that M. could do about it.

[88]        C. asserts that he has either no obligation or a reduced obligation to support M. because (a) M. is not his biological child; (b) M.’s biological father has the obligation to support him; and (c) his relationship with M. has broken down due to the actions of D. or M..  C. argues that D. should seek support from Mr. F. before she can seek support from C.

[89]        D. argues that regardless of that breakdown, C. has an obligation to support M. because he knew all along that M.’s father had never provided support for him, he voluntarily assumed the role of parent to M., he planned to adopt M. and he actively interfered with M.’s relationship with his biological father in order to supplant his role as father.

[90]        I turn first to the Family Law Act, s. 146 and 147:

[91]        There is no dispute between the parties that C. is a step-parent under s. 147(4) of the Act - he did contribute to the support of M. for over one year.  In fact, because D. was prohibited by law from working in order to financially support M., C. was for all practical purposes, M.’s sole financial support.  This action was commenced within one year of the separation of the parties, so C. is clearly within the ambit of s. 147(4) of the FLA.  

[92]        Just because C.’s obligation to support M. is secondary to his biological parent does not mean he has no obligation.  Section 147(5) (a) and (b) require the court to consider that obligation in the light of the standard of living the parties had prior to separation and the duration of that relationship.  The FLA does not say, anywhere, that the obligation to pay child support depends upon the maintenance of a relationship between the step parent and the child.

[93]        Although the Provincial Court has no jurisdiction to grant a divorce, the parties were, in fact, married and thus the provisions of the Divorce Act apply to their situation. The jurisprudence on the subject under the provisions of the Divorce Act is also helpful to assess C.’s obligations in this situation.  Ms. Reed directed my attention to the case of Chartier v. Chartier, [1999]1 SCR 242, 1999 CanLII 707, a Supreme Court of Canada decision which provides direction on the question of “under what circumstance, if any, can an adult who is or has been in the place of a parent under s. 2 of the Divorce Act withdraw from that position?”  In Chartier, the wife had a child when the parties moved in together in November 1989.  The parties had a baby in August 1990 and were married in June 1991.  They separated in May 1992.  Altogether the relationship lasted about 2.5 years - about the same overall length as the relationship C. and D., although C. and D. were married longer.

[94]        In the Chartier, the Supreme Court of Canada held that a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent.  The court referred with approval (at para 22)  to the remarks of Kerans, J.A. in Therriault v. Therriault (1994) 149 A.R. 201 as follows:

[95]        The court also approved, at para 41, of the remarks of Beaulieu J. in Siddall v. Siddall 91994) 1994 CanLII 18384 (ON SC), 11RFL (4^th) 325, which I consider to be particularly apposite to the case at bar:

[96]        C. argues that he has no obligation to support M. because their relationship has broken down.  As I mentioned earlier, I find that C., not M. or D., is responsible for the breakdown of the relationship between M. and C.  However, regardless of the cause of the breakdown, I am governed by the remarks of the Supreme Court in Chartier at para 45:

[97]        With respect to C.’s argument that D. must seek support from Mr. F. before seeking it from him, the Supreme Court of Canada in Chartier dismissed that argument as well at para 42:

[98]        In view of the foregoing, it is obvious that C. is obligated to pay child support for M.  I see no reason to depart from the Child Support Guidelines with respect to the quantum of support of M., given the standard of living and income earned by C. during the relationship.  If C. wishes to pursue Mr. F. for contribution, he is welcome to do so.  C. will pay child support to D. for M. commencing May 1, 2014 based upon an income of $ 39,241.00.

[99]        The child support thus ordered for the support of S. and M. payable by C. to D. will be based on the Guideline amount for two children, in the amount of $601.00 per month, commencing May 1, 2014, for so long as each child is a Child as defined in the Family Law Act or until further court order.

[100]     I also order that the parties must exchange their Income Tax Returns for each year on or before May 15, and their Notices of Assessment immediately upon receipt.  I further order that the child support will be recalculated based upon that information and the child support payable will change to the recalculated amount as of the June 1 payment each year.

[101]     The findings of fact I have made thus far amply support D.’s application for a protection order.  C. has been the perpetrator of family violence on D. on repeated occasions in the presence of the children, both before and after separation.  I therefore grant the protection order sought in the terms sought in the draft Order prepared by Ms. Reed, to expire one year from today’s date.