IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This trial is what is classically referred to as a “high conflict case” where two parents, both capable of appropriately caring for their children on their own, but mouthing the words that they are acting in the best interest of their children, proceed to demonstrate with their behaviour, that, without direction from the court, they are not.  For the parents, “the fight is the thing”, in which in their enthusiastic desire to drag each other down, they have imperilled the emotional health of the children, driven doctors away from the children, recruited partisan allies, spent time and money almost ruinously on this dispute, employed at least six lawyers, and in this court case savaged their own reputations.

[2]           The trial, while unusual in that it was conducted by affidavit, and cross examination of the affiants, with two days for each party’s case, was administratively imposed, quite sensibly, by Judge McKimm, months before the trial.  This allowed the trial, in the words of the Provincial Court Family Rules, to proceed to a “just, speedy…and simple resolution” rather than providing a traditional multi day trial which would have taken perhaps two weeks of court time to conclude.  I compliment the two final counsel, for the parties, who initially were opposed to this procedure, for managing to conclude the evidence in three and a half days, in Vernon, with a further afternoon of argument in Kelowna.  All aspects of this dispute were canvassed by the parties.  As well, the parties brought so many contested applications to court, in a one year period, that Judge Chapman gave an order on April 12, 2013 preventing the parties from making further applications, without leave of the court, until the trial commenced.   

[3]           They both agree that they should be joint guardians of their two children.  They both want to spend significant blocks of time with their children, and each want the ultimate parental responsibilities to direct the children’s education and medical issues, even though there is no clash of values on those issues.  They both agree that C.B.G. should pay maintenance for the children, but naturally disagree about the amount.

[4]           Various issues, once heatedly contested, have fallen by the wayside.  J.L.G. is no longer seeking spousal maintenance from C.B.G., nor is she pursuing her initial application for supervised access by C.B.G.  C.B.G. has abandoned his application to have the maternal Grandmother’s access to the children restricted to supervised access only.  Fortunately they have concluded their property issues and were divorced in Supreme Court.  C.B.G. was convicted in Provincial Court of assaulting JLG, but was acquitted in Supreme Court. 

[5]           There was an extensive report prepared by a psychologist in January 2014, paid for by the parties, which sets out their personal circumstances, and is an exhibit in these proceedings.  Therefore there is little need to report details extensively, and I will only do a brief summary.

[6]           J.L.G. is 28 years old.  She had a sometimes loving but sometimes turbulent upbringing, and remains close to her parents, who have been together for over 30 years.  She has an adult sister.

[7]           Her mother J.K., who testified in this trial, is an emotionally volatile person, unpredictable in nature, whose behaviour has both been a concern and a support to J.L.G.  J.L.G. reports sexual abuse at the hands of her maternal grandfather H.V., who in her reports, was bi-polar and who physically assaulted all the female members of his family.  J.L.G. describes telling her mother, at the time, of these sexual assaults, and not being believed.  After H.V.’s death, J.K. went to the police and said she too had been abused by H.V., as a child, and now believed J.L.G.!  In 2011 J.L.G. said she was assaulted by her mother J.K., but they have now reconciled. J.K. has acted irresponsibly in the transfers of the children, once to such a degree that the police had to attend.  J.L.G.’s father G.K., although reported to take antidepressants, remains a stable and supportive person in her life.

[8]           Commencing at age 9, J.L.G. suffered from eating disorders, self-mutilation, depression, and saw numerous medical and therapeutic professionals.  As an adult she has actively sought and accepted help from that community.  As a young adult she experimented with cocaine, mushrooms, and periodically smoked marihuana--those illegal drugs are not issues for her now.  She has shoulder problems, and Irritable Bowel Syndrome, but is in otherwise good health. 

[9]           J.L.G.’s employment history is limited to two years of working with horses, at a furniture manufacturing plant, and a short time, at the auto body shop, owned by C.B.G.’s parents. 

[10]        Dr. Burima, the psychologist who conducted the s.211 report says that J.L.G. has adequate parenting skills.  Dr. Burima, while describing a cluster of J.L.G.’s problems, thinks she may possibly have a personality disorder.

[11]        J.L.G. has fortunately remarried, since the preparation of the s.211 report, to C.S.  C.S. was raised in a traditional Mennonite home, is steadily employed, and is content to have J.L.G. occupy the traditional role of homemaker and primary care giver to children.  J.L.G. is expecting their child shortly.  It is clear that C.S. has created a new stable environment for J.L.G., and been particularly helpful in carrying out peaceful exchanges of the children with C.B.G.

[12]        C.B.G. is 32 years old.  He describes a loving upbringing by his parents, who he remains very close to.  He has 5 younger siblings.  His mother, and one sister, are very supportive of him.

[13]        Both of his parents have invested heavily in this dispute, having loaned him $150,000.00 since April 2012, when he separated from J.L.G.  He is a “Red Seal” Auto Body and Glass Technician.  His father owns an auto body shop, where C.B.G. is an employee; before April 2012 the family plan was for him to be the manager of the business and ultimately take it over.  However the time spent with this dispute and with his children has precluded him from that plan, and the auto body shop is now managed by his brother-in-law.  His income has fallen to approximately ½ of his former income at the time of separation, as he is no longer in a managerial position at work.

[14]        C.B.G. had a conventional childhood.  He has no mental health history.  After graduating from high school in 2000 he did a lot of partying and drinking.  Between 2000 and 2012 he had three major car collisions, fortunately without harm to himself, and was arrested and placed in the drunk tank, charged with impaired driving but the charges were dropped, and charged for assaulting and threatening J.L.G., where he was first convicted, but acquitted on appeal.  He would describe himself as a very modest social drinker now, but uses marihuana, since 2002, and experimented with mushrooms and cocaine.

[15]        C.B.G. has no present health concerns. 

[16]        Dr. Burima reports that C.B.G. has adequate parenting skills.  She concludes from her psychological testing that C.B.G. may have “severe personality problems”, supported by collateral reports of abusive, aggressive and harassing behaviour. 

[17]        M was born [D.O.B.].  As the older of the two children he has been subjected to his parent’s erratic behaviour when they were together, and had to endure some ridiculous behaviour on both their parts during his exchanges.  For example, his parents had a protracted and aggressive dispute right in front of him over whether he should be in a forward or rear facing car seat.  He often displays anxiety, and odd behaviour.  At the time of the s. 211 report, his speech was delayed. J.L.G. thinks he might be autistic, while C.B.G. thinks M is perfectly normal. 

[18]        Z was born [D.O.B.].  He was born after his parents separated.  Any analysis of him is problematic, considering he is now less than three years old.  He too, like his brother shows signs of stress, his parents having managed to get into disputes about overnight visits, breast or bottle feeding and disagreements over his sleeping schedule.  He may or may not have a kidney problem.

[19]        Although both children once had a family doctor, C.B.G. was in such continuous conflict with the physician that the physician would no longer treat the boys.  As well Z was being examined by a specialist in the Okanagan for possible Kidney problems, but J.L.G. was so uncooperative with him, if Z has further problems, it will be necessary to have Z examined in the lower mainland. 

[20]        There was some evidence that M is aggressive with Z.

[21]        M.C.F.D. social workers on one occasion investigated the children’s situation, but concluded that they were safe. 

[22]        The parties met, married, and had a turbulent relationship.  Despite that they stayed together for five years, bought a home, and had their first child.  They lived in a traditional relationship where C.B.G. was the “breadwinner” and J.L.G. stayed at home with the child.  They conceived a second child, but separated in April 2012 when J.L.G. alleged she was assaulted by C.B.G., although he was ultimately acquitted of that.  They became simultaneously embroiled in Supreme Court over their divorce, and property settlement, while being involved in Provincial Court over guardianship and parenting time responsibilities, and child and spousal maintenance. 

[23]        Both have insisted on demonstrating to the court what an awful person the other parent is, and sadly demonstrated how selfish, self-centered and punitive they are themselves.  Although examples are numerous I will confine myself to only a few.  J.L.G. has refused to send information to C.B.G. in a parenting journal, which would travel back and forth with the children.  J.L.G. has refused to participate with a parenting coordinator, when it would have been a sensible way for both parties to resolve issues.  J.L.G. reduced transfers of the children to a mockery of adult behaviour. J.L.G. produced a female witness from a decade ago to tell the court about her troubled relationship with C.B.G. --and achieved little, for the witness was demonstrated to have exaggerated in her affidavit.   For his part C.B.G. has rejected taking the children to an assessment, arranged on short notice, because it would reduce his parenting time with the boys while they were being examined. He has maliciously taken a private journal, written by J.L.G. to record her most private thoughts, in order to assist her in her sexual assault therapy, and shown it to members of his family.  When told by Judge Cartwright to return it to J.L.G., his response has been to try and have his counsel enter it into evidence at this trial.  It was rejected by the court.  This grotesque gesture on his part, self-defeating in nature, to introduce a document which would only be prejudicial with little probative value, is particularly worthy of censure. (Counsel for C.B.G. has given me his undertaking that he has the journal and all copies, and will return it to J.L.G. after the passing of any appeal dates in this matter.)

[24]        I accept the factual findings in Dr. Burima’s report.  Dr. Burima has made a number of recommendations, advising the parties to seek therapy, try to understand each other better etc., which the parties would be individually advised to consider.  However they are outside the remedies traditionally used by the courts, which confine themselves to creating a structure, where the children might prosper, despite the behaviour of their parents. 

[25]        Fortunately, since April 2014, the behaviour of the parties has moderated, at least in their day to day lives, despite their courtroom animosity.  That probably is a result of three factors.  First, C.S., the new husband, has had a calming effect.  Secondly, C.B.G., in his single minded attack on his parent’s finances, imperilling their retirement, has to return to work, and cannot devote all his energy, and their finances, to this fight. Finally, the parties have been prevented by court order, as of April13, 2013, from returning to court continuously, for Judges to micromanage their behaviour. 

[26]        I therefore order that the parties are joint guardians of their children. 

[27]        As to parenting time I will take into account several factors.

[28]        Both parents love M and Z.

[29]        Both parties are capable of providing minimum standards of child care and neither have particular advantages as parents, but I caution them, that any more confrontational behaviour, or emotional stress on the children, once the boys are of school age, will likely send the school teachers to the social workers, where an apprehension could result. 

[30]        Family violence is an important consideration, but here it is difficult to conclusively say what went on between the parties.  Both parties make accusations against the other.  As long as the parties shall have no direct contact with each other, violence should not be an issue, and they both profess the same loving yet corrective and supportive principles in regard to the children.  Considering they might wish to exchange non-controversial information about the children, I will grant an order that they communicate only by e-mail or text message, but that neither party shall send more than one message per day to the other and no more than three messages in total, in a seven day period, or by communicating through counsel, or a third party, including mediators. 

[31]        The boys should spend meaningful time with their parents.  As the parties wanted to create the traditional home where the mother provided child care, and father the income--he being the only one of the two who can be meaningfully employed--that general pattern will continue.  There is no point in having the boys with their father, on days when he needs to work.  Moreover M and Z will soon have a new sibling with which they need to spend time, and bond with as a family.  Accordingly their primary residence will be with J.L.G.  As well, the boys have had to endure a complex access schedule which has subjected them to many exchanges, and so not to exhaust them further the number of exchanges has been reduced. 

[32]        Everyone agrees that in a situation where they can’t even communicate civilly, that co-parenting would not work.  That means that one of the parties has to have sole control of the parenting responsibilities, for the most part.  As the children will spend most of their time with J.L.G., the order will reflect that.  J.L.G. shall have sole parental responsibilities for M and Z, except for those exceptions which are noted below.  I will not order telephone calls between the children and the parent that they are not with at the moment, because that will simply open up another avenue of disagreement for the parties.  Nor will I require a journal to be exchanged.  C.B.G. shall receive information directly from third parties, who are involved with his children, and J.L.G. shall disclose the names to C.B.G. of those who provide services to M and Z, but because he has a demonstrated history of agitating others involved with his children C.B.G. is not to advance his views directly to the third parties.  C.B.G. will however be able to consent to emergency medical or dental treatment while the children are spending parenting time with him, and may register them in, and take part with them, in a sports, recreational, or cultural activity which falls within his parenting time. 

[33]        C.B.G. shall have parenting time with M and Z three weekends consecutively in a month, from Friday at 5:30 p.m. until 4:00 p.m. on Sunday, commencing March 6, 2015, and this shall include the statutory holiday if it falls on a Monday, until 4:00 p.m. that day.

[34]        C.B.G. shall have parenting time with M and Z every Wednesday from 5:30 p.m. until Thursday morning at 7:30 a.m.

[35]         C.B.G. shall have Christmas parenting time commencing in 2015, and every odd numbered year thereafter from December 24 at noon to December 26 at noon. 

[36]        C.B.G. shall have parenting time during the Easter holiday, commencing with Easter 2016 at 6:00 p.m. Thursday until 4:00 p.m. on Monday, and every even numbered year thereafter. 

[37]        C.B.G. shall have parenting time every Father’s day from 10:00 a.m. to 6:00 p.m., and J.L.G. shall have Mother’s day from 10:00 a.m. to 6:00 p.m., even if those days fall on a weekend that would ordinarily be spent with the other parent. 

[38]        C.B.G. shall have parenting time during the Thanksgiving holiday commencing in 2016 from Friday at 5:30 p.m. to Monday at 4:00 p.m., and every even numbered year thereafter.

[39]        C.B.G. shall have parenting time with M and Z for two consecutive weeks in July, and two consecutive weeks in August, as long as there is an intervening week when M and Z shall return to J.L.G.  C.B.G. must give written notice to J.L.G. by April 1 of each year, as to his preferred times. Parenting time in these periods shall commence at 4:00 p.m. on Friday and to conclude at 4:00 p.m. on Friday two weeks later. 

[40]        The exchanges of the children shall be at the Armstrong 7-11.  G.K. or C.S. shall do the exchanges on behalf of J.L.G.   Neither J.L.G. nor J.K. is to be present at any exchanges of the children. 

[41]        C.B.G. shall do the exchanges for himself, or may have any other person do the exchange on his behalf.

[42]        The parties shall not take pictures, or videos or audio recordings of the exchanges. 

[43]        C.B.G. shall give the original and all copies of J.L.G.’s journal to his counsel, who is bound by the terms of a lawyers undertaking to the court.

[44]         As to child maintenance I find C.B.G.’s evidence that income as disclosed in his financial statement is $35,033.92.  I acknowledge that J.L.G. thinks that income has been disguised as loans, but there is no proof of that at all, and the weight of the evidence supports C.B.G.  I retroactively order that his maintenance as of May 1, 2014, was $530.00 per month payable on the first of each and every month thereafter.  C.B.G.’s arrears are $0.00 as of January 31, 2015.  Neither party has advanced a claim for special or extra ordinary expenses.  As this file, is for the moment, in the Kelowna Registry I enroll C.B.G. in the Maintenance Recalculation program so that in May/June 2015, and each and every year thereafter, he shall file his income tax filing and assessment with the program and his maintenance obligation can be set for the coming year.

[45]        Although not in the form of an order, but by way of case management, should these parties continue to return to Provincial Court Family Court, that serious consideration be given by the Regional Administrative Judge to 1) assigning one Provincial Court Judge to hear all their matters, and 2) putting in place an order preventing further applications, without first obtaining leave, by way of written application, to that judge.