IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is S.H.M.’s application to vary an Interim Order.  The relief sought is that the child of the union would live with his father pending trial and B.E.M. would have reasonable and generous parenting time but no overnight visits.

[2]           B.E.M. filed a Notice of Motion applying to dismiss S.H.M.’s application and for an order pursuant to s221 FLA that no further interim applications be brought before the hearing of this matter on May 20^th through May 22^nd, 2015.

[3]           The parties have one child in common, K.S.M., born December 19^th, 2006.

[4]           There was a final order made in the file on March 16^th, 2007.  The order stated that the parties had joint custody and guardianship of K.S.M. and that primary residence of the child was with his mother.

[5]           For the past two years S.H.M.’s parenting time has been approximately Friday afternoons until Monday afternoon and Saturday evenings until Tuesday afternoons on a two week cycle.

[6]           In January 2015 B.E.M. gave notice of an intention to relocate with K.S.M.

[7]           S.H.M. objected and Notices of Motion were filed by both parents.

[8]           On January 29^th, 2015 a Consent Interim Order was made.  Amongst other things, it ordered the following:

[9]           S.H.M. filed on January 22^nd, 2015 an affidavit.  In paragraph 18 he stated that his wife N.M. provided lunches and appropriate clothing to K.S.M. for school and further than B.E.M. had been reported to the Ministry of Children and Family Development by community members with concerns regarding the neglect of her children.

[10]        An affidavit of N.M. was filed on January 22^nd, 2015.  Attached as exhibit D a letter dated January 22^nd, 2015 from K.S.M.’s school.  That letter mentions K.S.M.’s unusual reaction to a depiction of genetalia in a children’s book and his statement that his mother walks out of the shower naked in front of all her sons.  The letter adds that K.S.M.’s teacher phoned the Ministry of Children and Family Development to raise the situation.  This occurred on March 5^th and 6^th, 2014.

[11]        Another affidavit of N.M. was filed on February 17^th, 2015.  In paragraph 2 of that affidavit she stated that B.E.M. and K.S.M. had moved to eight different homes in the past eight years.

[12]        In paragraph 8 of her second affidavit, N.M. stated, “As long as I have known K.S.M., he appears to be hypersensitive to all things ‘private parts’ and ‘sexual’ in nature.  S.H.M. and his grandmother and all others close to him have noted the same thing.”

[13]        In paragraph 9 of her second affidavit, N.M. stated that when K.S.M. was in kindergarten, he pulled his pants down and exposed himself to all the other children after which he started seeing the counselor who comes to the school.

[14]        In paragraph 10 of her second affidavit, N.M. stated that approximately one year ago K.S.M.’s paternal uncle, T.M., had caught K.S.M. imitating a sexual act with his younger cousin H.M.

[15]        In paragraph 11 of her second affidavit, N.M. refers to disclosure by K.S.M.’s cousins (the children of A.M.) of sexual remarks including a reference to the incident with H.M.  This occurred in January, 2015.

[16]        In paragraph 16 of her second affidavit, N.M. repeated hearsay from J.M. that attributed to K.S.M. disclosure that he had seen B.E.M. having sex with someone on the couch.  The time of the alleged act and disclosure are both unspecified.

[17]        Paragraph 16 attributed to K.S.M. disclosure that he had seen B.E.M.’s boyfriend watching pornography when K.S.M. was supposed to be sleeping; that he had found a pornographic DVD in the player; and that he has seen his elder brother G playing video games in which girls strip.  She added that she had discussed the watching of the video games and counselled him to not do so.  The times of these alleged acts and disclosure are also unstated.

[18]        An affidavit of J.M., paternal grandmother of K.S.M., was filed on March 4^th, 2015.  In paragraph 11 that K.S.M. started in his second year of kindergarten to be “hyperaware of his own sexuality.”

[19]        An affidavit of T.M., paternal uncle of K.S.M., was filed on March 5^th, 2015.  Starting in paragraph 10 he describes the incident when he found K.S.M. simulating a sexual act with T.M.’s three and one half year old daughter H.M.  K.S.M. was six years of age at the time.  That incident occurred on September 1^st, 2013.

[20]        Paragraph 18 of that affidavit quoted K.S.M. as explaining his behavior because he had with his mother watched naked people having sex on television.

[21]        In paragraph 21, T.M. stated that he advised S.H.M. about the incident the following day.

[22]        In paragraph 24, T.M. stated that he reported the incident to the Ministry of Children and Family Development on September 6^th, 2013.

[23]        An affidavit of A.M., paternal aunt of K.S.M., was filed on March 5^th, 2015.  She stated that her children had visited with K.S.M. in January 2015.  At the end of that month on the drive home, her children had disclosed that K.S.M. had made several inappropriate sexual remarks to them during a “Truth or Dare” contest. 

[24]        In paragraph 13 of her affidavit, A.M. attributed to K.S.M. through her children several “dares” that two of them, “make out”, “hump” or “naked pole dance”. Disclosure is also attributed to K.S.M. that he had sex with H.M. until his uncle T.M. intervened.  It is stated that K.S.M. also repeated the statement that his mother had let him watch a “sex” movie with her.  As well K.S.M. is quoted as having stated that he had seen his mother have sex under a blanket on a couch.

[25]        In paragraph 14, A.M. stated that she advised S.H.M. of this disclosure shortly after her arrival home.

[26]        In paragraph 28 A.M. stated “I think it prudent to gather more information about this report of his…”

[27]        In paragraph 31 of her affidavit, A.M. stated that she reported the incident to the Ministry of Children and Family Development.

[28]        S.H.M. filed another affidavit on March 5^th, 2015.   In paragraph 8 he explained that he had not brought up to B.E.M. his concerns about “her living situations, housemates, neglect as to K.S.M.’s care, or her parenting” because: a) it would have made B.E.M. defensive and the situation awkward for K.S.M., and b) such remarks caused “defensive reactions” by B.E.M. and caused her to be “far less gracious around my having parenting time…”.

[29]        In paragraph 8, T.M. continued that his concerns over K.S.M.’s exposure to sexual material only became significant when he was advised of the “H.M.” incident.  He had hoped the steps taken at that time would resolve the issue.  He only realized, after learning of the remarks to A.M.’s children, that the issue was still very much alive in K.S.M.’s mind and affecting him.  At that point he decided that his “concerns could no longer be ignored and had to be brought to the court’s attention.”

[30]        B.E.M. filed an answering affidavit on March 6th, 2015.  Paragraph 15 stated that she does not expose K.S.M. to inappropriate sexual behaviour as alleged and the allegations were not raised with her before.

[31]        In paragraph 16 of that affidavit she stated that K.S.M. had seen some material on television and other media that she “wished” he had not and that he may have witnessed some of the games his older brother G plays but that she does not condone this and had spoken to both of them about it and that it was not allowed when she was present.

[32]        S.H.M. submits that the exposure to sexual behavior is a form of family violence and should be assess under s183 of the Family Law Act and under the best interests of the child under s37 and 38 of the Family Law Act.  Finally, it is submitted that the variation of the January 29^th order can be made under the provisions of section 47 of the Family Law Act.

[33]        B.E.M. submits that this application to vary is governed by sections 216 of the Family Law Act.

[34]        Both sections 47 and 216 require either there be a change in the circumstances of the child, including a change in the circumstances of another person (s47) or a change in the circumstances (s216(3)a) or evidence of a substantial nature was not available at the time of the interim order (s216(3)b).

[35]        Our Court of Appeal in Fitzgibbon v Fitzgibbon [2014] B.C.J. 2605 at paragraph 22 states that “Interim orders are primarily designed to maintain the status quo and to provide short term solutions until issues regarding the best interests of a child can be fully canvassed at trial.”

[36]        The Supreme Court decision of K.J.B. v G.A.B. [2013] B.C.J. 631 gives practical guidance.  There had been interim decision of the same level of court during which a Views of the Child report had been ordered.  A variation of the interim order was sought. In paragraph 15, the court wrote, “This court does not sit as an appellate court of the July 27^th, 2012 proceeding.  Any historical matter which took place before the court at that time is not properly before this court now, as any factual matter raised before Pearlman, J. ought to have been placed before his Lordship.  Any such issues cannot now be adjudicated by this court.  The proper issue before this court is whether there has been a change in circumstances which would allow for a variation of the July 27^th, 2012 order: see s216 of the Family Law Act.”

[37]        It is clear from the evidence that K.S.M. was “hypersensitive” to sexual matters well before the interim order of January 29^th, 2015.  It is also clear from the evidence that S.H.M. was aware of K.S.M.’s “hypersensitivity’ to sexual matter well in advance of the interim order of January 29^th, 2015.  Accordingly, this court concludes that there has not been a change in circumstances as required either by s47 or s216 of the Family Law Act.

[38]        There remains the issue as to whether the inappropriate remarks of K.S.M. in January that were disclosed after January 29^th, 2015 are new “evidence of a substantial nature”  as required under section 216(3)b.  This court cannot conclude that K.S.M.’s behaviour with A.M.’s children is “new evidence” of a substantial nature.  It is evidence of continuing “hypersensitivity” to sexual matters.

[39]        With particular reference to the factors listing in section 216(4) of the Family Law Act, I find:

[40]        I was submitted by S.H.M. that the alleged exposure of K.S.M. to sexual behaviour and material is family violence which would bring into play section183 of the Family Law Act and be a factor in considering K.S.M.’s best interests under sections 37 and 38 of that act.  Family violence is defined in section 2 of the Family Law Act to include, physical abuse, sexual abuse, psychological and emotional abuse.

[41]        While exposure to inappropriate behaviour and the presence of inappropriate material around the child is certainly a consideration for the court in determining the best interest of the child under section 37 of the Family Law Act in this particular case the determination of the actual situation should be left to a trial of the issue. 

[42]        Concerning B.E.M.’s application for an order pursuant to section 221 no argument was made before this court.  On a consideration of the evidence, this court does not find that S.H.M.’s application to vary the interim order was “trivial” or an abuse of process.

[43]        Both the application to vary the interim order as to parenting time and the order under section 221 to prohibit future interim applications are dismissed.