IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           A. M. and C. R. are the parents of H. R., a baby girl born [d.o.b.].  They separated on approximately August 27, 2014, when she was approximately four months old.  On September 10, 2014 Mr. R. filed an Application seeking unsupervised parenting time with baby H.  On the same day, Mr. R. also filed a Notice of Motion for an Interim Order seeking parenting time, specifically, overnight parenting time twice per week.  Ms. M. replied and counterclaimed for supervised parenting time, in addition to other relief.  She seeks to have parenting time supervised due to her concerns about Mr. R.’s alcohol and drug abuse and mental instability.  The Notice of Motion filed by Mr. R.’s seeking interim parenting time is before me for decision today.

[2]           Mr. R. is 33 years old, born in Prince George and works for R. Co., a company owned by his family.  Ms. M. is 28 years old.  They met in June 2013 and they began living together shortly thereafter.  Ms. M. became pregnant not long after they began living together.  The pregnancy was unplanned, but Ms. M. and Mr. R. decided to maintain the pregnancy and attempt to go forward as a couple.  Mr. R. told me that they separated over 20 times between July 2013 and their final separation August 27, 2014.  Ms. M. says they did separate for a period in November 2013, but that they reconciled.  She says they quarrelled often.  Nothing turns on how often they separated.

[3]           Ms. M. says that Mr. R. has abused alcohol and cocaine during their relationship and has attempted treatment and relapsed, both before and after H. was born.  She says that Mr. R. engaged in abusive, irrational behaviour towards her and that behaviour has been directed at H. as well.  Specifically, Ms. M. says that Mr. R. shouted at newborn H. when her crying disturbed him.  In view of that history, she says the Court should not rely on his claims to have no interest in alcohol or other substances, and that he cannot be trusted alone with H.  She further takes the position that overnight parenting time is not appropriate for a baby as young as H.

[4]           Mr. R. takes the position that he should have unsupervised parenting time with H.  He acknowledges that in December 2013 he undertook residential treatment for alcohol and drug abuse and relapsed, and on August 27, 2014 he was admitted to UNHBC for alcohol and drug abuse and suicidal ideation and remained there until August 31 2014.  He asserts that he has addressed his substance abuse problem and denies engaging in abusive behaviour towards Ms. M. and specifically denies shouting at H.  He seeks an order for parenting time from 11 AM on Wednesday overnight to Thursday at noon, and each Saturday 5 PM to Sunday 5 PM.  He is willing to abide by a court order requiring him to abstain from alcohol consumption while having parenting time with H., and he seeks that the court impose such an order on Ms. M.  He has indicated that he is willing to use and pay for an alcohol monitoring system if the court orders it, although he takes the position that the court should impose a similar order on Ms. M.

[5]           It is clear that, by operation of law, both Ms. M. and Mr. R. are presumed to be guardians of H., because they are her parents and they lived together up to and after her birth.

[6]           The issues I must decide are whether Mr. R.’s parenting time with H. should be supervised, whether parenting time should include overnight parenting time, what interim schedule of parenting time should be imposed until the applications by the parties are heard, and whether any orders regulating the conduct of the parties should be put into place, such as abstention from alcohol, alcohol consumption monitoring, counselling etc.  In view of Ms. M.’s assertions with respect to Mr. R.’s substance abuse history and abusive behaviour towards her and H., I must give particular attention to s. 37(2)(g) and (h) of the Family Law Act, dealing with family violence, as well as s.37(f), the ability of Mr. R. to exercise his parental responsibilities.

[7]           In considering the issue of parenting arrangements, I am governed by the Family Law Act, which provides the following:

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

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

[10]        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.

[11]        It is with this framework in mind that I must assess the evidence presented by the parties with respect to the various incidents that occurred, or are alleged to have occurred, during the relationship.

[12]        Mr. R. told me that he has been drinking since he was 14 and that drinking was a serious problem for him by the time he was 16.  He told me his drinking pattern was somewhat sporadic; sometimes he would drink four days a week, other times every day.  He admitted drinking to the point of blacking out.  His usual drink was beer, although he did also drink hard liquor.  When he was 28, he developed a cocaine habit.  He commented that anything can be a trigger for his alcohol use, including ordinary life stresses.

[13]        Paradoxically, despite his evidence that alcohol consumption was a problem for him by the age of 16 and that he began cocaine use years before meeting Ms. M., he repeatedly suggested that his misuse of drugs and alcohol during the one year period he was living with Ms. M. were due to his problems with that relationship, rather than his long-standing habit.  It appears to me that Mr. R. would have me infer that since the relationship with Ms. M. is over, his problems with drinking and drugging are over too.  I am not prepared to make that inference.  It would be illogical to draw a causal connection between Mr. R.’s long standing bad habits and his relatively recent relationship with Ms. M.

[14]        Mr. R. entered into an alcohol and drug treatment program in December 2013 after drinking so heavily that his friends became concerned for his life, as he was making threats of suicide.  They took him to hospital in Kamloops (where he was residing at the time) and when he was released, they stayed with him until he was admitted to a treatment program in Powell River.  He remained there until late January 2014.

[15]        After he was discharged from the treatment centre, he and Ms. M. reconciled and he abstained from drinking for a period of time.  Mr. R. admitted that he resumed drinking March 8, 2014 at Ms. M.’s birthday party “because he thought he could handle it”.  From then until his admission to hospital in August 2014, Mr. R. continued to drink alcohol regularly.

[16]        Ms. M. says Mr. R. drank excessively very often, most evenings consuming an entire case of beer.  Mr. R. also told the Court that he sometimes drank seven days per week, and sometimes only four or five days per week.  He admitted that he had blackouts from drinking.  He provided the Court with his bank statements for the past year and highlighted the liquor purchases.  He testified that he never bought liquor except using his bank card, so that his only liquor purchases are those highlighted.  According to Exhibit 25 and the synopsis, Exhibit 25A, if his consumption were limited to the amounts indicated therein, he would have been drinking nothing at all in some months, despite the fact that he admitted drinking as much as seven days a week and no less than three days a week throughout the time period in question, with the exception of the time he was in treatment and for the few weeks he was able to remain sober upon his release in January 2014.  Indeed, there are no purchases of alcohol on the December 2013 statement despite the fact that he admits he was drinking so excessively that his friends feared for his life, took him to hospital and stayed with him until he went into residential treatment.  He also confirmed in later testimony that he did attend restaurants and drink alcohol there, which also contradicts his earlier evidence that his only liquor purchases were those highlighted in Exhibit 25.  Obviously, the bank statements are of little assistance in determining the level at which Mr. R. consumed alcohol. 

[17]        The bank statements were clearly tendered to invite the Court to draw the inference that Mr. R.’s alcohol consumption was limited to the purchases indicated therein and the corollary inference that Ms. M. must therefore be exaggerating his drinking pattern.  Neither inference can be supported by Mr. R. evidence, because his testimony about his drinking habits contradicts his testimony about the bank statements.

[18]        I find that Mr. R.’s evidence regarding his purchases of alcohol is an attempt to minimize his earlier evidence about his drinking and is not reflective of the true state of affairs.  What is clear is that Mr. R. consumed a lot of alcohol and that it was a significant problem for him, as he admits.  Where his evidence about his drinking conflicts with that of Ms. M., I accept her evidence.

[19]        There was considerable testimony before me concerning the March 8 2014 birthday party incident, apparently intended to attack Ms. M.’s credibility, which is peculiar, given that Mr. R.’s version of events confirms Ms. M.’s in all material particulars - that is, that despite attending treatment, Mr. R. failed to abstain from drinking alcohol, and indeed drank so heavily that night that he passed out in the restaurant.  That is material because it speaks to the issue of whether Mr. R.’s claims of sobriety at this point can be sufficiently relied on to entrust H. to his unsupervised care.

[20]        Ms. M. says that Mr. R. ordered wine and became drunk, slurring his words and “dozing in and out” at the table.  She says he eventually passed out at the table and her friend who remained, helped her carry him out to the car.  She says his friend B. C. and her husband had left by then.

[21]        Mr. R. says he ordered and drank two bottles of wine, which he says he shared with Ms. M. and her friends.  He began in his testimony saying that Ms. M. had “a glass of wine from the bottle, maybe two.” (However by the end of his testimony he claimed that she had at least two glasses.)  He says the third bottle he ordered was sent back, which is consistent with Ms. M.’s account of events, except that she says it was the second bottle that was sent back.  He says he drank too much and fell asleep at the table and remembers nothing after that except getting into the car.  I have every reason to accept his admission that he passed out at the table.  It is therefore likely that he did require assistance to get to the car, just as Ms. M. says.

[22]        B. C. gave evidence on behalf of Mr. R.  She testified that she has been a friend of Mr. R. for many years.  It is abundantly clear to me that Ms. C. is a loyal friend to Mr. R.  She has provided supervision for Mr. R.’s access to H., at considerable inconvenience to herself and her family, since supervised access began in October.  She is to be commended for her efforts.

[23]        Her loyalty to her friend, however, appears to have had a problematic effect on her testimony regarding the March 8 birthday party incident.  Ms. C. was adamant that Mr. R. did not pass out at the table and did not have to be carried to the car at the end of the evening, although she admitted that he was “in no condition to drive.”  She also said Ms. M. consumed two to three glasses of wine, something that she said troubled her given Ms. M.’s obviously pregnant state, but concerning which she said and did nothing.  She explained that she felt any comment on Ms. M.’s drinking might impair her friendship with Mr. R.  On the other hand, she did not have any criticism of Mr. R. drinking so much that, in her words “he obviously couldn’t drive”, even though that meant that Ms. M. would have to drive and manage Mr. R.’s drunken condition on her own, at eight months pregnant.

[24]        When confronted about the contradiction between her evidence and that of Mr. R. (regarding his admission that he passed out at the table) Ms. C. was obviously flummoxed and had no explanation.  Whether she was simply mistaken or deliberately misleading is unclear; the result, however, is that I cannot place much weight on her evidence.

[25]        With respect to Mr. R.’s allegation that Ms. M. was consuming alcohol on the evening of the birthday party, I note that Ms. M. said she was not consuming alcohol at all that evening and that she did not consume during her pregnancy.  For the reasons already stated, I do not place any weight on the evidence of B. C.  Similarly, I cannot rely on the evidence of Mr. R. on this point.  Not only does his evidence shift from suggesting that Ms. M. had “a” glass from “the bottle” (I note - one bottle,) to “at least two glasses” (and two bottles).  I also note that he admits having got so drunk he fell asleep at the table.  Therefore, he is less likely to have a reliable account than a person who was not drinking, or drinking very lightly.  

[26]        Secondly, I note that Mr. R. appeared to be a fit young man of average size and build.  He is also clearly an experienced drinker.  If Mr. R. had indeed been sharing the wine with Ms. M. and her friends as he claimed, that would mean that the wine was shared between at least 4 people.  If that were so, it is highly unlikely in my view that Mr. R. could have consumed enough to get drunk at all, whether there were one or two bottles - but he says he was drunk.  If in fact there was only one bottle of wine consumed, and Mr. R. was so drunk that the second bottle he ordered was returned and he passed out, then it is unlikely, in my view, that he shared the first bottle with anyone, much less Ms. M. and her friends, as he claimed.  For these reasons, I prefer the evidence of Ms. M. where it differs from Mr. R. and Ms. C.  I find that Ms. M. was not drinking that night.

[27]        Ms. M. testified she consumed alcohol socially before and after the pregnancy, but not during her pregnancy.  Mr. R. gave testimony about her drinking alcohol, in an apparent attempt to suggest that Ms. M. has a problem with drinking as well or perhaps in an attempt to normalize his own alcohol consumption.  Mr. R. testified that he “let” Ms. M. have a glass of wine when she wanted one during her pregnancy and that she had “a” glass of wine in a hot tub at Powder King when pregnant.

[28]        Mr. R. commented that he looked after H. while Ms. M. got drunk with friends once when they were living together (while her parents were present) and once after they separated she came to his house late at night after drinking with friends.  He also commented that he had a quick glance at her at a concert after they separated and he thought she looked like she “might have” been drinking.  He also pointed out a notation regarding “binge drinking” prior to pregnancy on Ms. M.’s hospital records.

[29]        I am not prepared to draw any inference regarding Ms. M.’s drinking pattern during her pregnancy and afterward from the hospital records.  Those records indicate an average of three drinks per week, prior to the pregnancy.  There is no definition of “binge” drinking on the form.  As it stands the form corroborates her evidence that she is a responsible social drinker.  Mr. R. does not suggest anything to the contrary - except for her alleged occasional “glass of wine” during her pregnancy, which he testified he “let” her do.

[30]        Mr. R. produced a number of photographs of Ms. M. holding cans of beer or glasses of beverages.  All of these photos were taken pre-pregnancy, with the exception of two after the baby was born.  I have examined the photos provided.  The fact that Ms. M. is holding what appears to be an alcoholic beverage in the pre- pregnancy photographs is in keeping with the fact that virtually everyone else in the photos is as well.  They appear to be the standard sort of photos that people take while on vacation or celebrating and I accept Ms. M.’s evidence that many of them were taken on the same occasion, and that some of them are posed with her holding other people’s drinks.  Ms. M. says the photo of her apparently drinking from a wine bottle while semi clothed was a joke, which it certainly appears to be, and there is no suggestion to the contrary.  There are two post pregnancy photos.  In one of them Ms. M. is drinking from a plastic cup and she says she was drinking water.  In the other, the beverage closest to her is contained in a paper cup with a travel lid.  Other people there appear to be drinking from wine glasses.  Nothing in these photos supports the contention that Ms. M. has a problem with alcohol, or that she drank irresponsibly while pregnant with H.

[31]        Ms. M. says that the relationship with Mr. R. was very volatile.  She says that they quarrelled when Mr. R. was drinking, which was much of the time.  Mr. R. admitted having a long standing problem with alcohol, beginning at age 16 and that he has used cocaine occasionally since age 28.  These problems obviously pre-dated his relationship with Ms. M.  Nevertheless, throughout his evidence, Mr. R. reiterated that his drinking and drugging during his relationship with Ms. M. was due to problems with that relationship.  She says that when Mr. R. was under the influence of alcohol, and at times when he was not, Mr. R. behaved in an irrational fashion, becoming very angry, calling her ugly names and casting vicious sexual aspersions, and threatening to repeat all these nasty things to their child, Ms. M.’s family, and others.  He also threatened to crush her with litigation.  Mr. R. admitted that he “was a bit of a tyrant” when he drank.  He initially denied calling her obscene names, but later corrected that testimony, admitting that he called her names and “may have” called Ms. M. a “fucking cunt”, but claimed she called him names too. 

[32]        The parties had begun quarrelling because of Mr. R.’s jealousy issues and his failure to attend an ultrasound appointment for the unborn child.  Ms. M. expressed her intention to end the relationship and not to go on a Hawaii vacation they had planned.  Mr. R. texted that he was packing up her belongings and would have various items ready for her to pick up the next day and later after he returned from his trip.  Nevertheless, he asks her to go on the trip with him and she again tells him that the relationship is over.  Within minutes thereafter, despite the prior arrangements they have made, he demands that she pick up her belongings that very night (it is 8:39 pm) and return his truck or he will (I note, falsely) report it stolen to the police (Exhibit 13, p. 25).  He then begins a series of texts that, in my view, speak volumes about Mr. R. irrationality and vicious misogyny.  He stated his intention to crush her with litigation and to vilify Ms. M. to their child and everyone else in her life if she does not comply with his demands.  The following are some examples:

[33]        I note that Ms. M. does not, in this text conversation, invite or incite any of this vitriol in any way, nor does she respond in kind.  She asks repeatedly for him to stop, but he carries on.

[34]        The following day, he has the following to say about his behaviour:

[35]        It is noteworthy that all of this texting was done in the presence of A. P., his friend who gave evidence at the hearing.  She said she did not see Mr. R. consume any beverages and that he was not drunk, but he was angry.  She later qualified that he was not “so intoxicated”, only about a “six out of ten.”

[36]        Ms. P. was apparently called to give evidence to contradict Ms. M.’s affidavit evidence (Exhibit 12, paragraph 5) about Mr. R.’s abusive behaviour towards her and he evidence that he “threw all of [her] belongings out of their home “while he was drunk with his father and his friend there and they all watched as he did this, leaving me pregnant and barely able to bend over to pack them up on my own.”

[37]        According to Ms. P., Mr. R. was intoxicated, albeit only a “six out of 10”; thus, so to say that he was drunk would be a reasonable characterization.  Ms. P. indicated that Mr. R. placed Ms. M.’s belongings outside and that Ms. M. did not gather up her things, rather, she waited in the truck while her friend picked them up from the patio.  In my view, Ms. P.’s evidence does not cast Ms. M.’s credibility into doubt: that Ms. M. was pregnant is not disputed and she gave evidence as to the physical difficulties she had that prevented her from being able to bend over and pick up her things - that is why she had a friend there to do it for her.  That would leave the basic dispute in the evidence to be semantic: that Ms. M.’s belongings were “placed” outside instead of “thrown” outside.  In my view, that is a distinction without a difference.  There is certainly no doubt that her things had been placed outside of the home she had shared with Mr. R., at night, in the dark, in November - after Mr. R. had already agreed  to have her pick them up the next day and in the days thereafter.  Thus in my view Ms. P.’s evidence corroborates rather than casts doubt on the evidence of Ms. M.

[38]        T. R. was also called to give evidence about what happened that evening.  She said that she was a friend of Ms. M.’s who helped Ms. M. by attending to pick up her belongings that night.  She gave evidence that Ms. M. stayed behind with the truck while she went to pick up things.  She said Mr. R. threw them out on patio and she packed them up and put them in her vehicle.  She said “C. was angry and throwing her belongings on patio and yelling.  He was screaming and yelling she should bring F’ing truck back.”  Ms. R.’s account is consistent with, and I find corroborated by, the text messages that Mr. R. sent during this incident and to the extent that her account differs in any way from that of Mr. R. and Ms. P., I prefer Ms. R.’s evidence.

[39]        The evidence is undisputed that after Mr. R.’s apologized to Ms. M. for his behaviour, the parties reconciled to the extent that Ms. M. did join Mr. R. in Hawaii on vacation.

[40]        However, this episode is relevant to the issues that I must decide.  With all due respect to Mr. R., his version of his conduct is so minimised as to have only a tenuous connection with reality.  Ms. M.’s evidence with respect to Mr. R.’s abusive behaviour is abundantly confirmed by the voluminous text messages sent by Mr. R. to Ms. M. on November 26, 2013.  While Mr. R. seeks to have the Court assume that he is a rational, responsible parent (who should therefore have unfettered parenting time with his child) it is clear from these text messages that Mr. R. subjected Ms. M. to a violently angry outburst lasting hours during which he later acknowledged he broke things and was out of control.  The text messages contain many threats to tell the child vicious sexual slurs about her mother and to crush Ms. M. with litigation.  He also admitted in the text messages he does not remember some things he does when he is angry.

[41]        Ms. M. gave evidence about an incident after H. was born in which Ms. M., Mr. R. and H. were staying at her grandmother’s cabin at Cluculz Lake when they went to visit some friends across the lake.  Mr. R. admits drinking during the day and he says Ms. M. was too.  She says he was drinking heavily all day and that she had one drink, but that he kept giving her more drinks and she kept pouring them out.  They both agree that the end of the evening when it was time to drive the boat across the lake to go home, Ms. M. would not let Mr. R. drive because she believed he was drunk.  He says that an argument “obviously” ensued - which is interesting, because there is no “obvious” reason for an argument to ensue in such a circumstance.  Any responsible, rational person would understand that drunk boating is just an illegal and dangerous as drunk driving, and Mr. R. did not dispute that he had been drinking all day.  Ms. M. says he argued with her and hurled invective at her including calling her a “useless cunt” among other things, the whole way across the lake, as he typically did when he was drunk.  Mr. R. at first denied ever calling Ms. M. such names, but later corrected his testimony and admitted that he had done so.  He also admitted that he was a “bit of a tyrant” when he was drunk, and that he generally refused to go along with anything she wanted when he was drunk, and apparently this occasion was consistent with that characterization.

[42]        Ms. M. says she drove across the lake with H. held to her body in the snuggly.  Mr. R. says he was holding her during the trip.  When they arrived at the other side, Ms. M. asked for his assistance to dock the boat, as she didn’t know how.  He refused.  She asked him to hold H. while she attempted to dock the boat.  She says she took H. out of the snuggly and handed her to Mr. R., whereupon, she says, he tucked H. under his arm like a football, and jumped the three foot gap onto the dock, telling her she had to dock the boat without help.  She was afraid Mr. R. might drop the baby because he was drunk, so she jumped off the boat and tried to take H. from him.

[43]        Mr. R. agrees that he refused to help her dock the boat, that he took H. and jumped off the boat and that Ms. M. followed asking for the baby.  He refused to let her have the baby, only relenting when he saw that the boat was leaving the dock.  Then he jumped in and retrieved the boat.  Mr. R. said that he was extremely angry, that he threatened to get the police involved, and that he then jumped in his truck and drove away in that state.

[44]        Considerable time was spent in cross-examination of Ms. M., with the aid of photographs of the boat, about the configuration of the boat and the door from the cabin to the bow of the boat, to no useful purpose - there is no dispute that Mr. R. left the boat through the door from the cabin while carrying H.  The significant evidence here is essentially agreed: Both Ms. M. and Mr. R. say that he left the boat carrying H., when the boat was not moored to the dock, after he had admittedly spent all day and evening drinking alcohol.  Their evidence is also consistent on another point: Mr. R. was very angry, threatened to involve the police and drove away furious - after drinking all day and all evening.  Ms. M. says he was drunk, so drunk that she called the police to try to stop him from driving.  Mr. R. certainly does not assert that he was sober - he did not address his level of intoxication during his evidence.  Although Mr. R. asserts that Ms. M. had been drinking during the day, he does not suggest that she was intoxicated at all.

[45]        The following day she says that Mr. R., extremely apologetic, crying, promising to go back to counselling and pleading with her to bear with him.  According to her, he said that he was struggling and just can’t control his anger but promised he would get better.

[46]        I find that this incident is another clear example of Mr. R.’s irrational, irresponsible and abusive behaviour while drinking.  He acknowledged that he argued with Ms. M. when she would not let him drive the boat across the lake, and I accept her evidence that he hurled the same abusive invective at her that evening as he did in November.  Mr. R. admits calling her a “fucking cunt”.  Despite his wish to drive the boat, when she asked for his help to dock it, he jumped off the boat with the baby, before the boat was moored.  I find this was irresponsible behaviour that endangered H.  Then, when Ms. M. got off the boat to retrieve the baby, he refused to give the baby to her until he saw the boat floating away, and only then took steps to deal with it.  Then, having been drinking all day and evening, he says he jumped in his truck and drove away, having (inexplicably) threatened to involve the police.

[47]        From his evidence, it is obvious that he acted according to the same pattern that he did in the November incident - that is, angry, foulmouthed, abusive, irrational and threatening.  On this occasion he subjected the baby to all of that.  Ms. M.’s uncontradicted evidence is that he returned, apologetic and crying, the following day, with the same sort of promises that he made after the November incident.  I also conclude from this evidence that Mr. R. was behaving irrationally and in a manner that was unsafe for H., and unsafe for members of the public present on the highways that evening.

[48]        When H. was born, Mr. R. was present, although he had failed to attend all but one of the prenatal classes.  The labour was lengthy and Ms. M. was very tired afterwards.

[49]        This leads to the next allegation with respect to Mr. R.’s unsuitability to be left unsupervised with H.  Ms. M. says that at one point while she was in hospital after H.’s birth, Mr. R. was sleeping in the same room.  H. began crying in her bassinette and Ms. M. was so tired that she did not get out of bed but left her to cry.  She says after a few minutes of crying Mr. R. jumped up and went over to the bassinette and screamed at the baby “shut the fuck up.”  Ms. M. said H. went “bug eyed” and stopped crying for a moment and then started crying again.  A few days later, after Ms. M. was home from the hospital, a similar incident occurred.  Mr. R. denies both incidents asks the Court to find that Ms. M. made it up, for two reasons:

[50]        Mr. R. points out that the hospital records say nothing about such an incident.  He asks the Court to infer that such a loud exclamation by Mr. R. as described by Ms. M. would necessarily have been heard by hospital staff and that they would necessarily have responded and necessarily made a note of it.  He asks the Court to infer from the absence of an entry about the same that the incident never happened.  I am not prepared to assume that hospital staff would necessarily have heard such an outburst.  On the contrary, I suspect it is the experience of anyone who has spent time in hospital that it is often quite difficult to get the attention of hospital staff.

[51]        Mr. R. also provided a scholarly article dated 2003 entitled “Emotional Expressions of young infants and children” to suggest that Ms. M. could not have seen a “bug eyed” expression on H. because “the Surprise expression is rarely seen in young infants” (p. 124) and “Fear expressions are notoriously difficult to observe in infants.” (p. 137).  However, I note that the learned author states that “Even in very young infants, fear blends are observed in situations that are aversive” (such as looming objects, very loud sounds, and loss of support,) but that ethical considerations make it impossible to study fear responses experimentally.  No expert testimony was offered to the Court to support the views presented in this article, nor does it actually support the proposition for which it was proffered.

[52]        It is a matter of common sense and human experience and something that every experienced parent knows, that babies can be startled and frightened by loud noises and exhibit reactions exactly as described by Ms. M.  It follows that I am not persuaded that Ms. M. could not have observed the reaction by H. that she says she observed.

[53]        Ultimately, the question of whether or not that event occurred comes down to a question of credibility.  Mr. R. has challenged Ms. M.’s assertions with respect to several events, even when his own version essentially confirms hers, such as the birthday party and the Cluculz Lake incidents, or, in the case of the November incident, where the independent record completely confirms her version.  I note that he denied pointing out his “drug dealer” to Ms. M. at the hospital - but he admits consuming cocaine, which means he must have a drug dealer (one cannot by cocaine at Save On Foods, or London Drugs) and his behaviour at the hospital while the parties were preparing to leave with the baby is consistent, I infer, with the behaviour of a person under the influence of cocaine.  What point is there in suggesting Ms. M. invented those remarks when the reality is that someone - whether in the hospital parking lot or not- was, in fact, Mr. R.’s drug dealer?

[54]        Given Mr. R.’s pattern of extraordinary minimization or outright denial of behaviour on his part that is amply substantiated in his own text messages, and his acknowledgement that he becomes so angry that he does not have control over his own actions and does not remember his own actions, it is obvious that I cannot rely on his evidence.  The demanding, irrational and abusive behaviour directed at H. as alleged by Ms. M. is consistent with the demanding, irrational and abusive behaviour directed at Ms. M. by Mr. R. that clearly occurred.  In consideration of the foregoing, I accept that Mr. R. did shout at his infant daughter in frustration at her crying as described by Ms. M. 

[55]        As I mentioned earlier, in coming to a decision about parenting arrangements, I must consider the ability of the parties to parent, and the impact of family violence, if any, when considering the best interest of the child.

[56]        On the evidence before me, I am satisfied that Mr. R. has perpetrated family violence as defined in s. 1 of the FLA on Ms. M.  Ms. M.’s evidence that Mr. R. emotionally and psychologically abused her throughout the relationship is amply supported by the text messages he admits sending in addition to his admission that he called her names, including “fucking cunt” and that he was “a bit of a tyrant.”  In the texts, he repeatedly demeaned and denigrated her sexuality and repeatedly threatened to tell all of these vicious slurs to their child and their relatives and associates.  He also threatened to make false allegations against Ms. M. to the police and he involved his father in harassing Ms. M. about the truck.  After these episodes of viciousness Mr. R. would then portray himself as abjectly apologetic, claiming in one breath to take responsibility and then suggesting in the next that “it takes two to fight.”  It did not take two to fight.  Ms. M. was not fighting - she was complying with his demands, as unreasonable and contradictory as they were.  As the text conversation amply confirms, the only one fighting, demanding, and abusing, was Mr. R.  I have no reason to believe that his face-to-face and oral communication would be any less threatening, demeaning and nasty than his text messages.

[57]        Mr. R. also threatened to use his apparently ample funds to “fight her till she lives in a box.” (I note that Mr. R. does apparently have the means to make good on this threat; according to Exhibit 25, the bank balance on his personal checking account during the 2013-14 year was rarely less than $20,000.00 and was regularly over $80,000.00).  This conduct would also be family violence on the authority of Hokhold v. Gerbrandt, (supra.).

[58]        If this behaviour is not psychological and emotional abuse, I don’t know what would be.  I find, pursuant to s. 38(a-c) that Mr. R.’s behaviour constitutes serious psychological and emotional abuse of Ms. M., and that it was very frequent, occurring throughout their relationship, right up to the end of it on August 27, 2014.

[59]        I also note that Mr. R. used this abusive, threatening conduct to control or coerce Ms. M.  For example, in the November incident, his abuse and threats induced her to make arrangements to have a friend pick up her belongings and to deliver the truck that very night, instead of abiding by the agreement he had previously made for those events to take place over the next few days.  By shouting at H. in the hospital and at home, he coerced Ms. M. into looking after the baby despite her exhaustion, with the result that he could sleep undisturbed by his parental responsibilities.  In the  Cluculz Lake incident, he verbally abused Ms. M. tirelessly across the lake simply because she was attempting to behave responsibly by taking the wheel when he was drunk, and he punished her for that, in my view, by jumping off the boat with H.  He then repeated his habit of threatening to involve the police and drove off drunk.  This sort of behaviour has the effect, in my view, of making anyone in Ms. M.’s position afraid to stand up to irrational, irresponsible behaviour because the consequences of doing so are so dreadful.  Then Mr. R. engaged in abject apologies, which had the result of getting him what he wanted in the first place, such as inducing Ms. M. to go to Hawaii with him after all.  In my view this is a pattern of instrumental, directed emotional and psychological abuse designed to manipulate and control Ms. M.  In my view, this behaviour constitutes a pattern of coercive and controlling behaviour directed at a family member under s. 38(d) of the FLA.

[60]        I have already found as a fact that Mr. R. did shout at newborn H. on two occasions when her crying disturbed him.  In my view, shouting repeatedly at a newborn baby is emotional abuse.  He vociferously abused Ms. M. in H.’s presence, and put H.’s safety in jeopardy when he jumped off the boat with her onto the dock while intoxicated at Cluculz Lake.  Ms. M. says she observed him whispering to H. “you have a bad Mom” and “Boy do I have stuff to tell you when you are older” when the parties separated on August 27, 2014.  Mr. R. denies saying this to H., but such an utterance is entirely consistent with his stated intention to do just that in the text messages of the November incident.  I am satisfied that he did say those words to H.  I have no reason to believe that Mr. R. would not, if given the opportunity, shout at H., inflict other verbal abuse on H. (as he has done to her mother) or make good on his threats to repeat to H. all the abusive things he has said to Ms. M., thereby inflicting emotional and psychological abuse upon their child.  I am therefore satisfied that Mr. R. has directed family violence toward the child and that the child was exposed to family violence directed at Ms. M. under s. 38(e) and (f) of the FLA.

[61]        H. was a very small baby when these events occurred.  It is to be hoped that she will suffer no long lasting harm from being present while Mr. R. abused her mother or from being shouted at as a newborn.  However, her psychological and emotional safety would, in my view, be in serious jeopardy should she continue to be exposed to that behaviour.  Also, of course, I have no way of knowing what might have occurred had Ms. M. not been present to protect H. from Mr. R.’s anger when H. disturbed his sleep by crying.  Sadly, it is well known the terrible, irreversible harm that can be inflicted by a frustrated or angry parent losing control and shaking a baby.  Mr. R. admitted in his text messages that “I got angry and I let it consume me…I broke shit in the house I lost it badly and the feeling of being out of control is fucked up.”  On that occasion there was no crying baby there goading him to lose his self-control - he just did that all by himself.  Thus, in my view, the potential exists for serious physical harm to H. at the hands of Mr. R.

[62]        Ms. M. and Mr. R. agree that Mr. R.’s behaviour was bad when he was under the influence of alcohol.  However, Mr. R. says he is not drinking any longer and I take it he would have the Court infer that with the alcohol gone, Mr. R.’s anger and cruel behaviour will be gone too.  The difficulty with this proposition is that in my view, alcohol does not create these character traits in Mr. R. - it merely lowers whatever inhibitions he might have to revealing them.

[63]        In my view there is reason to believe that Mr. R.’s underlying anger and selfishness, and therefore his potential for family violence remains despite his evidence that he has quit drinking; I note Ms. M.’s uncontradicted evidence that when she visited him in September 2014 (after he had stopped drinking) he told her had thrown all her sentimental items, clothes (including the dress she wore to her brother’s funeral), underwear, bras, bathing suits etc. - in the dump and told her “to get over it.”  That, in my view, is the action of an angry, cruel man, sober or not.  Similarly, Mr. H. M. testified that when he attended at transfers of H. (all occurring after Mr. R. had quit drinking) he was so concerned about the effect on H. of Mr. R. open hostility to Ms. M., including slamming doors and using obscene language, that he approached Mr. R. to talk with him about it.  Mr. R. said “what the fuck are you doing here?” slammed the door on him also.  I also note that there is no suggestion that Mr. R. was intoxicated when he shouted at H. for crying.

[64]        It follows from the foregoing that despite Mr. R. apparent sobriety, I remain concerned that he presents a significant risk of ongoing family violence in his relationship with H.  The evidence of Mr. R.’s friend Ms. C. and his mother Mrs. R. that Mr. R. behaves well with H. when observed by them does not assure me that he is a changed man.

[65]        While orders to abstain from the consumption of alcohol and to wear alcohol monitoring devices may go some distance to reduce the risk of harm to H. from Mr. R., such orders will not change his character, which would appear to be selfish, cruel and deeply misogynist.  He appears to have acknowledged that he was selfish, out of control and overwhelmed by anger in his texted apology to Ms. M. in November 2013, and on other occasions, but he carried on in the same manner without taking any steps to address those issues.  Beyond a rather smug acknowledgment that he “could be a bit of a tyrant when drinking” Mr. R. appears, at present, to see nothing about himself that needs improvement.  Unsurprisingly, he has not taken any steps to address or correct his abusive attitudes.  Accordingly, I have no reason that he will not behave in the future as he has behaved in the past.

[66]        The evidence before me is that H. is a healthy, thriving, energetic and generally happy baby. 

[67]        H. is too young to express any views on this subject.

[68]        H. is apparently well bonded with her mother Ms. M. and has the benefit Ms. M.’s loving and involved extended family here in Prince George.  I am satisfied that Ms. M. loves her daughter.

[69]        Mr. R. sees H. regularly and the evidence before me is that she recognizes him and is happy during visits.  Ms. M. believes he loves his daughter.  His mother, R. R., has travelled to Prince George on multiple occasions to visit H. and appears to desire a warm and loving relationship with her, and to that end has made conciliatory overtures to Ms. M.

[70]        H. has been in the almost exclusive care of her mother since birth.  Mr. R. mentioned that he had the care of H. one evening (while Ms. M.’s parents were present) when Ms. M. was out, but other than that he has never been alone with H.  Since the separation, Mr. R. exercised supervised court ordered parenting time three times per week for three hours each.  These visits have been supervised, for the most part, by B. C.

[71]        H. is a small baby, less than a year old.  She needs love, warmth, constancy, and security, and in order to develop emotional confidence and her identity.

[72]        Mr. R. does not take serious issue with the ability of Ms. M. to exercise her parenting responsibilities for H.  As I have mentioned, I am not persuaded that Ms. M.’s consumption of alcohol is irresponsible or problematic.

[73]        With respect to Mr. R.’s parenting skills, I note he admits that he never spent any time alone with H. during his relationship with Ms. M.  He said he did look after H. one night when Ms. M. was partying with friends, but I note that her parents were present while he did so.  Since then, Mr. R. has had parenting time with H. supervised by Ms. C. and, at times, by his mother R. R.  On these occasions, Mr. R. is reported to have fed, bathed, changed, played with and cuddled H. and she appears to recognize him.

[74]        However, in view of my findings with respect to family violence, I am gravely concerned about the ability of Mr. R. to exercise his parenting responsibility to provide a safe, nurturing environment for H.  He is a person who has a demonstrated history of abusive behaviour and uncontrolled anger, including anger directed at H.

[75]        The family violence perpetrated by Mr. R. has had a serious impact on H.’s safety, security and well-being, in my view.  Just because a child is too young to speak does not mean that it is not absorbing what is going on around it.  Mr. R. engaged in regular vociferous abuse of Ms. M., in the presence of H.  H. would have felt the denigrating and angry tone of voice and I am satisfied she would have been upset by the resulting distress of her mother.  In such circumstances, the child’s sense of safety and security must be seriously impaired.

[76]        As mentioned earlier, I have found that Mr. R. shouted at H. for crying, frightening her.  He endangered her by jumping off the boat while intoxicated, while engaged in family violence directed at Ms. M.  On those occasions, H. did not suffer any physical harm, presumably because Ms. M. rushed to protect H., but not because of any exercise of self-control or responsible behaviour on the part of Mr. R.

[77]        I am of the view that it is manifest that Mr. R.’s ability to parent H. in a manner that will meet her needs is seriously impaired.  Mr. R. has demonstrated an appalling lack of judgement and self-control when it comes to his personal relationships.  He has engaged in a repeated cycle of abuse directed against Ms. M., before and after H.’s birth, and in the presence of H., and directed against H.  While many egregious examples of Mr. R.’s abusive behaviour occurred when he was under the influence of alcohol, some, including shouting at H., have occurred while he was ostensibly sober.

[78]        It is a fact of responsible parenting that a parent must place the child’s needs ahead of his own.  If that means the parent must go without sleep, or hold his tongue, or remain sober, then that is what the parent must do.  I am not satisfied that Mr. R. will do any of these things in the future, because he has consistently failed to do them in the past.  Although Mr. R. has once again quit drinking, he has not, apparently, addressed the personality problems that spawned his angry, vindictive behaviour towards his Ms. M. and H.

[79]        As long as Mr. R. parenting time has been supervised, it appears that he has behaved adequately, at least as far as his care of H. is concerned.  However, he has continued to demonstrate hostile, angry behaviour to Ms. M. and her family members during transfer times.  Both R. R. and H. M. have expressed concern that it is bad for H. to expose her to this level of animosity and anger, and I agree.

[80]        The evidence before me is that the parties have been able to cooperate marginally well for the transfer of H. for parenting time for Mr. R.  Both parties have been accommodating to changes in each other schedules or locations on occasion, although there have been examples of rigid “tit-for- tat” behaviour also.  There appear to have been some misunderstandings about the terms of the orders made thus far which have resulted bad feelings.

[81]        Clearly, displays of anger and bad language on the part of Mr. R. at transfer times are a problem.  That behaviour is harmful is to H.  It is in H.’s best interest that both parties behave with utmost civility and self-restraint during hand off times; continued friction will make H. afraid and upset, and as she develops some concept of time, she will dread hand off time.  The anticipation of seeing one parent or the other should be a matter of joy, not fear.

[82]        Another problem is Mr. R.’s apparent unwillingness to accept information or instruction from Ms. M. with respect to H.’s routines and well-being.  He seems to be under the impression (as is Ms. C.) that information or instructions from Ms. M. about H. are simply “Ms. M. telling them what to do” and can be ignored.  For H. to feel safe and secure, it is important that H.’s routines be maintained between households and in order for that to occur, Mr. R. will have to accept and follow information and instructions from Ms. M., in a civil and respectful manner.  If he can improve his behaviour towards Ms. M. at hand off times, and is willing to receive graciously and follow any information or instructions she may give him about H., that will be in H.’s best interests and Mr. R. will find that things will go much more easily.

[83]        If Mr. R. continues to display a lack of regard for H.’s well-being by disregarding Ms. M.’s instructions and information, and/or being rude and hostile at hand off time, he will have difficulty satisfying the Court that he should have any additional parenting time, and in fact it may be necessary for the Court to curtail his parenting time.

[84]        In these circumstances, I am of the view that it is not in H.’s best interests to have unsupervised parenting time with Mr. R.  Hopefully in the future Mr. R. will demonstrate to the satisfaction of the Court or Ms. M. that he has recognized the error of his ways and taken steps to improve his attitudes and behaviour. But at present, on the basis of the evidence before me, I simply do not trust Mr. R. not to indulge his vindictive streak and his stated intention to vilify Ms. M. to H., or to engage in the same sort of misogynist nastiness directed at H. (who is, after all, a female) either of which will emotionally harm H., or to have a temper tantrum and do something in anger that will physically or emotionally harm H.

[85]        Mr. R. has requested overnight parenting time with H.  Ms. M. took the position that H. is too young to have overnight parenting time and I am inclined to agree.  It seems to me that H.’s need for stability and constancy is very high at this point in her life and will be for some time.  She is bonded with Ms. M. and that attachment must be maintained and nurtured.  Any lengthy separation from Ms. M. will damage that bond.  For a child under two, I am of the view that twenty-four hours is a lengthy separation.  Additionally, even absent my findings regarding family violence, it would not be appropriate for Mr. R. to exercise overnight parenting time with H., given that he did not undertake that role when the parties lived together.  Simply put, Mr. R. has never been the person who regularly got up and comforted her when she awoke in the middle of the night.

[86]        Mr. Tyo has provided me with the decision of the Saskatchewan Queens Bench of Cooper v. Cooper 2002 SKQB 151 on the question of whether overnight access should be ordered for a baby.  In that case the court ordered overnight access in regard to a one year old child, while noting that academic opinions that overnight access may not be appropriate until a child reaches age three reflect “an outdated view of parent-child relationships.” (para 8).  I note, however, that Cooper is a 2002 decision and the learned article referred to was dated 2000, which is now 15 years ago.  The opinions relied on therein may themselves be outdated at this point.  Mr. Tyo also provided the case of Reiss v. Nyegaard (2011) BCCA 115 as authority for the proposition that the courts have recently approved of that literature.  (I note that Reiss v. Nyegaard involved a seven year old child.)  Each of these cases refers to only one side of the “Parental Roles v. Attachment” academic debate on the subject.  No expert evidence was presented to me to support Mr. R.’s position and I am not persuaded that I should order overnight parenting time in this case simply because another judge did so in different circumstances over a decade ago, or involving a child who was seven years old.  In any event, neither of these cases involved granting overnight access to a perpetrator of family violence.

[87]        Given my decision that parenting time must be supervised the issue of overnight parenting time is moot.  I have found that Mr. R. shouted at his daughter when his sleep was disturbed by her in the past.  As a result, I cannot be satisfied now that Mr. R. would behave with appropriate patience, calm and comfort if disturbed by H. in the middle of the night.  Without the intervention of another adult, H. could very well come to grievous harm.  It is difficult to envisage a scheme that would provide overnight supervision in sufficient proximity to be adequate to protect H.

[88]        I am of the view that frequent but relatively short parenting time visits are in the best interests of a child of H.’s age.  In October 2014, I ordered, on an “interim basis”, a parenting schedule involving three parenting visits between Mr. R. and H. per week (Wednesday, Saturday and Sunday), three hours per visit.  The parties both appear to be of the view that visits of longer than three hours are now appropriate.  Ms. M. suggests two seven hour visits, but only every other week, plus the Wednesday three hour visit.  Mr. R. is seeking Wednesday - Thursday, plus Saturday through Sunday parenting time, but also comments that parenting time is difficult to manage with his work schedule.  He also indicates that he is working out of town and that his schedule is changing.  As I have previously mentioned, I am not satisfied that overnight parenting time is appropriate in this case.  In the circumstances, I am prepared to order that parenting time visits be extended to four hours, but that if the Wednesday parenting visit is missed due to Mr. R.’s work schedule it can be made up on the weekend visits, provided that no visit is no longer than seven hours and ends no later than 7:30 PM or as agreed by the parties.  The parties are, of course, free to agree to additional parenting time.  All parenting time must be supervised by a person agreed to by Ms. M. or approved by the Court.

[89]        It generally makes sense for the pickup and drop off to be at each other’s homes, because that minimizes the number of times the child has to be taken out of and placed in a vehicle.  However, the evidence before me is that pick up and drop off at home may exacerbate the difficulties between the parties.  Thus, the best place for the present is a public place.  The parties have suggested the Shell Gas Station at Parkridge Heights, so the pickup and drop off will occur there, or such other place as the parties agree.

[90]        There appears to have been some confusion about who should be present at the pickup and drop off.  Mr. R. will have to attend pickup and drop off in the company of the parenting supervisor, unless the parties otherwise agree.

[91]        It is apparent that Mr. R. resents time required to communicate the information and instructions provided by Ms. M. when she delivers H. to him for parenting time.  In order to minimize the opportunities for friction, the parties will use a communication book to provide information about H. to each other, which will travel with H. back and forth on parenting visits.

[92]        During his testimony, Mr. R. indicated he was willing to abstain completely from the consumption of alcohol and non-prescription drugs and to wear an alcohol monitoring device provided that Ms. M. did the same.  While there is ample evidence in favour of the imposition of such a condition on Mr. R., he has not, in my view, established any basis for the Court to impose such a condition on Ms. M.  Thus I find his offer in that regard to be disingenuous.  In submissions, Mr. R. was more conservative.  The submission on his behalf was that a mutually binding abstention clause should be imposed.  I find that also to be disingenuous.  Mr. R. is the party with serious, long standing problem with alcohol and drugs and it is he who has been taken to hospital twice due to suicidal threats, alcoholism and drug use and it is he who attended residential treatment and relapsed, not Ms. M.  I therefore order that Mr. R. will not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed by a licenced physician, during parenting time and for 24 hours before having parenting time.

[93]        I have considered whether to impose a condition requiring Mr. R. to wear an alcohol monitoring device, in order to have an independent record of his compliance with the abstention condition.  Such a record would go a long way toward satisfying Ms. M. (and the Court) that Mr. R. is, in fact, in solid recovery from alcoholism, which in turn would reduce one of the concerns the Court must have regarding the best interests of H. while she has parenting time with her father.  I therefore order that Mr. R. participate in an alcohol monitoring program for a period of four months, and to provide the records and results of such monitoring program to Ms. M.

[94]        Another concern that I have regarding Mr. R. parenting ability is his demonstrated (and admitted) tendency toward overwhelming anger.  He admits that he is unable to calm himself or control himself, and that he “breaks stuff” when he becomes angry, with apparently little or no provocation.  I also note that this anger has also manifested itself in extremely vindictive verbal outbursts of a misogynist theme directed at Ms. M.  He appears to engage in a cyclical pattern of escalating demands and abusive outbursts, followed by profuse apologies and promises to improve, which is quite typical of spousal abusers.  He has clearly been unable (or, despite his profuse apologies, unwilling) to improve himself in this regard.  However, unless he deals with this problem he will continue to pose a danger to his daughter such that his parenting time will continue to require supervision.

[95]        Pursuant to s. 224(b) of the FLA, I therefore order Mr. R. to enrol in and attend anger management and respectful relationships counselling and to provide proof of his attendance and a report on his progress to the Court and Ms. M. prior to seeking any change to the requirement for supervised parenting time in this order.  I further order that a copy of these reasons must be provided to any such counsellor upon enrolment.

[96]        It is very clear that both parties here struggle to overcome their animosity and mistrust of each other.  However it will be very harmful to H. if they do not find a way to communicate to and about the other party in a positive, polite and respectful way.  H. may not yet be verbal, but she is absorbing everything around her and will be harmed by talk that is disrespectful of or demeans either parent in her hearing.  In view of Mr. R.’s threats to vilify Ms. M. to H., it is particularly important, in my view, to have a clear order governing such conduct of the parties and any members of their friends or relatives who have contact with H.

[97]        I therefore order that:

[98]        I urge the parties to do their utmost to govern themselves with the best interests of H. in mind. They have brought this little girl into the world and as her parents both Mr. R. and Ms. M. should do their utmost to give her the most loving, nurturing environment that they can.  H. is not a rope in a game of parental tug of war, nor a stick to beat the other parent with.  If she is treated that way everyone, including H., loses.  I hope that Ms. M. and Mr. R. can put aside their differences and work together sufficiently that H. can benefit from the support and love of a large extended family on both sides of her family tree.